DACA appears safe, for now. It seems media across the spectrum reports that it's a(nother) broken promise for Trump - with the Washington Times adding that the reversal "enrages conservative base" and the Daily Caller bemoaning that "100,000 illegals got amnesty in Trump's first three months." Rep. Steve King - who wonders how "we" can "restore our civilization with other people's babies" - has mulled bringing a lawsuit against Trump (I think that would be lawsuit #136 or thereabouts) to kill DACA. Obviously this isn't over yet.
​
But it is clearly a reversal of a campaign promise. I was certain that the first things Trump would do would be reinstate a Muslim registry and revoke DACA. (Silly me, it was a Muslim ban and ramped up ICE raids.)

But a few points:

1. If DACA is ok, so was DAPA. The only real difference is number of people impacted. The legal authority is identical.
2. The decision to keep DACA (for now) is political, not legal. That's a testament to the formidable power of the Dreamers, and a lesson to everyone else. It's also reassuring to see evidence of rational thought from the administration. But remember, there's no final decision. DACA can still be revoked at any time.
3. I wouldn't let Trump's base forget that he bowed to the Dreamers. Or failed to repeal the ACA. Or kept the H-1B program. Or saw a use for NATO. Or backed off calling China a currency manipulator.
4. A lawsuit by Steve King or anyone else wouldn't necessarily result in loss of DACA. Remember, DAPA wasn't killed, it stalled. It was a preliminary injunction; there was never a ruling on its ultimate constitutionality. To kill DACA, then, is an uphill battle for Steve King, even with Gorsuch on the bench. It also would presumably mean the Trump admin would be forced to defend DACA in court, multiple times. That won't go over well with his base. He could flip and revoke DACA after all, but doing that in response to a King lawsuit would galvanize Dreamers and their allies. Either way, the admin's in a pickle, and I think it makes sense for Dreamers to force the admin into a pro-DACA position it will have to defend.

​Updates here; follow me on Facebook or on Twitter @HMAesq for notifications; on Twitter follow #TantonPapers. Last update: 09/30/2021

BACKGROUND

As an immigration lawyer and advocate, in the wake of ICE raids, stalled immigration reform, detention of children, denial of due process, ramped up deportations, and targeted travel bans, I am committed to stop what I see as the legalization of xenophobia which will have the effect of creating a permanent and disenfranchised underclass.

There is a purposeful and intentional movement to achieve that nefarious goal, to which there must be a purposeful and intentional response, and to thwart against which there should have been a purposeful and intentional movement.

There have been various anti-immigrant, exclusionary policies pushed over the past 15 years. Behind modern players like Kris Kobach, Jeff Sessions, Stephen Miller, Steve Bannon, and others in the new administration is the trifecta of anti-immigrant organizations: FAIR, NumbersUSA, and CIS. Like any organization, there have been lots of hands stirring the pot for a very long time. But sometimes, you can find a lynchpin. I believe one such lynchpin behind all three of these organizations is one man: John Tanton. 

Dr. Tanton is best described as an environmentalist turned immigration restrictionist, and someone at least sympathetic to white nationalism. The groups he founded and/or nurtured - FAIR, CIS, NumbersUSA, and other ones such as US Inc. and US English have collectively stalled meaningful immigration reform for decades. Kris Kobach is of counsel to the legal arm of FAIR. The former executive director, Julie Kirchner, is now the ombudsman of USCIS. FAIR's writeups strongly influence immigration policy, as in the case of the administration's "Declined Detainer Outcome Report." The list goes on.

These organizations inform US immigration policy, and Dr. Tanton was the grand wizard behind them. Bans, raids, private prisons, deportation as a cure-all, fanning hate of refugees and immigrants? Much of it traceable back to FAIR and, ultimately, Dr. Tanton.

THE TANTON PAPERS

Tanton was a prolific writer, thought leader, and connector. He has been suffering from Parkinson's and is apparently retired from public life, but his thought lives on.

His papers from 1960 to 2007 were donated to the University of Michigan's Bentley Historical Library and are currently located in 25 boxes. Boxes 1 - 14 are open without restriction, but boxes 15 - 25 are closed until April 6, 2035. 

The modern version of Tanton's thought has become White House immigration policy, and so far has a long way to go to be reversed by President Biden. I believed the public interest is served by investigating that connection. That means unsealing boxes 15 - 25.

What's in the Sealed Tanton Papers? According to the BHL, among other things:

• Meeting minutes of FAIR from its inception in 1979
• Nine folders labelled "Pioneer Fund" (a group founded to promote the genes of white colonials that funds studies of race, intelligence and genetics)
• Voluminous folders on immigration, including state-specific tomes
• Information on various other organizations including CIS, IRLI (to which Kobach has been of counsel for many years)
• Dr. Tanton's private correspondence 

​
In short, the sealed Tanton papers will shine a light onto the conceptual foundations of the anti-immigrant movement, as well as its strategic plans and key players. It may help us understand the origins of the groups currently informing White House immigration policy, and how the thought evolved from Tanton's environmental concerns to the policies we've seen in 2017, including the Muslim bans, ICE raids, and ramped up enforcement.


THE FOIA ACTION

On December 16, 2016 I filed a Freedom of Information Act (FOIA) request with the University of Michigan. As expected, the University requested additional time. Eventually they responded, asking for a deposit to cover one-half of the estimated FOIA expenses.

The Southern Poverty Law Center and the Michigan chapter of the Council on American-Islamic Relations both recognized the importance of transparency here.  The SPLC has been reporting on the Tanton hate networks for decades. 

I sent in the money to the University, but on May 8, 2017 my request was denied. The University took the position that since the records were sealed, they were not "public records" within the meaning of the Michigan Freedom of Information Act.

I filed an appeal with the President of the University of Michigan on May 16, 2017. I argued that under binding Michigan Supreme Court precedent, the documents still were public records retained by a public body for an official purpose. The presence of some mysterious arrangement to seal the documents was simply apropos. I sent in a draft lawsuit, indicating my intent to avail of judicial process if the denial was not overturned.

On May 30, 2017, the President denied my appeal. Counsel for the President Liz Barry wrote the sealed papers were restricted due to a valid charitable gift agreement, and failure to abide by that agreement would chill potential future donors from donating key historical papers, undermining the University's essential function to preserve that history.

Having exhausted all options with the University, on Monday, June 12, 2017 I filed a lawsuit against the University seeking an order compelling production of the Sealed Tanton Papers. The case has been assigned number 17-000170-MZ by the Michigan Court of Claims. The suit was dismissed by the Court of Claims on Nov 20, 2017 and an appeal was filed to the Michigan Court of Appeals. Having been fully briefed, oral arguments were heard at 11 am on August 15, 2018.

On June 20, 2019, the Court of Appeals ruled in my favor, finding that the Court of Claims improperly dismissed the action, and all but finding that the Sealed Tanton Papers are public records under the Michigan FOIA. 

The University filed leave for appeal before the Michigan Supreme Court, which granted same, but ultimately ruled affirming the Court of Appeals decision on April 9, 2021. The case was remanded back to the Court of Claims, finally, for trial. The University, as expected, filed a Motion to Dismiss, which was denied on September 30, 2021.

The papers emphatically are public records. A public body like the University cannot insulate records from the Freedom of Information Act simply by private agreement, and that in any case, the public interest on these facts trumps whatever privacy or other interest may suggest against disclosure.

Instead of allowing a trial, the University sought leave to appeal to the Michigan Supreme Court. That request was granted, and oral arguments were held on January 6, 2021. A decision is forthcoming, hopefully by July 2021.

Latino Rebels, We’re Suing to Compel Disclosure of the Tanton Papers (Jun 6, 2017)
Ann Arbor News, University of Michigan sued over anti-immigration activist's records (Jun 20, 2017)
Patriot Not Partisan, Why You Need To Know Dr. John Tanton, Founder Of The Anti-Immigrant Movement (Aug 15, 2017)
Detroit Free Press, University of Michigan blocks release of hot-button records of anti-immigrant leader (Oct 17, 2017)
​Michigan Daily, Bentley Library faces lawsuit over access to anti-immigration activist’s documents (Oct 18, 2017)
El Vocero Hispano, Universidad de Michigan bloquea publicación de documentos controversiales de líder antiinmigrante (Oct 20, 2017)
Univision Noticias, ¿Qué quiere decir Trump cuando habla de acabar con la 'migración en cadena'? ​(Jan 15, 2018)
Splinter News, The Eugenicist Doctor and the Vast Fortune Behind Trump’s Immigration Regime (Jul 5, 2018)
Michigan Radio, Suit seeks anti-immigration documents from UM (Aug 15, 2018)
Detroit News, Lawyer fights UM to see immigration foe's papers (Aug 15, 2018)
America's Voice, As Events This Week Prove, Anti-Immigrant Hate Groups Are in Control With the Trump Administration (Aug 15, 2018)
Detroit Free Press, Anti-immigrant leader focus of 10 secret boxes at U-M library (Aug 16, 2018)
Daily Beast, University Fights to Keep Anti-Immigration Leader John Tanton's Papers Secret (Sep 2, 2018)
Library Journal, Attorney Sues for Access to Tanton Papers in Closed Archive (Sep 18, 2018)
Daily Beast, Fighting White Nationalism Is Necessary, but Not Sufficient​ (Mar 16, 2019) [OP-ED]
Detroit News, Appeals Court Rules Against UM in Bid to Keep Immigration Foe's Documents Private (Jun 21, 2019)
Detroit Metro Times, Appeal court rules against U-M in case to keep anti-immigration leader's documents sealed (Jun 22, 2019)
Michigan Daily, Appeal court rules ‘U’ to release anti-immigration documents (Jun 24, 2019)
Detroit Free Press, Appeals Court favors release of University of Michigan records of anti-immigrant leader (Jul 6, 2019)
Los Angeles Times, John Tanton, quiet architect of America’s modern-day anti-immigrant movement, dies at 85 (Jul 18, 2019)
Detroit Free Press, Anti-immigrant leader Dr. John Tanton of Michigan dies at 85 (Jul 18, 2019)
Washington Post, John Tanton, architect of anti-immigration and English-only efforts, dies at 85 (Jul 21, 2019)
Blue Virginia, The Terrifying Anti-Immigrant Agenda of John Tanton, Who Died Last Tuesday, Is Also Donald Trump’s Agenda ​(Jul 22, 2019)
Slate, The Godfather of the Anti-Immigration Movement [Podcast] (Jul 29, 2019)
Detroit Free Press, University of Michigan fights to keep files of anti-immigrant leader sealed (Aug 29, 2019)
Michigan Daily, Petition demands ‘U’ release documents of anti-immigration advocate ​(Sep 11, 2019)
The Intercept, Newspapers Quoted Anti-Immigrant Groups as Expert Sources (Sep 12, 2019)
Pittsburgh City Paper, How Pittsburgh’s Colcom Foundation is 'greenwashing' its anti-immigrant message ​(Mar 11, 2020)
WILX, Michigan’s top court takes case involving documents at U-M (Mar 15, 2020)
Michigan Live, State Supreme Court to hear case on anti-immigration activist’s papers housed at University of Michigan (Dec 29, 2020)
Detroit News, UM Tells Supreme Court anti-immigration activist's documents not public records (Jan 6, 2021)
Virginia Mercury, A Virginia attorney has been seeking sealed papers from a major anti-immigrant activist for years. What do they show? (Jan 7, 2021)

The 4th Circuit opinion keeping the Muslim Ban blocked - with concurrences and dissents - is a stage for a final showdown before the Supreme Court. A full panel of 13 judges ruled, 10 in favor of upholding the block on the ban, but not all for the same reasons, with 3 dissenting.

As one of the volunteer airport lawyers at Dulles, I was initially very excited yesterday to hear the ruling. After reading everything, though, I'm much more reserved, and not as excited. Because if (when?) this goes before the Supreme Court, the fragmented spectrum of rulings from the Court provides enough material for 5 Supreme Court justices to allow the travel ban to be reinstated.

I hope I am wrong. The 9th Circuit still has to rule. But the constitutional question on the limits of executive power has, to my knowledge, never been tested in this particular way. Perhaps the Supreme Court will deny certiorari and not take it up, but it likely will, eventually. And it should. Because there will be more bans, more walls, and more raids.

Analysis of Fourth Circuit Opinion

The majority opinion boils down to the words "bona fide." It is based on these words that the court was able to choose the appropriate Constitutional spotlights, with appropriate intensity and wattage, to strike down the government's argument.

After explaining the procedural posture of the case, the Court found that review of the Establishment Clause argument was appropriate. Next, it found at least one plaintiff to have standing (the legal right to bring the lawsuit) and rejected government arguments attempting to shield the order from judicial review.

Next was the question of what constitutional test - spotlight - to choose. The starting point was the Mandel test - which asks only if the action was "facially legitimate and bona fide." The court found while the second Executive Order (EO-2) was facially legitimate, it wasn't bona fide, because of the mountain of evidence of religious animus, both pre- and post-inauguration.

The Court elegantly joined two lines of cases to find that because EO-2 wasn't bona fide, it could apply the much stronger Lemon test. Lemon allowed the Court to peer behind the order and consider all the statements made by Trump and his advisors. While there may have been a facially legitimate/secular purpose of national security, the primary purpose of EO-2 was to discriminate against Muslims, and therefore, it fails. Of note: the Court was careful to note that this conclusion only made sense in this highly unique set of circumstances, where you had a single actor (Trump) saying he wanted to discriminate, and then going ahead and more or less immediately doing it.

Concurring opinions expanded the findings - no doubt to be relied on by the liberal Supreme Court justices like Kagan, Sotomayor, and Ginsberg. For example, one concurring opinion found that Trump overstepped his authority in even enacting such a ban whether the Establishment Clause was violated or not, because there had to be a "finding" that banning entry was in the national interest, and he made no such credible finding.

Judge Neimeyer's dissent, on the other hand, predictably found that the majority completely misread Mandel, and there was no justification to apply strict tests like the Lemon. In other words, they chose much dimmer (and fewer) spotlights.

Judge Shedd's dissent went further, and found that the courts shouldn't even question national security measures. For all intents and purposes, Shedd relied on one of the Supreme Court's most odious and repudiated (but still unreversed) decisions: Korematsu (the Japanese internment case). And Judge Agee went even further and found no plaintiff even had the right to bring the suit in the first place, neatly avoiding the entire messy Establishment Clause fight altogether. 

Between 13 judges, then, battle lines were drawn.

Why I'm Worried

Niemeyer's dissent is well-reasoned. True, he may have overstated the majority opinion somewhat, in that it's not that the majority created a new rule of law (read: spotlight), it comes down to whether Mandel allows that spotlight once you find that the EO isn't bona fide. But Niemeyer is not clearly wrong - and hence my subdued tone. I think Shedd and Agee were wrong: standing clearly exists, and relying on Korematsu in substance would be a legacy-destroying move. 

The bottom line, however, is that the majority opinion did go through some legal maneuvering to turn on the Lemon spotlight. I believe it was correct, but I'm not sure the Supreme Court will agree. There is far too much precedent mandating a hands-off deferential approach to matters of immigration and national security, and this EO is both.

A justice like Alito is a staunch supporter of religious freedom, but I'm not convinced he will do so in the immigration/national security context. Thomas will likely uphold the Muslim ban, and all the tools are there in Niemeyer's opinion to give reason for Chief Justice Roberts to uphold it as well. Justice Kennedy isn't much a fan of the Lemon test, though he is troubled by religious animus. Justice Breyer believes in deference, and is acutely sensitive to judicial overreach, though he will probably join the liberal wing of the Court in a case like this. And while recently appointed Justice Gorsuch is new, his originalist and literalist constitutional philosophy will gravitate towards upholding the ban.

So if Roberts and Kennedy uphold the ban, a 5-4 decision striking the Fourth Circuit's decision is a very real possibility. I sincerely hope the Ninth Circuit, in its upcoming ruling, picks apart Niemeyer's dissent, because the majority opinion of the Fourth Circuit didn't.

Takeaways

First, it was important that to make out an Establishment Clause violation, "feelings of marginalization" suffice to show injury. That means it becomes *incumbent* on us all, individually and collectively, not to let invidious discrimination slide. If we don't record it in public consciousness, the courts will have no measure to find injury. 

Second, take interest in who our judges are. Collectively, our panoply of judges is more important than who the President is.

Third, be proud of our Constitution and doctrine of separation of powers. I would be remiss if I didn't express what it felt like to read this cold, calculated legal analysis that protected the rights of my brothers and sisters in faith. After seeing examples of state-sanctioned discrimination in legal regimes around the world, I was filled with a sense of pride in our system that protects the rights of everyone.

Fourth, as one of the volunteer airport lawyers in the wake of these travel bans - holding our elected officials to the test is what made today's ruling possible. We fought for travelers from 7 countries, but were protecting something much larger that was under attack. Plaintiffs were found, and a legal strategy emerged. Many things had to fall into place in exactly the right way to make today's ruling possible.

Fifth, this isn't over. The administration is driven by an ideology. Even if they lose this battle, they are busy stacking the judiciary with judges of their liking, and building narratives correlating immigration and Muslims with crime and terrorism. Two years from now, the exact same ban could resurface, and the result would be opposite. 

​No doubt, this is a stress test on our system of government. So far, it seems to be holding up. Law is the glue that holds our society together, and the disintegration of the rule of law will affect all of us, whether we like it or not.

We have proudly served immigrants from over 115 countries and counting. But two of these groups have been very visibly targeted for years, and certainly under the current administration: Muslims and Latinos. As I wrote over a year ago when the divisive 2016 campaign was still heating up, the time for a strong alliance between these two communities has long since past.

I don't mean to say there aren't efforts to do so. But we need more. Too many folks on one side aren't familiar enough with the parallel struggles on the other side. As lawyers who serve both, we see the genesis and execution of these policies up close and personal.

We need to see these policies as starting from a place of hate, and understand the "evil genius" process that goes into engineering these policies for maximum impact. Time spent identifying these parallels - whether between Latinos and Muslims, or any number of other communities - has a unifying effect on otherwise disparate channels of resistance.

We need visible examples of the commonality of the struggle for rights between groups. Actually, we need to make the examples visible.

How we approach resistance to these policies is as important, if not more, than the substance of the resistance itself. ​The White House seem to have a much clearer idea of what they want to do, though they have definitely suffered a series of humiliating setbacks.

But if we assume the White House is a "unitary actor" then much of the rest of the population are highly fragmented multiple actors. That's less "diversity" and more " disorder" - lacking a common vision, and hence unable to focus. Certain segments are called out, perhaps, more than others (or at least each group is made to feel like they are being called out more than others.) Muslims complain of Islamophobia, Latinos about anti-immigrant sentiment, Jews anti-Semitism, etc. etc. Everyone in their own tidy category.

Believing you have it worse than others inhibits collaboration and communication. Whispers that "it might not be so bad" if you just "give him a chance" similarly inhibit collaboration. Inter-immigrant bigotry, racism, and misogyny also inhibit collaboration.

The fact remains, it's hard to unify disparate classes. People do feel more comfortable with people like them. But rallying around "not Trump" will take you nowhere - you can't expect your GPS to navigate if you put in a place you don't want to go.

So to everyone on the ground, my colleagues who were at the airports, the folks tirelessly working with elected officials to protect due process, the folks at high-level meetings, the rally organizers, the marchers: please take a moment to remember that while another community's fight might seem different to you, it's usually not.

Make sure you're not accidentally registered to vote if you're not a citizen.



On May 11, 2017, President Trump signed an executive order to create a new Commission for Election Integrity. Vice-chaired by notorious anti-immigrant Kris Kobach (the guy who designed the Muslim registry, NSEERS, and co-authored Arizona's "show me your papers" law) this new commission will seek to uncover "widespread" evidence of voter fraud. He promised to do this early on in his Presidency:

That means they will be looking for anything to increase the number of supposed cases.

A few years ago, we represented a refugee who had gone to the DMV to get a driver's license and, unbeknownst to him, had registered to vote by signing onto a "packet" of forms. No one asked whether he was a US citizen; he was eligible for a driver's license, and that was it. He nearly lost his chance to become a citizen - we were able to "timely recant" his registration, to prevent his near-certain deportation. (There are very few waivers for falsely claiming to be a US citizen.)

These cases are more common than you'd think: most folks doing voter registration drives are not aware of the consequences of voter registration on non-citizens. With Trump's new commission, we're going to see a lot more. One of the things Kobach has said he wants to do is to run the immigration database against the voter rolls. Once that's done, we're going to see prosecutions for voter fraud skyrocket, and all of these people - many of whom may have accidentally registered - will be placed into deportation proceedings.
Protect yourself. If you are not a citizen, call your local election board (usually at the county level) and make sure you are NOT registered.

This Wikipedia link has links to nearly all state voter portals, which may help you be able to search for your name.

https://en.wikipedia.org/…/Voter_registration_in_the_United…

And if you are a non-citizen and find you are registered to vote, contact a lawyer immediately.
​

I work with a bunch of amazing lawyers.

One of the challenges to the #MuslimBan 2.0 is pending in the US Court of Appeals for the Fourth Circuit. A group of 302 lawyers across 25 airports signed on to an amicus brief ("friend of the court") to detail the chaos and due process violations that occurred in the wake of the first Muslim ban in January.

Along with my colleagues across the country, we jumped at the chance to swear out declarations to shed light on what happened at airports around the country (and some internationally) for the benefit of the learned appellate judges.

Besides the obvious chaos, here's just some of what my colleagues saw around the country:

1. Widespread denial of access to counsel in nearly every airport.
2. Widespread reports of CBP officials caught completely unprepared with the order, and having no idea what to do.
3. Outright defiance of federal court orders (deporting a student after judge's temporary restraining order; not allowing access to counsel even when ordered to by judge)
4. Lawyers reporting specific laws they could have used to reduce detention times and facilitate processing - ie, *helping* CBP officials to their jobs - but were denied the opportunity to do so.

As signatory amici to the court, we wrote to the Fourth Circuit:

Thank you all for stepping up to protect due process. I am proud to stand with you all.

"Know your rights" has become a hashtag, and for good reason. Where your civil and constitutional rights are questioned or threatened, you have to, at a minimum, know what those rights are.

But this isn't enough. It does no good to know your rights if you're not going to use them.

Yesterday, one client I met with had been arrested (and then released) by ICE when he was out taking the trash - they were looking for someone who looked like him. Another raised a family here and had tried numerous times to obtain lawful status, but was misled by a "notario" who filed a frivolous petition for him. I also heard from a law enforcement officer who indicated a third client's citizenship application was "in a holding pattern" and wanted to "ask some follow up questions" to move things along.

Fear kills your intelligence. It's hard enough to know the right thing to do. That's what we lawyers try to do: we try to figure it out for you. Make a plan. We want to empower you to "tome su caso en sus proprias manos" - take your case into your own hands. But that means it's not enough to just know your rights. You have to use them, claim them.

I know that's a lot easier said than done, but knowing your rights is only the first step. Using them is what really matters. Your rights don't apply only when the FBI calls, or when ICE arrests you. They exist around you, all the time. You might be undocumented - but have an asylum case like the first client. You might have tried numerous times before, but then discover you have a U visa case, like the second client. And you have a right to have a lawyer present when law enforcement contacts you, like the third client.

You shouldn't wait until ICE knocks before using your rights.

​Veteran journalist Scarborough tweeted, "I had said Friday was the worst day of Donald Trump's presidency. I was wrong. It is today." He was referring, of course, to FBI director James Comey's March 20 confirmation of an investigation into Trump and his team's connections with Russia. It's almost like emails, except it's a thousand times worse.

But folks like Trump continue to paint pretty pictures of themselves, and pretty horrid pictures of everyone else. Merriam-Webster defines propaganda as "the spreading of ideas, information, or rumor for the purpose of helping or injuring an institution, a cause, or a person." (Emphasis added.)

Today, the Trump administration released more propaganda, but it wasn't about the Russians.

Section 9(b) of Executive Order 13768 (the one best described by the hashtag #ICERaids) mandated a weekly report from ICE on the number of declined detainers. Called the "Declined Detainer Outcome Report,"  it lists the jails that allegedly failed to honor detainers, requests by ICE to hold over detainees for up to 48 hours until ICE could come pick them up and begin the deportation process.

That costs taxpayers additional money on what is already an extremely expensive process. It turns jails into deportation pipelines, and exacerbates (many times for very minor violations) the traumatic effect of deportation on children, family, and employers. More simply - it's not a local lawman's job to enforce federal immigration law. ICE continues to complain they aren't getting any help, but Trump is giving them 10,000 more officers. ICE knows there is no way to deliver on a campaign promise to deport millions of undocumented people. So, crowdsource. Make others do your job and protest if they don't. It's like complaining about your bad grades because the smart kid didn't help you.

Trump didn't come up with this on his own. At least as far back as July 2015, the right-wing think tank Center for Immigration Studies urged Congress to mandate local cooperation with ICE detainers, running through the same type of numerology seen in today's DDOR. For those who may not be familiar, CIS began as an "independent" offshoot to FAIR, the Federation for American Immigration Reform. CIS began as a FAIR program, which was started by Dr. John Tanton, a far-right white nationalist who believed Latinos were not as educable, saw immigration as a threat, and whose organizations have now grown to wield considerable influence in the current White House. 

That the CIS report from 2015 and today's DDOR report from ICE are barely distinguishable speaks to the root of the problem: xenophobia rooted in white nationalism is informing the immigration policy of the United States.

Note that the DDOR lists people who were both charged and convicted. This is because ICE wants to count people charged but not convicted as people "released" by uncooperative law enforcement. That the charges may have been dropped (or pleaded down; the DDOR does not clarify) is of no import: under the new administration, they are all top priorities for deportation. (In fact, even being charged isn't necessary; just that ICE believes you committed an act that would be chargeable as an offense, and if not that, just being a threat to public safety, which includes merely overstaying a visa, which is not even a crime.)

The DDOR is an attempt to shame jails into doing ICE's job. Jails that don't perfectly comply are broadly labeled as "uncooperative jurisdictions." And, of course, it lists cherry-picked data clusters of mostly low-level offenders and lists their country of nationality. It even counts as "declined detainers" where the jail did inform ICE of the presence of a foreign national, but not quickly enough. Acts of terror perpetrated by white nationalists, or crime committed by those born in the United States is simply not reported. Coupled with Trump's misguided VOICE office (singling out victims of crime committed by immigrants) and other reports on immigration benefits issuance broken down by country, the administration seeks to continue the process of building a state-sanctioned alternative factual narrative correlating immigrants and crime. See generally, definition of "propaganda," above. 

The ICE raids and the Muslim ban have taken up a lot of response time. But alternative factual narratives do much greater, long-term damage. We're being told this is about transparency, but we're only being shown one pane in the window. If we see it and call it the propaganda it is, we can engage in counter-propaganda, which is done by building bridges, strategic partnerships, and relentlessly discrediting the credibility and motives of the propagandists.

The American Anti-Arab Discrimination Committee (ADC) invited attorney Hassan Ahmad today to do a "deep dive" into the Muslim Ban 2.0 today, going over a lot of the policy considerations and details of the new ban. 

• The ban is a bigotry-flavored self-licking ice cream cone: national security experts and DHS have all agreed and stated that such bans are misguided and actually undermine national security, yet the administration persists.
• Enforce a ban, then create the mechanism to create the facts necessary to justify it. How? By publishing regular immigration statistics, and coupling it with reporting on foreign-born terror-related crime focused on Muslim perpetrators. Over time, this will build up an alternative factual narrative the administration hopes will defeat legal challenge.
• It weakly attempts to sever the Islamophobic rhetoric of the campaign trail and the "Muslim Ban" moniker by simply stating that this is not a Muslim ban. This may be the best indication yet that it is, in fact, a Muslim ban.
• It comes down with the implementation memo to DHS, which calls for rigorous enforcement of inadmissibility laws at the ports of entry. This is the counterpart to the calls for rigorous enforcement inside the US, which led to the ICE raids we've seen.
• The message is still the same: "We" don't want "you" here. Regardless of the shade of lipstick on this pig.

Follow attorney Hassan Ahmad on Twitter at @HMAesq.

​Watch the video:

The new executive order on immigration, dubbed "MuslimBan 2.0" signed March 6, 2017 presents a more nuanced, but still ultimately unconstitutional affront to religious liberty. Reviewing the redline version prepared by the ACLU of Massachusetts, coupled with the implementing memorandum to DHS, and the letter from AG Jeff Sessions and S-DHS Kelly to President Trump, a few themes emerge.
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1. How the new EO works (super briefly): Iraq is off the list. Effective date for remaining 6 countries is 3/16/17. Green card holders excluded from the new ban. Visa holders who have a valid visa as of 3/16/17 are also excluded. Refugee resettlement still paused for 120 days, but now includes Syria (which was indefinitely suspended in the old order) and does not include people formally scheduled for resettlement already. The cap on refugee resettlement is still cut to 50,000. But there are a number of exemptions to those who would otherwise be affected - these 'waivers' existed before but the new order goes into greater detail on what might constitute a waiver. Dual nationals are now exempted. But the EO still provides a mechanism to ban nationals of other countries, in a very similar manner, down the road.
2. The Self-Licking Ice Cream Cone: The MuslimBan 2.0 is an ex post facto creation of justification of the need for the ban. Like I said about the Muslim Registry, it is a bigotry-flavored self-licking ice cream cone, a scheme that exists only to serve itself. Enforce a ban, then create a mechanism to create the facts to justify it. This, even though the (actual, non-alternative) facts *from within DHS* thus far indicate that citizenship is an unreliable indicator of terror threat, and 10 high-ranking current and former national security officials swore under penalty of perjury that such a ban not only doesn't do what it purports to do, it actually undermines US national security.
3. Propaganda Clauses: The order creates reporting benchmarks for future factual justification of its need. The joint Sessions/Kelly statement comes at the issue from the administration's side, saying "we would benefit from a pause on immigration from affected countries," essentially parroting Trump's campaign rhetoric back to him. Trump directs Kelly to start publishing statistics on immigration - number of visas issued, green cards granted, etc. - all broken down by nationality. Every 3 months. Plus, reports on the costs of running the refugee admissions program. Simultaneously, the EO continues to mandate official government reporting of actions of foreign-born radicalization, terrorist attacks, attempts, and domestic violence (example: honor killings). Thus, as time goes on, a narrative can be built correlating visa issuance with terrorism, which will, eventually, survive constitutional scrutiny. Unfortunately, the administration's tenuous relationship with facts and truth makes any such "reports" inherently suspect, and are better described as propaganda rather than "transparency" as claimed by the administration.
4. Rigorous Inadmissibility: Although the classes of foreign nationals directly affected by the new MuslimBan are more limited than the original order, the implementing memo has a very concerning clause: "I direct the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of all other relevant executive departments and agencies (as identified by the Secretary of Homeland Security) to rigorously enforce all existing grounds of inadmissibility and to ensure subsequent compliance with related laws after admission." This is a direct call to rigorously enforce immigration laws at the border, and should be seen as a counterpart to the calls for enhanced enforcement in the interior of the US, which has led to the ICE raids we've seen over the past month. Remember - both officers at overseas consulates and border officials have a great deal of discretion to deny entry to foreign nationals. This is a call to "unshackle" them, giving them even greater latitude.
5. Plenary power: The new EO contains the same, if not enhanced reliance on Section 212(f) of the Immig. & Nationality Act (INA). This will continue to be the foundation of the administration's legal argument: that Congress has total power over immigration and the admission and exclusion of foreign nationals. Some of that power was delegated to the President, who can suspend entry of any particular class of foreign national he wants, while making it appear more digestible (by a 10 day phase in, excluding say, green card holders, etc.)
6. "Not a Muslim ban because we say it isn't." The new EO is cognizant that this looks, talks, walks, acts, breathes, and otherwise is a Muslim ban. And the reckless statements of the administration keep coming back to haunt them. Thus, they smartly recognized they would have to sever religious animus on campaign trail and the first ban from the new ban. They did this, largely, by merely stating, "This is not a Muslim ban." The Sessions/Kelly statement says the ban came from countries that are state sponsors of terrorism, or countries where territories have been lost to extremist groups. But if that's the case, many other countries should have been included - even under a restrictive, Muslim-only definition of terrorism. These, and other reasons (such as the delay in implementation for non-urgent reasons, delays requested in court proceedings, and persistently pesky real facts) undermine the administration's stated rationale. But whether a rationale is good or not will not be the subject of judicial review: there must be a violation of the law. Make no mistake: this is still a Muslim ban, and remains so regardless of the shade of lipstick applied to the pig.

The new ban still suffers from a very ominous deficiency: both the administration and terrorist groups stand to benefit from another attack. This is one reason the 10 national security officials stated these types of blanket bans are a bad idea, even if they are later tempered. Our judiciary took care of the first ban, but this administration has a narrative they want to protect and nurture. And they will keep blue penciling this order until some court somewhere upholds it.

There will be legal challenge. Where any new case is brought will have tremendous effect. I suspect some of the ongoing litigation will be turned to the new order, since it raises many of the same issues.
What are some things ordinary folks can do?

1. If you're a lawyer, we need you. Amicus briefs. Helping us find plaintiffs. Volunteer at airports (shout out to www.dullesjustice.org!) Offer to take a case under the supervision of an immigration lawyer. (Message me, I will help you!)
2. If you know another language, reach out to a local immigrants' rights group and offer your services to help translate or interpret.
3. LIGHT UP the switchboards on the Hill. Let your congressfolk know that siding with the administration will cost them.
4. Protest, protest, protest. Show up at airports and rallies. Spread your beautiful exercise of First Amendment rights on social media.
5. Support an immigrants' rights organization monetarily. There are too many to list here so I'll ask folks to post them in the comments below.
6. Go hug a lawyer. Yes, we need love too.