On June 22, pursuant to Trump's Executive Order, the Department of Justice asked a federal court to let the government out of some of the Flores settlement requirements. This binding settlement is the only law preventing the horrific caging of children apprehended by ICE.

Why? So that our government can efficiently detain families together in preparation for deportation.

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The Justice Department's "motion," asks for two "narrow" exceptions to the Flores settlement. First, to be able to detain families together. Second, to make family jails exempt from licensing requirements, which govern the minimum standards of care in these jails.

Here's what you need to know:

1. It is based on the false narrative that American immigration policies incentivize Central Americans to flee to the United States and "game" the system by filing weak or fraudulent asylum claims. Who says so? Thomas Homan, soon-to-be-ex director of ICE. Homan is a virulent anti-immigration figure with cozy ties to the white nationalist sympathizing groups FAIR and CIS.

https://www.cnn.com/…/trump-administration-immig…/index.html

2. Wholly missing is any discussion of the convoluted and inconsistent asylum process, the difficulty in proving these claims, the fact that the current DOJ is actively gutting the asylum law to make the claims nearly impossible, evidence that asylum seekers are denied the chance to make their claims, and sloppy procedures that fail to properly notify released people of their court dates.

https://theintercept.com/…/immigration-border-asylum-centr…/

3. The Justice Department is complaining that the only way to enforce the law is to detain families indefinitely. (Memo at 1) It freely conflates the word "crisis" with both the crisis *created* by Trump separating families, and the larger humanitarian one which the DOJ misleadingly calls a "destabilizing migratory crisis" - removing any reference to asylum seeking. (The word "asylum" appears only twice, and "refugee" 0 times in the entire 23-page memorandum).

4. The change is necessary, according to the DOJ, because of changed circumstances of a surge in border crossings. Missing is argument as to why that now makes lengthy incarceration of children a good idea. It also conflates enforcement of immigration law with deportation - there is no mention of "enforcing" INA 208 (governing asylum). This is because the Government fails to recognize the real change in circumstance: the collapse of the Northern Triangle into a terrible cauldron of violence.

5. The government asks to detain families together so that removal proceedings can be expedited. That is code for rob them of due process and deport them, together, more efficiently.

6. As a result of the false narrative, the Government argues it is stuck between two alternatives: separate families, or tolerate gaming of the asylum system. This is an absurd conclusion.

​There is a clear option: Give people a meaningful chance to tell their story. Let's not be afraid to listen.

Kamila Rivas is one of our outgoing Spring 2018 Interns and researched this piece on a very important topic. Earlier today, the Supreme Court of the United States granted the government's request to vacate an injunction permitting Jane Doe, a noncitizen minor, to obtain an abortion. (See Azar v. Garza, 584 U. S. ____ (2018)) While litigation will continue, the Supreme Court's decision does not bode well for the fight for reproductive rights.

This past Friday, Ireland voted decisively to repeal one of the world’s more restrictive abortion bans. The vote repealed the Eighth Amendment of the Constitution — a measure that conferred equal rights to the fetus and the mother, and banned abortion under almost all circumstances. Despite this victory for women’s reproductive rights, there are still five countries in the world where abortion, or the deliberate interruption of a pregnancy, is criminalized under all circumstances: El Salvador, Nicaragua, Dominican Republic, Malta and the Holy See. Even in the case of rape, incest, the non-viability of the fetus or when the mother's life is at risk, women in these countries have to take their pregnancies to term. Otherwise, they can face up to 50 years in prison.

In El Salvador, for example, according to the Penal Code all forms of abortion are punishable by up to ten years’ imprisonment. However, prosecutors in this country charge women whose pregnancies exceed 20 weeks of gestation with aggravated homicide. An offense punishable by thirty to fifty years of imprisonment.  Today, there over 20 women in El Salvador serving prison sentences of up to 40 years for having interrupted their pregnancies. Most of these women claim they had a miscarriage. Some, allege not even knowing they were pregnant. These laws disproportionately punish poor and uneducated women. Meanwhile, other women are able to get around the law by going to private clinics or to a neighboring country where this practice is permitted and performed safely, and have abortions in secret. Poor women simply do not have this option.

Sweden was the first country in the world to grant asylum to a woman fleeing criminal prosecution for having an alleged abortion. María Teresa Rivera was arrested in El Salvador, accused of having an abortion and sentenced to 40 years in prison on the charge of aggravated homicide. She claims having had a miscarriage and not knowing she was pregnant. Sweden granted her asylum on the basis of persecution on the account of political opinion. The Swedish Migration Agency declared that the nature of the treatment Maria Teresa suffered—specifically the time she served in prison, the sentence she was given, and the dangers she would experience if she returned to El Salvador—were “severe enough to qualify as persecution.” It also ruled that there was no “good reason to assume that the treatment she endured in the past will not be repeated.”

In the United States, the Immigration and Nationality Act (INA) of 1965 in section 101(a)(42) defines refugees as those individuals who are outside their country of nationality and are unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on the account of race, religion, nationality, membership to a particular social group (PSG) or political opinion.

From this definition we could say that women like Maria Teresa - from El Salvador or from any of the other countries with an absolute ban on abortion - could be granted asylum in the U.S. on the basis of political opinion, or on the basis of their membership to the following PSGs: (1) (insert nationality) pregnant women who are forced to bring their pregnancies to term when this implies a risk to their own lives and (2) (insert nationality) women facing criminal prosecution for ending their pregnancy.

Briefly, to establish the existence of a PSG we would need to show that the group in question is i) immutable, or that the group possesses a characteristic that cannot be changed or is intrinsic to the identity of the group, ii) particular, in so that it is clear who belongs to it and who does not, and iii) socially distinct, or in other words that society views it as a group.


If and once these PSGs are established, women would have to prove that belonging to either one of these groups made them have a credible and well-founded fear of persecution. The source of this fear could be having been a victim of persecution in the past or proving that there are strong indications that they would be victims of it in the future. In other words, women would have to show what has happened or is happening to women in their same situation, how that amounts to or constitutes persecution and why they, specifically, believe they would undoubtedly be victims of such persecution.

For the first group, past persecution can be demonstrated by the fact that a woman is “forced” to take her pregnancy to term even when this implied a severe - and potentially absolute - risk to her own life. By the State not giving her a choice or the tools and resources to at least try to save her life, one could say the State forced the woman to sacrifice her own life. For the second group, and similar to the case in Sweden, persecution could materialize itself in a criminal charge for abortion (or aggravated homicide resulting from an abortion) and imminent jail sentencing. In both cases, it would be important to prove that there is no indication that such treatments would cease in the future, and that thereby the persecution is on-going and inevitable.

An interesting comparison could be made with the cases involving Chinese women who were granted asylum in the United States on the basis of political opinion for having been forced to terminate a pregnancy or undergo involuntary sterilization in China. In fact, in 1996 the definition of refugee was expanded to include the following paragraph:  

For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

The expression “coercive population control program” is the key here. U.S. Case Law has not yet defined this, and therefore one could hypothetically argue that countries that criminalize all forms of pregnancy terminations employ a population control program, and by strictly enforce these laws they make it coercive. Applying the same logic than in In re J-H-S-, 24 I&N Dec. 196 (BIA 2007), women would have to 1) prove that there is a “family planning policy” prohibiting all pregnancy interruptions, 2) prove that they in fact violated said “policy” by terminating a pregnancy (voluntarily or involuntarily), via medical records, for example and 3) prove that such violation would be punished in a way that would give rise to objective fear (to the levels of persecution which could be physical or mental coercion). If they can do that, persecution would be established, and potentially, asylum could be granted.

​

Maria Nasir is a Spring 2018 Legal Intern and shares her thoughts on her own immigrant experience and how the right to petition our government for grievances is a quintessential part of her American dream.


“Are you American?” I always struggled with this one, even though my cousins in Pakistan declared early on that since I had the accent, I was in. That, and of course, the much sought-after green card. I always thought it was my Western clothing style or my appreciation for good ‘ole country music.

My dad arrived in the Lone Star State in the hot summer of ’93 with nothing but a green Pakistani passport, my mother, baby me, and a small suitcase all topped with big dreams for a bright future in medicine. Raised in a spacious Midland home while making summer trips back to Karachi, my siblings and I picked up the beautiful Urdu language and an intense love for our culture and faith. But we also got a front-row seat to poverty, without ever having to experience it. We picked up terms like first-world and third-world, justice, and freedom. My cousins would playfully brag about their country as if it were not mine and I would brag about America.

When the Twin Towers tragically collapsed, my classmates told me that I was in some way associated with the terrorists involved. As if I was the culprit, my cheeks flushed with shame and uncertainty. Islam was not only questioned by the world, but by a frustrated 9-year old me at the dinner table for many nights after. The much bigger world was opening up before my eyes and I, at times, found myself conflicted with where I belonged on its vast map.

Moving north to Missouri a year later and excited to have a fresh start, we took to exploring the neighborhood on our bikes and recruiting comrades for our upcoming missions. Our chosen comrades had no specific criteria; they could be of any gender, race, color, background, or faith. No questions were asked except whether or not they were ready to fight against the unknown dark forces. And, of course, the youth came prepared with curiosity, courage, and all the best equipment necessary for a sturdy fort. We faced adventures together in our basement as underdogs who come out on top in the greatest journey known to mankind. The stories we shared at imaginary camps under dark, yet starlit ceilings are all we needed to escape a reality we did not understand. I did not realize I would have to leave my shelter behind so soon.                                   
                                                                    
My father’s work moved us back to a Texas I was no longer familiar with, and I was starting high school with no friends and no confidence to start over again. I began to question what my parents got from leaving behind their motherland, family, and friends. Depression kicked in and my patriotism hit a new low. During this time though, our family of five huddled so close that we would look back fondly on these days. With them as my new comrades, I learned the importance of being able to maneuver the school hallways on my own. President Obama taking his seat in office as the first black president answered my previous doubts about my parents’ dreams for the priceless gift of freedom. The underdogs were rising as the face of the most powerful nation and I not only felt a strong sense of empowerment, but a warm sense of nostalgia.

The power to bring about change in my community started at George Mason University, a home that boasts its diversity as a strong asset. Through the deepest friendships, I now have a home in Saudi Arabia, Bahrain, Dubai, France, Sweden, Germany, Israel, Japan, Korea, and even India. The world’s vast map became much more accessible and suddenly, instead of searching for where I belonged, I wanted to explore it all.

Marches, demonstrations, spoken word poetry, and revolutionary art became my landscape for five years. Finding my own voice through the art of the written word, I joined the relentless resistance in the powerful Washington D.C. area as a Muslim, as a Pakistani minority, as a woman, and most importantly, as a fellow American. It did not take our naturalization last year to seal that deal. I realized that being American has nothing to do with the paperwork or the accent, but it has everything to do with the heart.

What naturalization has given me is easier access to both worlds. In fact, it has opened up the whole world to me in many ways I did not consider before. Personally, the greatest liberty of all is my right to vote and stir change. Having the chance to be on both sides of the spectrum when it comes to immigration, I am able to better understand why people continue to go through the process despite the uncertainty, long paperwork and waiting time.

What exactly makes the American dream a reality for people? It is the access we have to practicing the rights we have been granted and the chance to challenge the law where it might be weak or just downright broken, while also paving the way for empowerment for others. This is what America preaches. This is why I am proud to be American.
​
To reclaim our narratives, we must be willing to continuously stand up for justice again and again. We must make changes. As understanding makes way for change, the fort made with comrades from around the world will be a much more solid structure of peace than one touched by a single tribe.

By now, you've probably heard one of the latest buzzwords in the immigration debate: chain migration. You'll hear it constantly now. Some horrendous threat that must end in order to move on the #DreamAct. (Plus a wall.)

But how new is it? And what does it actually mean? Humza Kazmi and I investigated.

First, the term "chain migration" exists nowhere in the immigration law. Not in the Immigration & Nationality Act, the CFR, field manuals, memos, or FAQ's. The term for individuals sponsoring their family members is called (surprisingly): family-based immigration. Our immigration laws only allow spouses, parents, children, and siblings to be petitioned for. You must be a permanent resident or US citizen in order to do it. Sometimes the wait is 1 year or so. Other times, decades. There's no direct way to sponsor an uncle, grandparent, etc.

​The term "chain migration" has no basis in the law. It is a made-up term. But made up by whom?

 Interestingly, the concept was known in Nazi Germany. Propaganda posters showed the multitude of babies born to "inferior" races - and the charts look eerily similar to the ones used by the White House to warn o the dangers of multiplying immigrants.

The idea behind chain migration is much older.

In 2006, CIS (Center for Immigration Studies), in an article by James Edwards, Jr. (of the Hudson Institute) cited Roy Beck and began using the term "chain migration." CIS, of course, is an alter ego of NumbersUSA and both are tied to FAIR and ultimately their founder, Dr. Tanton, whose private papers I am seeking to unseal in a FOIA lawsuit I filed against the University of Michigan.

CIS began to use the term in more and more and more papers, pushing this #CampOfTheSaints myth that immigrants were just going to take over the world. Terms like chain migration suited the concept very well.

A Google Trends search on the term shows about when Trump first picked it up in November. Now, all of a sudden, it's a national emergency.

The term chain migration belongs in the same dustbin as illegal immigrant, criminal alien, and anchor baby.

IT IS A SLUR. A dehumanizing slur. Do not accept the framing. A lot of thought went into creating this term, and it goes back a long time.

It completely removes - mock, even - the idea of family unity. Even die-hard alt-right types know it's hard to sell "End Family-Based Immigration!" So - like "death taxes" - they came up with a much more convenient label. Never mind that it doesn't exist in the law. (Yet.)

It creates the false impression that an immigrant can immediately bring not only nuclear family members, but extended family members. A US citizen bringing a sibling takes 13+ years. A parent for an adult child may take 10 years or more. The only "quick" ones are spouses, children under 21, and parents of US citizens - they take just over 1 year. Of course, this assumes no delays caused by other reasons, such as the CARRP program for Muslims, lost files, or visa refusals.

I've heard Democrats use this term, and this fact has been thrown at me as proof that a) it's not a racist term, or b) Democrats are racist.

I don't care who uses it. It's a racist term, cooked up by those who've been clamoring for Muslim bans and ICE raids for decades. Ones who crippled the immigration law, turning it into a lumbering sloth that works neither in the national interest nor, as it stands, by common sense. And we're supposed to swallow some vague notion of "security" before being graced with an audience to talk immigration reform.

Sorry not sorry. Not buying the white sheet framing. Security comes from prosperity on either side of the border - walls don't help do that. Don't say things like "chain migration is what American immigration has always been about." It's not. It always centered around families. The least we can do is to honor that and not use a dehumanizing term. Dehumanization, after all, was a necessary precursor to near every genocide in history.

Labels matter. They create frames of thought. Repeating terms like "chain migration" reinforce that frame, limiting discourse to dangerously dehumanizing terms. Break free of the limits imposed by groups like CIS, FAIR, and NumbersUSA when talking about immigration. And learn a thing or two about the actual immigration system and how it (doesn't) work before opining on what you think immigrants should do.

A HYPOTHETICAL CASE STUDY

Let's take the example of a 35 year old Dreamer, #DACA expiring Mar 2018. He came to US with his parents at age 4. He has no criminal record, and has never left the US. He goes to see an immigration lawyer his family has been working with for years.

First: Our Dreamer is privileged, because many cannot afford counsel. Though they're maligned as "lawbreakers," the government doesn't provide them lawyers.

OK. Let's figure out how to help our Dreamer!


​
"Leave and come back legally."

Leaving will trigger a 10 year bar to reentry. A waiver (forgiveness) exists, but our Dreamer doesn't qualify. He has no parents or spouse who are US citizens or green card holders. An uncle is, but that doesn't help. Let's say he has US citizen kids. Well - to qualify for this waiver, hardship to kids doesn't count. He's out of luck.

"Afraid to go back? File for asylum!"

General fear of return is insufficient to win asylum. It must be on very particular grounds. Despite being federal, asylum law doesn't operate the same in all states. Failure to win asylum results in being placed in removal proceedings. And that's if Dreamer had no prior contact with ICE. If he has, he likely has an in absentia order of deportation. That means he would be barred from applying for asylum, unless he can show conditions in his country of origin have changed to create a new type of fear he didn't have before. Filing such a motion, if denied, would put him on the radar for deportation. 

"Just wait for the law to change."

Probably the best advice so far; "best" being relative. In the meantime, can't go to school, work legally, or drive. The #DreamAct has failed for 17 years and counting.

"Get married!"

And set down deeper roots into a country refusing to let him stay?

Even if he did, he still needs to win a waiver and return home to reenter. That waiver wasn't allowed to be filed inside the US until 2013. And still need to show hardship to USC spouse. Hardship to our Dreamer is legally irrelevant.

"Don't you have TPS or something?"

Only some Dreamers do; depends on their country. The largest proportion of Dreamers are Mexican and Mexico has never been designated for TPS. (And probably never will.) But this is being taken away by the administration, country by country, determined to leave #dedocumented as many immigrants as possible.

"Go talk to immigration."

In other words, serve yourself up to ICE. Not a good idea. They're not there to help. You're not setting up a payment plan with the IRS. Walk in, and you're on your own, buddy. No lawyer either.

"Ever been a crime victim? Maybe you can get a U Visa."

No, thank God. So no visa for me?

Nope.

Wait...I remember one time my work permit and valid SSN were stolen. I spent months fixing it. Does that count?

No. Not a qualifying crime. Sorry.

"Get your employer to sponsor you."

You're not eligible for a green card inside the US if you have more than 6 months of unlawful presence. So your employer could start the process but you couldn't file for the green card, so what's the point in starting? Also, you can't leave and come back because of 10 year bar. By the way, your employer has to test labor market first and give job to qualified US workers first.

"I'm from El Salvador. I've saved up $120k. Can't I invest and create a business that'll hire US workers?"

No. El Salvador isn't on the treaty investor country list.

"I'm from Honduras. Can I?"

No. Honduras is on the list but unlawful presence prevents you from getting a visa.

"What about the 10 years law?"

No such thing. Please don't listen to rumors on the street or what you read on the Internet. There is no law that prevents you from deportation if you've been here for more than 10 years. One of the dangers lurking for Dreamers and people like them is the bad advice floating around. One of the most persistent rumors is the "10 year law" - that if you're here for 10 years (and, in some versions, have kids here) then you cannot be deported. No such law ever existed.

"What if I serve in the military?"

There was a program called MAVNI that allowed getting citizenship for certain noncitizens with certain skills. But It expired in 2016. The current administration has failed to renew it. So, you can't serve.

"Can't I change status to a student visa?"

No. Unlawful presence requires you to leave. And once you do, you trigger the 10 year bar to reentry. You can't switch to ANY other status, actually. All for the same reason.

"Good news! I found out my grandpa became a US citizen and filed for all of us back in May 2001! I'm good now, right?"

So close, but no. Unlawful presence makes it impossible to qualify for a green card even though you have an approved petition. If it was filed before 4.30.01 you might have been ok under an old law that was never renewed. But May is too late.

"Ok my brother was born here. He can file for me, right?"

Yes, he can file a petition, but no, it won't lead to a green card. You still have to leave. And when you do, you trigger the 10 year bar. You can't get a green card inside the US. Besides, sibling petitions take 13+ years to become current. Filing a petition, then, gives ICE 13 years to find you.

I could go on and on. Immigration lawyers reading this will identify with a lot.

Remember: This isn't your granddaddy's immigration system. It is usually impossible to comply with. It is full of legal pitfalls. One mistake and boom! You're in immigration court fighting to stay.

So before you judge the 800,000-some Dreamers, or the rest of the 11 million plus undocumented population, or the forcibly dedocumented, or the ones currently in legal status struggling to remain so, ask yourself: "Were they given a fair chance to fix their status?"

I've always advocated for clients to become US citizens as soon as possible.
Sometimes I get asked, "So once I'm a citizen, I'm good, right?" And I say, "Yes, generally. There is always a chance of denaturalization (revoking citizenship) but that is relatively rare."

Enter Operation Janus. I will not be alarmist, but I can no longer give such advice.

On September 8, 2016, the Office of Inspector General reported that 858 people had been granted US citizenship based on incomplete fingerprint records. Normally, fingerprints are checked against both immigration and FBI digital databases, but neither of these databases included all older, paper records. So some people's fingerprints may have matched older records but because they were not in either database, it failed to generate a positive hit, and was therefore never investigated.

Another 148,000 records were identified by ICE as not having been digitized (and hence not in the databases normally checked). These were of people who were fugitives, had criminal records, orders of deportation, or were otherwise potentially ineligible for citizenship. Some of those, perhaps, tried to (and maybe became) citizens.

On January 5, 2018 the first casualty of Operation Janus lost his citizenship: Baljinder Singh (aka Davinder Singh) of India. Two other Operation Janus cases (Parvez Manzoor Khan and Rashid Mahmood, both of Pakistan) in September apparently remain pending.

The DOJ is investigating 315,000 cases in which people were granted citizenship without the proper fingerprint data available. USCIS intends to refer approximately another 1,600 for denaturalization prosecution. It remains to be seen how they will decide which cases to pursue - most of these 315,000 may have been granted citizenship on incomplete data, but now the data will be checked and perhaps nothing will turn up. If there is any irregularity, however, prosecution becomes possible, and if there is a hint of fraud, it becomes likely.

Denaturalization can be prosecuted whenever citizenship was "unlawfully procured" - it does *not* require there to be fraud. Mistaken grants of permanent residence or citizenship count as "unlawful procurement" of citizenship. So it will be up to the DOJ to decide whether to prosecute. I need not remind you that Jeff Sessions heads the DOJ.

This will seemingly affect mostly people who have been US citizens for decades, where there is an older, non-digital fingerprint record that may not have been checked - until now.

Main takeaways from this story:

1. Old issues can and will come back to haunt you. If you're on the path to citizenship, remember this and remember it well.
2. Citizenship is not truly final. Do not be lulled into a false sense of security.
3. It will be interesting to see the breakdown by country of former nationality of Operation Janus.

Attorney Lily S. Axelrod correctly points out: this is not a reason to panic, and it's certainly not a reason not to file for citizenship. What it does mean is that sound advice is very important. It also means citizenship is not an straightforward as it used to be.

On November 1, 2017, Trump tweeted:

"I have just ordered Homeland Security to step up our already Extreme Vetting Program. Being politically correct is fine, but not for this!"

"The terrorist came into our country through what is called the "Diversity Visa Lottery Program," a Chuck Schumer beauty. I want merit based."

"We are fighting hard for Merit Based immigration, no more Democrat Lottery Systems. We must get MUCH tougher (and smarter). Fox & Friends"

Here are the assumptions underlying these tweets:

1. My "Extreme Vetting" works. The vetting done before didn't.

It appears 45 is running out of superlatives. His most recent Muslim Ban (EO-3) called it "enhanced vetting." EO-3 basically outsourced information sharing to the country. And for certain countries, asking more questions of the visa applicant.

Either way, it's bad policy. Information-sharing isn't static: it's continuously improving. If it cannot be immediately verified by the United States, the applicant won't get the visa, or will get one after a lengthy delay. Asking an applicant to provide information? News flash: criminals lie. Taking in irrelevant information only reduces the chances that truly dangerous intel is lost.

Never ask a question you don't already know the answer to. "Extreme vetting" - stepped up or not - is a soundbite, a word of Newspeak.

2. 45 has accepted political correctness in the past.

When has he ever said being PC was fine?

3. The DV Lottery was the reason a terrorist came. If we remove that program, terrorists won't be able to come anymore.

This same stupidity after San Bernardino when the focus was Tashfeen Malik's K-1 fiancée visa. It's not the visa program. It's the actions of the applicants. No visa program - whether K-1, B-2, H-1B, immigrant, Visa Waiver, or DV - does NOT have a counterterrorism and security check screening. Millions of visas issue every year, and even more entries/exits are administered.

4. The DV Lottery is not merit-based.

Actually, one has to have finished high school in order to qualify for a diversity visa. There are strict reporting requirements for family members. There are robust security checks.

5. Merit-based immigration is good!

This is a blatant attempt to shore up political points for the RAISE Act. They call it immigration reform. But it's immigration deformed.

The RAISE Act is a nativist dream come true. If you assume immigration is a drain - as nativists do - it makes perfect sense to shut off a family's ability to immigrate together (what they're pejoratively calling "chain migration"), slash refugees and diversity immigrants, and only open the door to an elite. Let's not mince words: the merit based system will allow only those who were privileged enough to earn advanced degrees and mastered English at a young age. All other immigrants are cast as undesirable. If you support this, or think it's not that bad, know that you are enabling policies that white nationalists find warm and cozy. You believe non-Americans have nothing to offer if they don't have money. You ignore the jobs they create and cultural contributions they make. You refuse to see the value in family unity. You're turning your back on the world's most vulnerable, adding to their anguish. You refuse to see the good in people you might not know. And you're shooting yourself in the foot: People who would have qualified under the current system would be locked out, and will take their talents and contributions elsewhere. This, 45 reasons, will MAGA us.

6. The DV Lottery is a Democrat system.
​
Soundbite. Trumpaganda. And false.

7. Extreme vetting, Muslim bans, and rigorous enforcement is the only way to go for immigration.

Rigorous enforcement is what caused Rosamaria Hernandez, a 10 year old with cerebral palsy, to be detained by CBP. It's how they tried to prevent Jane Doe from exercising her constitutionally protected reproductive freedom. It's how they deported my client Ella, too traumatized to talk about her persecution even when I was speaking for her.



Trump's tweetstorm following the horrific scene in New York yesterday was a disgusting and cheap politicization. Don't tell yourself it's just Trump being Trump. The assumptions underlying his tweetstorm can be traced back to anti-immigrant organizations who have been calling to ban entire nations, painting entire religions as incompatible with some version of America that never existed, and reduce legal immigration. This tells me he's being fed all this nonsense for years. He can't see a positive side to immigration: it's nothing more than a punching bag to score points with his nativist base. Gubernatorial candidates like Gillespie here in Virginia towing this line is despicable.

Don't let it become normal. Use your vote, EVERY TIME.

​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 

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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.