Posted by: Floyd J Fernandez, J.D. | July 17, 2017

July 15, 2017–Hubris and Honor

The U.S. Constitution, in Article III, provides for the creation of the Supreme Court, “and such inferior courts as Congress shall so authorize.”  The same article mandates that the appointment of federal judges whose appointments are authorized under Article III should be authorized to serve for life, subject to impeachment.  This has been carried out since 1789, without a break, with ever increasing establishment of federal judgeships, made to meet the increased demand of a population that grew from barely 4 million in 1789 to some 330 million persons living in the USA now.

These judges (and Justices) have been appointed by Presidents of each of the major parties and approved by the U.S. Senate, composed by majorities of each of the same parties.  That provision for appointments for life have ensured that the judiciary was able to administer justice outside the immediate changes of the moment in American politics.  The individual judges certainly engaged in decision making and legal interpretation that mirrored their own philosophies and usually reflected that of the Presidents who appointed them, but frequently exceptions to that pattern occurred (Felix Frankfurter against Franklin Roosevelt, William Brennan to Eisenhower, Byron White to Kennedy, Harry Blackmun to Nixon, Anthony Kennedy to Reagan, David Souter to Bush 41), and the general body of the actions of the judiciary have served as that check upon the elected branches of government the Founding Fathers envisioned.

However, since, I would say the 1970s, the general movement has been to buck that trend, rather dramatically.   Those appointed by Democratic Presidents have generally acted in virtual lockstep with a left-of-center bias, while Republican appointees engaged in frequent bucking of their appointers’ intentions.  Beginning in the 1990s, Republicans, however, were more typically likely to hew to a right of center bent, and especially so since 2001.  The confirmation process, formerly a respectful review of the intellectual qualifications and temperament of the appointees, has become something resembling an ideological food fight.  The judicial system is now as political as the other two branches.  Long standing legal custom, legal precedent, long-understood rules of legal interpretation, statutory interpretation, jurisdictional limitations, are freely ignored when serving the fancy of the individual judge or collection of judges (or Justices).

The situation is most pronounced now, in the age of Donald Trump.  On June 26th, the U.S. Supreme Court announced that the injunction stopping the Trump administration from executing the March 6, 2017 Executive Order 16780 was for the most part lifted. The order, which stopped refugee traffic for individuals from Syria, Iran, Sudan, Yemen, and Libya, until such time as needed until the U.S. State Department and Department of Homeland Security has created a new and reliably accurate program for “vetting”, which refers to background checking those who seek visas to ensure that there are no connections between the applicant and a terrorist organization or state sponsor of terrorism, had been stopped–enjoined by four U.S. District Courts and the Ninth and Fourth U.S. Courts of Appeals.  And those who believed that President Trump’s Order was but a thinly veiled attack against Muslim immigration to the USA, borne out of a racist hatred against that religion, were confident that the U.S. Supreme Court would uphold their decision.

Their arrogant confidence was not only misplaced but grossly so.  The High Court did not simply overrule the combined orders of the courts, they obliterated them.  And it was a unanimous decision.  The Court accepted review of the decision, and decided that they would hear oral arguments for the next term, which begins, Lord willing, on October 1st.  In the meantime, most importantly, they lifted the injunction and allowed the Trump administration to proceed with the program while the case was under review.  In the case of who would be allowed into the country with non-immigrant travel visas, the High Court held that those with a significant relationship with a U.S. Citizen or permanent resident or business or educational institution would qualify.  The Court allowed the Trump administration to define the limits of that “significant relationship.”

On June 29th, the U.S. Department of Homeland Security (DHS) issued the rules governing the interpretation of those relationships, along with the other elements of implementation of EO 16780.  The rules limited the accepted relationships to spouses, children, parents, siblings, and shortly afterward, to fiancees.  Those possessing visas already issued were still allowed to enter the USA, but the limitations were affixed to pending applicants.  The rules issued by DHS were in exact accordance with normal limits for those who would be receiving visas for permanent residence, not just for immediate relatives but those who would be required to stay on a lengthy waiting period.  The categories are exactly those that are allotted those U.S. Citizens and legal residents who are petitioning on behalf of green card applicants.  The new DHS directive blocked those who were a laundry list of relatives who present law would deem not qualified: grandparents, grandchildren, in-laws, aunts, uncles and cousins.  But the immediate effect of the DHS directive was to make probably thousands more than before to be qualified to enter the country.

Immediately the conglomerate of left-wing organizations and Muslims and other activists, along with the leftist Attorney General of Hawaii, sued, ignoring the fact that they just had a U.S. Supreme Court Order allowing the program to continue!  They demanded that the District Courts that first ruled in their favor, in Washington and Hawaii, reimpose the injunction, by widening the list of excepted categories to include every single category that DHS had excluded, which meant that those included would be….everybody!  

The District Judge in Seattle, Washington demurred, citing the Supreme Court’s Order.  But District Judge Derrick H. Watson of Honolulu, Hawaii, in a decision that, in my 29 years as an attorney, has to go down as the most bizarre act of judicial hubris I have ever heard of, struck down the DHS Order, ruling that DHS was violating the letter as well as the spirit of the Supreme Court order, even though the Court had given precisely that discretion to DHS!  He superimposed every one of the forbidden categories, plus allowed refugees who were sponsored by non-government organizations (NGOs), who had themselves not been vetted by the U.S. State Department (DOS) consular personnel.  These refugees (or ISIS plants) were the very ones that President Trump had in mind in his order to put a hold on new admittances to the USA.  But that was exactly what Judge Watson had in mind to stop, which he believes he did, in an order which, in his capacity as a federal district judge dealing with pleas for injunctive relief against the federal government, had complete authority over the entire United States!

However, Judge Watson is operating under an illusion, born of his arrogance.  He believes that he can hairsplit his way to violating the terms of a Supreme Court order lifting an injunction.  He has forgotten that when a higher appellate court chooses to set aside an injunction, or stay enforcement of an injunction until appellate review is complete, that means that his Order is not in force!  He has violated, in issuing his order, a basic principle of judicial review.  For that matter, the Attorney General of Hawaii acted in defiance of a direct order of the highest Court of the land.  Anywhere else that would land that state AG into contempt of court.  In any other situation that judge would be told two things: 1) he has no jurisdictional right to issue that order, and; 2) his actions would be turned over to the Administrative Office of U.S. Courts, to be considered for disciplinary action, and possible referral to the speaker of the U.S. House for possible impeachment proceedings.

Judge Watson no longer has jurisdictional authority to rule, much less make this of nationwide breadth.  The President, through the Secretaries of DHS and DOS, has exclusive plenary authority over determining the definition of the terms of that Supreme Court Order, assuming that the spirit and letter of the Order of June 26th is agreed to.  It is.  Frankly, the truth is that there never should have been a submission to the original lawsuit against President Trump’s Executive Orders, especially not the March 6th Order, which revamped an earlier related one.

Therefore, President Trump should be issuing this statement to his administration.  “Enough is enough.  The administration will pursue the appeal before the Supreme Court, and will appeal this illegitimate order to attempt to get it set aside by regular means.  But as of now, we consider this order as lacking jurisdiction or any authority whatsoever.  I will not allow Judge Watson to strip this Supreme Court order of any ability to be applied.  His order is void, and will not be obeyed, for it has no binding authority.  I order all members of DHS and DOS and the Justice Department to implement this Executive Order, as defined by the Supreme Court’s Order, and according to the Directive of June 29th, 2017.  Any U.S. Marshal, U.S. DHS or DOS member, U.S. Justice Department member, or any other member of the Executive Branch who attempts to follow the non-Order of Judge Watson, or who fails to follow the Directive of June 29, 2017, will be summarily fired for insubordination.  As Andrew Jackson said about a similar situation. ‘Judge Watson has issued his paper order.  Let him try to enforce it.’  Oh, and Attorney General Sessions is ordered to inform the staff of Judge Watson, ‘You are all reassigned to other jobs within the U.S. Court and justice system. Let’s watch Judge Watson conduct business without a staff.”

Will it create a constitutional crisis?  Yes.  Will Trump win it?  Watch and see.  But it’s time to tell the political left, and the entrenched members of the federal government who believe that they are untouchable that they are not.  The Constitution is not a toy, it is the foundation for the Republic, and defending it is long overdue.  It is time to tell the Left that we can “resist”, too.

—Consigiliere Pacifica—

Posted by: Floyd J Fernandez, J.D. | July 6, 2017

9th Circuit Decisions & Congressional Acts–Maybe

The 9th Circuit Circuit Court of Appeals just made a defiant act, a veritable raking fire at the U.S. Congress, that is indicating that, as long as the present makeup of the U.S. Supreme Court exists, the Circuit is not going to lay down and let the Congress dictate to them their interpretation of the Constitution, especially in regards to immigration.

In the case of ‘Flores v. Sessions’, (Case No. 17-55208), a decision rendered in San Francisco today, a three-judge panel ruled on the effect of two Congressional acts, passed to apply to minors arrested at the border, freshly applied even while Barack Obama occupied the Presidency, but dealing with the rush of tens of thousands of unaccompanied minors to the American border from Central America.  That panel held that these minors still are not allowed to be held by ICE without an opportunity to have a hearing before an immigration judge to determine whether a bond should be granted, and the minor be released to a parent or responsible adult guardian.  The lead judge, Stephen Reinhardt, who was appointed by Richard Nixon in 1969, emphatically said that a 1997 settlement, ironically called ‘The Flores Settlement’, referring to a 9th Circuit case in that year, still applies to both accompanied and unaccompanied minors, and is not set aside by either law.  They included the Homeland Security Act of 2002, and the Traffic Victims Reauthorization Act of 2008.

A companion case from 2016, that dealt with accompanied minors, Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016), would almost certainly be appealed by the Jeff Sessions’ Justice Department to the Supreme Court.  Probably the motives would be half out of a campaign commitment to stop the rush of illegal immigration, and half out of just overwhelmed frustration at a rush of people who have come out of both the terror of a country overrun in their narco gang war, and the fear of the sealing of the border by Donald Trump.

There is a sense that patriotic border patrol and ICE officers, trying to get a sense of order, are deeply upset that they are being held up as gun-toting barbarians, simply because they are trying to stop wholesale release of tens of thousands, even more, into the streets of the country.  So many instances can be recounted by ICE officers of juveniles getting bond, ordered to be released into the custody of U.S. Citizen or Resident parents or guardians, only to find that they have simply disappeared into the countryside, with a majority of them not appearing for their court dates, and not even living at home.

Yet, the simple fact is that there are simply not sufficient facilities to handle all of these minors, and there are insufficient personnel to handle all of these persons in the various detention facilities, and insufficient courts and attorneys and personnel to handle the cases now before them.  And the government has to placate a public howling for stopping the surge in crime committed by those young immigrants who, are not the sad and frightened children, but the tatoo-covered teenagers who taunt and intimidate ICE officers, waiting for their chance to join their “brothers” in Mara Salvatruca 13, and other gang chapters in the USA.

The truth is, frustrated law enforcement and disgusting gangbangers has never been an acceptable excuse to mistreat young boys and helpless mothers of infant children.  The old 8th Amendment is a frustrating reminder that it is the last line of defense between a prison-detention system that is an orderly and restrained symbol of a civilized people, and a gehenna-style chain of holes that cause harm, and even sickness and death.  If the Flores Settlement is still good law, and I suspect it still will be, then it will be up to Congress to make sure that misguided people are returned to their countries without delay.

The House of Representatives passed the twin acts dealing with sanctuary cities and repeat illegal re-entrants who commit violent crimes last Thursday.  There are a string of people who have talked this issue to death, so I won’t join them, except on one issue.  A recent article in CNN.com by Danny Cevallos addressed the matter of costs of immigration enforcement via withholding federal funds from “sanctuary cities” and those being sent to prison for what would then be felony re-entry.  In effect, he argues that the 10th Amendment would grant the states full rights to federal money, regardless of whether they cooperate with federal authorities, and that holding illegal re-entrants would cost too much more money.  Therefore, he asks, why bother?  He says that the issue can’t be solved by these laws, and that more reform should be passed by Congress to keep more undocumenteds in the USA.  In other words, it’s just too expensive, so do nothing.

Mr. Cevallos is a typical “open borders” activist, who believe there is no such thing as someone who is “illegal.” The notion that anyone should be deported or detained is distasteful to him, after all, the southwest border was drawn as a result of an illegal war from 1846-48, therefore any kind of aggressive immigration enforcement is a guilty shame.  However, we don’t stop prosecution and incarceration of other criminals simply because of the cost. And since I believe that the Mexican War was a just and moral one, the notion of guilt goes nowhere with me.  The sovereign borders of the U.S.A have been recognized as legitimate for 170 years, and shall continue to be.

Therefore, the entitlement personality of many on both sides of the border needs to be altered….permanently.  Once done, then there is room to let cooler heads prevail, and start with the warm blood of compassion, flowing to give space to those long-time, law abiding persons, who would live as productive Americans, with a path to full legalization.  But it would be done in a country with secure borders, not as the act of intimidated sheep.

–Consigliere Texicana–

Posted by: Floyd J Fernandez, J.D. | July 4, 2017

July 4, 2017–Crossroads & Change

“And you will hear a voice behind you, saying, ‘This is the Way, walk in it.’ ” (Isaiah 30:21).

The Supreme Court of the United States is caught up of a series of decisions just made, and deferred.  They range from the simple choice that a church school has the right to expect funds from the State of Missouri to make safety changes to its playground that the State required it to make in order to be able to function as a school, to telling immigrants who are fleeing war and upheaval that they will have to wait 120 days until either the President of the United States is satisfied with the security measures exercised to screen out would be terrorists, or until the High Court itself would decide whether their earlier decision was right after all.

A baker and his wife in Colorado will have a case heard in which he will be told whether he will have to write the words, “Congratulations, Bob and Steve”, on a wedding cake, to celebrate a wedding and a marriage, in violation of a 4,000-year-old faith’s conviction, held by that baker.  The Court, if so minded, will tell that baker that he will be able to bow out of the task.  The baker is willing to bake anything else, and will even bake the cake, but not squeeze out the words with a icing tube, leaving it to the couple to take care of that inscription.

For these and other decisions, such as the decision on whether the 2nd Amendment’s acknowledgement of the right to arm oneself is actually true for a private citizen, as understood for 230 years, a significant portion of the American population believes that the Nazi Party has been reborn in America.

In the meantime, a new President has been elected and inaugurated in France.  That President, younger than any man ever elected to the highest office of a major democratic nation, at 39, is suspending the right of courts to decide whether police should exercise search and seizure of property and writings and hard drives in someone’s home, leaving it to the national police.  He is already compared to Napoleon, and may be worse.  He claims that he, and he alone, will transform not only France, but all Europe, into a peaceful one-state system.

Given that Emmanuel Macron was nothing more than a lower level bank executive with the Rothschild Bank until less than 3 years ago, was a minor cabinet head until a year ago, and then decided to run for President with no portfolio, no political party, and less than 1% support from the public just a year ago, is unnerving as to the rapidity of his rise.  That, on top of his marriage to a wealthy woman 25 years his senior, with serious word that he has a double life with a bisexual lifestyle and a string of male-male sex partners, all make his plans even more unnerving.  But anyone who would raise the question whether this man’s election fits the description of what ancient prophets would identify as a monster defying description, is himself an insane fool.

The Billy Graham Evangelistic Association has identified, using journalists and investigators of their own in assessing the extent thereof, more than 90,000 people who have been murdered in 2016, all for the crime of believing that Jesus of Nazareth is the only begotten Son of God, that He died for the entire human race to take away their sins, and that the Bible is the sole holy book of God.  These people have been met by these same objectors as blind and bigoted, denying the existence of anti-Christian persecution, and insinuating that those claiming persecution are lying, and may even have provoked their own mistreatment.

The work that I am going to be doing will change.  I will write on immigration subjects, but they will be joined by commentary on issues of international law, of both American constitutional law, and similar legal issues of other nations.  I will be examining the news and developments of a coming globalist order, but with a twist: how a new counter-order, something not even imagined but probably the brainchild of the greatest of men, can be the undoing of this building globalist order.

I will be anchoring my perspectives in the law, but feeling free to go “beyond the legallines”, in finding what new structures can be created, and work harmoniously with democratic institutions of government, in preserving freedom.

I will add my voice in the way I always wished to.  I am excited about the prospect.

–Consigiliarius Texicanistas–

Posted by: Floyd J Fernandez, J.D. | June 21, 2017

Of Trump, Of ICE, & Of Frustration

The last week in the world of immigration law has been a study of contradictions, frustrating contradictions.  On one hand the head of ICE, that is, the acting head of ICE, Thomas Homan, was giving answers to those who demanded he act with some semblance of understanding to those whose families were under the threat of being fractured with deportation, when he said, “Those who are ‘in the shadows’ need to be looking over their shoulder.  They should be worried.  They have committed a crime in being in the country illegally.”  By the way, unless they have been arrested coming over the border before, 8 U.S.C. Sec. 1324 is not a crime in its violation, but a civil infraction.  ICE’s acting head should know better.

In the meantime, President Trump grants complete satisfaction to those who are DREAM kids, by ordering that the Deferred Action for Childhood Arrivals (DACA) continue indefinitely.  Mr. Trump is doing much to short-circuit the narrative in the media and among political activists…on the left.  And he is getting plenty of cover, in the actions of federal immigration judges handslapping ICE officers trying to deport DACA holders who get arrested precisely because they were protesting heavyhanded removals of law-abiding immigrants by ICE under Trump.

The Supreme Court is also getting in on the act.  In the recent case of  ‘Sessions v. Santana-Morales’, 136 S. Ct. __ (2017), they held that the Equal Protection Clause forbade giving different standards for qualifications for children of male vs. female U.S. citizens to have American citizenship derived to them.  It was not a hotly contested case, but was virtually unanimous (Justice Thomas concurred in the result only).  The effect of that decision was to walk the area of immigration law closer to that of the rest of the body of law.  For most of American legal history, the ‘plenary power’ doctrine gave almost complete control of the realm of immigration law to the executive branch.  But for the last two decades the movement of the American judiciary has been to interpret the law to allow for judicial review of persons affected by immigration activity to the same acknowledgement of rights and privileges as those in other fields of the law.

The fact is that President Trump’s aggressive actions toward those seeking refugee or other immigration status from predominantly Muslim nations presently wracked with war and terrorism may be the very thing that a hostile judiciary and legal system will use to pretty well pull the plug on the ‘plenary power’ doctrine.  Such a move will subject all executive-administrative actions in the immigration field to judicial review.  On one hand that would begin to stop what has often been runaway abuse of authority by unelected bureaucrats that can harm not just foreigners but American citizens and legal residents that are seriously and negatively affected.  On the other, a grave danger exists that American legal rights would be extended to non-citizens who are not residing in the USA, that would at best flood and choke our already dysfunctional immigration system to collapse.  At worst, it would make the whole concept of national sovereignty meaningless, with disastrous results.

The amazing thing is that, by an Act of Congress, passed in December 2015, there is a ban on travel by individuals coming out of the affected 6 countries already!  Not only are those from those countries not able to come to the USA without individualized review from the various departments working together (DOS, DOD, CIA, DHS), but those citizens of Visa Waiver-eligible countries, mostly in Europe, who had visited those countries, are ineligible to use VWP or come in at all, unless cleared as a government employee or another special waiver.

I am also amazed at how President Trump has now decided to make a new overture to those who are either undocumented, or those who are sympathetic to them.  In a meeting with high-tech executives from Silicon Valley, he dropped the bomb of actually supporting comprehensive immigration reform!  This would, you would think, have his political opponents singing praises to God (but then, many of them don’t believe in Him–yes, HIM!) over this incredible willingness to compromise, but I am not surprised that the response is….”crickets.”  

But it will not be always thus.  

Postnote:  I apologize for the amateurish link cover for the entire last paragraph.  Somehow the field for the blog server simply would not allow me to block off the single sentence I would use, so I had to settle for what it would allow me to get the link on to the article by RedState on President Trump’s concession on immigration.  If he follows through, it IS huge!  Just blame WordPress, they’re probably leftists, anyway.  Ciao.

Posted by: Floyd J Fernandez, J.D. | June 16, 2017

U.S. v. Trump, A Critical Analysis

The intelligence that went behind the decision on May 25th by the U.S. 4th Circuit Court of Appeals, in Richmond, Virginia, upholding a trial judge’s order of an injunction against President Donald Trump’s executive order placing a temporary ban on travel to the U.S. from six countries, is a puzzling thing of wonderment to me.

First of all, and worst of all, is the decision by the Court’s 10-3 majority to refuse to follow a basic principle of law that is employed every single time a court reviews the interpretation and the language of a legal document.  The thing you do first is look at the clear meaning of the document, within the four corners of that document.  The second thing you do, is you look at the orders and statements of the executive, and especially, if it involves an administrative agencies’ regulatory rule or order, is to look at their announcement, and how it is likely to be implemented, to catch what the agency’s interpretation is going to be, in order to save the particular law.

The last thing you do is look at a politician’s campaign speeches in a previous election.  There isn’t a political leader alive that hasn’t had to walk back statements he made to get elected, once he gets elected and into the office he holds.  But alas, a different world was, and is, around now.  In effect, it did not matter what, once he was President, he may have done to instruct his department secretaries at DOS, DHS, DOL, and elsewhere to do.  It did not matter how he may have ordered his staff, on advice of his attorneys, to walk away from campaign rhetoric and craft his policy and regulatory rules to fit within constitutional and statutory law.  It did not matter how well the policy is justified with historical record.  All that mattered is that at one time Donald Trump said he wanted a ban on Muslims traveling to the U.S.A until they can be properly vetted.  From then on, his orders are racist, sexist, anti-Muslim, anti-gay and worst of all, pro-Christian, and as such are illegal.  He cannot ever give an order to a janitor to take out the trash, for that is racist.

As far as the 4th Circuit is concerned, stopping the movement of individuals who include those who, in the name of their religion, have spread death and horror already in France, Belgium, Sweden, Germany, and Italy, and who come from nations who are either supporting terrorism, or whose governments have virtually collapsed, is a violation of the Establishment Clause of the 1st Amendment of the Constitution, as long as the one ordering it is DONALD TRUMP!  That is not jurisprudence, that is unadulterated bigotry against patriots.  And the logic fails on multiplied fronts, but I will point out a few.

One, the 4th Circuit totally ignored a fundamental fact, the provisions within the INA that do not allow for denied visas based upon religion, race or national origin, are absolutely not applicable to nations which are verified to either be nations supporting terrorism or failed states.  In no proceeding so far addressing the travel ban orders by President Trump, has a single consideration been made to the fact that the countries involved are of the nature of either category.  The 4th Circuit majority simply said that no one from any of the six countries subject to the ban had committed a terrorist act, therefore President Trump has no case for national security as a reason for the temporary ban.  That is simply unbelievable, for it has been well-established that ISIS has been a powerful presence in Syria, Somalia, Libya, Sudan, and Iran in Syria, and Yemen, through Hezbollah, and Iran as an entity itself, has spread terrorism and murder, including against Americans.  We should not have to wait until a Yemeni or a Syrian opens up a suicide vest in an American shopping mall to decide that the country’s citizens need extreme vetting.

But the lead judge of the 4th Circuit forgot how to review facts, he wasn’t there when they said that, the day they taught law at law school.  He was too busy reading ‘Das Kapital’, I suppose.

Second, the notion that using previous campaign rhetoric, or a layman-politician’s imprecise language, overrides the clear language of that politician’s legal counsel, or his army of cabinet officials and bureaucrats and lawyers, all preparing the language of that executive order, reviewing it, vetting it, consulting, writing and rewriting it….and for what!? To make sure it is in compliance with THE LAW—that means NOTHING to this collection of “circuit judges”.  The fact is, all they cared about was the President was Donald Trump!  Clean language does not describe what should be said about such pathetic legal writing.

The Ninth Circuit does make more of a challenging opinion in its invalidating of the March 6, 2017 Executive Order by President Trump.  They eschewed limiting their findings to a constitutional issue under the Establishment Clause, and resorted to a sound move to interpreting the President’s actions in light of the most relevant provisions of the Immigration & Nationality Act, 8 U.S.C. Sec. 1182(f), 1185(a)(1), and 1152(a)(1)(B).  In short, they used respected principles of judicial construction to try to cut off the most vulnerable of the previous court holdings against Pres. Trump.  They went to statutory law to determine whether the acts of ceasing the grant of visas to the people coming from these 6 nations and limiting the number of individuals coming with refugee/asylum visas were properly applied.  They decided that Pres. Trump could not limit the number of refugees in the middle of the fiscal year from 110,000 to 50,000, that the determination of a national security risk as the basis of the temporary ban was misapplied, and that no such need for “extreme vetting” was demonstrated.

The truth is that the limitation on the numbers was not by regulatory law, but by Presidential executive order (in the fall of 2016).  That EO was not in force once Barack Obama left the White House in January 2017.  Therefore, the 110,000 figure could be set aside by a new order by a new President.  The notion that “extreme vetting” was unnecessary was both incredibly silly in light of the complete chaos in the refugee camps of those fleeing Syria, Libya and Yemen, as well as Somalia and Sudan.  The determination, I would add, that national security has no evidence of any threat by individuals from those countries has been completely ignorant, by the judges, and in the poor arguments of counsel by the government.  To limit threats only to those within the USA to find a security issue is naivete in the extreme, especially in the light of trucks running down children in Nice, or Berlin, or bombs used on weary travelers in Brussels, or children at a rock concert in Manchester.  These countries are nations that are our allies, our fellow members of NATO.  If they are under threat there, then we are so threatened here.

It is obvious that judges have already pre-judged the result, and are simply wanting to confirm them.  So, we are going to have to fight hypocrisy and dishonesty in the judiciary….again.

Posted by: Floyd J Fernandez, J.D. | May 24, 2017

May 23, 2017

Is Immigration Still Responsible for

Determining Terrorist Acts?

There has been a great deal of talk about the terror attack in Manchester, England on the night of May 22, 2017.  The initial knee-jerk reaction on the part of the right (of which I am normally a part) has been to blame runaway immigration so-called, particularly coming from those who have been refugees from the Middle East and North Africa, particularly those from the failed states of Syria, Libya, Yemen, and northern Iraq.  Then you find that Salman Abedi, the mass killer who attacked the Manchester Center where the Ariana Grande concert was held, was born and raised in England, and was thoroughly Anglicized, with parents who immigrated from Libya to escape another evil dicatator, Moammar Gadhafi.  Yet he was thoroughly radicalized, by his own accord, as his family traveled to Syria for “vacation”, trained by ISIS, and turned into a killer.  It is as of yet unknown whether Mr. Abedi was directed in his actions, or merely inspired after his training.  Logical deductions about protecting the expert bombmaker and police raids that have already taken at least one other person in custody would indicate the former–that he was a foot soldier in the Islamic State.

The casual observer would say that immigration is no longer an issue, therefore, in determining the actions and motivations of such murderous actions.  However, to do that would miss the point of the precise reason immigration must be discussed.  For, in the middle of discussing immigration, you get to the issue of why you have it in the first place.

Time-honored principles of how and why human beings create communities that solidify and form nation-states show that they are created for two reasons: 1) to give a people a sense of identity as human beings; 2) to give people a place to call home and work to better themselves and their families.  In this plan these entities make decisions on how to create and exploit opportunities to attract others whom they would want to be part of their entity, whether it is as small as a neighborhood or as large as a country.

In the process of deciding who to admit or deny, a nation’s legal and security apparatus will engage in creating laws and regulations; the rules of the road for administering that policy of admission and denial.  The process then invariably pulls in a long cast of characters: agents, reviewing officials, law enforcement officers, prosecuting lawyers, and advocates (both lawyers and advocacy service organizations).  They all then participate in working in the meat and potatoes work of reviewing, questioning, arguing, appealing, and endless amounts of paper, paper, paper (until the day comes that digital filing will FINALLY be allowed).

And in the process of making decisions that can either send a family into destruction through a denial of a petition or application, or ensure that generations of people will have fulfilled dreams.  We forget that none are ever possible without the choice to say “yes” by a single overworked clerk in a single suboffice of a Homeland Security regional center, who is so caught up in the nuance of the adjudicator’s field manual, that she never thinks about the question, “Why am I doing this?”

We have to remember, as a people, that the reason you want balanced immigration is very simple in form, but seriously complex in how you answer and explain the question.

People should be able to live where they want, as long as they don’t hurt anybody, and they’re willing to live by and accept the customs and traditions of the people where that migrant wishes to live.  When a people, when all nations understand that principle, they live in peace, prosperity, and balance.

We have forgotten that principle, and we have two warring camps that don’t even speak the same language.  One simply says that the land on which they live is theirs, and they don’t have to let anybody in, and they fear that their country will change into something that destroys their special sense of identity.  The other says simply that the doors should be wide to everyone, and that assimilation, the process of bringing these arrivals to blend into the national community into which they have moved, is evil, and they are under no obligation to accept or embrace any part of the host culture; no obligation of loyalty.

So the result is that we have a society split between the naive and the sinister.  And that is the nature of our battle in Western society.


CASE NOTES

Of all the cases and articles that I have read about over the last couple of weeks, the list of U.S. Supreme Court cases, as you would expect, has the most potential impact on my practice of law, and on the lives of those presently dealing with the immigration system in the U.S.A.  From considerations of: whether there is a maximum period of time for a person to be held in immigration detention; to whether the gender distinctions between American citizen fathers and mothers of children in determining citizenship for those children are unconstitutional; to whether the basic statute for deciding whether an immigrant’s criminal act is a “crime of violence” is so vague that it is unconstitutional; to whether a nation can revoke a person’s citizenship for making false statements, no matter how many years have gone by, even if the lie had no impact on the decision to grant the alien his/her citizenship; all will have an impact both on immigration cases by the millions, and on some of my cases as well.

Most of those cases will have decisions rendered by the U.S. Supreme Court, and will involve the participation of President Trump’s new appointment to the High Court, Justice Neil Gorsuch.  These cases will be a strong indication of whether the highly-anticipated conservative bent of Justice Gorsuch is actually a reality.  Hopefully, Mr. Trump will not be the latest in a long string of Republican presidents who wound up rueing the day they made a certain appointment to the High Court.

—The Humble Alcalde—

Posted by: Floyd J Fernandez, J.D. | May 1, 2017

April 30, 2017–The Humble Alcalde

An “alcalde” is someone who, in old Spanish culture, is a mayor or landowner or someone who possesses a combination of legal knowledge, common sense, and wisdom built from years of success and failure.  He is then called upon from time to time to speak of matters of concern and dispute, and then, after making his decisions, he gets on his horse, and rides home.  In the nation-state of Texas which I call my homeland-within-a-homeland, there is a tradition of the marriage of that figure and the larger-than-life rural life that lies at the core of what defines the people called “Texans”, whether by that anglified name or by the name that it came from, “Tejanos.”  Indeed, Oran Roberts, who as governor of Texas signed the bill into law that created the University of Texas Law School, was late one of its first professors and was nicknamed “The Old Alcalde.”

These days we could use a lot more of the understanding that would arise from such uncommon “common” wisdom.  And no place is that true more than in the immigration field now.  There are 3 different places where that lack of common sense lies: 1) the controversy of the EB-5 Visa and its failure of renewal amid allegations of fraud, the failure of business ventures by unqualified immigrants (especially from China), and the glut of applications from China that are questioned as to their motivation, and the proposed 60-80% increase in the minimum investment required for an EB-5 investor; 2) the controversy of the H-1B visa and its record of both real and fanciful abuses and the contest of what its effect on the American economy may be; and 3) the spate of Executive Orders from President Trump, and the attack on every single one of them by the political Left in the federal courts, mostly in the Ninth Circuit region of the American West.  (And yes, I do support the breakup of the 9th Circuit, to isolate California and Hawaii, so that the interests of people in Bozeman, MT, Moab, UT, and Wilcox, AZ are not at the mercy  of the biases of people in San Francisco.).

EB-5 VISA:

I am merely an observer, but one who is getting the clear idea that the program is a case of a great idea that is completely misapplied to people who are in no wise equipped for the activity they are required to fund in return for permanent legal residence, and handled by people who are not equipped to run the business investments that underlie the program.  That is especially true in the USCIS Regional Centers, a creation intended to rejuvenate economically depressed areas but which have become recipes for ensuring lost access to business development due to mismanagement.

It appears that most of the applicants for the EB-5 are the families of the upper middle class and upper class in the Third World, especially from China, but also India, South Korea, and Brazil.  It is being used as a means of obtaining visas for young people, some barely out of their teens, so that they can attend college for in-state tuition.  But the problem that exists is that they could come to their 2 years of their conditional residency, file their I-829, thinking it’s just the formality after their I-526 approval, only to find that their application is denied, their eligibility is gone, and their education wasted with a huge investment lost.

The truth is, a change in the EB-5 would fit so many of these people.  They are not equipped to create restaurants or laundromats, hiring low-income people who may or may not need serious job training as a part of the process of getting the requisite number of jobs to ensure completion of the EB-5 holder’s permanent residency.  These young people are better suited as engineers, e-commerce designers, complex software developers, marine biologists and chemists and applied science consultants.  Not only their talents, but the money raised by their desperately sacrificial parents are much better suited to the kind of business development that arises from the places of their training, American universities.

A recent proposal I recently read would be a unique opportunity for change.  I specialty EB-5 could be created, especially conditioned upon four different requirements: 1) that the beneficiary obtains the conditional green card upon admission to a U.S. university in one of the STEM categories; 2) that his financial investment is paid into a pool that would be managed by an independent money management fund; 3) that the alien obtains a terminal degree in that designated field; and 4) that the remainder of the college fund is used in a start-up business arising from one of those areas, usually a spin-off from the university from which he graduates.  While not included in the proposal, an additional requirement of a U.S. citizen co-owner in the start-up could serve as a means of obtaining U.S. worker hires.

Tomorrow, I will discuss the issue of H-1B visas and how that can be addressed, with some creative ideas on how that can be improved.

-The Humble Alcalde—

Posted by: Floyd J Fernandez, J.D. | May 1, 2017

18 April 2017

The following lists of links contain stories that have been of interest to me in the past month.  However, rather than do what I originally intended, and do a running commentary on each case, I am just going to opine on what I see in general, and let the reader click whatever links would get his interest.

The main story that is immigration centers, of course, on the struggle between President Trump and the Left concerning his new policies.

http://www.asylumist.com/2017/04/06/pro-life-attorney-named-director-of-office-of-refugee-resettlement/#comments

http://blogs.ilw.com/entry.php?9806-USCIS%20LIMITS%20ENTRY-LEVEL%20H-1Bs%20FOR%20IT%20WORKERS;%20ANNOUNCES%20ADDITIONAL%20WORKSITE%20ENFORCEMENT

http://blogs.ilw.com/entry.php?9803-Waste%20Management%20Supervisors%20Going%20to%20Prison%20for%20Unlawful%20Hiring%20Scheme

http://trac.syr.edu/immigration/reports/462/

http://www.ilw.com/immigrationdaily/news/2017,0329-SanctuaryPolicies.pdf

http://www.latimes.com/local/education/la-me-edu-usc-professor-letter-20170328-story.html

http://www.asylumist.com/2017/03/30/how-to-expedite-an-asylum-interview-or-ask-and-ye-might-just-receive/

http://discuss.ilw.com/content.php?7926-Article-Sexual-Orientation-Asylum-Petitions-By-Dr-Mark-S-Silver

http://www.usatoday.com/story/opinion/2017/03/16/trump-wall-mexico-crumbling-ruben-navarrette-column/99188162/

http://www.ilw.com/immigrationdaily/news/2017,0330-Hawaiicase.pdf

http://immigrationimpact.com/2017/03/16/travel-ban-2-0-halted-two-district-judges/

http://www.ilw.com/immigrationdaily/news/2017,0316-BIA.pdf

http://www.ilw.com/immigrationdaily/news/2017,0320-WashingtonVsTrump.pdf

http://www.klaskolaw.com/eb-5-investor-visas/guidelines-redeployment-eb-5-capital/

http://discuss.ilw.com/content.php?7862-Article-Your-H1B-Last-Minute-Filing-Tips-By-Sheila-Danzig

Posted by: Floyd J Fernandez, J.D. | February 20, 2017

February 20, 2017–2 am

The past 20 days, in the immigration world, have been a roller coaster.  First, President Trump rolls out his travel ban, albeit temporary, on those who are refugees or travelers from the seven failed states recognized as unable to provide sufficient background checks on their people, from regions dominated by terrorist organizations or regimes:  Somalia, Sudan, Libya, Yemen, Iran, Iraq, and especially Syria.  Second, a Federal district court judge slaps the Trump administration with a ban on the ban, restraining him from any enforcement of his policy on foreign immigration, and de facto forcing Pres. Trump to accept the Obama policy on refugees.  That was itself following demonstrations around the world, attacking Trump’s policies and Trump as a man (even calling his wife a whore), and particularly in America, snarling traffic and shutting down airports where incoming refugees and green card holders were detained.  Third, the Ninth Circuit Court of Appeals upholds the injunction against Trump and his government, making it even more likely that he would be forced into a constitutional crisis, when President Trump would finally act as he has in the business world, defy the decisions by the courts and claim exclusive power to decide who gets-in to the USA.

The battle now goes to the issue of U.S.A. border security.  Following up on the rather generic portions of the Executive Order issued on January 27th on immigration and security, President Trump, through his Secretary of Homeland Security, Gen. John F. Kelly, has released a final draft of the policy priorities in the realm of border and interior enforcement.  While the hysteria concentrated on alleging that Donald Trump hates everyone who doesn’t look like him, the strain he and his leadership are human-straitjacked

Today, or Tuesday, the doors are now open, but only until President’s new order takes effect.  Then, the crazy will beg for more.

The Old Alcalde–

Posted by: Floyd J Fernandez, J.D. | February 8, 2017

6 February 2017–The Long March Begins

It is only every several generations that a change in how people perceive the world occurs, with such profound ramifications that generations later schoolchildren would be drilled and tested in their lessons concerning the events surrounding that time, and how it changed the whole world.

The worldwide wave of populist change is such a time, which we are experiencing now.   When Donald Trump became President Trump, he did not hesitate to leave no illusions on what he intended to do, and the profound change he personally intended to impose on the world.  “America First” has now moved from a campaign slogan into a political doctrine that is also becoming, in each respective modification, a political war cry for nations around the world.  From Britain to Brazil, from Poland to The Philippines, from South Africa to Austria, and from India to Argentina, the movement is inescapable.  The dream of a de facto one-world order, based upon a globalist version of free trade that would take precedence over localized, parochial national or regional interests, is now out of favor with huge masses of people.

And there is no area that has greater impact than in immigration.  For decades it has been law and gospel that the flows of human capital must match the similar flow of financial capital in crossing over ever-more permeable national boundaries.  It has been assumed that the decisions of locating factories, of choosing investments, of creating jobs, of developing technologies and adapting them to practical uses, must be strictly a matter of efficiency and profitability.  If places suffer losses of factories, plants, financial institutions, or even technological laboratories and centers to other countries, so be it.  It was assumed that the way of increased technology would find its way, like water seeking its own level, to level the field by replacing aging business and manufactures with new kinds of work, banking on the superior education of the developed world to acceptably adapt to the “new normal.”  And immigration, therefore, must be easy, cheap, and plentiful.  New workers for the rich, the means of introducing a new culture to the world, where old rules of ethnicity, gender, religion, and class, would be cast aside for this socially unified planet.

The reality was, however, the way that all utopian ideas end:  in a sea of broken lives left behind, broken cities, shuttered factories, new classes of impoverishment, new sources of addiction and exploitation.  So, in places once known for respectability, we have the drug lords with fresh customers, and the sex traffickers and strip joint operators and pimps with fresh young beauty, trading hope for marketing sexual pleasure.

Donald Trump is the symbol of a society that is now saying “Enough!” Immigration is no longer a friend, bringing vibrant new energy and ambition to build up otherwise aging societies.  It is now seen as a thief, of jobs, of stability, and as an enemy, either through terrorists or through “the other”, coming to destabilize the order of a society desperate to reach out to something resembling normalcy.  “They’re stealing our jobs! They won’t learn our language!  They’re stealing our places in college!  They hate our heritage!  They’ll steal our elections! They’ll bankrupt us! Terrorists will sneak in and kill us!”  Some claims are patently false, others have more than a little validity to them.  But all have one common theme:  fear.  Now fear is not always a bad emotion, when mixed with fact and awareness of conditions that are to be avoided.  But more likely than not, it leads to bad decisions, and the oppression of innocent people.

Donald Trump’s Executive Order of January 27th, set to deal with multiple issues  related to U.S. immigration, is a lightning rod that has set forth multiple reactions, extreme reactions, most of whom are based in suspicion of one’s opposing side.  The reactions of protests worldwide, the condemnation of Pres. Trump’s decision by companies and influential individuals ranging from Hollywood actors to the leading CEOs of the world’s leading technology firms, made for the predictable reaction:  a demand for even harsher action against immigrants.  And in the middle are caught the people who cannot speak for themselves: the immigrants.

The legal battle that was initiated in the wake of the Trump Executive Order has fanned the flames of rage and fear even further.  And in reaction, individuals such as Arkansas U.S. Senator Tom Cotton and with new rules by the IRS on travelers, are introducing proposed new laws that would actually DO serious damage to the American economy and to America’s standing in the world.

So, I am going to bullet point what has happened surrounding the Trump Order of January 27th, and the legal manifestations thereof:

  • The Order requires that no new non-immigrant visas be awarded to individuals from 7 different countries:  Sudan, Somalia, Yemen, Iran, Iraq, Libya, and Syria.  Every one of those nations either have become so engulfed in civil war that the government is a failed state, or they have become so infested in terrorist organizations that the organizations could, and will, become soldiers of death on American soil.
  • The Order in this portion, applies to those who are not yet entering the U.S. as refugees, asylees, or those claiming withholding of removal.  In doing so, USCIS and U.S. Dept. of State consular personnel are instructed to not engage in final interviews or issuance of visas to those from the affected countries subject to the Order.
  • The Order applies to those who are seeking to enter U.S. soil with any non-immigrant visa who hold citizenship from those nations.  Any individuals who have dual citizenship will have additional interrogation, or “extreme vetting”, to verify that the degree of connection with that country at issue is so tenuous as to not require temporary ban.  These individuals will be treated on a case by case basis.
  • The Order does carve out an exception for refugees/asylees/withholding removal applicants who are members of minority religions.  In particular, the affected religious adherents are Christians, Yazidis, and Bahais.
  • The protections and exception for such individuals are NOT a violation of the First Amendment Establishment Clause, nor a violation of equal protection for three reasons: 1) the religious minorities are themselves perfectly fitting the definition of identifiable groups targeted for persecution, which under Section 208 of the Immigration & Nationality Act (8 U.S.C. sec. 1108), is the classic example of those qualified for asylum/refugee/withholding of removal/Convention Against Torture as a persecuted class; 2) the Order itself and its follow up declarations from members of the Trump administration absolutely do not declare Muslims as a target for exclusion, which is for no more than 120 days; 3) even if the Order is a violation, it is a compelling governmental interest in national security to identify the fact that even if most Muslims can’t be said to be supportive of the multiple jihadist groups that are plaguing those countries (especially Sudan, Libya, Iran, Iraq & Syria), a large number of them have, and the President has exclusive plenary power over the field of immigration under Article II of the Constitution.  It is not Christians, Yazidis, or Bahais who are burning people alive in cages, nor are they beating up and robbing and raping Muslims when they are fighting in their civil wars.  It is well-known the insertion of ISIS and Al Qaeda operatives with groups of refugees.  Therefore differential treatment is not a violation of religious protections under the Constitution.
  • The Secretary of Homeland Security (DHS) is instructed to make a prioritization of those who would be otherwise removable-deportable, and due to the nature of  those who are usually subject to removal, will be much like that under prior priorities made in the Obama administration.
  • A wall shall be built on the U.S.-Mexico border.
  • At any event, as of Friday the 3rd of February, the Order was rescinded and consular personnel are engaged in review and award of visas in accordance with prior policy as set under Barack Obama.

The review of the policy is at present before three U.S. circuit court of appeals judges, who took briefs and oral arguments over the past four days.  It is inevitable that the case will go before the U.S. Supreme Court for final decision.

The list of articles that I find most informative on this and other immigration issues include the following:

An article by Byron York of ‘National Review’ on the shallowness of the original order by the U.S. district judge on the Order, can be found in the Washington Examiner.

An excellent short synopsis of the logic behind U.S. District Judge Robart’s order suspending execution of the Trump Executive Order is in the Wall Street Journal from Monday.

Nolan Rappaport, a leading immigration attorney, points out a serious possible future problem in the reporting requirement of the Executive Order that other countries must follow in establishing new vetting procedures.

Guidelines on behavior in the event the Trump Executive Order wins in the courts is good to follow here.

The text of the January 27, 2017 Trump Executive Order is here.

The text of U.S. District Judge James Robart’s initial TRO is here.

More to come.  In the meantime, I am,

–The Old Alcalde–

 

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