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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