Posted by: Floyd J Fernandez, J.D. | July 8, 2016

Of Cabbages and Kings

“The time has come, said the walrus, to speak of many things…of cabbages and kings….If the moon is made of sealing wax, and whether pigs have wings.”–‘Alice in Wonderland Through the Looking Glass.’

The U.S. Supreme Court made a ruling two weeks ago which, after so many other things have happened in the world, has been drowned out to obscurity.  In this world of everything happening in “real time,”  two week old news is now an eternity.  But ‘U.S. v. Texas,’ has made the field of immigration both more complicated and more stabilized.  Complicated, because now 4.3 million undocumenteds are now forced to worry more and sleep less, now that any supposed eligibility to stay in the U.S.A. is now greatly curtailed.  Stabilized, because Barack Obama is not able to empower immigrants with executive fiat.  He didn’t even follow the protocols for preserving a proposed bureaucratic–60 days comment and complaint.

But the Fifth Circuit Court didn’t stop there.  They said that Obama ‘failed to uphold the laws as written.’  The argument was telling, that refusal to prosecute those who did not have a criminal record was a failure of a constitutional oath.  However, the U.S. Supreme Court simply, on a 4-4 vote (because of Antonin Scalia’s sudden death in February), let the 5th Circuit decision stand without comment.  That can be reversed after the November election, depending on who becomes President, and particularly on who replaces Scalia on the Court.

The government has the right to petition the High Court for rehearing after a replacement for Scalia is found.  It will have to come within less than 45 days from the decision, and will be subject to refusal.  But the Court will be hard pressed to justify its refusal, given the major political and human drama such a refusal would wreak on the public, especially the 11 million undocumenteds and their families.


We live in a time where all the previous rules and expectations of who would be President have been turned on their head.  Unless you have been under a rock, Donald Trump has said plenty of things about mass deportations and barring Muslims from entering the U.S.  Then he has backtracked, in an attempt to sound more reasonable, only to sound off again.  Of course, Hillary Clinton is going to look for ways to sound like she is going to pretend that there are no borders, and make it as easy for immigrants to come into the country, for any reason, as if to her national borders and sovereignty mean nothing, which to her, of course, they don’t.

With changes that could be made so easily via regulatory order…and a heck of a lot closer to legal status and supportability than the DAPA order of November 2014 was.  Changes in interpretation of what makes up a single person gaining a visa (per person or per household), changes in what makes a single visa application against the H-1B, L-1, OPT, and EB-5 programs, to name a few, would make for a tremendous reduction in waiting lines, and make the inducement to engage in illegal entry or visa overstay much less attractive.  But Obama announced last week that no further orders concerning immigration will be issued during this last year of his term.  Once again, either incompetence, pure neglect, or deliberate criminal dereliction of duty and his oath of office, the legacy of this man on the one issue in which he could have seen a bi-partisan resolution of one of America’s thorniest issues.  But then, that would have taken an issue off the political table, and Barack Obama is not about accomplishing anything, oh no.  He’s into creating continued conflict in the aim of what he deems his “fundamental transformation of America.”  His inspiration, Saul Alinsky, and Hillary Clinton’s mentor, taught the use of proletarian war as the means of change.

After all, why resolve immigration when you can make it a means to build a coalition that will rule America forever?

–The Old Alcalde–

In recent days the Department of Homeland Security, through a contracted publisher named, published a report that focuses on the portion of the Annual DHS Report on Immigration, including the number of immigrant visas awarded, both historically and in the past year, and the number of individuals who have been deported.

In that article, DHS declares that, triumph!–Barack Obama is nowhere near the mean and hypocritical deporter of innocent DREAM kids, wrecker of families, or the general Deporter-in-Chief that has been attributed to him.  Oh, no, in the first 5 years of his Presidency, his numbers so far are less than a quarter of those under Bill Clinton, and triple of those deported by George W. Bush, and even is less than Ronald Reagan and George H.W. Bush, or even Dwight Eisenhower.  Obama is preserved as the great and compassionate One, he who gives benefits to all immigrants if not for evil Republicans.

Then one takes time to check the actual publication from which this article quotes, and you find that the proclamation is a pack of lies.  The earlier Presidents came from eras in which deportations were practically nil, a few thousands per year or, eventually tens of thousands.  But the vast bulk of deportations were not deportations as normally understood, but interceptions at the border, in a time in which the Border Patrol and ICE (or INS, as it was known until 2003), was catching and returning hundreds of thousands, as many as nearly 1,900,000 in 2000.  However, as any ICE or Border Patrol officer will tell you, that was a situation where many, under the procedure of “catch and release,” would be caught, held for a few hours or a couple of days, fingerprinted, and then sent back across the unfenced border, only to return again within hours or days, and not caught.  As many as an equal number or even twice as many, were never caught in those days, and continued to fill America, until as many as 15 million undocumenteds were living in the U.S. during the peak period of illegal immigration from the late 1990s until 2007.

While Mr. Obama will claim that deportations have shrunk under his administration, the real numbers indicate otherwise.  By the end of the fiscal year 2013, the number of actual deportations exceeded 2.1 million under Obama, and exceeded the numbers under Bush for 8 years, and by now have exceeded that of all other Presidents from George Washington through Bill Clinton.  What happened in the meantime was that the number of apprehensions at the border dramatically dropped.  The events of 9/11/2001 scared off many immigrants, the slowdown in the American economy contributed to even more, and more importantly, the building of a network of 670 miles of fencing, and 250 miles of vehicle barriers, and quadrupling of border patrol-ICE officers from 4,500 to 19,000, authorized under President Bush along the southern border with Mexico, was more than 90% in place in 2009, when Mr. Obama called off further activity.  The number of apprehensions, even with the large rush of children and parents from Central America in 2014, have dropped to under 170,000.  That made Mr. Obama’s record look impressive, while the actual numbers of deportations under him hitched into overdrive.

The hypocrisy attempted via the rewriting of history is an old one with politicians.  Mr. Obama is a new and more brazen version of that art.

Posted by: Floyd J Fernandez, J.D. | September 4, 2015

On Birthright Citizenship: Trump, Truth & Consequences

The debate concerning the definition of what constitutes what the Immigration & Nationality Act calls a “natural born” citizen of the United States has to be, in my mind, the most surprising and disturbing debate I have heard in my lifetime. To understand why I would say such a thing, you have to know a little about me. I was born of a mother who possessed multiple ethnic backgrounds, but which, excepting a little Cherokee Indian strain, was pretty well Northern European.  On my father’s side I am totally European Spanish with a portion of Sephardic Jewish from North Africa and Spain.

Enter the anti-immigrants.  Their champion right now is Donald Trump, but their legal and philosophical guru is John Eastman, law professor at Chapman University Law School in Fullerton, California and former Reagan-era Assistant Attorney General. (  In his most recent article in ‘National Review’, Eastman basically looks at uniformly understood constitutional interpretation of the 14th Amendment’s Citizenship Clause for 147 years and says, “All baloney.”  Now simply by virtue of the ‘U.S. v. Kim Wong Ark’ case of 1898, where the unanimous Supreme Court said that those born in the U.S.A. by everyone who was domiciled in the country were automatically citizens, save for children of invading soldiers and foreign diplomats, the matter should be conclusive.  Yes, done, whatever other problems we have on immigration, whether unsecure borders, failure of visa overstays, failure of American culture and educational institutions to properly and forcefully inculcate American heritage, values, and require the learning and use of English as a primary language, getting rid of criminal aliens, issues of American employers using foreign labor to undercut American workers, they can be addressed through changes in Congressional legislation and regulatory reform.  But claiming, as columnists Ann Coulter and Marc Levin did, that not only should birthright citizenship be revoked for those born in the future, but that it should be revoked retroactively, and apparently by Professor Eastman, begins to evoke scenes of past outbursts of ugly nativism, from the Know-Nothing anti-Irish sentiments of the 1840s to the Chinese Exclusion Act of the 1890s to the Japanese internment camps of the 1940s.

In opposition is also a legal analyst writing for ‘National Review’, John Yoo, professor of constitutional law at University of California at Berkeley.  (  Professor Yoo’s defense of aggressive interrogation techniques on terrorism operatives in the immediate years after the Al Qaeda attack on Sept. 11, 2001, won him many enemies on the political left, but he does a sound job of examining the language of the Citizenship Clause, particularly the critical words “and subject to the jurisdiction thereof,” and then pulls in the reasoning of the ‘Wong Kim Ark’ case with the legislative history of the 14th Amendment to show that the benefits of birthplace citizenship was to be extended even to those ethnic groups seen as distasteful, such as the children of otherwise excluded Chinese immigrants, who at the time were refused the right to naturalized citizenship under the Chinese Exclusion Act.  The comments in 1866 of Senators Edgar Cowan of Pennsylvania and John Conness of California insured that the language of the Citizenship Clause protected the children of aliens.

However, Professor Yoo failed to address the heart of Professor Eastman’s argument, which came in the legislative history and ‘Wong Kim Ark.’  And that is the word, “domicile.”  The understood meaning of the 14th Amendment appears to crash in the failure to address Eastman’s claim that “domicile” must embrace both territorial jurisdiction and legal jurisdiction.  He claims that “domicile” could not possibly include those who came illegally or entered for facially flimsy reasons, and in effect with intent to simply have a child that would obtain citizenship status, to later avail themselves of the child’s natural-born citizenship.  He states that the ‘Wong Kim Ark’ Supreme Court only gave the expansive reading to those who were “domiciled” parents, and through them, to their children.  Eastman claims that the children of illegal immigrants could not possibly be coming to avail themselves of the legal requirements to gain domicile, such as serving on juries, serving in the military, etc.  Therefore, an expansive meaning of the word “domiciled” cannot be applied to those who try to with feeling, so the arguments all over the of them with the campain from sweater, the Dr. Eastman camp has considerable persuasive clout that Prof. Yoo left untouched, with possible drastic ramifications.

Enter a most unlikely commentator.  Newly-minted lawyer Justin Lollman addressed the constitutional question and its ramification in his April 2015 article in the ‘University of Virginia Law School.  (  Among multiple issues in his lengthy tome, Lollman confronted the issue of “domicile”, and used really sound reasoning that would be extremely helpful.  He breaks up the notion that political “domicile” could only mean (as opposed to territorial jurisdication) legal residence with subjection to citizenship-oriented duties such as serving on juries or voting.  He showed legally recognized definitions from both U.S. DHS and State statutory definitions, as well as recognized U.S. Supreme Court decisions relevant to the definition of “domicile”, especially the 1981 ‘Plyler v. Doe’ decision, that the actions of an individual to achieve permenance for him and his family establishes domicile, even if that presence is an unlawful one.


Lollman, therefore, differentiates between the instances of Chinese and other racketeering organizations who would game the system to have women come to the U.S., bear children that would gain citizenship in order to get legal status at a distant time in the future, and the masses who come to permanent gain residence in the  U.S. in order to obtain a better life.  He proposes a change in the law that would define eligible persons based upon a clear showing of intent, that would not involve an amending of the Constitution.  However, the reality is that the candidate who demands any change in birthright citizenship is almost a certain loser in a general election campaign.  Those who would want to preserve a country that honors the rule of law and a sound ability to preserve the ability of American citizens to successfully compete for jobs would be best served working on what does work:  effective border security and interior security along with a universal worker verification program through a mandatory e-Verify system.



Posted by: Floyd J Fernandez, J.D. | August 10, 2015

New Beginnings – August 2015

The last time I ever thought of walking into this blog and doing something with it I was in a totally different city, with an entirely different set of circumstances. Immigration as a field, however, was the same practice as it has been, frustrating in many ways, but rewarding when things work. The problem was that then, as now, solo practitioners like ourselves feel often like subsistence farmers, trying to scratch out a living in overused, barren fields. It is difficult to maintain a positive sense of purpose for why we do this kind of work, when the system we work within is so manifestly broken. Worse, political leaders appear to be happy with it just the way it is, or might even want to break it even more.

Because immigration law is constantly changing and we do not know what to expect coming out of Washington D.C., although we have some ideas of what we might expect, I will be posting featured articles and opinions here that I hope you will find to be both interesting and challenging for which you may gain new insights and perspectives into this complex area of the law. Please stay tuned and check back for further posts.

The Old Alcalde

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