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.).


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.;%20ANNOUNCES%20ADDITIONAL%20WORKSITE%20ENFORCEMENT,0329-SanctuaryPolicies.pdf,0330-Hawaiicase.pdf,0316-BIA.pdf,0320-WashingtonVsTrump.pdf

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–


Posted by: Floyd J Fernandez, J.D. | January 12, 2017

January 12, 2017


Those who have a wide array of reasons to get an extension for their Employment Authorization Document (EAD), ranging from those eligible for asylum to those applying out of an application for cancellation of removal, now have a new regulatory permission, effective Tuesday the 17th, that as long as they file before the time in which they must to get their renewals considered, they get an automatic 6-month extension of their EAD.

Instead of the likes of former Kansas Attorney General Kris Kobach, or U.S. Senator Jeff Sessions (R-Alabama), or a Congressman Stephen King (R-Iowa), Donald Trump appointed Marine General John Kelly (retired) to be Secretary of Homeland Security.  On one hand, General Kelly has been unwavering in his commitment to build the border wall of 1,100 miles that President-elect Trump has sworn to build, and to be relentless in the mass deportation of those undocumenteds and other immigrants with felony criminal convictions and those others subject to deportation under present law.  However, he has also been open to eventual clemency to non-criminal undocumenteds who have long-term presence in the country.

The appointment of Andrew Puzder as Secretary of Labor by President-elect Trump is also serving as a powerful counterweight to any efforts to shut down legal immigration, especially through the employer-sponsored route.  He has been well known for his belief that in many instances foreign workers are better workers for the American economy, especially in their potential for job creation, and in many cases, “having a better attitude,” which the dirty secret in the workplace is, often the truth.

The Administrative Appeals Office made a major decision on December 27th, allowing USCIS, and applicant employers and immigrants of high talent and skill, especially in the health care field, much greater leeway in demonstrating that their applicant hiring is eligible for a National Interest Waiver (NIW).


The appointment of the aforementioned Sen. Jeff Sessions is particularly bad, as the Attorney-General designate, for he will have direct control over setting policy for the administration of law in both the Immigration Courts, the Board of Immigration Appeals (BIA), and the Administrative Appeals Office (AAO).  It would have a powerful effect on those who will be seeking review of old and stale cases that have been closed or that have existing orders of removal many years old.  However, the place of such as Secretary-designates Kelly and Puzder will serve an important counterweight, especially in the case of Gen. Kelly.  DHS exercises oversight over USCIS, U.S. ICE, and Border & Customs Protection (BCP), and their policies will have a significant impact of how determinations of eligibility of visa applications, asylum petitions, and especially prioritization of prosecution of deportations are made.  The effect on handling those who have filed for, or received Deferred Action permits (DACA) under the June 2012 orders given by outgoing White House occupant Barack Obama, and those affecting prosecutorial discretion beginning in August 2011, and those who benefitted from the modified domestic unlawful presence waiver (known as I-601A) established in March 2013, will be directly under Gen. Kelly, not Sen. Sessions.

However, expect Sen. Sessions to use his power to issue legal interpretations as leverage to force the other players in this game to acquiesce, and given Pres.-elect Trump’s long-time rhetoric, that prospect is not a good one.

The Justice Department just announced that in the past year over 69,000 immigration cases were prosecuted in the federal district court system, as opposed to some 63,000 prosecutions of every other kind of offense, ranging from drug prosecutions to securities violations to tax fraud to civil rights-related crimes, like the prosecution of mass-murderer Dylann Roof, who just received the death penalty in Charleston, South Carolina on Tuesday.  That action of Barack Obama, to pad his political claim of being tough on illegal immigration, has done nothing but now jam the federal courts.  That is on top of the fact that as of last month the number of cases now in immigration courts top 520,000.  These are records by mass orders of magnitude.  In 1996, the number of immigration prosecutions numbered 823, that’s it.  On September 11, 2001, the number of immigration cases was less than 100,000.

Those facts are indicative of the massive breakdown that has occurred in our immigration system, and the daunting task faced by Pres.-elect Trump as he seeks to deal with what was, even more than crime, the most emotionally-charged issue of the recently-ended presidential campaign.


The February 2017 Visa Bulletin showed negligable movement for priority dates for family-based immigration, and about a range of 2 weeks-3 months forward movement for employer-sponsored applicants.

The environment is scary for both lawyers and their clients.  Mine are no exception.

Posted by: Floyd J Fernandez, J.D. | December 28, 2016

December 27, 2016–Trump, Israel, Immigration & The Future

“I will bless those who bless thee.  And curse those who curse thee.  And in thee shall all the nations of the earth be blessed.” G0d to Abraham, Genesis 12:3.

Donald Trump was opposed by many people.  But after the election, one choice after another indicated a decided choice, to be as aggressively conservative as any President in history.  The choice of Jason Greenblatt as “counsel for international negotiations” is as unapologetic a pro-American and conservative appointment of a major team player for his Presidency as any President-elect Trump has made.

Posted by: Floyd J Fernandez, J.D. | December 27, 2016

The Fed Has Raised Interest Rates

The Fed Has Raised Interest Rates, But Not Much.

The Federal Reserve Bank has raised hopes that the number of interest-bearing creditors, which has the ownership interest thiat is most powerful in the financial culture, will see that fair rates of return on investments and equities will begin to increase.  Ironically, that will result in a greater likelihood of job creation.

The Fed, and its chairwoman, Janet Yellen, have allowed virtually zero base lending interest rates throughout the last 7 of 8 years, with historically low interest rates for the last decade of what has been economically stagnant conditions.  However, with new signs of greater economic growth, and the likelihood of new tax and regulatory reform under the new administration of incoming President Trump, the necessity of slow, gradual increases in interest rates now become apparent, in order for re-heated price inflation, that could choke off economic expansion, to be restrained.

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.



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