Article: “WITH JUSTICE GINSBURG GONE, DREAMERS DESPERATELY NEED A POLITICAL SOLUTION”

As published in the Immigration Daily on September 23, 2020

With the passing of Justice Ruth Ginsburg this past week, immigrants have lost one of the great champions of immigrant rights. A liberal justice, she consistently voted for the rights of immigrants and in the increasingly more conservative Supreme Court, formed a bloc with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the Court’s major 5-4 decisions on immigration. A couple of the major ones in which she participated on the losing side were United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam) in which the Court tied 4-4 to sustain the Texas court decision barring  President Obama’s DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program which would have given legal protections and work authorization to the parents of citizens and permanent residents; and DHS et al. v, New York, et al., 140 S. Ct. 599 (2020) in which the court by 5-4 vote allowed the new public charge rule to be implemented in February 2020 by staying the preliminary injunction of a New York federal court. Recently, however, she took part in the 5-4 winning vote in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) in which the Court rebuffed the Trump Administration’s attempt to end the DACA (Deferred Action for Childhood Arrivals) program. Although that decision was decided on procedural grounds that the Court indicated might be overcome by another suit after the government complied with proper procedure, there was no assurance that such could actually be done in a 5-4 court in which Chief Justice John Roberts exercised the swing vote. Justice Roberts, a conservative with centrist bend, had earlier frustrated the Administration by providing the swing vote in National Federation of Independent Business v. Sebelius, 567 US 519 (2012), a decision upholding the Affordable Care Act, and Department of Commerce v. New York, 139 S. Ct. 2551 (2019), which denied Mr. Trump the right to add a citizenship question to the U.S. Census.

However, with the appointment of another conservative justice, the tide will move further to the right, and consistent 6-3 or 5-4 losing votes can be expected in most cases dividing the nation, including those on immigration. Justice Roberts will lose his position in these highly contested cases as the deciding vote. President Trump has already vowed to nominate a replacement within this week and Senate Majority Leader Mitch McConnell (R-Kentucky), has stated that he will bring the nomination to the floor of the Senate – both defying Justice Ginsburg’s dying wish that her replacement be made by the next President.

The effect on the 700,000+ Dreamers in the DACA program will be momentous, and the reelection of Donald Trump will ensure that they will either be used as the ultimate bargaining chip for a Trump administration to ram through its entire program of immigration restructuring or failing that, all be subject to removal proceedings with both legal protections and work permits revoked or no longer extended. Already since the Supreme Court’s decision, the Administration has moved to reject all new applications for DACA benefits and restrict renewals to one year instead of the present two years.

The unpalatable nature of a Trump immigration scheme is already being seen in his taking advantage of the pandemic to issue proclamations, executive orders and regulations barring nationals of disfavored countries even as the US leads the world by far in infections, and restricting qualified and approved workers from other lands from entering even though studies have shown that they would benefit the country and add more jobs. It is known that Mr. Trump’s chief takeaway from his DACA defeat is his belief that the Court’s decision gives him the authority to create such a program for merit-based immigration. On July 10, 2020, he said, “We are working out the legal complexities right now, but I’m going to be signing a very major immigration bill as an executive order, which Supreme Court now, because of the DACA program, has given me the power to do that.” Previously his son-in-law, Jared Kushner, drafted a merit-based immigration plan that did not move forward, but an idea of its contents was in Mr. Trump’s May 16, 2019, speech in which he said that it would eliminate all current family and employment-based preference categories and replace them with new “Build America” visas awarded by points. In Mr. Trump’s America, huddled masses and refugees need not apply, only the rich and highly skilled. This country could take a lesson from Germany and its Chancellor Angela Merkel that took in over a million refugees in 2015 in a program now seen as highly successful in building a stronger Germany from what was then an aging population.

For Dreamers and all immigration proponents – indeed all who support civil rights, voting rights, the environment, women’s rights, LGBTQ rights, honor, civility, truth, corruption-free government, a rational foreign policy, decision making other than from gut instincts, and all the other parts of the American system that Mr. Trump has damaged and will in his next four years destroy for a generation– the only solution appears to be a political one in getting out the vote and voting.

 

Article: WHAT IS THE REPUBLICAN PARTY NOW, AND DONALD TRUMP – FRIEND TO IMMIGRANTS?

As published in the Immigration Daily on September 1, 2020

The Republican Party is the party of Trump. He shanghaied the party from the traditional Republicans in 2016, and Republican representatives and senators since then have been his devotees and enablers. Does Trumpism go away if he is defeated in the November elections? That is very doubtful as many of the Republican members of Congress owe fealty to the Trump ideals that brought or are continuing their tenures in office.

President Trump has misrepresented the truth while in office well over 20,000 times, and the Republican National Convention (RNC) was more of the same as it wallowed in mistruths, darkness, fantastical speculations and promises while shading or breaking various laws. Donald Trump as a friend of the immigrants was on display in a White House naturalization ceremony mixing the no-no of official business with political advertising as he oversaw the naturalization ceremony of five applicants including two from the “shithole” countries of Africa, and another from India (he is still hoping to peel away the votes of Indian-Americans through his friendship with Prime Minister Modi although Joe Biden’s running mate, Kamala Harris, is half Indian,and even as he has threatened the future immigration of Indian nationals by cracking down on H-1B’s, moving to end the popular H-4 employment program for spouses of H-1B holders, and is reportedly contemplating having long-time H-1B holders with approved I-140 petitions undergo the PERM labor certification process again).

The peel away strategy is simple – confuse and sway enough voters in swing states (Arizona, Florida, Maine, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin) – so that the president and his party can win the state if only by 50 votes and possibly the presidency again even if Mr. Trump loses the popular vote by 10 million. As the Republican Party and its voices like to say, “We do not live in a democracy. The United States is a republic.” Other ethnic groups being appealed to are Jews who Mr. Trump has said “owe” him because of his strong support for Israel; Asians for whom equality in education is a large issue with Democrats supporting the position that factors other than being the best and brightest as determined by standardized tests should determine admission to the best schools; in the Asian community, especially Taiwanese-Americans because of Trump’s recent elevation of the island as a counterweight to China even though he had earlier compared Taiwan as a speck to China; Russian-Americans for whom Mr. Trump’s unswerving devotion to Mr. Putin is gratifying; and Cuban-Americans whose litmus test is animosity against the island’s rulers.

For Blacks, peeling away means surreptitiously running and/or supporting Kanye West in his strange presidential bid, pardoning two black ex-prisoners, Jon Ponder on day two of the RNC and Alice Johnson the day after she spoke on his behalf at the RNC on day four, and even now planning to have the Pentagon award the Medal of Honor posthumously to Alwyn Cashe, a Black soldier who died saving his comrades in Iraq.

Presenting the coronavirus for the most part in the past tense was a staggering piece of fictional theater as if we were already past the disease when we still have over 40,000 new infections per day – that and saying that we were in a V curve, even a super V curve and would have a safe and effective vaccine by the end of the year. Mr. Trump’s and his party’s disdain for science was prominently displayed in his re-nomination celebration at the White House where over 1500 mostly maskless supporters crowded together (no social distance) on the South Lawn without being screened or even asked if they had symptoms even though more than 182,000 Americans have died of the virus and  almost 6 million infected since February 2020 including members of his own Secret Service detail who are forced by duty to travel with him to typical Trump mask- discouraged campaign events..

Just a look at the past few weeks of immigration news belies the fact that Mr. Trump is a friend of immigrants:

  • A new asylum EAD rule, “Asylum Application, Interview, and Employment Authorization for Applicants,” FR 38532, Vol. 85, No.124, 6/26/20, just came into effect on Tuesday, August 25, that asylum-seekers must now wait 365 days before filing for an EAD. Also that they are disqualified from applying for EADs if they crossed the border without authorization. A new I-765 form with questions directed towards the latter was implemented by USCIS on that date.
  • Another asylum EAD rule that took effect on August 21, “Removal of 30-Day Processing Provision for Asylum Application Related Form I-765 Employment Authorization Applications,” FR37502, Volume 85, No.120, 6/22/20, eliminates the regulation mandating USCIS to adjudicate initial applications for employment authorization for asylum applicants within 30 days. Although USCIS did not in our estimation take that seriously for the most part, it was helpful.
  • Law 360 is reporting that there is a Department of Labor threat from a part of Trump’s 6/22/20 proclamation (that DOL in consultation with DHS shall consider promulgating regulations or take other appropriate action to ensure that aliens’ presence in the US who have been admitted or otherwise provided a benefit or are seeking admission or benefit pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage US workers) that DOL may soon be doing many workplace LCA compliance investigations of companies using the H-1B program.
  • USCIS is being sued on its new fee hike regulation by nonprofit organizations Public Citizen, Ayuda, Northwest Immigrant Rights Project and CASA in Northwest Immigrant Rights Project et alv. USCIS et al, Case No. 19 CV 03283-RDM (DDC 8/21/20) since their clientele include survivors of crimes applying for their children or spouse who would have to pay $1485 (more than six times the current fee) and asylum-seekers more than $600 to file for asylum and EAD. Their bases are that the Acting DHS Secretary, Chad Wolf, is ineligible to serve in that position because of violation of the succession act and his actions as DHS chief have been illegal, that the rule is based on incomplete and unsupported justifications, violates several provisions of the INA and fails to comply with rulemaking requirements. In response, Mr. Trump is now trying to take care of one of these issues by formally nominating Mr. Wolf as DHS Secretary.
  • There is a new Department of Justice proposal to codify the rule in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018), denying immigration judges the ability to administratively close cases, speed up appeals of immigration court cases and to otherwise limit the immigration judge’s authority to manage their caseload – the proposal, “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure”, FR 52491, Vol. 85, No. 166, 8/26/20, would impose strict time limits on the length of immigration court appeals, while also shortening briefing deadlines and limiting the Board’s members’ ability to review new evidence on appeal or to reopen immigration cases on their own. The part relating to codifying Castro-Tum states: “§1003.10 Immigration judges.… (b)… Nothing in this paragraph nor in any regulation contained in 8 CFR part 1240 shall be construed as authorizing an immigration judge to administratively close or suspend adjudication of a case unless a regulation promulgated by the Department of Justice or a previous judicially approved settlement expressly authorizes such an action….”
  • DHS is extending its regulations against nonessential travel to and from Canada and Mexico through 9/21/20.
  • How is DHS doing with Covid-19? In ICE facilities in Mesa Verde and Adelanto, California, terribly. The Mesa Verde facility was ordered on 8/6/20 to conduct weekly rapid result coronavirus tests after the court record showed that ICE and the GEO Group Inc. that ran the facility avoided widespread testing fearing the positive test results would require them to enact extra virus safeguards. Adelanto was even worse as, despite a federal court order in April that the center should follow pandemic response guidelines laid out by the CDC, ICE was making its own rules – that from 3/1/20 – 7/15/20, ICE transferred 102 individuals into Adelanto from facilities with confirmed Covid cases at the time of transfer or within two weeks of the transfer; that despite receiving 1900 Covid-19 tests in May which was enough to test the entire population of the detention center and the staff, ICE stopped its comprehensive testing program; that 4-8 people are forced to sleep in cells as small as 8 x 10’ and showers are so crowded that a person in one shower stall can reach out and press the neighboring shower’s button.
  • How are they doing in the immigration courts with Covid-19? Not good. There are reports that many immigration judges do not want to wear their masks and what do you say to the judge who asks the attorneys if they are comfortable with them taking their masks off? The Boston immigration court was cited. Reports from Chicago were mixed on mask wearing. One attorney said that the majority of judges took their masks off during hearings for detained immigrants this past spring at the San Francisco immigration court. Some attorneys said that they prefer to keep their masks off during the hearing noting that they were seated more than 6 feet from the judge and underscoring the importance of face-to-face interactions, but they remained concerned about airborne virus transmission since the hearings are often held in small windowless rooms with less than ideal airflow. Other attorneys complained that the immigration courts did not appear to be wiping down surfaces between hearings and that the crowded hallways and small courtrooms were not conducive to public health. Other attorneys complained of too little notice as the courts do a phased reopening and of cases being bumped at the last minute.

The truth is unfortunately malleable to many Americans as proved so often by Mr. Trump in the past and he and his party most blatantly in the RNC. Republicans who honor the memories of Ronald Reagan, and both George H. and George W. Bush may very well have to form an independent party as it becomes increasingly clear that the Trump “base” controls the party and will continue to dominate it regardless of the election results.

 

Article: Fort USA Arises In The Gloaming

As published in the Immigration Daily on August 14, 2020

American forts were built in great numbers in the 1700s-1800s and contributed greatly to the westward expansion of the country. Regardless of how you look at the history of the nation and the number of wrongs committed in building America, one cannot argue that forts built along the way served to push expansion by placing troops within reasonable distance when called upon.

Now the American fort is rising in the twilight of these four years, but rather than for expansion, for the hermetical sealing of this country. In every way, the Trump administration has moved to wall off the nation from the rest of the world and to return to the cultural America of the 1950s, an era replete with discrimination, Jim Crow laws, and white supremacy.

To turn back the clock, the administration has done everything in its power to forcibly expel and discourage immigrants from staying; to encourage US citizen children to leave with their parents; to bar the admission of qualified immigrants and nonimmigrants; discourage citizenship applications; and push to revoke the citizenship status of numerous individuals. It has taken advantage of the pandemic to issue a series of exclusionary presidential proclamations in the name of public health concerns, while at the same time taking no steps to take control of the coronavirus spread and assigning that responsibility to the nation’s governors while sniping at them from the sidelines. Mr. Trump has also gotten the CDC to act as his henchman in further issuing rules restricting the entry of foreigners. The political games of this administration and the pandemic have played out according to Mr. Trump’s likes and dislikes such as derogatorily assigning the blame for US infection to China while ignoring the fact that the vast majority of US coronavirus cases originated from European travelers; not including a heavily infected Russia in the list of countries whose travelers are barred from the US; and arbitrarily allowing students from the Schengen area of Europe to come to the US despite their specific ban under presidential proclamation.

A whiter and “cleaner” America is the goal and the stopping and expulsion of immigrants has been an important part of the strategy. Fort America is about half complete with most of the border wall to be built, and other measures have been implemented to win the party of Trump and Trump another four years to complete the job through measures such as voter suppression, cost-cutting the Postal Service to handicap it from fulfilling its duty to handle mail-in ballots, discouraging undocumented immigrants from participating in the census thus affecting reapportionment of House seats, and even surreptitiously running Kanye West for president to siphon black votes from Joe Biden in key states.

It seems apparent that another four years of this administration will finish off whatever is left of immigration as we know it today. For the sake of a whiter America, this administration has ignored all evidence that immigrants have contributed much more in benefits than they have taken in public benefits; that they have revitalized blighted cities and towns; that they have stopped America from becoming an “aged” country that cannot support its Social Security system; that they commit far less crimes than the rest of the American populace; and that they have culturally benefited the country through their foods, traditions, and ideas. In the pandemic, many of them have saved American lives and sacrificed themselves as essential workers including doctors, nurses, EMT technicians, other hospital workers, researchers, farmworkers, meatpackers, grocery store workers, food delivery workers, etc.

The hermetical sealing of this country is also encasing America in a rusted suit of armor from which it cannot move and can only look on as the administration has ceded its dominance as the moral and physical leader of the planet. Whereas Russia has moved unimpeded in conflict zones and become the feared powerbroker in the Middle East, the US has done nothing but betray trusted allies in the region. Its stance on China has been that of a paper dragon doing little to stop China’s march to dominance over much of Asia and parts of Africa. Despite beefing up military spending and at one time surrounding himself with a phalanx of retired generals in important positions, Mr. Trump has hobbled the actions of the Armed Forces, making the US the weak man in the military community.

In the gloaming, the Republican Party’s visionary America’s Fort sits, with its non-colored inhabitants perpetually patrolling the ramparts against the outside world. One wonders what four more years will bring.

Article: State Department Allowing Schengen Area, UK And Ireland F-1 And M-1 Students To Enter Despite Ban Under Presidential Proclamations 9993 And 9996; And Other Miscues Interpreting 6/22/20 Proclamation.

As published in the Immigration Daily on July 21, 2020

In a startling turnabout on July 16, 2020, the Department of State (DOS) invited F-1 and M-1 students from the Schengen Area of Europe, the UK and Ireland to enter the US under their visas despite bans under Presidential Proclamations 9993 and 9996 specifically barring persons from these countries from entering the US if they were in them within 14 days of entry. [1].  The Department stated that “Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas, do not need to seek a national interest exception to travel.” While good news to many, it hardly makes sense unless the proclamations themselves are lifted. A partial lifting sub rosa without reasoning further damages the image of the United States as a country of laws. The proclamations were put in place because of the numbers of infected citizens of those countries and the danger that they posed to the US in spreading the pandemic if they arrived. Is it perhaps that the danger of Covid-19 is no longer relevant as the US recently reached 70,000 infections in one day? Is it that the daily totals of some of the countries being exempted are no longer alarming taking into account the spread in this country? Last week’s statistics on some of the countries now being exempted show France at 2552 infections daily, Spain 1400, UK 687, Germany 529, Poland 339, and Italy 249.

It certainly appears to be political – otherwise, why is there not a similar privilege being given to China that last week recorded 17 infections daily? And why not impose a presidential proclamation against Russia with its daily infection rate of 6109? If  Mr. Trump could impose against Brazil, why not Russia?

Your writer is unfortunately not a great fan of social media, but muddled his way around as the State Department is giving answers to questions in FAQs on Twitter concerning the 6/22/20 nonimmigrant H-1B, H-2B, L-1 and certain J visa bars on entry. In looking over the various answers, one would hope that the Department takes more care in giving answers as some of them were wrong or misleading.

On at least five occasions concerning the fate of overseas derivatives spouses and children whose principals were in the US and in the above visa categories, the standard response was “Per Section 3 of the Presidential Proclamation, suspension of entry applies to ‘Any alien who does not have a nonimmigrant visa that is valid on the effective date (June 24) of this proclamation.’ See the link for exceptions.” Also that “We will not be issuing H-1B, H-2B, L, or certain J visas, and their derivatives through December 31, 2020, unless an exception applies.” Yet in another July 16, 2020, official statement by the Department, it said that” The Department of State will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currently excepted or where the principal applicant is currently in the United States.” [2].

The official answer appears to finally recognize that the Section 3 exception of the proclamation (proclamation not applying to those in the US on its July 24, 2020, effective date) stretches to cover family members who are now eligible for visa issuance. It also seemingly answers the question that those principals who were in the US on the effective date of the proclamation should be able to leave the country and be visaed in those categories barring their inclusion in other bans – that they should not have to wait until after December 31, 2020, for visa issuance. On this, the Department should issue further guidance to the consular posts.

On the tangential point of five questions asked as to when DV-2020 winners could interview for visas, the stock response was “Presidential proclamation 10014 suspended the issuance of several categories of immigrant visas, including DVs. This proclamation was recently extended until December 31, 2020. While the proclamation is in place, the issuance of DVs is not permitted.” To that, there was an excellent response by the asker that “The proclamation only suspends entry. It does not mention suspending the interview and visa issuance process. For #DV 2020 winners this process needs to happen before September 30. We are suspended from entering till after the proclamation ends, but at least we still get our chance.”

Finally in answering a question from an individual applying for adjustment of status and having advance parole and asking whether they were allowed to travel to the US with their B1 B2 visas while their DV 2020 was under advance parole, the Department’s answer that “Foreign nationals with valid visas are generally authorized to travel to a US port of entry” was clearly wrong as applicants for adjustment of status can only travel outside the US under advance parole and reenter under advance parole – otherwise the adjustment of status application is deniable.

While one cannot be but pleased with the official responses of the Department of State, the Department is urged very strongly to give more attention to its unofficial Twitter responses that are taken very seriously by members of the public.

 

[1] National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland, Department of State, July 16, 2020.

[2] Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Non-Immigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, Department of State, July 16, 2020.

 

Article: Trump 6/22/20 Proclamation Suspending the Entry of Nonimmigrant Workers – Who is Affected and How.

As published in the Immigration Daily on June 23, 2020

The Trump proclamation is out and takes effect at 12:01 on June 24, 2020, which means one minute after the witching hour tonight. If you are in the US before that, you are mainly immune from the order – if you are outside, you may be affected by the order.

  1. This goes hand-in-hand with the order for the bar on immigrant visas, and so for both immigrant and nonimmigrant visas, the bar to entry is now through December 31, 2020. The language extending the immigrant bar and the new nonimmigrant bar has another kicker in saying that it may be continued as necessary after the expiration on December 31, 2020. It follows with the language that within 30 days of June 24, 2020, and every 60 days thereafter while the proclamation is in effect, The Sec. of Homeland Security shall in consultation with the Secretary of State and the Sec. of Labor recommend any modifications as may be necessary.
  2. Nonimmigrant visa entries are suspended for H-1B or H-2Bs and their dependents, J-1 interns, trainees, teachers, counselors, au pairs, or summer work travel program people and their dependents, L visa entrants and their dependents. Previously it had been thought that au pairs would be exempt from the bar.
  3. The bar applies only to people who are outside the United States on the effective date of the proclamation. It does not apply to individuals outside the US who have a valid visa by June 23, 2020. It also does not apply to those who have an official travel document other than a visa such as a transportation letter, or advance parole valid on June 23, 2020, or issued on any date thereafter permitting travel to the US.
  4. Exceptions are for LPR’s (although one would wonder why an LPR would be trying to come in on a nonimmigrant visa), spouses or children of US citizens, someone providing temporary labor or services essential to the United States food supply chain, and anyone whose entry would be in the national interest as determined by the Secretary of State, DHS Sec., or their respective designees. For purposes of determining any of the exceptions, it will be up to the consular officer to determine in his or her discretion whether a nonimmigrant has established eligibility.
  5. For purposes of determining whether a national interest applies, State, Labor, and Homeland Security Secretaries are to establish standards to define categories including those that are critical to defense, law enforcement, diplomacy, or national security; are involved with the provision of medical care to people who have contracted Covid-19 and are currently hospitalized; are involved with providing medical research at US facilities to help the US combat Covid-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.
  6. [This last criterion could open up the possibility of bringing in a hotshot L-1 boss or entrepreneur].
  7. From a look at the outlined sample categories, it is questionable whether many individuals with unrelated approved EB-2 NIW cases could qualify for an exception, e.g an NIW for establishing reading programs for special needs children.
  8. The proclamation will also make people applying for a visa go through more scrutiny as they will now have to be registered with biographical and biometric information, including but not limited to photographs, signatures and fingerprints.
  9. The proclamation intends to dampen enthusiasm further for those applying for H-1B’s and EB-2/EB-3 immigrant visas as it directs the Sec. of Labor in consultation with the Sec. of Homeland Security as soon as practicable and consistent with applicable law to consider promulgating regulations or take other appropriate actions to ensure that the presence of aliens who have been admitted or otherwise provided the benefit or who are seeking admission or benefit does not disadvantage US workers, which will likely mean making employers pay not just prevailing wages, but more for the privilege of sponsoring aliens and more checks and investigations into labor certifications and LCA’s.
  10. The proclamation also charges the DHS Sec. with taking appropriate and necessary steps to prevent aliens with final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for or charged with or convicted of a criminal offense in the US from obtaining eligibility to work in the US. Among others, such a regulation would affect persons under orders of supervision; possibly those who have conceded deportability at a master calendar hearing; and anyone who has been arrested for or charged for even disorderly conduct.

Article: Why Donald Trump Is Stumbling Badly And How He Can Save Himself And The Nation

As published in the Immigration Daily on June 15, 2020

As we look at the president casting about like a flounder in the current crises, the question is what is wrong with the president? Where is his teflon suit that protected him through many previous bouts with a critical public? Why have his blustering and twittering not vanquished his foes? It may well be that a great majority of Americans have finally seen in crises the measure of the man and are tired of his pathological lying, very little humanity, and laziness of mind and thought that does not allow him to grasp all sides of the problem but to seek convenient solutions. Does he have a way out? The article will explore the three perceived weaknesses and suggest how he may rehabilitate himself.

Pathological liar

The Washington Post calculated that through the beginning of June 2020, Mr. Trump had made 19,127 false or misleading claims since taking office; that only 35% of Americans said that he was honest and trustworthy and 62% said that he was not. If ever subjected to an impartial psychiatric evaluation, he would doubtless provide an endless funhouse of frights, strobe lights, revolving doors and mirrors. His immigration whoppers are already legend that Mexican immigrants are rapists; that they bring crime and drugs; that legal and undocumented immigrants contribute very little to the country and take far more in public benefits than they contribute; that they are a mass horde unfairly taking away desired jobs  from Americans; and that they are an invasion of violent, disease ridden brown people infiltrated by Islamic terrorists, murderers, drug runners and rapists massing south of the Rio Grande. Non-immigration related lies include insinuating that the former congressman and current MSNBC anchor, Joe Scarborough, murdered a female aide; President Obama not being born in the United States; Ukraine and not Russia interfering in the 2016 elections; Article 2 of the Constitution giving him powers to do whatever he wants as president; mistakenly asserting that Hurricane Dorian would strike Alabama last year against all meteorological evidence and then doubling down with an altered forecast chart and pressuring the National Oceanographic and Atmospheric Administration to back up his false claim; and proclaiming that the Mueller report totally exonerated him.

The president is supposed to be the moral leader of a country regarded by most of the world as a bastion of morality and decency. Yet the image of this president as a moral leader is risible. Children across the nation lie more easily now than ever as they see that there are no consequences to the president for his untruths. Concocting mountains out of very few incidents and making molehills where there are mountains of incidents are almost his stock in trade.

Very little humanity

Viewing Mr. Trump in his addresses to the nation or in his briefings during the coronavirus (the Administration stopped giving pandemic briefings in April) captures an inability to speak compassionately as he has been robotic in describing how devastating the death count has been to the people of the country. He has only been animated in talking about the hurt to the economy, or promising a cure within a year when the record for vaccine development is four years, or in excoriating Democratic governors for not reopening their states fast enough. He refuses to take blame or appear contrite for continually calling the coronavirus a hoax and not being fast enough to take action to head off the 116,000+ deaths in America that make this country first by far in the world in that unenvied category. In the current protests over police killings of blacks, his lack of sympathy for the largely peaceful demonstrations and the threat of using US active military forces have given great comfort to China and Russia – countries universally condemned for their use of the same tactics on their peoples – even though in this country, rights to free speech and peaceful assembly are guaranteed by the Constitution. Facing another anniversary of the Tiananmen Square massacre in 1989, Chinese officials were gleeful in pointing out that the Communist Party use of the army was thus justified by the president of the United States.

On the immigration front, his forced separation of families including children from parents recall the cruel practices of the most terrible authoritarian regimes. His MPP (stay in Mexico) policy reinforced by CDC directives forcing asylum seekers to remain in Mexico where they are preyed upon violates international asylum and refugee laws and accords. His refusal to allow noncriminal immigration detainees to be released from crowded facilities prone to Covid-19 while real criminals – both street type and white collar ones like Mr. Trump’s former associates Paul Manafort and Michael Cohen – are let out is a sickening spectacle. And his further handling of immigration detainees in allowing transfers between facilities without testing and even sending diseased detainees on flights back to their home countries when they were infected with the coronavirus in the US is miserable.

President Trump is lazy in mind and thought

It has not been an uncommon sight to see the president out on golf outings, vacations, parties and other social occasions. It is known that he  comes to the West Wing office late– as late as noon, and that he spends up to 60% of his working days in blocks of “executive time” tweeting, watching TV, especially the Fox network with its pro-Trump commentators and other conservative shows, and taking other built-in breaks.  With such an insular schedule, he is not well balanced in his thought processes.  It is well-known that he does not read his briefing papers and that the intelligence chiefs must spoon-feed him the information. The degree to which he is reliant upon the briefer who summarizes the presidential briefing papers for him was never better illustrated than when he blamed the briefer for telling him that he had nothing to worry about concerning the coronavirus in January. (He has thus far blamed China when the source of most of the infections and deaths in the US came not from China but Europe, the CDC, WHO, Obama and the briefer – but not himself). Yet had he taken the time to actually read the briefing papers, the nation would be better off in having a more informed president. His self-appointed coronavirus role of being the nation’s cheerleader is misplaced when the country needs a leader to coordinate efforts against the pandemic rather than one saying happy days are around the corner while at the same time that the states are on their own, not offering further federal assistance to the states, and then second-guessing and backbiting governors when they have struggled to solve their own states’ problems.

Had he read his briefing papers or even listened to the more urgent warnings of his advisors in February, one study showed that at least 36,000 American lives would have been spared as of May 3 when the fatalities were 65,307 if he had urged  social distancing one week earlier than he finally did on March 16.

In other situations not related to the coronavirus, he would have realized that some of his top-of-his-head decisions were absolutely the most dangerous and detrimental to the country – the killing of General Suleimani of Iran could very well have precipitated a huge escalation in attacks and at the very least signaled to the world that assassination of high governmental officials is an accepted tool of statecraft; his selling out the Kurds in Syria who had been instrumental and worked closely with US troops in destroying ISIS with belittling words that the Kurds did not help us in World War II and not in Normandy prompted the resignation of  Defense Secretary Jim Mattis. That move was further incomprehensible in ceding the Middle East to Russia and forcing nations to reconsider whether the US  was now a reliable partner and would live up to its treaties if they were attacked and to seek other alliances; and his cozying up to dictators and strongmen like Russia’s Putin, North Korea’s Kim, Hungary’s Orban, Egypt’s el-Sisi, Turkey’s Erdogan, and China’s Xi (before the trade disputes) while shunning traditional allies has left this country in a weakened state of not knowing whom the United States can truly count on in times of crisis as allied leaders even speak disparagingly of him behind his back.

How Donald Trump can Rehabilitate Himself

More than at any other time in his presidency, Mr. Trump has shown himself to be an inadequate president. The coronavirus has exposed the emperor as having no clothes not only to his critics, but to his Republican audience. His apparent willingness to sacrifice the older generation for a faster reopening of the economy will cost him dearly in the November elections. His latest polling numbers are bad across the board falling 13.2 percentage points among registered or likely voters with much loss of support among women and even white voters without degrees. He is down seven points among Republicans and independents and nine points among Democrats.  The downward spiral is set as a good portion of his supporters now understand that he has not been the man for the job. His current attempt to gin up his base by planning large rallies while the pandemic rages on and having supporters sign waivers of liability is extremely dangerous and his less zealous fans should give him the old Southern idiom, “That old dog won’t hunt.” He should now resign himself to the fact that he will be a one term president. Jim Mattis said it best on June 3 that “Donald Trump is the first president in my lifetime who does not try to unite the American people – does not even pretend to try. Instead, he tries to divide us.”

To rehabilitate himself in the eyes of most of the American people, Mr. Trump should try to use his remaining time in office to be a unifier of all the people in the States, including immigrants who make a net contribution to the nation culturally, economically, and socially. He should shut down or limit his twitter account as his stream of consciousness tweeting has ended up in many very ill considered remarks, e.g. “When the looting starts, the shooting starts.” In addresses and speeches, he should limit himself to the script instead of wandering off into uncharted waters. Such could also limit the self damage caused by remarks like suggesting Americans could  be injected with bleach. He should exhibit humility and sympathy for people regardless of how hard it is for him to do that and stop saying that his performance is “perfect” or that he has everything under “perfect control.” He should read his presidential briefing papers and reflect instead of just react to situations. Finally he should actually think of the long-term consequences and ramifications of his actions to this country. In this way, perhaps, his legacy will not ultimately be that of the worst president of these United States.

(Author’s note: If you like this article, please forward it to your friends).

Article:Recommendations for U.S.C.I.S. Reopening Offices During Covid-19

As published in the Immigration Daily on May 7, 2020

U.S.C.I.S. is now tentatively scheduling its reopening for June 4, 2020, and the public and legal community are rightfully anxious over what plan the agency has to safely protect the public, its employees and contractors, and still efficiently handle the business of immigration processing. Given the way that the Covid-19 crisis has been managed so far, there is far less than a firm conviction in the minds of all that this will be done right. The speed with which the government wishes to reopen the country apparently in disregard of the human toll (data projections of daily deaths doubling to about to 3000 daily by June 1 in a leaked White House internal document since disavowed as not being produced by or presented to the president’s coronavirus task force) makes one wonder whether the reopening will be carefully thought out or accomplished haphazardly.

Will the scene outside the larger immigration offices resemble total chaos or manageable order with social distancing? Is there also a plan in place for the Application Support Centers (ASC’s)? Will U.S.C.I.S. be able to efficiently process cases, or will people have to wait an interminable period of time for their appointments? For cases already in the pipeline with medical and background checks soon to expire, slow processing will mean additional expense and updating medicals and even more pending time if additional security checks must be run either before or after interviews. The following are some immediate suggestions on how to reduce the number of individuals needing to go into the immigration offices that can be easily implemented:

  1. Stop the practice of interviewing every employment-based (EB) adjustment of status case. Interviewing without exception is a practice that only came into existence in October 2017, mainly in response to widely perceived fraud in EB-4 religious cases, not other EB categories. Before that time, U.S.C.I.S. only interviewed a small percentage of employment based cases. Unless the agency is able to point to a large number of fraud permanent resident employment cases caught through interviewing, it should drop the need for interviewing all and only selectively interview.
  2. In all adjustment of status cases, U.S.C.I.S. should give internal guidance and stop sending out interview letters for persons other than the principal applicant (and spouse in a marriage case). The principal applicant should be instructed to bring adequate documentation of relationship to the other immigrating members of the family.
  3. In petition cases involving non-spouse petitioners, the petitioner should be specifically instructed not to appear. If an interviewing officer has doubts concerning family members or a petitioner, he or she can schedule a further interview.
  4. For naturalization cases involving applicants qualifying under the three-year marriage to US citizen rule, some immigration offices expect a US citizen spouse to be sitting in the waiting room. The appointment letter should make clear that the US citizen spouse is discouraged from appearing.
  5. For ASC’s, many times the only purpose of an appointment is for the ASC to take a photograph – U.S.C.I.S. should return to the old ways of relying upon photographs submitted at the time of filing. In connection, it should change its instructions to require photographs for applications on which it has waived the requirement, e.g. I-90 applications to replace permanent resident card, N-400 applications for naturalization. It should make it a practice to always rerun the captured fingerprints instead of asking people to come in to take partials after their fingerprints are already on file. It should also stop asking or requiring children under the age of 14 or elderly applicants 79 or older to attend biometrics appointments.

In these ways and others, immigration offices can continue to efficiently process cases without backing up the immigration queue of cases ad infinitum.

The second question is how to protect members of the public and U.S.C.I.S. and contracted workers entering the premises.

  1. Although unproven as to whether they can be reinfected or infect others, the government should have as many security personnel as possible available out front who have already tested positive for antibodies to the coronavirus to first meet people coming into the buildings.
  2. Social distance the line.
  3. Take no-contact forehead temperature checks on everyone before they enter the building.
  4. Hand out masks and gloves to those entering the building.
  5. Do not ask members of the public to take off their shoes. A terrorist with a shoe bomb would cause minimal damage in a socially distanced office, would only be a blip on the news with everyone concentrated on the pandemic (which has so far taken a gruesome death count of 75,000 US citizens, permanent residents, nonimmigrants and undocumented), and could cause more damage infecting himself or herself and then others with the coronavirus.
  6. After each use, sanitize the bins into which people place their belongings to go through security.
  7. Increase the number of available bins and persons wiping them down so as to not make going through security a nightmare.
  8. Social distance the customers from the security clearance until they arrive at the designated room, including limiting the numbers on each elevator.
  9. In the interview room, maintain social distancing in the waiting areas by removing seating or (even easier) putting tape across a number of chairs to maintain social distance.
  10. Place receptionists, clerks and officers behind plexiglass or other barriers while working with or interviewing individuals.
  11. Ensure that all employees have adequate numbers of masks and gloves.
  12. Have firm instruction that interviewing officers must use masks and gloves while interviewing.
  13. Reconfigure the back room space to allow all U.S.C.I.S. employees sufficient social distancing space, erecting barriers between them, and creating more common walkways to avoid crowding.
  14. Ensure that both customers and officers/clerks/receptionists wear disposable gloves at all times.
  15. Give the people being interviewed disposable pens if they did not bring their own that they can either keep or drop in a box for sanitizing and reuse.
  16. Sanitize the index fingerprint screen after every interviewee places his/her prints or eliminate the need to do such.
  17. Install more hand sanitizers all over the building and make sure that they are filled quickly upon being emptied.
  18. Put more paper towels in the bathrooms and ensure that they remain available so that people do not have to touch objects with their hands alone.
  19. Think about changing bathroom doors where needed so that they swing both ways and there is no need to grab the knob to enter or exit.
  20. Clean the bathrooms open to the public on an hourly or two-hour basis.

These are some but clearly not all of the ways that a safe experience can be had by everyone entering the reopened immigration offices.

Hopefully U.S.C.I.S. has a good plan that incorporates many of the above features when it reopens.  And above all, everyone from the top of the agency down to the security guards should be merciful and use common sense in dealing with people working in the buildings and the general public. People with appointments should not be turned away or looked upon with disapproval if late given the delays attendant to the pandemic, including lack of reliable transportation. Persons with appointments cannot be expected to come early to avoid being late as they would not be welcome to take up seating in any eating establishment with limited capacity or to congregate for hours outside the federal buildings.

 

Article: The Importance of Setting the Record Straight on East Coast Infections – It’s the Europeans; Why not just excuse the LCA posting requirement during the Pandemic?

As published in the Immigration Daily on April 16, 2020

Setting the Coronavirus Record Straight for East Coast Infections as European and not Asian is Important

In our article of March 20, 2020, “Repeatedly Calling It a Chinese Virus Is Racist and a Deflection of Blame,” we asked that President Trump stop calling the coronavirus a Chinese virus as that was inflaming hatred towards Asians in a country with a history of prejudice, violence, and exclusion towards Chinese. There are now a plethora of articles in newspapers with detailed descriptions of discriminatory and violent acts against Asians including one by the Anti-Defamation League detailing 44+ reported incidents through April. Mr. Trump should be reminded that his assignation of blame will turn many Asian-Americans against him when it comes time to vote in November. He has a chance, however, to now change the narrative and remove most of the stigma from Asian-Americans. Recent studies by the Icahn School of Medicine at Mount Sinai and the NYU Grossman School of Medicine have identified the coronavirus laying waste to the country from the East Coast as originating in Europe through genetic analysis of viral samples. Dr. Anthony Fauci, the leading disease expert and director of the National Institute of Allergy and Infectious Diseases, said that “Given the travel and the air traffic from anywhere in Italy, but also particularly northern Italy, it’s just not surprising that unfortunately and inadvertently New York was seeded before they really knew what was going on.” While the coronavirus originated in China, it is now officially a misnomer to call it a Chinese virus where the major number of infections and deaths in the U.S. originated from Europe. As the number of deaths continues to mount in this country, Mr. Trump’s past insistence on referring to the virus as Chinese has even more significance as it continues to resonate and appeal to the dark nature of people to strike out, especially those who have lost someone close.  This country’s Asians are a ready target being perceived as vulnerable, non-violent, and easily identified by the color of their skin. Europeans on the other hand generally do not stand out except when they speak and there is not the ingrained prejudice against them as with the Chinese. So since Mr. Trump inadvertently or purposefully touched off a flame of resentment that burns to this day, we believe that he owes it to the Asian communities in the United States to make a clarification now.

Why not just excuse the LCA posting requirement for those working from home at this time?

In the Covid-19 related FAQs Rounds 1and 3 by the Department of Labor, the Department made clear that the Labor Condition Application (LCA) worksite notice would still have to be posted for H-1B workers remotely working from home. In the first FAQ of March 20, 2020, the Department said that where workers perform the work elsewhere in the same area of intended employment, the employer must provide either electronic or hardcopy notice at the new worksite locations meeting the content requirements for 10 calendar days unless direct notice is provided such as an email notice. It said that if the employer could not provide a hardcopy notice of the LCA filing due to the pandemic, the regulations allow electronic notice by any means ordinarily used to communicate about job vacancies to employees in the occupational classification in the area of intended employment, and such could include the employer’s website, electronic newsletter, intranet or email – that email notification is only required once and does not have to be provided for 10 calendar days. The FAQ also extended the time that such a notice would be considered timely to no later than 30 days after the worker begins work at the new worksite locations (normally notice is required to be posted prior to the worker moving on to the new site). In the third FAQ of April 9, 2020 (Second FAQ related to H-2A visas), the Department made four points advancing and not retreating from the notice requirement during this time of disease. 1.)  It expanded on employer requirements for situations that did not involve remote employment in the area of intended employment, and instead involved short-term placements of 30 or 60 days outside the area – that the employer could place the H-1B worker for up to 30 workdays in one year and up to 60 days if the person’s place of residence was inside the area of intended employment so long as the employer was in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA. There would also have to be no strike or lockout at the short-term placement location; and the employer would have to pay lodging costs, costs of travel, meals and expenses for both workdays and non-workdays.; 2.)  It defined the area of intended employment as within normal commuting distance to the place of employment with any place within the Metropolitan Statistical Area (MSA) deemed to be within normal commuting distance even if it crossed state lines; 3.)  It instructed that if an employer instead filed a new LCA for work sites outside the area of intended employment or materially changed the terms and conditions of employment, it would need to file an amended or new H-1B with U.S.C.I.S.; and 4.) It admonished that the employer’s treatment of H-1B personnel must not adversely affect the working conditions of similarly employed US workers and the employer had to offer the same flexibility to US workers similarly employed that it was offering to H-1B workers including telework from home within the area of intended employment or where the employer was offering to move H-1B employees outside of that area.

Although there is great interest in protecting the American job market, the insistence on maintaining the same notice requirements for new locations in the current time of crisis seems strained and the Department may still wish to reconsider its position. Where working from home is involved, one of the options is for the employer to post the notices at the H-1B holder’s house or apartment for 10 days. Is there any practical use in doing so where the two notices will likely only be seen by the employee, and perhaps spouse, children, and family dog if they exist? There is also the problem of employers in nonessential businesses even  being able to go into their offices where files are stored to  retrieve employee information or work on the notification procedures much less updating the public access package, especially when they are supposed to be sheltering in place in most parts of the country. As of the time of this writing, only five states, Arkansas, the Dakotas, Iowa and Nebraska are not under stay-at-home orders.  Common sense seems to dictate a waiving of requirements where attempting to comply places those in danger who must leave home to go to their businesses.

Article: REPEATEDLY CALLING IT A CHINESE VIRUS IS RACIST AND A DEFLECTION OF BLAME

As published in the Immigration Daily on Match 20, 2020

The US has had a long history of racism against Chinese, beginning with the 1871 Chinese massacre in Los Angeles, 1882 Chinese exclusion laws, 1921 and 1924 immigration laws establishing a national origins formula to further exclude Asians and others, yellow peril stories beginning in the early 1900s epitomized by the Fu Manchu character in the 1930s, and jingoistic mistrust of Chinese during the Cold War and now under a Trump administration at war with the Chinese over trade and which nation will lead in the 21st century.

Against this background, Mr. Trump is aggressively inflaming Americans against persons of East Asian origin in the country by repeatedly calling the novel coronavirus the “Chinese virus,” while another in his administration just referred to it as the “Kung flu.” Inflammation appears to be working even in a city as diverse and ethnically tolerant as New York as seen even in this law firm’s anecdotal experience of one of our Chinese-American staff member’s two incidents within the past week, one that she witnessed of a man on the New York subway threatening Asians wearing face masks when one coughed, and the other this morning of another man cursing her when she lightly coughed (right outside Penn Station) with her mask on.

This constant emphasis on blaming the Chinese has escalated tensions across the country and highlighted Asian businesses to such a negative degree that business owners have faced colossal losses even though just about all Chinese-American citizens, permanent residents originating from China, and visitors from China are virus free due to the China travel ban, and the riskiest populations are from Europe and the Middle East with Italy and Iran leading in current contagious spread. In New York City, much of the infection was spread by a Jewish attorney from New Rochelle.

While saying the term once or twice serves as a denial to the China made rumor that the new coronavirus was brought to China by the US military (obviously someone in China read about the origins of the Spanish flu of 1918), the world at large is already cognizant of its origins. Yet Mr. Trump is using a megaphone consistently to assign blame to a known fact.

To what end the blame? The answer is diversion from the horrible job that the president has done from the very beginning to contain the virus. From abolishing the National Security Council Directorate for Global Health and Security and Bio Defense to believing that he could “wall” off the coronavirus to saying that it was a “hoax” and not taking it seriously to not having a plan in place and failing miserably to listen to public health experts and coordinate government response early in the crisis, his handling of the situation has been haphazard and dumbfounding. While Hong Kong and Singapore have solved the coronaviruses in their countries through huge amounts of testing and contact tracing, the US has fallen so far behind that it appears the only viable strategy is social distancing and lockdowns.

Mr. Trump is clearly not an advocate of Harry Truman’s famous desk sign, “The Buck Stops Here,” but an advocate of buckpassing. Repeated and continual use of the “Chinese virus” term is an attempt to deflect blame. Yet we do not need a president in this crisis to throw off blame and in so doing put the lives and property of Asians in this country at peril, but a president who accepts the blame without caring whether he is reelected or not, and moves the country forward to solve the predicament.

Article: Is Mr. Trump an Unstoppable Freight Train?

As published in the Immigration Daily on February 21, 2020

Barreling along, President Trump today appears to be an unstoppable force on his way to reelection in November. That is the view from here. Despite his moves towards an imperial presidency, cozying up to Russia and largely allowing it free reign throughout the world, inhumane treatment of vulnerable groups here and abroad, and corrupt or highly questionable moves to gain political advantage towards his reelection, he is gaining in popularity while the Democrats are in disarray with candidates destroying each other on debate stages.

Yet it is dispiriting that in this country founded on constitutional principles, honor and decency, Americans will choose to reelect a president without any of the above.

In this administration, all decency appears to be lost in dealing with vulnerable groups with a president who only respects the strong. The treatment of undocumented immigrants including separation of families in the border regions and in the interior, stigmatizing them as criminal rapists, murderers, and drug traffickers when the vast majority are law-abiding, attempting to suppress their representation by adding a citizenship question to the census to intimidate them from being counted, speaking of them in racist and other pejorative terms, dropping refugee admissions to record lows, and making immigrant entries a wealth test through the new public charge law, etc., all points to an innate lack of decency and refusal to make America a shining beacon as compared to the rest of the world.(Although we do not minimize the impact of immigrant crime upon its victims, we note that much higher percentages of crimes are committed by Americans upon Americans as a percentile of the population, and that Mr. Trump is adept at making a mountain out of a statistical mole hill).

Mr. Trump exhibits no honor as seen in his attack on Gold Star family members and decorated veterans who dare to criticize him, his abandonment of this country’s Kurdish allies who paid more than 7000 lives to support US efforts against ISIS and invitation to Turkey to invade their lands, his misappropriation of military funding to build his border wall, and his inveterate lying –staining the office of the presidency with a whopping 16,241 false or misleading claims since taking office as reported by the Washington Post on January 20, 2020.

Constitutional principles such as separation of powers are anathema to this president who believes that Congress is beneath him, that the presidency and the executive branch are higher than the other two branches of the US government, and that all executive branch members have no greater duty than giving their personal loyalty to him.

One would think that with such highly negative factors, Mr. Trump could not stand a good chance of reelection. Yet Democrats are up against numbers like those in the Gallup poll in January 2020 showing that a record high 90% of Americans are satisfied with their personal lives, that American confidence in the US economy is at a 20 year high, and that a record 49% of Americans approve of Mr. Trump’s performance as president.

Immigration is a topic on which all Democratic candidates hew center left or left and generally agree upon – the difficulty is the other policies such as healthcare, taxes, and redistribution of wealth and that no candidate can win an election without the undecided of this country which will not vote for those that they consider too far to the left. Conversely those who support candidates on the far left of these issues may not vote for the candidate who only projects center left (such as many of Sen. Bernie Sanders’ supporters who stayed home rather than vote for Mrs. Clinton in 2016).

Where do the Democrats go from here? With the number of candidates still campaigning against each other, the bloodletting, backbiting and divisiveness will only get worse while Mr. Trump sits on the sidelines without opposition – only having to occasionally snipe at the growing Democratic fiasco on Twitter.