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Going Beyond IRAP v. TRUMP: Challenging “Bad Faith” Governmental Actions Denying Non-Citizens Admission Into The United States

The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against  President Trump’s travel ban, on the ground that it violated the Establishment Clause of the US Constitution, holds out hope for other similar challenges that have otherwise faced a high bar to overcome the Executive branch’s unbridled discretion to keep out non-citizens of the United States.

In a lengthy majority opinion, Chief Judge Roger Gregory asked whether the Constitution “protects Plaintiffs’ right to challenge an Executive Order that in the text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

Courts have continuously applied the “facially legitimate and bona fide” test of Kliendienst v. Mandel to challenges to individual visa denials. Although Mandel sets a high bar to plaintiffs, the Fourth Circuit’s majority opinion emphasized that the government’s action must both be facially legitimate as well as be bona fide. The government’s action, such as with the executive order banning nationals from six Muslim majority countries in the name of national security may have been facially legitimate, but may not have been bona fide as the President used it as a cover to fulfill his promise to ban Muslims from the United States. This constituted bad faith, according to the majority opinion, and thus the EO was not bona fide. Where the good faith has “seriously been called into question,” the court concluded it should be allowed to “look behind the stated reason for the challenged action.” The court used the test in Lemon v. Kurtzman to establish that the travel ban violated the Establishment Clause of the US Constitution by disfavoring Muslims. Relying on statements that President Trump made both during his campaign and after he became President, the travel ban was in effect a legal attempt to effectuate Trump’s promised Muslim ban rather than advance national security.

The Fourth Circuit opinion broke new ground by challenging the long-held notion that the courts must always give deference to the government’s national security justification. The following extract from the majority opinion is worth noting:

The Government argues that we should simply defer to the executive and presume that the President’s actions are lawful so long as he utters the magic words “national security.” But our system of checks and balances established by the Framers makes clear that such unquestioning deference is not the way our democracy is to operate. Although the executive branch may have authority over national security affairs, see Munaf v. Geren, 553 U.S. 674, 689 (2008) (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)), it may only exercise that authority within the confines of the law, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645–46, 654–55 (1952) (Jackson, J., concurring); and, of equal importance, it has always been the duty of the judiciary to declare “what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

To what extent can IRAP v. Trump be extended to other situations where a visa may be denied in bad faith and thus not meet the “facially legitimate and bona fide” test of Mandel? In Kerry v. Din, the Supreme Court upheld the visa refusal of the beneficiary of an I-130 petition filed by his US citizen spouse under the terrorism ground of inadmissibility pursuant to INA 212(a)(3)(b). According to the concurrence by Justice Kennedy, the beneficiary, an Afghan national, who once worked for the Taliban government in Afghanistan, received sufficient notice by being provided the section number of the INA under which he was found inadmissible, and thus the government met the “facially legitimate and bona fide test” of Mandel. However, Justice Kennedy did indeed emphasize, “Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.”

In IRAP v. Trump, the plaintiffs successfully showed bad faith by President Trump who violated the Establishment Clause of the US Constitution. What other sorts of bad faith may a plaintiff show to convince a court to look behind the “facially legitimate and bona fide” test? Perhaps, if the facts in Kerry v. Din showed that the beneficiary was unlawfully detained for hours in the US Consulate during his visa interview and forced to admit that he was involved in terrorist activities on condition of being released, even though he was not, that could arguably be tantamount to bad faith? In this hypothetical situation, the constitutional violation which gives rise to bad faith would be the violation of the beneficiary’s due process rights rather than the violation of the Establishment Clause. The beneficiary, in this situation, could potentially cite to landmark cases such as Zadvdas v. Davis (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), Boumediene v. Bush, (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”).

Finally, the plaintiff would also need to demonstrate standing in order to bring the claim. To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In IRAP v. Trump, the government in an effort to object to standing to the plaintiffs asserted that in  Saavedra Bruno v. Albright, a consular official’s decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise. However, the court noted that Saavedra also stands for the proposition that when cases are brought by U.S. citizens, or when statutory claims are combined with constitutional ones, judicial review is permitted.

In a fact pattern similar to Kerry v. Din, the I-130 petitioner, a US citizen, would have standing to bring the action. What about an H-1B visa holder, with three months remaining on that visa, applies for a renewal of that visa at the US consulate? The consular officer, animated by the new rhetoric flowing from the administration that H-1B workers steal jobs of US workers, badgers the H-1B applicant, under threat of many years of imprisonment, to falsely admit she is not performing the duties indicated in the perfectly bona fide H-1B petition and revokes the existing visa as well as refuses to issue a new H-1B visa. Would the H-1B worker have standing to allege bad faith on the part of the consular officer? The H-1B plaintiff can potentially assert that she is residing in the US, and also enjoys “dual intent” under the H-1B visa. [Under INA 214(b), an H-1B beneficiary is allowed to harbor an intent to remain in the US permanently even though the H-1B visa is temporary].  If the H-1B holder has also been sponsored for a green card through the employer, this would further bolster her standing, as she had not just harbored an intent to reside permanently but has taken concrete steps to do so. Finally, the US employer can also file an action as the petitioner of the H-1B who will be affected if she is unable to resume employment in the US. Still, being overaggressive, coercive, and sloppy, even to an extent that would violate due process rights assuming the targets of one’s over-aggressiveness had standing to assert such rights, may not necessarily imply bad faith, such as having a hidden agenda like Trump’s travel ban. Nevertheless, the evolving jurisprudence in IRAP v. Trump does give other plaintiffs food for thought to blow a hole through the “facially legitimate and bona fide” wall set forth in Mandel.

The government may have maximum power to deny non-citizens admission into the US, but that power is not absolute. IRAP v. Trump, and  many other successful challenges to Trump’s travel ban, may provide a pathway for a plaintiff to seek judicial review of governmental actions that have been conducted in bad faith.

Immigrants Are Not Undesirable Criminals

During his campaign and after he became president, Trump has unfortunately changed the narrative by linking immigrants, especially undocumented immigrants, to rapists, murderers, terrorists and job stealers. Trump has exploited the crimes committed by a few immigrants to link all of them to criminal activity. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. While we undoubtedly sympathize with the victims of such crimes, it is morally reprehensible to taint all immigrants with the conduct of a very few. The criminal justice system can effectively punish perpetrators of all crimes, whether they may be immigrants or US citizens.  Most immigrants are hardworking and honest, trying to make a better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans.

Some in the media have latched onto this false narrative to further sensationalize the issue. When I was invited to debate Tucker Carlson on Fox News on March 27, 2017 I accepted believing it is important for an immigration attorney to speak out loudly and boldly, no matter how ruthless the TV host may be.While Carlson may limit the conflation to crimes with undocumented immigrants, this has the tendency to extend to even legal immigrants as exemplified in Trump’s travel ban. Nationals of the countries affected in the ban are people entering the United States legally as students, temporary workers or as refugees,  but they are still considered suspect as the Trump’s travel ban directly links to nationals of Muslim majority countries suspected of terrorism.  This sort of stereotyping is not just false, but it is also extremely dangerous. A few weeks ago, a US citizen killed an Indian engineer who was legally in the United States on an H-1B visa under the false perception that he was a dangerous immigrant. By Carlson’s logic, the immigrant would not have committed a crime if he or she had not been let into the United States in the first place. But how do you determine this in advance as to who will commit a crime in the future? Does this  mean that our entire immigration system has to shut down?  Or do we no longer take in people fleeing persecution to prevent risking one of them or one of their descendants from committing a crime in the future, even though America is known as the beacon of hope for the persecuted? Is there a way to determine whether one born in the United States will be the next Timothy McVeigh or Adam Lanza?

We can only hope that this virulent fever in America breaks soon because it goes against the long cherished notion that America is nation of immigrants.

Watch the clip below:

Protesting Trump’s Muslim Ban Through Art: An Immigration Lawyer’s Perspective

There are many ways to protest Trump’s travel ban, also known as the Muslim ban. Lawyers have successfully sued against the ban in the courts. People protested at airports in an unprecedented and spontaneous manner. Art can also be a powerful form of protest against the ban.  The Museum of Modern Art (MOMA) has also joined the protests by displayng works of artists from the banned countries among other iconic works of art in its permanent collection. One has to go through the galleries housing the permanent collection to serendipitously come across the work of an artist from a banned country, which in the age of Trump, have also attained iconic status. Art is able to inspire the lawyer in protesting the ban. Trump’s exclusion of an entire people from a banned country casts all of them as terrorists, including the artist. This is both legally wrong and morally shameful.

These are three of my favorites among the works of the artists from the banned countries at the MOMA. I have also included at the end the works of two artists from my own very modest art collection. I am happy to possess these works, which have always been beautiful, but resonate more powerfully today. They inspire me as I protest Trump’s ban.

Charles Hossein Zenderoudi – born in Iran

Ibrahim el- Salahi - born in Sudan

Ibrahim el- Salahi – born in Sudan

Parviz Tanavoli – born in Iran

 

These are two works from my own collection, the first which I acquired in 1993 and the second in 2010.

 

Reza Derakshani – born in Iran

Mary Yahya – born in Iraq