Tag Archive for: Trump

Cyrus Mehta

Trump and Dick the Butcher Have the Same Impulse: “Let’s Kill All the Lawyers”

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The White House issued a memo on March 22, 2025 ominously titled Preventing Abuses of the Legal System and the Federal Court.

The phrase “The first thing we do, let’s kill all the lawyers” is from William  Shakespeare’s Henry VI said by a character called Dick the Butcher in Act IV, Scene II. This phrase has been seized upon to disparage the legal profession and lawyers as crooked and overpriced. Perhaps Stephen Miller, advisor to President Trump on restricting immigration,  who may have had a hand in authoring the memo, also understands lawyers in this way and worse as “[threatening] our national security, homeland security, public safety, or election integrity.”

But there is another meaning to this phrase. Dick the Butcher is a murderous thug and  Jack Cade’s right hand man who is leading a rebellion against King Henry. They kill anyone who can read and burn all books and documents they encounter as it will be be easier for them to take over an ignorant population  over one where eveyone understands their rights. In order for their rebellion to succeeed  Dick is suggesting that they must eradicate the lawyers, the defenders of justice, who stand in their way. Lawyers are the last defense who stand in the way of tyranny.

Trump, and his henchman Miller, like Dick the Butcher, are now attacking the immigration bar through this memo. Supposedly unethical lawyers are standing in their way to dismantle an immigration system that allows the persecuted to seek protection in the US. The memo suggests ways  to “kill the lawyers” by sanctioning and disciplining them through an assortment of court and disciplinary rules.

Obviously, there is no truth to this assertion. The immigration bar and  lawyers in Big Law doing immigration pro bono are ethical. Otherwise, they would have been sanctioned and disbarred by vigilant disciplinary authorities.  Trump is engaging in delirious fantasy.  Lawyers must stand firm together notwithstanding this nonsensical bluster and continue to ethically represent noncitizens in asylum and other immigration cases. If lawyers fall and capitulate,  like Paul Weiss did, who will defend the defenders of the Constitution?

The entirety of this absurd memo that at first brush seems like comical satire is real and reproduced here:

SUBJECT:      Preventing Abuses of the Legal System and the Federal Court

Lawyers and law firms that engage in actions that violate the laws of the United States or rules governing attorney conduct must be efficiently and effectively held accountable.  Accountability is especially important when misconduct by lawyers and law firms threatens our national security, homeland security, public safety, or election integrity.

Recent examples of grossly unethical misconduct are far too common.  For instance, in 2016, Marc Elias, founder and chair of Elias Law Group LLP, was deeply involved in the creation of a false “dossier” by a foreign national designed to provide a fraudulent basis for Federal law enforcement to investigate a Presidential candidate in order to alter the outcome of the Presidential election.  Elias also intentionally sought to conceal the role of his client — failed Presidential candidate Hillary Clinton — in the dossier.

The immigration system — where rampant fraud and meritless claims have supplanted the constitutional and lawful bases upon which the President exercises core powers under Article II of the United States Constitution — is likewise replete with examples of unscrupulous behavior by attorneys and law firms.  For instance, the immigration bar, and powerful Big Law pro bono practices, frequently coach clients to conceal their past or lie about their circumstances when asserting their asylum claims, all in an attempt to circumvent immigration policies enacted to protect our national security and deceive the immigration authorities and courts into granting them undeserved relief.  Gathering the necessary information to refute these fraudulent claims imposes an enormous burden on the Federal Government.  And this fraud in turn undermines the integrity of our immigration laws and the legal profession more broadly — to say nothing of the undeniable, tragic consequences of the resulting mass illegal immigration, whether in terms of heinous crimes against innocent victims like Laken Riley, Jocelyn Nungaray, or Rachel Morin, or the enormous drain on taxpayer resources intended for Americans.

Federal Rule of Civil Procedure 11 prohibits attorneys from engaging in certain unethical conduct in Federal courts.  Attorneys must not present legal filings “for improper purpose[s],” including “to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  FRCP 11(b)(1).  Attorneys must ensure that legal arguments are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”  FRCP 11(b)(2).  And attorneys must ensure that their statements about facts are “reasonably based” on evidentiary support, or a belief that such evidence actually exists.  FRCP 11(b)(3)-(b)(4).  When these commands are violated, opposing parties are authorized to file a motion for sanctions.  FRCP 11(c).  The text of the rule specifically addresses and provides for sanctions for attorneys and their firms as well as for recalcitrant parties given the solemn obligation that attorneys have to respect the rule of law and uphold our Nation’s legal system with integrity.  Furthermore, Rule 3.1 of the Model Rules of Professional Conduct provides that, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

Unfortunately, far too many attorneys and law firms have long ignored these requirements when litigating against the Federal Government or in pursuing baseless partisan attacks.  To address these concerns, I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.

I further direct the Attorney General and the Secretary of Homeland Security to prioritize enforcement of their respective regulations governing attorney conduct and discipline.  See, e.g., 8 C.F.R. 292.1 et seq.; 8 C.F.R. 1003.101 et seq.; 8 C.F.R. 1292.19.

I further direct the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity.  In complying with this directive, the Attorney General shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.

I further direct the Attorney General, in consultation with any relevant senior executive official, to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.  If the Attorney General identifies misconduct that may warrant additional action, such as filing frivolous litigation or engaging in fraudulent practices, the Attorney General is directed to recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney, termination of any contract for which the relevant attorney or law firm has been hired to perform services, or any other appropriate actions.

Law firms and individual attorneys have a great power, and obligation, to serve the rule of law, justice, and order.  The Attorney General, alongside the Counsel to the President, shall report to the President periodically on improvements by firms to capture this hopeful vision.

 

Cyrus Mehta

Trump’s Cruel Immigration Policies Have No Rational Justification Except to Harass and Intimidate Immigrants such as the Alien Registration Requirement 

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By Cyrus D. Mehta and Kaitlyn Box*

The Trump administration recently announced that it would enforce INA § 262, which requires noncitizens aged 14 years or older to register with the government if they were not already registered and fingerprinted when applying for a U.S. visa. Children are required to reregister within 30 days of their 14th birthday. The following categories of noncitizens have already registered by virtue of their manner of entry into the U.S., or through an application later filed with USCIS: 

  • Lawful permanent residents;
  • Noncitizens paroled into the United States under INA 212(d)(5), even if the period of parole has expired;
  • Noncitizens admitted to the United States as nonimmigrants who were issued Form I-94 or I-94W (paper or electronic), even if the period of admission has expired;
  • All noncitizens present in the United States who were issued immigrant or nonimmigrant visas prior to arrival;
  • Noncitizens whom DHS has placed into removal proceedings;
  • Noncitizens issued an employment authorization document;
  • Noncitizens who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700, even if the applications were denied; and
  • Noncitizens issued Border Crossing Cards. 

Many other categories of noncitizens may be required to comply with the registration requirement, including those who “are present in the United States without inspection and admission or inspection and parole; Canadian visitors who entered the United States at land ports of entry and were not issued evidence of registration; and,[noncitizens] who submitted one or more benefit requests to USCIS not listed in 8 CFR 264.1(a), including applications for Deferred Action for Childhood Arrivals or Temporary Protected Status, who were not issued evidence of registration.” As of the date of publication of this blog, DHS has yet to officially promulgate a registration form or further instructions. 

Although the provision referencing registration at INA § 262 existed, it was rarely enforced and the new announcement either literally interprets a 1952 statutes or reinterprets it in a way that highlights this administration’s animus towards immigrants. These include Canadian visitors, DACA recipients, and children who received visa stamps, including H-4 visas, before their 14th birthday to register upon turning 14. Failure to comply may result in “criminal and civil penalties, up to and including misdemeanor prosecution and the payment of fines”. The planned registration system has a predecessor in the National Security Entry-Exit Registration System (NSEERS), which, unlike the Trump administration’s policy, was created in response to a pressing national security concern – the September 11 terrorist attacks. NSEERS resulted in widespread confusion and discriminatory enforcement, particularly towards Muslim noncitizens. The Trump administration’s registration system is likely to have similar consequences. 

USCIS also recently gave notice of the planned promulgation of a new form to designed to “establish enhanced screening and vetting standards and procedures to enable USCIS to assess an alien’s eligibility to receive an immigration-related benefit.” The form would apply to numerous immigration applications, including applications for asylum, adjustment of status, naturalization, and travel documents. It would collect a total of 24 items of information about applicants, including the names, addresses, and telephone numbers of family members such as parents, spouses, siblings, and children. Requiring applicants for immigration benefits to disclose this information could deter some from filing altogether, particularly if they fear exposing undocumented family members to immigration enforcement. 

The Trump administration’s pattern of enacting inhumane immigration is further evidenced by its decision to end the Biden-era parole program for Cubans, Haitians, Nicaraguans, and Venezuelans, termination of the Uniting for Ukraine program, and its termination of the Temporary Protected Status (TPS) designation for Venezuela. Trump further plans to pause the adjudication of any applications for immigration benefits, which could include asylum or family-based adjustment of status applications, submitted by noncitizens who entered the United States pursuant to a parole program. These people played by the rules and were paroled into the US following the instructions of the Biden administration, and now the Trump administration has pulled the rug from under their feet.  Another example of a viciously inhumane policy is the restriction of birthright citizenship to only children born in the US to at least one parent who is a citizen or a permanent resident, see our blogs here and here, via an executive order. Fortunately, the courts have blocked the Trump’s unconstitutional reinterpretation of the 14th Amendment to the US Constitution for now, but if this policy took effect, it would render children undocumented, stateless or as temporary nonimmigrants, from the moment they are born. It would also create a permanent underclass. 

Among Trump’s cruelest immigration policies to date has been the transfer of a group of primarily Venezuelan nationals with final orders of removal to Guantanamo Bay, a detention facility known for abusive conditions that was set up to detain alleged terrorists after 9/11. The administration has also removed asylum seekers to Panama and Costa Rica, where some were held in hotels for days on end and afforded no opportunity to seek legal relief. Caleb Vitello, formerly acting director of ICE, was required by the Trump administration to personally sign off on releases of any noncitizens from detention, before being summarily dismissed from his position, allegedly for being too pro-immigrant and not removing enough people.  

Taken together, these policies, and many more cruel policies that we have not addressed here,  illustrate a pattern of harassment and cruelty towards immigrants. Noncitizens who are intimidated and do not register may incur penalties and difficulty applying for immigration benefits in the future, while those who fear providing information about family members may forego filing applications with USCIS. The termination of parole programs and Venezuelan TPS will result in recipients losing work authorization and potentially needing to leave the U.S. These policies will not only be detrimental to immigrants, but also to their American family members and employers. 

There has been a dark history in the US resulting in the scapegoating of immigrants in times of crisis.  A recent example was the restrictions imposed on noncitizens after the September 11, 2001 attack, which included the NSEERS program that resulted in religious, racial and ethnic profiling (see Have We Learned the Lessons of History? World War II Japanese Internment and Today’s Secret Detentions by Stanley Mark, Suzette Brooks Masters and Cyrus D. Mehta).  The delicate balance we strive to achieve as a nation between liberty and security inevitably tips towards security, and civil liberties tend to be compromised. While there can never be a justification to go after immigrants in a time of genuine crisis, Trump has manufactured a crisis to justify his administration’s wantonly cruel attacks on immigrants. The supposed justification for unleashing such cruel policies is based on the ‘Protecting the American People Against Invasion” executive order. The executive order falsely claims that millions of illegal immigrants were invited to the US by the prior administration even though most were paroled into the US under INA 212(d)(5) or sought to apply for asylum under INA. The executive order then makes the exaggerated claim without foundation that “many of these aliens unlawfully within the United States present significant threats to national security and public safety, committing vile and heinous acts against innocent Americans. Others are engaged in hostile activities, including espionage, economic espionage, and preparations for terror-related activities.” While some immigrants may commit crimes, as would US citizens, in any random sampling of a population,  they can be dealt with on an individualized basis through the criminal justice system. Whether the crisis is real or manufatured, there is absolutely no justification for this sort of hate towards immigrants. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

The authors thank David Isaacson for suggesting additional cruelest policies of the Trump administration towards immigrants. 

 

Cyrus Mehta

The False Distinction Between Legal and Undocumented Immigrants in the Debate on Birthright Citizenship

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By Cyrus D. Mehta and Kaitlyn Box*

Donald Trump’s executive order restricting birthright citizenship, which we analyzed in a previous blog, has now been temporarily enjoined and is the subject of multiple lawsuits. The executive order has also brought to light the false dichotomy between “legal” and “undocumented” immigrants, obscuring the nuance of U.S. immigration laws. [Although the Trump administration has replaced references to undocumented individuals with the term “illegal”, we use “undocumented” here to refer to individuals who currently have no legal immigration status in the U.S.]

“Legal” and “undocumented” immigrants alike are subject to the jurisdiction of the United States pursuant to the 14th Amendment. The concept of jus soli, enshrined in the 14th Amendment, has long guaranteed children born in the U.S. the right to U.S. citizenship, regardless of the immigration status of their parents. The Trump administration is incorrectly asserting in its executive order that the 14th Amendment was never intended to confer birthright citizenship to parents who are not lawfully in the US or to parents who may be lawfully in the US but on temporary visas. Many people participating  in the debate on social media feel that birthright citizenship should only be conferred by parents who are legally in the US, and if a tweak has to be made in Trump’s executive order, it should only remove the restrictions on parents who are legally in the US but on temporary visas. The executive order is unconstitutional in its entirety and should be struck down.

This distinction between “legal” and “undocumented” immigrants is an overly simplistic, and often false, one.  A noncitizen who entered the U.S. with a valid visa can easily fall out of status, while a path to U.S. citizenship may eventually become available to an individual who was previously undocumented. Indeed,   legal and “undocumented” immigration are points on a continuum rather than discrete concepts. An entirely undocumented individual who is placed in removal proceedings can seek cancellation of removal and become a permanent resident. Similarly, an individual who entered the U.S. on a nonimmigrant visa and overstayed it for many years could meet and marry a U.S. citizen spouse, thus becoming eligible to apply for permanent residence. At times, Congress bestows such permanent residency to previously-undocumented individuals through section 245(i) or the LIFE Act.

Moreover, one thinks of an undocumented immigrant as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year.

In 1982 in Plyler v. Doe, 457 US 202 (1982), a landmark Supreme Court case which held children could not be deprived of a public education on the basis of their immigration status, the Court eloquently explained that an individual’s undocumented status is often temporary, stating:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

The Court affirmed that an undocumented individual living in the United States “is surely ‘a person’ in any ordinary sense of that term,” “[w]hatever his status under the immigration laws.” Plyler v. Doe, 457 U.S. 202, 210 (1982).

Moreover, some individuals who do currently have a lawful status may nonetheless be authorized to remain in the U.S., as we highlighted in another prior blog. An asylum applicant is authorized to remain in the U.S. and apply for employment authorization 150 days after filing the asylum application even though he has not yet been granted asylum and would not qualify as an asylee under 8 CFR 245.1(d)(1)(iii). Similarly, an individual who has filed an I-485 application to adjust status is authorized to remain in the U.S. even if she does not have a valid, underlying nonimmigrant status. An individual in removal proceedings is authorized to remain in the U.S. and seek relief until the conclusion of the proceedings. Even a noncitizen who has been ordered removed but filed petition for review in circuit court can apply for work authorization and continue to reside in the U.S. during the pendency of the appeal.

In Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court emphasized the importance of discretion in removal proceedings, explaining that it is not always appropriate to place even an entirely undocumented individual in removal proceedings:

Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227…A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Drawing a distinction between those on temporary visas and those who are lawful permanent residents also ignores the practical reality that many nonimmigrants are “Americans in waiting”. A nonimmigrant in H-1B status has a clear path to becoming a permanent resident, and eventually a U.S. citizen, through sponsorship by an employer but has to wait for many decades due to backlogs in their green card category. DACA recipients who have lived almost their entire lives in the U.S. may have few ties to any other country and could become lawful permanent residents through marriage to a U.S. citizen or LPR spouse, or through an employment-based category.

On the other hand, a noncitizen who comes to the United States with a valid visa may not could later overstay their visa, thus becoming “undocumented”. Violations of a nonimmigrant visa also render a noncitizen’s immigration status ambiguous. An H-1B worker who works from home and moves across the country before an amended H-1B petition is filed, for example, could technically be in violation of his status.

According to Professor Gerald Neuman, “[T]he framers of the Fourteenth Amendment had strong reason from desiring a constitutional settlement of the issue of birthright citizenship. They had just overthrown a system founded on denial of political membership in the country to a hereditary category of inhabitants. The Citizenship Clause was designed to prevent the situation from happening again…[T]he supporters of the Citizenship Clause expressly confirmed their intent to protect the children of Chinese parents by recognizing them as citizens.” See Statement of Prof. Gerald E. Neuman, Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents: Joint Hearing Before the Subcomm. on Immigration & Claims and the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1995).

The only exceptions were children born to diplomats of foreign nations who were not subject to the jurisdiction of the United States as well as children born to parents accompanying an invading army that temporarily ousted the operation of local law. The framers also excluded children born within Native American tribes  because they owed allegiance to their tribal nations rather than the United States, but this preclusion was  eventually eliminated by the Indian Citizenship Act of 1924.

On the other hand, undocumented parents are clearly subject to prosecution in the United States as well as temporary noncitizens. They can also hardly be considered to be part of an invading army that has ousted the local operation of law. Even the argument that undocumented parents and nonimmigrants owe their allegiance to a foreign government rather than to the U.S. government is spurious. Temporary residents in nonimmigrant status can remain in the U.S. for many years as they wait for permanent residence. They could owe allegiance to the U.S. government and so could an undocumented immigrant just as a U.S. citizen would. Lawful permanent residents, who are not U.S. citizens,  could owe their allegiance to the U.S. government but also to a foreign government without risking losing that status.   U.S. citizens may also be citizens of other countries and may owe their allegiance to a foreign government, the U.S. government, or both, but both U.S. citizens and lawful permanent residents  qualify under Trump’s executive order to confer birthright citizenship to their children born in the U.S.

In  United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws. The principle established in Wong Kim Ark applies with equal vigor today. Excluding an allegedly undocumented parent who has been a DACA recipient since 2012  from conferring birthright citizenship to their child would make no sense. It would also make no sense to deem a parent who was in technical violation of their H-1B status as undocumented at the time of the birth to her child. It would also be unfair to deprive a parent in lawful H-1B status who has been waiting for their green card for over a decade from conferring birthright citizenship to their child. The Supreme Court’s hallowed ruling on birthright citizenship established well over 125 years back  a fundamental American value that all people born in the United States are equal at birth, regardless of their race, religion, or the immigration or financial status of their parents.

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Should Trump’s Lawyers Implementing Policies That Hurt Immigrants be Concerned About Violating Their Ethical Obligations? 

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By Cyrus D. Mehta and Kaitlyn Box*

On January 23, 2025, Acting Secretary of the Department of Homeland Security, Benjamine C. Huffman issued a memorandum entitled “Guidance Regarding How to Exercise Enforcement Discretion”, which directs ICE to take the following action: 

(1) For any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been applied:

     a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether to apply expedited removal. This may include steps to terminate any ongoing removal proceeding and/or any active parole status.

(2) For any alien DHS is aware of who does not meet the conditions described in (1) but has been granted parole under a policy that may be paused, modified, or terminated immediately under the January 20 memorandum:

a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether any such alien should be placed in removal proceedings; and

b. Review the alien’s parole status to determine, in exercising your enforcement discretion, whether parole remains appropriate in light of any changed legal or factual circumstances.

On January 6, 2023, the Biden Administration instituted a humanitarian parole program allowing certain nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) to apply for entry to  the U.S. for a temporary stay of up to two years. All individuals admitted through the CHNV program must have a U.S.-based supporter, pass security vetting, and meet other criteria. Parole is not an immigration status. During the two-year parole period, individuals may seek humanitarian relief or other immigration benefits, if they are eligible, and work during that time. See our blog for further details on the CHNV program. 

The Biden Administration committed to accepting 30,000 beneficiaries a month from across the four countries. Within the first six months of launching the program, over 35,000 Cubans, 50,000 Haitians, 21,500 Nicaraguans, and 48,500 Venezuelans came to the U.S. through the program. As of August 2024, almost 530,000 people have been granted parole through the CHNV program, according to U.S. Customs and Border Protection (CBP). 

On January 20, 2025, President Trump issued an executive order terminating the CHNV program. The Huffman memorandum now allows  recipients of the CHNV program  who had been paroled into the United States to be expeditiously removed. It also includes nationals of Ukraine, Afghanistan  and Colombia who have been paroled under separate programs.  These individuals followed the rules established under the Biden administration in order to be paroled into the US in a safe, orderly and legitimate manner. They have now been blindsided and betrayed by the Trump administration. 

The devastating impact that this policy stands to have calls into question the conduct of the Trump administration lawyers involved in its development. We credit our colleague Michele Carney in providing input on ethical issues on the part of government lawyers in the Trump administration. ABA Model Rule 8.4 (c)-(d), (g) prohibits lawyers from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation”, that is “prejudicial to the administration of justice”, or that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law”. By directing DHS officials to expeditiously remove some parolees, the memorandum could run afoul of ABA Model Rule 8.4(d) by depriving these individuals of due process. Termination of parole for some individuals could also be viewed as discrimination on the basis of national origin in violation of ABA Model Rule 8.4(g). If DHS’ implementation of the program results in a misrepresentation, a violation of ABA Model Rule 8.4(c) could also occur. The memorandum in itself may not be indicative of unethical conduct, but its implementation carries significant risk of violation of ethical rules by government lawyers in the Trump administration. 

In a previous blog, we discussed Trump’s executive order restricting birthright citizenship to only a child born in the US has one parent who is either a US citizen or a permanent resident. The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” In United States. V Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States. 

 On January 23, 2025 Judge Coughenhour in the US District Court Western District of Washington at Seattle issued a temporary injunction blocking the implementation of the executive order. During the hearing, Judge Coughenhour called the order “blatantly unconstitutional”, stating “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’”. Judge Coughenour’s comments call into question ABA Model Rule 3.1, which states that a lawyer “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law”. The  Trump administration’s restriction of birthright citizenship  could be viewed as a violation of Rule 3.1 if found to be unconstitutional. Rule 3.1 allows for good faith arguments for the “extension, modification, or reversal of existing law”, however, and it is likely that Trump administration lawyers would argue that the policy laid out in the new executive order falls within this exception. 

Experts will disagree and take the position that Trump’s lawyers may be committing ethical violations in supporting policies that may be cruel and harmful to immigrants. Supporting blatantly unconstitutional actions may be cause for concern according to our colleague, Craig Dobson. Independent of the specific rules governing lawyer conduct, Trump’s lawyers should ensure that their actions align with the ideals of the profession, which prioritize fairness, justice, and upholding the rights of individuals. While Trump holds the office of President of the United States, he is not a lawyer, and is not beholden to the same ethical standards. Lawyers, by contrast, are called to uphold the laws of the United States and avoid perpetuating harm and injustice. 

 *Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Saving America by Defending Clients Against Trump’s Immigration Policies

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By Cyrus D. Mehta and Kaitlyn Box*

On November 5, 2024, Donald Trump was once again elected president. Although Trump’s campaign has been marked by anti-immigrant rhetoric, some hope that a second Trump administration will prove favorable to employment-based immigration. Trump once promised to “staple a green card to every diploma” of graduates of U.S. colleges, and has cultivated relationships with business moguls like Elon Musk and Vivek Ganapathy Ramaswamy.

However, a second Trump presidency is likely to create obstacles even for legal skilled immigrants. Former Trump advisor Stephen Miller, who has espoused notoriously anti-immigrant views, is expected to be appointed Deputy Chief of Staff, and will doubtless influence Trump’s immigration policies. In a post on X last year, Miller confirmed that a denaturalization project started during Trump’s first term would be “turbocharged” in 2025. During his campaign, Trump affirmed his intention to end birthright citizenship. For Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs, being sponsored by a U.S.-born adult child may provide a chance of obtaining permanent residence without waiting for decades. Trump’s proposed policies would ensure that even children born in the U.S. would not be afforded the security of U.S. citizenship unless one of their parents is a U.S. citizen or lawful permanent resident, as well as prevent these children from sponsoring their parents for permanent residence in future. This policy, if implemented, could be challenged in federal court as violations of the 14th Amendment, which provides that “all persons born […] in the United States…are citizens of the United States”, but the current conservation composition of the Supreme Court could render these efforts more difficult.

The Trump administration will seek to thwart employment-based immigration in other ways, as well. During his first term, Trump restricted the H-1B visa program through increased numbers of Requests for Evidence (RFEs) challenging the payment of Level 1 wages, promulgation of a policy memorandum stating that computer programmer positions may not be “specialty occupations”, and imposing onerous documentary requirements on employers who place employees at third-party worksite, as discussed at length in prior blogs. Restrictions of this nature are expected to return, and possibly intensify, during Trump’s second term.

Undocumented immigrants and beneficiaries of humanitarian programs may stand to suffer even more severely under a second Trump administration. Trump has vowed to “bring back” the infamous travel bans INA 212(f), ban refugees from Gaza, and carry out mass deportations. He has also threatened to invoke the Enemy Aliens Act of 1798, which allows for the detention and deportation of noncitizen nationals of an enemy country during wartime, as a justification for widespread deportations. His administration will seek to increasingly use expedited removal INA 235(b)(1)(A)(iii) without an immigration court hearing for noncitizens who are within the border of the US and cannot prove that they have been in the US for more than two years. The return of family separation and reinstatement of the “remain in Mexico” policy appears likely, as does the termination of TPS designations for many country, DACA, and humanitarian parole programs.

Notwithstanding the challenges that Trump’s return is likely to bring, immigration lawyers are prepared to vigorously defend noncitizen clients. His prior presidency provided insight into the types of policies that are likely to return, and allowed advocates to gain experience in combatting these harmful measures. Even if Trump got a popular mandate that does not give him license to ignore the law and act outside the Constitution and Bill of Rights. Immigration lawyers are all set to defend immigrants to preserve the foundations upon which the country is built.

 

 

 

 

 

Cyrus Mehta

While the Dogs and Cats of Springfield, OH Are Safe, the Haitian immigrants Are Not

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By Cyrus D. Mehta and Kaitlyn Box*

This past week, Trump and J.D. Vance have gone viral for some particularly bizarre rhetoric, alleging that Haitian immigrants in Springfield, Ohio were eating people’s pets. On September 9, 2024, J.D. Vance posted on X: “Months ago, I raised the issue of Haitian illegal immigrants draining social services and generally causing chaos all over Springfield, Ohio. Reports now show that people have had their pets abducted and eaten by people who shouldn’t be in this country. Where is our border czar?” Trump repeated these claims in his September 10, 2024 debate with Vice President Kamala Harris, stating “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there.” These allegations were widely recognized as entirely baseless, including by Springfield, Ohio mayor Bob Rue, who in an interview called Trump and Vance’s statements “just untrue” and assured residents that their “pets are safe in Springfield, Ohio”. These anti-immigrant sentiments come after Laura Loomer, a far-right activist and internet personality, stated in a post on X “If @KamalaHarris wins, the White House will smell like curry & White House speeches will be facilitated via a call center and the American people will only be able to convey their feedback through a customer satisfaction survey at the end of the call that nobody will understand.”

Unfortunately, xenophobic statements like these can have real world negative consequences. In Springfield, Ohio, credible bomb threats related to Trump and Vance’s comments forced schools and offices to close. Haitian immigrants in the area, many of whom are Temporary Protected Status (TPS) recipients, report feeling unsafe and even being targeted for property damage as a result of this hostility. Notwithstanding the harm caused to communities in Ohio, the Trump campaign has doubled down on its anti-immigrant rhetoric, with J.D. Vance stating in a CNN interview, “I’m still going to keep on talking about what the migrants have done to Springfield, Ohio, and what Kamala Harris’ open border has done to Springfield, Ohio”. Vance also had the audacity to state that  “If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that’s what I’m going to do.”

Trump’s animus towards immigrants is hardly new. In 2018, he infamously referred to migrants from Haiti and elsewhere as “people from shithole countries” and has stated that Haitian migrants “all have AIDS”. Sentiments like these no doubt contributed to the Trump administrations efforts to terminate TPS designations for Haiti, Sudan, Nicaragua, and El Salvador, a decision that was challenged by TPS beneficiaries and their U.S. citizen children in federal court in Ramos v. Nielsen. The U.S. District Court for the Northern District of California found that Trump’s animus towards “non-white, non-European” immigrants had influenced the decision to end these TPS distinctions, cataloguing a series of anti-immigrant remarks he has made since 2015, including characterizing Mexican immigrants as criminals and rapists, and calling for “a total and complete shutdown of Muslims entering the United States.” The court ultimately struck down the Trump administration’s effort to rescind these TPS designations, holding that the decision was made “without any explanation or justification in violation of the Administrative Procedure Act”, and that that it may have been “influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution”. The court’s decision to issue a preliminary injunction was later overturned by the Ninth Circuit, which upheld the Trump administration’s TPS rescissions, and the designations were ultimately restored under the Biden administration.  Despite the Ninth Circuit’s decision to overturn the preliminary injunction and the Biden administration restoring TPS, the litigation is not entirely resolved. The en banc Ninth Circuit Court of Appeals granted Plaintiffs’ petition for rehearing and vacated the opinion of the three-judge panel. Plaintiffs filed an opening brief opposing the motion to dismiss.

Although the pets are safe, the rhetoric advanced by Trump and Vance proves that the immigrant community is decidedly not. Baseless anti-immigrant sentiments have the potential to sow discord and violence, as illustrated by recent events in Ohio communities. Moreover, Trump’s antipathy toward immigrants shaped policy decisions while he was president, including the rescission of TPS protections for vulnerable populations.

Indeed, Trump has promised to deport Haitian immigrants in Springfield, OH by again attempting to rescind their TPS status. Trump has repeatedly stated that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States. The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II,”Balko states.

In light of the second assassination attempt on Trump at the time of going to press, his supporters accuse critics of allegedly creating  a climate that encourages people to perpetrate such acts of violence. Although there is no place for political violence in America, and all political differences, however heated, must be settled through ballots and not bullets, Trump should also realize that his baseless claims against Haitians immigrants result in violence towards them too, even if they may whip up votes in his favor. There is no excuse for politicians like Trump, and Vance, who is also the sitting Senator from Ohio, to instigate violence against people here in the US whom they have a solemn duty to protect. Notwithstanding any sympathy that Trump may be generating after the assassination attempts, his dangerous rhetoric towards Haitians who are legally in the US has crossed an unacceptable line and he fully deserves to be completely and frontally defeated in this election.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Ethical Obligation of the Public Official Lawyer Who Falsely Undermines the Criminal Justice System after Trump’s Conviction

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By Cyrus D. Mehta and Kaitlyn Box

On May 30, 2024, Donald Trump was convicted of 34 counts of falsifying business records in New York, all in connection with his payment of hush money to adult film actress Stormy Daniels in advance of the 2016 election. Harvard law professor Laurence Tribe eloquently summarized on X the sense of justice that news of the convictions brought –  “Trump’s trial for 34 felony violations of NY law — violations w/out which he might well have lost the 2016 presidential election  — was a model of fairness that law students and trial judges will study for decades. There’s nothing here for any informed person to complain of.” Trump and his followers, however, promptly decried the trial as having been rigged, accusing Justice Juan M. Merchan, who presided over the trial, and the jury of being biased.

Trump quickly found ways to direct blame for the perceived unfairness of the trial at immigrants. In a disjointed monologue that he delivered outside of Trump Tower on the day after the trial, he stated that migrants are “coming in from mental institutions and insane asylums” and “[t]he Congo has just released a lot of people from jail – Congo, Africa – just released a lot of people, a lot of people, from their prisons and jails, and brought them into the United States of America.” (see here). He bafflingly added that these migrants originated “from places unknown, from languages that we … haven’t even heard of… [i]t’s not like Spanish or French or Russian.” He then concluded that New York City, where the trial was held, is corrupt and crime-ridden, stating “you have violent crime all over this city at levels that nobody’s ever seen before.” Republicans quickly followed suit in drawing parallels between immigrants and the supposed injustice of Trump’s convictions. Tucker Carlson stated on Twitter on May 30, 2024: “Import the Third World, become the Third World. That’s what we just saw. This won’t stop Trump. He’ll win the election if he’s not killed first. But it does mark the end of the fairest justice system in the world. Anyone who defends this verdict is a danger to you and your family.”

Other Republican leaders, too, denounced the outcome of the trial and questioned the impartiality of judge and jury. Marco Rubio, U.S. Senator for Florida, stated: “The verdict in New York is a complete travesty that makes a mockery of our system of justice. A political show trial conducted by an openly pro-Biden judge whose daughter makes money off the case, a jury from the most liberal county in America, absurd and ridiculous charges and outrageous jury instructions that guaranteed guilty verdicts. Biden and the Trump deranged left will stop at nothing to remain in power.” Senator J.D. Vance of Ohio issued a statement calling the verdict a “an absolute miscarriage of justice” and criticizing the “partisan slant of this jury pool”. Mike Johnson, Speaker of the House, said of the verdict “I do believe the Supreme Court should step in”.

These comments have the troubling potential to undermine confidence in the judicial systems of the United States. Trump and Carlson’s misguided criticism of the verdict and demonization of immigrants is, unfortunate though unsurprising. It is disappointing, though, that well-trained lawyers such as Rubio, Vance, and Johnson who are also elected officials would baselessly claim parroting Trump that the trial was biased. Pursuant to the state analogues to ABA Model Rules of Professional Conduct 8.4 (c) and (d), lawyers must not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “conduct that is prejudicial to the administration of justice”. Although these are broad provisions it is unlikely that Rubio, Vance or Johnson would be subject to discipline as their baseless accusations against the criminal justice system may be protected under the First Amendment. Still, Rule 8.4 has been used broadly by disciplinary authorities against lawyers especially when their conduct has been prejudicial to the administration of justice. Comment 7 to Rule 8.4 imposes greater obligations on lawyers who are public official, which states that “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

Critics have every right to disagree with the verdict reached against Trump, or to support his right to an appeal, but it is concerning to see Republican leaders who are also lawyers make blatantly untrue statements that could create the perception that the trial, or American judicial system as a whole, are unjust and undeserving of respect.

It is ironic that Trump, who as president imposed travel bans against people coming from Muslim-majority nations, will now  face bans from 37 countries including major allies such as Canada, Australia, and  the UK because of his felony convictions, although if he becomes president again, it is likely that these countries will make exceptions while he will continue to act ruthlessly towards immigrants in his own country. And finally, one cannot help but snigger at Trump who falsely accuses undocumented immigrants of being criminals and “poisoning the blood of our country” when he is now a confirmed felon!

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected

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By Cyrus D. Mehta

If Trump gets reelected, he has hinted that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States.

“The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II, ” Balko states.

According to New York Times’s columnist Jamelle Bouie in  Trump’s Taste for Tyranny Finds a Target immigrants would be the most easy target for Trump to play out his autocratic fantasies. Trump has already said that undocumented immigrants are “poisoning the blood of this country.” The Supreme Court in Trump v. Hawaii allowed Trump to enforce his Muslim ban.

Stephen Miller, the architect of Trump’s anti-immigrant policies,  has stated on Charlie Kirk’s show how this deportation force would fulfill Trump’s fantasy. The  deportation force would comprise agents from Immigration and Customs Enforcement, the Drug Enforcement Administration, the Border Patrol and other federal agencies, as well as the National Guard and local law enforcement officials. They would look all over the  country for unauthorized and undocumented immigrants moving from state to state, city to city, neighborhood to neighborhood and, finally, house to house. These are people who in the view of Trump and Miller do not belong, not that because are not authorized but because they are also nonwhite and who are from what Trump once called “shithole” countries. By raiding workplaces and staging public roundups, this deportation force would create a climate of fear and intimidation.

Mistakes are bound to happen as legal immigrants and even US citizens may get caught up in the roundups. There could not be any notion of selective enforcement in these roundups, and those caught up in them would be because they appeared to be immigrants. There would be mass racial and ethnic profiling. And by the time this gets sorted out it may be too late if the person already got deported.

Moreover, one thinks of an undocumented immigrants as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year. All these noncitizens would be lumped together as undocumented immigrants that would be red meat for Trump’s deportation force.

Since it would be beyond the capacity to quickly deport the people caught up in these roundups, especially since countries may not even be willing to accept them easily, there would be holding facilities that would serve as staging centers on land near the Texas border. This would not be too dissimilar from internment camps, which were set up in the United States to detain Japanese Americans after the attack by the Japanese military on Pearl Harbor in 1941.

In addition to the round ups, the second Trump administration would sign an executive order to withhold passports, social security numbers and other government benefits from  children born of undocumented immigrants in the United States never mind that the Fourteenth Amendment says the exact opposite. Under Trump’s deportation plan, there would be no distinction between undocumented immigrants and children born to an undocumented immigrant in the United States. If there are going to be protests and resistance from people against agents storming homes, schools and religious places, Trump will invoke the Insurrection Act to mobilize the miliary and crush the resisters as well as his political opponents.

According to Bouie, “what we are seeing here from Trump isn’t simply a distaste for liberal values; it is a taste for genuine tyranny and bona fide despotism, one that complements his endless praise for dictators and strongmen.” Trump has already likened immigrants to invaders, and he can invoke an emergency, and thus a constitutional crisis,  to go ahead with deportations without waiting for the courts to rule, and  when they do rule, Trump’s hope is that the courts will rule in his favor, especially the Supreme Court, which have historically given deference to the executive branch on matters involving national security. This has happened time and time again with respect to court challenges to the internment of Japanese Americans, against the unlawful detention and abuses of noncitizens after the September 11 attacks and most recently in allowing Trump’s travel ban to pass, which was a major part of his election campaign in 2016 to ban Muslims from coming to the US, and in this reelection campaign for 2024, Trump promises to create a tyrannical force to deport millions of immigrants.

On this Memorial Day, as we reflect upon the sacrifices our military personnel have made to free America and the world from fascism and tyranny, think about how Trump can so easily unravel all of this through a deportation force that rips families apart, tears lives and fractures America.

 

Cyrus Mehta

Will United States v. Hansen Come Back to Bite Trump?  

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By Cyrus D. Mehta and Kaitlyn Box*

Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen,  held that speech constituting fraud  is not protected under the First Amendment.  Will Hansen come back to bite Trump?

In two previous blogs, here and here, we have discussed the United States v. Hansen case, the central question of which was whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen, who ran an organization called Americans Helping America Chamber of Commerce (“AHA”) purporting to help undocumented immigrants become U.S. citizens through adult adoption, had been convicted of violating INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen’s convictions eventually were vacated by the Ninth Circuit, which held that the encouragement provision is overbroad and unconstitutional, as it prohibits a broad range of protected speech . Hansen and amici argued that the encouragement provision could punish even a lawyer who provides certain types of legal advice to a noncitizen, or an aide worker who advises an undocumented immigrant to take shelter in the U.S. during a natural disaster.  The government sought review by the Supreme Court, asserting among other arguments, that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The Supreme Court granted certiorari and, in its decision issued on June 23, 2023, held that the encouragement provision is not unconstitutionally overbroad because it uses “encourage or induce” “in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”.

In our previous blogs, we noted the troubling implications that Hansen could have for immigration lawyers and their ability to effectively advise their clients, as the plain language of the statute could be read to prohibit an immigration lawyer from advising an undocumented client to remain in the U.S. to avail of an immigration benefit that would be unavailable to the client if he left the country. We also noted that immigration lawyers might choose to adopt a practice of advising clients only about the risks and benefits of remaining in the U.S., though giving elliptical advice of this kind might not always constitute competent representation. In its decision, however, the Supreme Court read the encouragement provision to narrowly apply only to intentional facilitation and solicitation. By making it clear that the encouragement provision “stretches no further than speech integral to unlawful conduct, which is unprotected”, the Supreme Court’s decision may alleviate, at least in part, concerns that upholding the provision would have a chilling effect on competent legal advice.

Hansen has recently come back into the spotlight in relation to Donald Trump’s August 1, 2023 indictment on four charges under federal statutes – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct a federal proceeding, and conspiracy against rights – stemming from the administration’s efforts to overturn the results of the 2020 presidential election. Trump’s supporters, including his lawyer John Lauro, have portrayed the indictment as an attack on Trump’s First Amendment right to engage in political speech. As Walter Olson points out in a Cato Institute essay, the indictment itself outlines many of the false claims that Trump made in the context of the 2020 presidential election, but does not explicitly “punish the former president for speech or advocacy as such”. Moreover, the Constitution’s generous protections of political speech do not extend to all types of speech, including speech constituting fraud, as analyses of the indictment have noted.  The Supreme Court’s holding in Hansen makes clear that the First Amendment does not protect speech that facilitates the commission of crimes under federal statutes. Helaman Hansen, too, had been charged with criminal solicitation under INA §274(a)(1)(A)(iv) and the Supreme Court ultimately rejected the idea that his conduct was protected by the First Amendment. The Supreme Court in Hansen, quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003), clearly noted that “the First Amendment does not shield fraud[.]” In an Election Law Blog post, Ciara Torres-Spelliscy observes that “…the Supreme Court […] treats fraud as a different and unprotected category that is outside of the First Amendment’s protections.”

The Trump administration was characterized by overwhelming negative views on immigrants and the promulgation of draconian immigration policies, many of which are analyzed in our prior blogs. In his remarks to the Executive Office for Immigration Review in 2017, then-Attorney General Jeff Sessions once made a reference to “dirty immigration lawyers”, indicating that the administration held immigration lawyers in contempt, as well. It is thus ironic that the same Supreme Court decision that could leave immigration lawyers vulnerable to prosecution has the potential to snare Trump himself, as well. Hansen is a rather double-edged decision – although it could have problematic aspects for immigration lawyers, it may by the same token prove useful in striking down any claims by Trump that the misinformation he spread in an attempt to fraudulently overturn the 2020 election is protected as First Amendment speech.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Asylum Seekers are Legally in the US Notwithstanding the Political Stunts of Governors Abbott and DeSantis

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By Cyrus D. Mehta and Kaitlyn Box*

In a reprehensible political stunt, Governor Greg Abbott of Texas and Governor Ron DeSantis of Florida sent around 150 immigrants to liberal states by bus and plane last week. Some of these individuals were abruptly dropped out outside Vice President Harris’ residence in Washington, D.C., while others were transported to Martha’s Vineyard. These immigrants, many of whom had come from Central American countries, had recently presented themselves at the southern border to request asylum. Reports have emerged that some of the asylum seekers were promised that they would receive work authorization more easily if they agreed to be sent to one of these locations. Some individuals believed they were going to Boston, only to be transported to Martha’s Vineyard instead.

Abbott and DeSantis’ action caused untold harm, placing individuals who were already vulnerable in a situation that was undoubtedly terrifying. Many of the asylum seekers were dropped off on the side of the road with nowhere to stay and few possessions. Some individuals had not been given food for hours. Because some of the asylum seekers had been issued Notices to Appear for immigration proceedings in Texas, Abbott and DeSantis effectively ensured that these individuals would have more difficulty attending their court dates by transporting them to a different part of the country. They also risk missing their court dates and be subjected to in absentia removal orders.

The governors’ cruelty stands in sharp contrast to the warm welcome the asylum seekers were given by the communities in Martha’s Vineyard and other locations. Individuals and community organizations rallied to provide the immigrants with food, clothing, and shelter. Immigration attorneys have also sprung into action to provide legal services. This heartwarming response illustrates that most Americans, unlike Abbott and DeSantis, want to welcome and support immigrants.

Though the asylum seekers who unwittingly become pawns in Abbott and DeSantis’ stunt happily found safety and compassion in the communities they were dropped into, this ploy was, at the very least, inhumane and could carry legal consequences for the two governors. California Governor Gavin Newsom has asked the Justice Department to investigate whether fraudulently inducing the asylum seekers to be transported across state lines could support charges of kidnapping under state law. Deliberately lying to and misleading vulnerable people could also render Abbott and DeSantis liable for fraud or severe emotional distress under the relevant state laws. It has even been suggested that luring the asylum seekers onto planes and buses with the false promise of work could constitute labor trafficking. Recently obtained documentary evidence confirms that idea that the asylum seekers were lured to Martha’s Vineyard and other locations with false promises. Lawyers for Civil Rights (LCR), a Boston-based legal organization that represents some of the asylum seekers, provided a brochure that was given to some migrants. The brochure erroneously states that the asylum seekers who were sent to Massachusetts would be eligible for numerous benefits, including “8 months cash assistance,” “assistance with housing,” “food,” “clothing,” “transportation to job interviews,” “job training,” “job placement,” “registering children for school,” and “assistance applying for Social Security cards”.

At first blush, one may also wonder whether the governors have violated INA § 274(a)(1)(A)(ii), which imposes severe criminal penalties on persons for knowingly or in reckless disregard transporting a noncitizen who has come to, entered, or remains in the US in violation of law. However, invoking this provision may be less than helpful, as it pertains only to individuals who have come to, entered, or remained in the U.S. in violation of law, and thus feeds into the narrative that asylum seekers like the ones transported by Abbott and DeSantis are in the United States “illegally”. It is important to recognize that it is not illegal for individuals to enter the United States to seek asylum. These individuals were lawfully released into the United States to pursue their asylum claims after an initial interview and processing by the Department of Homeland Security at the border. The asylum seekers involved in this situation did nothing wrong by seeking protection under U.S. asylum laws. Rather, it is Abbott and DeSantis who engaged in a despicable, and possibly illegal, act.

It is clear that the poisonous attitudes of Trump, who catapulted himself to the presidency while calling migrants “criminals” and “rapists”, are now being borrowed by his apprentices like DeSantis and Abbott as a ploy to whip up anger against Democrats prior to the midterm elections. This strategy is unlikely to succeed as the American tradition of welcoming immigrants remains robust, as demonstrated by the Martha’s Vineyard community. While the pathway for people seeking asylum should remain, our immigration laws need to be radically overhauled to provide more pathways for people to come to the U.S. legally to work and to unite with family members. Asylum should not be the only option for those seeking to come to the U.S. If asylum is the sole option, the system will get overburdened as it has already and will also encourage spurious claims, which in turn undermine genuine claims of persecution.  Both Democrats and Republicans need to work together in order to forge new pathways for immigration.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.