Update, November 27, 8:23 pm:

The incredible, utterly delusional statement that Trump is reported as having made on November 27 that he would have won the popular vote except for "3 million" votes by "illegal" voters (by which he may or may not have meant immigrants, given some of his past statements on this subject) is also far from reassuring to millions of Americans who are concerned, not only about the future of the non-racially discriminatory immigration system that America has enjoyed for the past half century, but also about the closely related issue of whether America will continue to be a democracy, based on free elections, after Trump takes office less than 2 months from now.



Update, November 27, 2:30 pm:

Beyond the justified concern that every immigrant and immigration advocate should have about whether our current legal immigration system, which is based on the proposition that qualified immigrants from all over the world are welcome in the United States, regardless of race, color or religion, could survive a possible 1, 2, 3 punch of cabinet members with reputed white supremacist ties or sympathies such as Jeff Sessions as AG, Kris Kobach as DHS chief (if appointed) and Rudy Giuliani as Secretary of State (if appointed), there is the related question whether America's democracy can survive Donald Trump. In this regard, Slates's November 27 article:

The slow-motion decline: Resisting the gradual erosion of democratic institutions under President Trump.


is well worth reading.

The only question one might ask about this article is how slow the erosion might be - maybe not so slow as this article suggests, given some of Trump's campaign statements and post campaign appointments.

Update, November 26, 12:55 pm

The comments in my original post below about Kris Kobach, who is a member of Donald Trump's transition team and is reportedly being considered to become the head of the Department of Homeland Security, should not be regarded as identifying the only threat he poses to America's current immigration system and to our democracy, both of which are based on the principle of racial equality embedded in America's Constitution.

Despite attempts in the media to sanitize Kobach's record of drafting state racial profiling immigration laws aimed at creating a climate of fear in immigrant communities, and voter ID laws aimed at keeping non-white voters away from the polls, by presenting him as merely an immigration "hardliner" would enhance enforcement of existing laws against illegal immigration, Kobach's record includes much more than that.



Far more than being just an avid proponent of immigration enforcement, Kobach is, very arguably, one of America's leading architects of a white supremacist immigration and voting system that could destroy America's democracy.

To be continued in a forthcoming Immigration Daily blog post.

My original post follows below:

2,000 years ago, a young Roman poet, Marcus Annaeus Lucanus, wrote the following in the introduction to his great epic poem: De Bello Civili ("The Civil War"):

Iusque datum sceleri canimus ("I sing of evil made into law.")

He also wrote a few lines further on:

Certatum totis concussi viribus orbis/In commune nefas

("All the people of a shaken world [were] forced into a common infamy.")

Of course, Lucan (who was later ordered to commit suicide at the age of 25 by the emperor Nero) was not writing about American immigration law in the 21st Century AD.

He was writing about the wars of the century before his which tore Rome apart and ended its Republic - the ones between Julius Caesar and Gnaeus Pompeus (Pompey); and between Marcus Antonius (Mark Anthony) and Octavian (later to become known, though never officially during his lifetime, as Emperor Augustus Caesar), which most Americans only know about through Shakespeare.

But if Lucan had had a chance, 2,000 years later, to see a document concerning deportation policy that, according to The Hill, Kansas Secretary of State Kris Kobach, the author of Arizona's notorious S.B. 1070 immigration law which was in large part held unconstitutional by the US Supreme Court, and who is reportedly under consideration for DHS chief (which would qualify him as one of the Four Horsemen of the Immigration Apocalypse mentioned in my November 22 Immigration Daily blog) was carrying with him to a meeting with President-elect Donald Trump, he might have written the same words as quoted above to describe it.

The Hill reports on November 24, that Kobach was photographed outside that meeting on Sunday, November 20, holding a document with the title:

"Department of Homeland Security Kobach Proposal for First 365 Days"

According to the same report, the visible part of the document included a proposal to redefine the term "criminal alien" as follows for deportation purposes:

"...'criminal alien' as any alien arrested for any crime, and any gang member"



Wait a moment: Just being arrested makes someone a criminal?!!

If Mr. Kobach knows so little about American law that he has never heard of the doctrine that a person is innocent until proven guilty, i.e. convicted of a crime, not merely arrested for or charged with one, then it is easy to understand why so many of the other state immigrant "crackdown" laws and voter suppression laws intended to keep minority US citizens away from the polls which he has drafted have also been struck down by the courts.

This might come as a surprise to Kris Kobach, but the doctrine that someone charged with a crime is considered innocent until proven guilty is so old that it goes back almost to the time of the above quoted poet Lucan.

In the landmark US Supreme Court case of Coffin v. United States, 156 U.S. 432 (1895), which once and for all determined that the presumption of innocence until proven guilty is part of this country's law, Justice Edward Douglas White, writing for the majority, related the following reported incident from classical Roman history at the time of the emperor Julian, r. A.D. 361-363 ("Julian the Apostate", who tried to restore paganism as the Roman state religion in place of Christianity).

"Ammianus Marcellinus relates an anecdote of the emperor Julian which illustrates the enforcement of this principle in Roman law. Numerius, the Governor of Narbonensis was on trial before the emperor...Numerius contented himself with denying his guilt, and there was not sufficient proof against him."

Justice White's opinion continues:

"His adversary, Delphidius, 'a passionate man' seeing that the failure of the accusation was inevitable, could not restrain himself and exclaimed: 'Oh, illustrious Caesar, if it sufficient to deny, what hereafter will become of the guilty?' to which Julian replied: 'If it suffices to accuse, what will become of the innocent?'"

(156 U.S. at 455)

Of course, neither Kris Kobach (if he actually is appointed as DHS secretary, which is, of course, by no means certain at the time off this writing) nor even Donald Trump himself (no matter how "imperial" his presidency might or might not turn out to be) has the power single-handedly to decide what crimes will constitute deportable offenses, since these crimes are fixed by the statutes relating to "crimes of moral turpitude", "aggravated felonies" and other sections of the INA specifying which specific crimes are grounds for removal.

Changing these laws would clearly require an act of Congress

Nor does even Donald Trump have the legal authority on his own to "deport" the almost (if not even more than) two millennia-old principle of innocence before being proved guilty from our law, where it has been solidly embedded ever since the above Coffin decision, if not earlier.

But, as the above news story makes clear, that is not Kobach's purpose. Kobach, evidently, is not talking about what kind of crimes are deportable offenses under our law, or what standard of proof might be required to convict someone of these crimes.

He is, apparently, according to the above report, interested in expanding the population of already deportable immigrants, i.e. those who are in the country without legal status, which is a removable offense but not a criminal one, who can be targeted as priorities for deportation according to Trump's promise to deport "2 or 3 million" "criminal aliens".

Trump's problem is that even though he has promised to deport that number of immigrants who are already illegal and subject to deportation, either because they entered without inspection (which is a crime) or they overstayed their visas (which is not), available statistics do not seem to indicate that there are actually 2 or 3 million immigrants in the US who have been convicted of crimes that would constitute deportable offenses under current law.

Since there is no possible way of suddenly convicting hundreds of thousands, or more than a million, unauthorized immigrants of crimes (assuming there are that many who have even committed any crime at all) without violating the due process guarantees of the constitution, in order to enable Trump to throw out 2 to 3 million "criminal aliens" almost immediately as he has promised, Kobach's plan, presumably, is to redefine "criminal" so that there will in fact be enough "criminal aliens" in the United States, who are already subject to deportation as overstays or EWI's, so that Trump can prioritize them for deportation in order to meet his announced target.

Since there are an estimated 11 to 12 million immigrants in the US without legal status, if Trump is able to label 3 or 3 million of these as "criminals" without giving them a trial, then, under his own guidelines, he will be able to deport them without actually convicting them of any crime, since they are already subject to deportation anyway for other, non-criminal, reasons.

That way, he can claim that he deported the above large number of "criminal" immigrants even though, under our law, they are innocent since not proven guilty.

This raises some interesting questions. Suppose someone is arrested and charged with a crime, but the charges are subsequently dropped or dismissed by the court, or the person is acquitted after a trial. Everything in our entire legal tradition and history, and in that of every country on earth with the slightest adherence to democratic principles, says that the person is innocent.

Now, if the above news story is accurate, it appears that Kris Kobach, who if appointed DHS chief, would have control over virtually our entire immigration system, is proposing to redefine the definition of who is a criminal in order to turn even people who have been adjudged innocent by the courts to be "criminals", if they have ever been arrested.

As I have mentioned above, Kobach would not have any power to deport legal immigrants, much less US citizens, based on this new definition, because not every crime is a deportable offence; and because our immigration laws make clear that no crime is a deportable offence unless the person was actually convicted of it, not merely arrested for it.

But eroding the 2,000 year old principle in Western law that a person charged with crime is innocent until proven guilty for any purpose, even that of prioritizing certain immigrants for deportation who would be deportable anyway for other, non-criminal reasons, is a dangerous precedent.

This could, before too long, lead to undermining or abolishing the due process rights of legal immigrants and US citizens who might be arrested or charged with a crime in the future, and could signal the beginning of the end of America's democracy and rule of law.

In the above quote, Lucan condemns Ius datum sceleri - making evil (or crime, another meaning of the same Latin word scelus, sceleris, sceleri. etc.) into law.

What would Lucan have said about scelus datus innocentiae - making innocence (or at least the presumption of innocence) into crime?

That is a discussion that he might well have wanted to engage in, or perhaps actually might have engaged in during his short life, with the Kris Kobachs of the Rome of his time. I am sure that they must have been in no short supply.

Donald Trump might also want to have a serious conversation with himself and some the more moderate leaders in his party who care about preserving the basic civil rights guarantees of our law and our democracy, and ask himself whether handing the Department of Homeland Security, with its enormous power over immigration to someone with Kris Kobach's willingness to undermine one of the most basic protections in our entire legal system, namely the presumption of innocence until proven guilty, merely as a ruse to prioritize more people for removal action, is the best way to "unite" and "heal" our nation as promised in Trump's Thanksgiving address.

To the contrary, putting someone with Kobach's reported willingness to play games with one of the most sacred legal rights in our entire legal system so that he can throw Latino, Asian and other non-white immigrants out of the country faster or in greater numbers would be indeed an example of Iusque datum sceleri - evil made into law, just as Lucan wrote 2,000 years ago.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards, based on their merits and qualifications, without regard to ethnicity, religion or national origin. Roger's email address is algaselex@gmail.com