On January 8, the 2nd Circuit Court of Appeals upheld a temporary nationwide injunction issued by a District Court judge in a lawsuit by three states and the City of New York against Stephen Miller's enormously expanded, 834-page Public Charge inadmissibility rule, which the lower court had found to designed to discriminate against non-European immigrants based on their race or nationality. Such discrimination regarding the issuance of immigrant visas (green cards) is expressly prohibited by the INA.

In a brief order upholding the injunction, the three-judge 2nd Circuit panel ruled (by referring to another decision expounding this doctrine) that the legal standards for a temporary injunction of a) being likely to succeed on the merits and b) being likely to suffer irreparable harm without an injunction, had been met by the plaintiffs.

The decision combines two cases: State of New York, City of New York State of Connecticut, State of Vermont v. DHS et al (2nd Circuit, No. 19-3591) and Make the Road New York, African Services Committee. Asian-American Federation, Catholic Charities Community Services (Archdiocese of New York . Catholic Legal immigration Network Inc., v. Cuccinelli et al (2nd Circuit, No. 19-3595).

It is no secret that Miller's hugely expanded Public Charge rule, which goes far beyond anything previously understood by this term, was expressly designed to exclude legal immigrants from nonwhite areas of the world which Trump has previously referred to as "shithole" countries. Trump has campaigned furiously to change the existing immigration laws by eliminating most forms of legal family immigration (which he has described as "horrible" in one of his tweets), and also by eliminating the Diversity green card lottery, which is especially popular with immigrants from Africa.

However, there is no chance that Congress would approve these openly racist changes in legal immigration (what have nothing to do with "enforcement" of existing law, which the Trump regime often falsely "Trumpets" as being the sole purpose of its egregious human rights violations against non-white immigrants). Therefore, Trump, in his usual authoritarian style, is making major changes in the immigration system through regulations and executive orders, of which Miller's latest bigoted rule is only one example.

It is no secret that the this greatly expanded version of the Public Charge rule, which even in its more limited earlier versions has had an infamous history of being used against Irish and Chinese immigrants in the 19th century and Jewish refugees trying to escape genocide and extermination in the 20th, is the brain child of Trump's top immigration adviser, Stephen Miller.

Miller's Public Charge rule, which he has reportedly been pushing for the past 2 years, goes into such great detail and is so comprehensive that it in effect amounts to a completely new immigration law - one that would undo the reforms of the 1965 immigration reform law that opened America up to legal immigration from every part of the world and take America back to the spirit of the overtly bigoted "Nordics" only immigration act of 1924.

Despite Miller's own Jewish immigrant origins (though his great-grandfather, who would himself have been most likely barred as a pubic charge under Miller's new rule - along with Donald Trump's mother and possibly even his grandfather), The Guardian reports (see below) that a coalition of Jewish groups has called on Trump to fire Miller in order to;

"...make clear that white supremacy has no place in the White House of in the United States of America."

Indeed the intensity and single-mindedness of Miller's program for barring non-while immigrants, both legal and unauthorized from the United States, might bear comparison with Torquemada's zeal for persecuting the Jews during the Spanish inquisition, or with Dostoevsky's fictional Grand Inquisitor.

Recently, according to the SPLC (Southern Poverty Law Center), almost 1,000 of Miller's recent emails have come to light supporting an extreme far right white nationalist agenda based on fear that non-white immigrants in general, regardless of legal status or the lack of it, will erase "American sovereignty and culture". See The Guardian (November 24, 2019):

https://www.theguardian.com/us-news/2019/nov/24/stephen-miller-white-nationalist-trump-immigration-guru

The Guardian also reports that 100 Congressional Democrats have signed a letter calling for Miller's resignation. But these calls are going unheeded, as Trump and Miller continue to do everything in their power, in defiance of Congress and the Constitution, to make white supremacy the law of the land for legal immigration, not only the unauthorized variety.

It remains to be seen how far the Supreme Court, whose Republican majority has approved Trump's Muslim Ban executive order and his deliberately cruel and inhuman "Remain in Mexico" policy against asylum seekers, will go along with Trump's and Miller's unilateral rewriting of this nation's immigration laws in the mold of the 1924 statute that gave so much encouragement to the rise of fascist ideology in Europe almost a century ago.



Roger Algase
Attorney at Law