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  • Article: Is Being Anti-Trump A New Ground Of Inadmissibility? By Cyrus D. Mehta

    Is Trump’s Proposed Scrapping of the H-1B Lottery in Favor of the Highest Wage Such A Good Idea?

    by


    Over the weekend, a Canadian student of McGill University, Joseph Decunah, who was seeking to be admitted to protest at the Women’s March the day after President Trump’s inauguration was refused admission. He was in the company of two US citizens who were allowed to cross. Decunah was point blank asked “Are you anti or pro-Trump?”

    After Decunah indicated he was anti-Trump as he had nothing to hide, the CBP officer engaged in further questioning about why he opposed Trump, and the Canadian entrant spoke about the Affordable Care Act and some of the outrageous statements that Trump has made towards minorities. Then from there, the questioning moved on, according to Decunah, to determine if he and the two others in his group were extremists or not. He was asked about where he had been, and if he has ever been to the Middle East. The CBP officer then asked him about his political engagements, to which Dacunah responded that he had been a member of the NDP (New Democratic Party) in the past.

    The CBP officer then alleged that Decunah would engage in “silent disruption” as a protestor in the march. He said, according to Decunah, “Would you agree that by standing in these crowds, that even though you may be a pacifist, that you would be disrupting events?” Decunah’s partner Ruth mentioned that the Women’s March had permits from the Metropolitan Police Department and the National Park Service. “It’s not like we’re participating in anything illegal. [The guard] dropped the term “silent disruption” a few more times and then tried to explain that there were a series of bins Canadians have to fall into when they’re entering the United States,” according to Decunah.” One of those things can be tourism, one of those things can be for work or whatever it may be in that attending a march of any sort wouldn’t fall into one of those bins.”

    We hope that this was an isolated incident, and not part of a growing disturbing trend under a Trump presidency. While there is no specific mention in the Foreign Affairs Manual about whether coming to the United States to be part of a peaceful protest is a legitimate activity as a visitor for pleasure, it clearly ought to be. Under 22 CFR 41.31(b)(2) pleasure is defined as “Legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature.” Clearly, being part of a peaceful protest with like-minded people could constitute activities of a “fraternal” or “social” nature. 9 FAMe 402.2-4(A)(3) also contemplates as visitors for pleasure “[p]articipants in conventions of social organizations.”

    Of course, the CBP officer can rely on other grounds of inadmissibility under the INA. One potential ground is under INA 212(a)(3)(A)(i), which allows a consular or border officer to find inadmissible one, if there are reasonable grounds to believe that he or she seeks to enter the United States to engage principally or incidentally in “any other unlawful activity.” It is purely speculative and a stretch for a CBP officer to assume that an anti- Trump protestor, as opposed to a pro-Trump supporter, may more likely engage in a form of civil disobedience, resulting in unlawful activities such as blocking traffic. It is even more absurd to refuse entry to one who will engage in “silent disruption.” The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peaceably assemble is likely to involve the violation of law.

    Trump, who is likely to continue being a controversial President, will generate more protests in the future. It would undermine America’s image as a free country if visitors from abroad are barred if they are specifically coming to participate in a peaceful anti-Trump protest. Immigration policy does not operate in a vacuum. There have already been troubling signs of Trump repeatedly attacking the press as being dishonest, thus undermining the First Amendment. Consuls and border officers should not feel emboldened as a result by allowing their personal prejudices to cloud their objectivity in determining who is a bona fide visitor. Otherwise, and most unfortunately, being anti-Trump might de facto become a new ground of inadmissibility. This is because there are very limited grounds to challenge the decision of a border officer. Similarly, under the recent Supreme Court decision in Kerry v. Din, a consular officer’s decision is virtually unreviewable if the applicant was simply informed about the section number in the INA as the basis for the denial. These officers are bestowed with great power and must use their power wisely. While they are obligated to ensure that those who potentially threaten to harm the United States do not come in, they should allow peaceful protestors who wish to exercise and celebrate the rights that are enshrined in the First Amendment.

    This post originally appeared on The Insightful Immigration Blog. Reprinted with permission.


    About The Author

    Cyrus D. MehtaCyrus D. Mehta is the Founder and Managing Partner of Cyrus D. Mehta & Partners PLLC. He is a prolific speaker and writer on contemporary immigration topics. He graduated with law degrees from Cambridge University and Columbia Law School.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 6 Comments
    1. MKolken's Avatar
      MKolken -
      If an applicant for admission indicates they intend to protest it is reasonable to assume that there is more than a mere possibility of participation in an act of civil disobedience, which falls squarely in the "any other unlawful activity" category of INA 212(a)(3)(A)(i). And the burden of proof is on applicant.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Er, Matt, to the best of my knowledge understanding, we do have something known as the First Amendment to the Constitution of the United States of America in this country, which allows peaceful protests of the kind that 3 million people engaged in last weekend. The inspecting CBP officer didn't ask if Decunha was planning to protest peacefully or not. The officer asked Decunha about his political views, namely whether Decunha was for or against our new Leader. No wonder this caused such a Furor (pardon my German).

      I can name two countries where that kind of question would probably not be out of line for someone seeking entry - Russia and North Korea. And, oh, yes, there was another such country, whose chief executive won an election that was probably fairer and more legitimate, and arguably freer from interference by a foreign dictator than ours was in 2016 - that candidate was elected in 1932, in Germany.

      We can cite INA sections as much as we want. No one is going to find a section that makes opposing a particular president, in and of itself, a ground for inadmissibility.

      That is not to say that this law might not get changed in Donald Trump's America, and that refusal to throw one's right arm up in the air and shout "Heil Donald Trump!" might become grounds for inadmissibility. But that was not the law when Decunha and several other foreign citizens were denied admission the day before our 45th president's inauguration, and it is, one would hope, not the law now.

      Roger Algase
      Attorney at Law
    1. MKolken's Avatar
      MKolken -
      Er, Roger, I can name another country where that kind of question would probably not be out of line for someone seeking entry: Canada. http://constitutional.findlaw.ca/art...s-and-the-law/
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Four more journalists arrested on felony charges for the "crime" of covering the inauguration protests:

      http://www.alternet.org/news-amp-pol...uration-unrest

      Meanwhile, the January 25 Huffington Post reports that Trump is calling for a major investigation of alleged "illegal voting". By his definition, there could be well over 60 million "illegal voters" in America - anyone who voted for Hillary Clinton.

      This all looks a great deal like Russia more than Canada, one of the world's most stable democracies.

      Roger Algase
      Attorney at Law
    1. MKolken's Avatar
      MKolken -
      Uh huh... https://freedomhouse.org/report/free...ss/2016/canada

      Conditions for media in Canada are free and stable, and outlets are generally able to operate and exercise editorial independence without undue interference. However, several harsh laws passed in recent years have led to concern about respect for freedom of expression. Police mistreatment of journalists at public events—though infrequent—also remains an issue.

      Key Developments
      • A controversial antiterrorism law came into force in June 2015; it includes provisions against “terrorist propaganda” and prohibits actions that “encourage” or “promote” terrorism.
      • Following its annual National Freedom of Information Audit, Newspapers Canada reported in October that the federal government had made few advances in improving access to information in 2015.
      • In an exceptional case, a National Post editor resigned in October after newspaper executives prevented him from publishing a column dissenting from the paper’s endorsement of the Conservative Party.
      • In March 2015, police in Montreal harassed and detained media professionals who were covering student protests.
    1. MKolken's Avatar
      MKolken -
      And see: Free Expression Matters: Hate Speech in Canada & Bill 59 https://pencanada.ca/blog/free-expre...anada-bill-59/

      Bill 59 poses a significant threat to free expression in Québec. Although this piece of legislation aims to combat hate speech and speech inciting violence specifically, its broad language coupled with restrictive prohibitions and significant penalties will place a chill on the expression of legitimate ideas and debate.

      As stated in the above section, the bill aims to combat speech that targets individuals or groups on the grounds of discrimination identified in the Québec Charter of Human Rights and Freedoms. These grounds include what is contained in most other provincial human rights codes including age, sex, colour and pregnancy but also “political convictions.” A restriction on speech that targets individuals or groups on the basis of political conviction is a serious restriction on civil and political dialogue. While the bill expressly states that its purpose is not to prohibit the dissemination of speech intended to “legitimately inform the public,” it would nonetheless pose a very real risk to those speaking and writing on contentious political matters, creating a potential chill where civil discourse matters most.
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