U.S. v. Texas: Takeaways From Oral Argument at #SCOTUS

I had the privilege of attending today’s oral argument in U.S. v. Texas.  Here are my initial takeaways:

What we saw today was the Republicans trying to litigate a political dispute at the Supreme Court. The Republican plaintiffs simply do not have an addressable legal claim.

As expected, Chief Justice Roberts peppered the Obama Administration with tough questions. However, given the Chief Justice’s rigorous views on standing and his lamentations about the growing perception of a politicized Court, U.S. v Texas is precisely the type of dispute that Chief Roberts seems to want settled in the political branches and not in the judiciary. In fact, the Chief Justice’s almost singular focus on standing today – in particular when he asked whether Texas’s alleged injury was more indirect and speculative than in the Massachusetts v EPA case – suggests that, true to his well-articulated past opinions, Roberts is seriously questioning Republicans’ ability to bring this case.

This case remains about Republicans’ policy disagreement with the president, not about the law.

On the merits, the Republican plaintiffs conceded that Obama had the authority to temporarily defer the removal of undocumented parents and Dreamers. As Justice Kagan pointed out, the Republican plaintiffs’ “gripe” is with letting undocumented people work, support their families and live in this country with dignity in the process.

This underscores the anti-immigrant motivation behind the case and reminds us that a political lawsuit should be settled at the ballot box, not the Supreme Court.

 

#Texas #immigration case is opportunity for #SCOTUS to show it’s not tainted by partisan politics

SCOTUS

Posted on The Hill Congress Blog by David Leopold

Earlier this month Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust—the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.

Robert’s concern is well founded. The political pressure on the justices—particularly from the right—is perhaps more intense than at any time in the nation’s history.

Republican reaction to the sudden death of Justice Antonin Scalia last week has only fed this perception. Senate Republican Leader Mitch McConnell (R-Ky.)didn’t even have the decency to wait until Scalia’s body was flown back to Washington before he declared—despite the clear language of the Constitution–that President Obama should not be permitted to appoint Scalia’s replacement. McConnell’s intent to obstruct the confirmation process disrespects the legacy of Scalia himself who would have unquestionably upheld the president’sconstitutional authority to name his successor—an irony obviously lost upon McConnell and the other GOP senators who dutifully fell in line behind their leader.

Yet despite the politically charged atmosphere left in the wake of Scalia’s passing, the eight justices of the Supreme Court—and Chief Justice Roberts in particular—are presented with a critical opportunity to dispel the impression the Court has been corrupted by politics—something Linda Greenhouse noted Roberts had a hand in creating; that it is indeed the dispassionate umpire of “balls and strikes” Roberts described in his 2005 confirmation hearing. And, as the Court moves on to tackle a docket laden with cases ranging from abortion to worker’s rights to affirmative action, no case presents the justices with a greater opening to eschew the intrusion of politics into the courtroom as U.S. v. Texas, the challenge to Obama’s executive actions on deportations.

Here’s why:

The lawsuit is unquestionably a brazen political attack on the president’s November 20, 2014 deportation deferral known as DAPA and DACA expansion. Before the ink was even dry on the deferred action guidance, Republicans in Congress tried repeatedly to block the President’s actions – and they failed repeatedly. Taking another route, the state of Texas, joined by mostly GOP governors and attorneys general from 25 states, shopped for a friendly judicial forum in which to launch a legal assault. And they found one in the Brownsville, Texas, courtroom of U.S. District Judge Andrew Hanen, who’d made a name for himself in other cases excoriating the Obama administration for what he described as its “failure to enforce current United States law.” The GOP politicians took page from the playbook of birther queen Orly Taitz who identified Hanen as anti-immigrant and filed a lawsuit in Hanen’s court to stop the federal government from bussing immigrant minors from Texas to temporary detention centers outside the state. As predicted, Hanen blocked DAPA and DACA expansion and was later affirmed by the Fifth circuit, the most conservative appeals court in the country.

The Supreme Court agreed to hear the case in January and until Scalia’s death many court observers speculated that the key to upholding the president’s executive actions was Justice Anthony Kennedy, who has been a key swing vote in several immigration cases and wrote the majority opinion in Arizona vs. U.S. which recognized the president’s broad discretion over deportation matters, including deferred action.

Since Scalia’s passing the media has been ripe with speculation that the eight justice Supreme Court will divide equally along ideological lines and deadlock 4-4 with Justices Ginsburg, Breyer, Sotomayor and Kagan voting to uphold the President’s executive actions and Justices Roberts, Kennedy, Alito and Thomas voting to strike them down. A tie vote would not set a national precedent but would return the case to Hanen’s court. No doubt cases would be brought by advocates – and even states – to end the injunction in other states that welcome the president’s deportation deferrals. That’s the kind of judicial chaos that Roberts seems to want to avoid.

Fortunately, all this is rank speculation. It’s impossible to know what the Supreme Court—or any individual justice—will do in any case. The more important question is whether the justices will take the opportunity to demonstrate to the nation that they will not allow the judiciary to be used as a forum for partisan political attacks. If they do, there is no doubt that a healthy majority of the court will vote to dismiss the lawsuit, lift the injunction and make clear to the nation that political disputes are to be decided at the ballot box, not in the Supreme Court of the United States.

Leopold, an immigration attorney, serves as counsel to immigration reform groups and is the former president of the American Immigration Lawyers Association

Is @JohnKasich Really a Moderate on #Immigration? Actions Speak Louder Than Words

GOP 2016 New Hampshire

Gov. John Kasich, R-Ohio (AP Photo/Jim Cole)

Posted on Huffington Post by David Leopold

Ohio Governor John Kasich has seemingly positioned himself above the Trump induced anti-immigrant frenzy that has consumed the Republican primary. While the other GOP presidential hopefuls fall all over themselves trying to show the GOP base who’ll deport the most immigrants, who’ll be the first to cancel President Obama’s executive action and who’ll build the biggest wall, Kasich talks about legalizing the 11 million undocumented immigrants currently living in the nation’s shadows–although he stops well short of offering them a path to citizenship.

At Saturday’s Republican debate Kasich claimed he’d send Congress an immigration reform plan within his first 100 days in office. A week earlier, just before his impressive second-place finish in the New Hampshire primary, Kasich even seemed to show compassion toward undocumented immigrants. “I couldn’t even imagine,” he said, “how we would even begin to think about taking a mom or a dad out of a house when they have not committed a crime since they’ve been here, leaving their children in the house. I mean, that is not, in my opinion, the kind of values that we believe in.”

So it’s worth asking: Do Kasich’s actions as governor of Ohio match his kinder gentler tone on the presidential campaign trail?

Unfortunately, not so much.

Under Kasich Ohio has enthusiastically joined Texas and 24 other GOP-led states in a brazenly partisan lawsuit aimed at blocking President Obama’s plan to defer the deportation of nearly 5 million undocumented youth and parents of U.S. citizens, including an estimated 82,000 Ohio residents. Shortly after the President announced his actions–known as DAPA and DACA expansion–the Republican governors and attorneys general sought out a sympathetic judge who predictably enjoined the deferred action guidance which is now pending before the U.S. Supreme Court.

In the meantime, the very moms and dads that Kasich spoke so compassionately about on the GOP primary debate stage continue to live in fear that their families will be torn apart at any moment.

That’s exactly why 25 undocumented parents and their children from around Ohio met with Kasich at the statehouse in Columbus last year shortly after he announced his candidacy for president. Participants included Ohio mom Olga Flores whose 4-year-old son is currently battling cancer; an immigrant father of two small sons who recently lost their mother to a drunk driver; and a mother who has lived in the U.S. for 25 years and has lost her dad, sister and brother to deportation. The families begged Kasich to protect them, explaining how they and their children live their lives in fear, worried that a trip to the grocery store or school could end in a traffic stop and deportation. Their hopes were lifted when the President’s executive actions were announced, so they told Kasich, only to be crushed by the partisan lawsuit Ohio, under Kasich’s leadership, has engaged in.

Are these the very same moms and dads Kasich claims he could not imagine deporting? If so, why is he standing idly by while Republican governors and attorneys general–including Ohio’s Mike DeWine–target a program which will offer them a temporary reprieve from deportation and a chance to support their families?

Kasich’s response? He told the undocumented parents and children that it was Attorney General Mike DeWine, his fellow Republican, who signed the Ohio onto the Texas case, not him–a curious response from the state’s chief executive, and one that brings his leadership into question. He also, predictably, blamed president Obama for not getting an immigration reform package through the GOP-dominated U.S. House of Representatives. Let’s not forget the House was led by Kasich’s long-time House colleague and fellow Ohioan, Speaker John Boehner (R-OH). Never mind that had that Republican leadership allowed a vote immigration reform would have been enacted and the 25 families Kasich met with last summer would be earning their way toward citizenship.

Nor can Kasich defend his support for the Texas attack on DAPA and DACA expansion on economic grounds. Blocking the deportation deferrals hurts Ohio’s economy which stands to gain an estimated $41 million dollars in tax revenue to be paid by the undocumented Ohioans who’ll qualify for the program. Ironically, the same holds true for the state of Texas which bases its right to challenge the President’s immigration actions on costs in will incur through the issuance of driver’s licenses to qualified undocumented immigrants. In fact, according to theCouncil of Economic Advisors, the immigration actions will increase Texas’ GDP by $8.2 billion to $19.2 billion over the next ten years. And in South Carolina–where Kasich is hoping shore up his candidacy with a strong finish in Saturday’s primary–the deportation deferrals will increase the state’s GDP by as much as $2.3 billion.

Sadly, it doesn’t take much to sound reasonable on immigration in this year’s Republican primary. But actions speak louder than words–especially the words of a politician running for office. When it comes to actually protecting vulnerable families in Ohio and across the nation, John Kasich needs to walk the walk, not just talk the talk.

Follow David Leopold on Twitter: www.twitter.com/DavidLeopold

ICE raids are repugnant

Houston Chronicle

Published in the Houston Chronicle by David Leopold (A version of this commentary first appeared on CNN.com)

The Obama administration rang in the New Year with a series of heavy-handed immigration raids aimed at ferreting out and deporting Central American families who entered the United States after fleeing rampant violence in their home countries. According to Department of Homeland Security Secretary Jeh Johnson, the focus of the Immigration and Customs Enforcement operation is families ordered deported by an immigration judge either because their asylum claims were denied or they didn’t appear for their immigration court hearings. The raids have caused widespread shock, fear and panic among immigrant communities in Texas and elsewhere.

The raids operation is shocking, outrageous and just plain wrong. This is something we would expect from a President Trump, not President Obama.

The president is reacting – actually overreacting – to a recent spike in the migration of Central American families and unaccompanied children to the United States. He apparently wants to deter others from making the arduous, life-threatening trip north to the United States and to show that his administration is adhering to its Nov. 14, 2014, immigration enforcement priorities that, in addition to criminals and national security threats, target noncitizens who entered the U.S. or were ordered deported after Jan. 1, 2014.

But it’s morally repugnant to send ICE agents into local communities to arrest and detain vulnerable families, including women and children, and deport them to places where their lives will be threatened by unspeakable violence – countries like El Salvador, Guatemala and Honduras, where gang and drug violence force innocent families to flee north to the United States in search of a haven.

We know that most are eligible for asylum or other forms of protection because U.S. Citizenship and Immigration Services data show that an overwhelming percentage of the mothers and children in family detention centers in the United States can show a reasonable fear of persecution in their home countries.

Other Central Americans ordered deported in absentia may not have had a fair chance to plead their asylum case because they did not get adequate information from government bureaucrats explaining their obligation to go to court. Clearly, being ordered deported under those circumstances is not due process.

And this is exactly what the CARA Project – which provides pro bono legal assistance to families held at ICE detention centers in South Texas – found among the cases of Central Americans arrested in these raids. After project lawyers filed emergency appeals, the Board of Immigration Appeals temporarily stopped the deportation of at least seven Central American immigrants so their cases could be reviewed. As CARA Director Katie Shepherd cogently put it, “This is a clear indication that something is very wrong.”

Nor can it be said that deporting those whose asylum cases have been denied after a hearing before an immigration judge is any more reasonable or appropriate. Central Americans fortunate enough to make their case in court with a lawyer are burdened with complicated and exacting legal standards that govern asylum law.

An immigration judge’s refusal to grant a person’s asylum claim hardly means he or she does not face serious, life-threatening harm in the Northern Triangle of El Salvador, Honduras or Guatemala. The bottom line is that for many Central Americans, deportation means the forcible return to a cauldron of life-threatening violence.

At a minimum, the continued ICE raids should be immediately and unequivocally stopped. Raids destroy families, ruin economies and erode the community trust essential to effective local law enforcement.

Fearing deportation, undocumented immigrants may hesitate to report serious crimes to local law enforcement. Immigration raids targeting families, including women and children, should be assigned to the dustbin of history.

Unfortunately, Obama appears to be doubling down. White House press secretary Josh Earnest said Friday that the enforcement strategy will not change.

The president is making a colossal mistake by viewing this crisis solely through the lens of immigration enforcement. It’s much bigger than that – it’s a regional humanitarian crisis that demands a regional solution.

What’s needed now from Obama is leadership, not brutal enforcement policies targeting vulnerable families. Understanding the administration’s legitimate concern about preventing a new border surge, including its concern that those Central Americans who flee north to the United States face a life-threatening journey, Obama must do better than resort to ICE raids.

The president should work with regional partners toward a comprehensive regional solution aimed the root causes of the migration and devote resources to improving the economic and social situation in Central America. That solution includes regional safe havens, so Central American families fleeing violence can find shelter in the area rather than being forced to risk the treacherous journey north.

In the meantime, even if one accepts the administration’s argument that the Central American families targeted for deportation have received fair hearings – which I don’t – that still doesn’t explain why the administration is dispatching armed ICE agents into communities to arrest, detain and forcibly deport families. ICE has the power to allow people who’ve exhausted court proceedings to leave the country on their own. This heavy-handed approach tells me that the president is trying to send a broader message to Central American refugees – that they need not look to America for safety or shelter. That’s reprehensible, and something we’d expect from a President Trump, not President Obama.

Leopold, founder and principal of an immigration law firm in Cleveland that carries his name, is the past president of the Washington-based American Immigration Lawyers Association. 

Immigration raids belong in a Trump, not an Obama, administration

Originally posted on CNN.com by David Leopold

The Obama administration is planning a series of ICE raids beginning in January to ferret out and deport thousands of Central American immigrants who entered the United States in 2014 after fleeing rampant violence in their home countries, according to The Washington Post.

An immigration judge ordered these families deported either because their asylum claims were denied or they didn’t appear for their immigration court hearings. The administration’s plan is shocking, outrageous and just plain wrong. This is something we would expect from a President Trump, not President Obama.

David Leopold

David Leopold

If the raids take place, the President would appear to be reacting — actually overreacting — to a recent spike in the migration of Central American families and unaccompanied children to the United States. He apparently also wants to deter others from making the arduous, life-threatening trip north to the United States and to show that his administration is adhering to its November 14, 2014, immigration enforcement priorities that, in addition to criminals and national security threats, target noncitizens who have entered the U.S. or been ordered deported after January 1, 2014.

But It’s morally repugnant to send Immigration and Customs Enforcement agents into local communities to arrest and detain vulnerable families, including women and children, and deport them to places where their lives will be threatened by unspeakable violence; countries like El Salvador, Guatemala and Honduras, where gang and drug violence force innocent families to flee north to the United States in search of a haven. Reports such as one in the Guardian recount that undocumented immigrants deported to Central America have faced unspeakable violence, even murder, just days after their return.

Donald Trump's clueless immigration plan

We know that most are eligible for asylum or other forms of protection under the law because U.S. Citizenship and Immigration Services data show that an overwhelming percentage of the mothers and children detained at family detention centers in the United States are able to show a reasonable fear of persecution in their home countries.

Other Central Americans ordered deported in absentia may not have had a fair chance to plead their asylum case because they did not get adequate information from government bureaucrats explaining their obligation to go to court. Clearly, being ordered deported under those circumstances is not due process, and families should not be summarily removed from the United States for failure to appear at an immigration court hearing.

Nor can it be said that deporting those whose asylum cases have been denied by a judge is any more reasonable or fair. Central Americans fortunate enough to make their case in court with a lawyer are burdened with complicated and exacting legal standards that govern asylum law.

A key to America's power

An immigration judge’s refusal to grant a person’s asylum claim hardly means he or she does not face serious, life-threatening harm in El Salvador, Honduras or Guatemala. That could include, for example, a woman whose asylum claim has been denied by an immigration judge after she fled gang and drug violence to save her children’s lives.

The bottom line is that for many Central Americans, deportation means the forcible return to a cauldron of life-threatening violence.

At a minimum, the use of ICE raids to execute this plan should be immediately and unequivocally scrapped. The specter of armed ICE agents invading communities early in the morning harkens back to the darkest days of chaotic immigration enforcement. Raids like the ruthless ones inflicted onPainesville, Ohio, in 2007 and Postville, Iowa, in 2008 destroy families, ruin economies and erode the community trust essential to effective local law enforcement.

Faced with the fear that they or a relative might be deported, undocumented immigrants may think twice about reporting serious crimes like domestic violence to local law enforcement. Immigration raids targeting families, including women and children, should be assigned to the dustbin of history.

What’s needed now from the President is leadership, not brutal enforcement policies targeting vulnerable families. Understanding the administration’s legitimate concern about preventing a new border surge, including its concern that those Central Americans who flee north to the United States face a violent and life-threatening journey, we must insist that Obama do better than resort to ICE raids to force the immediate removal of vulnerable families.

Rather than sending families back to the very danger and violence they’ve fled, the administration should work toward a comprehensive regional solution to the humanitarian crisis that’s causing the migration and devote resources to improving the economic and social situation in Central America.

In the meantime, vulnerable families, whether or not they’ve had their day in immigration court, must be provided temporary haven, not threatened with roundups and deportation of the sort envisioned by the likes of Donald Trump.

Is the politically charged Texas immigration case about to become more politically charged?

As the 9 justices of the U.S. Supreme Court ponder whether to review the Republican lawsuit attacking President Obama’s immigration executive actions, back in Brownsville, Texas U.S. District Judge Andrew Hanen—whom Republican politicians, led by the state of Texas, sought out late last year to block the actions known as DAPA and DACA expansion—appears to be making an already brazenly political lawsuit more political.

In a little noticed order issued earlier this month Hanen commanded the parties to appear in his courtroom on Tuesday December 15 to explain the effect of a procedural decision of the 5th Circuit Appeals Court “on the rights of individuals to intervene in the case.” (The intervenors are people who have expressed an interest in becoming parties to the Texas immigration case).

When I read Hanen’s order the first question that came to my mind was: Why have a hearing now?  Hanen’s temporary injunction blocking the immigration executive actions is currently on appeal to the Supreme Court.  If the Court agrees to hear the case this term the lawsuit will not likely return to Hanen’s court room for months, if ever.  Most legal scholars and observers believe that Hanen was wrong to block the president’s executive actions last February.  If the Supreme Court hears the case this term there’s a pretty good chance they’ll toss out the entire case, rendering a hearing on the intervenors pointless.

Wouldn’t it make more sense for Hanen to put the whole case on hold until after the Supreme Court reviews it?  Why waste precious tax payer dollars and limited judicial resources on a procedural hearing about the role of the intervenors if there is a chance the case won’t survive Supreme Court review?  On that point even the GOP politicians who brought the case seem to agree. They’ve joined the Obama administration in a motion asking Judge Hanen to shelve the case until after the Supreme Court makes a decision.

What’s driving Hanen to go forward with a hearing at this point? Doesn’t he have other cases on his docket that need his immediate attention?

Maybe Hanen’s sense of urgency has more to do with who the intervenors are? Among those seeking to impose themselves on the litigation are Orly Taitz, queen of the disgraced and discredited birther movement, which challenged President Obama’s U.S. citizenship and legitimacy as President (Taitz specifically sought out Hanen to file several anti-immigrant lawsuits) and the infamous Maricopa County Sheriff Joe Arpaio, who’s built his brand by terrorizing Latino neighborhoods, surreptitiously investigating the wife of a federal judge and violating folks’ civil rights.  Arpaio lost a case on this same issue in the D.C. District and on appeal at the D.C. Circuit Court of Appeals.  It’s difficult to imagine that either Taitz or Arpaio have a “concrete, personalized, and legally protectable” interest in the case as required for intervention. Yet Hanen has set the hearing for Tuesday, December 15 and that presumably means the interests of Taitz and Arpaio will be heard.

All this underscores the real nature of the Texas GOP attack on DAPA and DACA which, as a panel of the 5th Circuit appeals court observed in its order affirming Hanen’s hold on DAPA and DACA expansion, involves “policy disagreements masquerading as legal claims”. Taking the court’s apt description a step further, the Republican challenge to the deportation deferrals is more about the party’s rabid disdain for “anything Obama” than the sanctity of the law.  DAPA and DACA wouldn’t have even been necessary if the GOP House leadership had allowed an up or down vote on comprehensive immigration reform in 2013.  Everyone knows that immigration reform would have passed Congress and the President would have signed it into law obviating the need for a deportation deferral.  In the aftermath of the House GOP’s intransigence Obama set forth immigration enforcement priorities which target felons, national security threats and recent border crossers rather than DREAMers and undocumented parents.  While he was able to slap a temporary hold on DAPA and DACA expansion, Hanen—who has not shied away from launching gratuitous attacks on the Obama administration’s immigration enforcement policies—knows that the President’s enforcement priorities are unassailably legal.

Is that why Hanen appears so eager to open his courtroom to a discussion of the role of the intervenors, including the infamous Sheriff Joe Arpaio and birther queen Orly Taitz, as the Supreme Court decides whether it will hear the Texas immigration case this term?

It seems that the participation of Apraio and Taitz will do little more than inject more nasty politics into the GOP’s shamelessly political lawsuit.

America doesn’t turn its back on refugees

Possible Government Shutdown Threatens Statue Of Liberty With Closure

 (Photo by Spencer Platt/Getty Images)

Originally Posted on MSNBC.com by David Leopold

This week, we’ve seen politicians launch an ugly, vicious campaign against Syrian refugees. They’ve singled out this group of people for partisan gain. In doing so, they’re ignoring basic humanity.

I’ve been representing Syrians fleeing persecution in Syria since the turmoil began in 2011. In all my years as an attorney, I have never encountered a more vulnerable and frightened group of refugees. To a person, the Syrians I’ve represented have sat in my office terrified, their fear of being sent back to Syria palpable. In painstaking detail, they recount the horror of the arrests, disappearance and murder of loved ones, close friends and colleagues. With the chaos that has enveloped their country, they describe the horror that would befall them if ISIS or some other terrorist gang invaded their homes.

One story is more terrifying than the next. The Syrian refugees include doctors targeted by the regime and rebel groups alike who aim to ‘neutralize’ their medical skills to keep them from treating a potential political or religious rival; LGBT Syrians targeted for their sexual orientation and political beliefs; and women fleeing violence to protect their children and themselves.

The Syrian clients I have been so privileged to represent have come to America, like generations of immigrants, refugees and asylum seekers before them, in search of a safe haven, freedom, and a better life for their children. Now is not the time to follow the lead of cynical politicians who seek to exploit the horrific tragedies in Paris, Beirut and Sinai for political purposes. Now is not the time to recoil in fear and xenophobia. Now is the time to stand tall as Americans and protect our nation’s great legacy as a beacon of hope, safety and freedom for all refugees who grace our shores.

I am also the son of a refugee. My father, his parents and younger brother fled the horror of Nazi Germany in 1938, shortly before Kristallnacht. They were among the lucky ones, able to enter the U.S. on the limited number of quota visas that were allotted to Jewish refugees of Hitler’s Germany.

Most Jews were not so fortunate, including my grandmother’s sister, who was murdered by the SS in a Nazi death camp. At the time, allowing Jews fleeing Nazi Germany safe haven in the U.S. was not popular. In an informative piecepublished Tuesday in The Washington PostIshaan Tharoor recounts a pollpublished in Fortune magazine in 1938 showing that less than 5% of Americans “believed that the United States should raise its immigration quotas or encourage political refugees fleeing the fascist states in Europe — the vast majority of whom were Jewish — to voyage across the Atlantic. Two-thirds of the respondents, meanwhile, agreed with the proposition that ‘we should try to keep them out.’”

Even more chillingly, Tharoor writes: “Two-thirds of Americans polled in January 1939 — now well after the events of Kristallnacht — said they would not take in 10,000 German Jewish refugee children.”

In the aftermath of ISIS’s horrific attacks on Paris and Beirut, we must ask ourselves a fundamental question: Are we going to turn our backs on those fleeing the terror of Assad and ISIS? Some politicians, including candidates for president and governors, have predictably answered by calling for a ban on Syrian refugees. Others have cynically chosen to exploit the tragedy to further their ugly, nativist anti-immigrant agenda.

If we follow the lead of those who trade in fear and xenophobia, we will compromise the very principles upon which this great nation was founded. Closing the door to Syrian refugees would be a shameful abdication of America’s global leadership role. Europe’s right wing anti-immigrant parties will win the day and refugees fleeing war and persecution will be either trapped in a land where 250,000 have died or we’ll see more children’s bodies washed up on the shores of Europe and, likely, America.

Fundamentally, the Syrian refugee crisis presents Americans with an historical challenge to define our essence as a people, as a culture, and as a country. It forces us to consider where we have been and where we are going. What kind of a nation do we want to be? Do we want to be a welcoming nation that opens its arms to people from all over the world, and from all walks of life, or do we want to turn our backs on those in need, and restrict critical opportunities for engineers, entrepreneurs, researchers and scientists like Albert Einstein, who was, by the way, a refugee?

I know which nation I want.

We will never know how many murdered Jews, Gypsies, LGBT and others would have survived the war had the U.S. opened its doors as Hitler’s killing machine was gearing up. We will never know which murdered children might have grown up to become renowned scientists, artists, writers or world leaders. What we do know is that America’s decision to slam the door shut in the face of refugees was a decision that we, as a nation, have lived to regret.

We should not repeat that grave mistake.

David Leopold is a Cleveland based immigration attorney and the former president of the American Immigration Lawyers Association.

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