Author Archive for Ashley Roncevic

Rep. Devin Nunes: Understanding Rep. Nunes Fall From Grace

Another day, another scandal.  Temperamental tweets from Trump are becoming the norm, yet Trump’s recent claims that Obama wiretapped him prior to winning the election still came as somewhat of a surprise.

There were previous reports that, while monitoring Russians, the intelligence community may have intercepted communications from members of the Trump team, but Trump’s tweet claimed Obama specifically ordered the wiretapping.  That’s a pretty hefty claim to make and he did so without any substantiating evidence.  Then along came Devin Nunes, who recently held a press conference making statements that appear to somewhat validate Trump’s claims.  The Congressman has been under heavy scrutiny ever since and people are questioning his ethics.

Rep. Devin NunesLet’s Take a Step Back to Get Some Context

Earlier this year, the House Intelligence Committee was tasked with investigating whether there was Russian interference into the 2016 elections as well as collusion between Russia and Donald Trump’s campaign.  The House Intelligence Committee is led by chairman Devin Nunes, which, until recently, wasn’t necessarily a household name.

A week ago, Nunes held a press conference and, to keep it simple, he announced that an unnamed source had given him information that appeared to validate, at least somewhat, Trump’s wiretapping allegations.  Here’s what Nunes said:

“First, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.  Details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in the intelligence community reporting.  Third, I have confirmed that additional names of Trump transition team members were unmasked.  Fourth and finally, I want to be clear. None of this surveillance was related to Russia, or the investigation of Russian activities or of the Trump team.”

Because Nunes says that the information wasn’t related to the surveillance on Russia and that it also wasn’t related to the Trump-Russia investigation, Nunes’ statements suggest that some of the members of the Trump transition team were in fact under surveillance.

Why All the Fuss?

Here’s a brief rundown of how it went down:

  • On March 21st Nunes made an unscheduled trip to the White House where an unnamed source provided Nunes with information about incidental collection of Trump and his associates. That information, according to Nunes’ press conference, contained unmasked names.
  • On March 22nd Nunes held the press conference with the statement above. Nunes claims the information came from FISA surveillance.  Nunes then went directly to the White House to brief Trump on the intelligence reports.  Adam Schiff, the ranking Democrat on the House Intelligence Committee, released a statement that Nunes did not share this information with other members of the Committee before going to brief Trump.

The press conference itself wasn’t necessarily the issue; the issue is where the documents came from and why did Nunes go to Trump with the information before his own Committee members?  Regardless of whether the information was unrelated to the Trump-Russia investigation, Nunes still should have presented the information to the Committee first.  Even after Nunes apologized for going to Trump first, the water has gotten even murkier on whether Nunes had any real evidence to support the statements as he has yet to release the documents to the Committee.

Actions Affect the Committee’s Investigation

Who did Nunes meet at the White House?  Why did Nunes need to meet his source at the White House?  Why didn’t Nunes take the information straight to the Committee?  These are the unanswered questions floating around that make what Nunes did suspicious.  The running theme coming from the Democrats is that, because Nunes was a member of Trump’s transition team, Nunes is improperly providing political cover for Trump’s claims that Obama wiretapped his phone.

Nunes’ actions do affect the House Intelligence Committee’s investigation because it tarnishes the office’s credibility.  Being chairman of the House Intelligence Committee holds certain responsibilities and, as a member of that Committee, Nunes’ loyalty should have been to the Committee, especially since Trump is currently being investigated.  Instead, Nunes claimed he felt he “had a duty and obligation” to tell Trump because “he’s [Trump] taking a lot of heat in the news media”.

If Nunes is covering for Trump, he’s not being an impartial member of the Committee.  Not only does it tarnish the creditability of the House Intelligence Committee, but it also jeopardizes the ongoing Trump-Russia investigation.  There’s also a good argument Nunes’ actions violate protocols for handling classified information, which is why he’s received numerous ethics complaints.

Despite statements that all the fuss is “entirely false and politically motivated”, Nunes has since stepped aside from the Trump-Russia investigation.

Proof of Residency is Not Required to Eat Out

Are you required to show identification before sitting down for lunch?  If you’re ordering alcohol, sure.  But what if you were asked to show proof of legal residency?  Brenda Carrillo and a friend sat down at the Saint Marc Pub-Café, an upscale eatery in Huntington Beach, when a waiter asked:

“Can I see your proof of residency?”

When the patrons repeated the question back to the waiter in disbelief, the waiter responded with:

“I need to make sure you’re from here before I serve you.”

Is this legal?  After complaints to the manager, the patrons were offered to be re-seated, but declined and left the restaurant.  Castillo commented that she had never felt so judged in her entire life.

Proof of ResidencyNo Shoes, No Service

You know those signs that read, “We reserve the right to refuse service” or “No shoes, no service”?  Can a restaurant really refuse service to whoever they want?  The short answer is no.  After Trump’s inauguration, it seems some feel emboldened to start showing their prejudices and, despite the waiters cruel and discriminatory intent, it doesn’t come as much of a surprise to hear these types of stories popping up across the country.

When is a restaurant justified to legally refuse service then?  For starters, a restaurant can never refuse service based on discrimination.  The Civil Rights Act of 1964 explicitly prohibits places of public accommodation from discriminating based on race, color, religion or national origin.  Although a restaurant is considered private property, it’s still considered a place of public accommodation—equal protection laws still apply.

There aren’t necessarily a set of circumstances that would warrant a legal right to refuse service but, as a general rule of thumb, restaurants can refuse service if a guest puts the health, safety, or welfare of the establishment, or other guests, at risk.  That doesn’t help much, does it?  Certainly not an exhaustive list, but here are a few instances when a restaurant could legally refuse service:

  • When a guest is acting unreasonably rowdy or threatening other patrons,
  • When a guest doesn’t meet the company’s health requirements (think lacking adequate hygiene),
  • When a guest breaks lawful rules such as no-pet policies,
  • When the establishment has met capacity limits, or
  • When the establishment is getting ready to close.

Have you ever seen those signs that say ‘dress shirt and tie required’?  A restaurant can even refuse service if a guest doesn’t meet their clothing requirements., but refusing to serve a patron based on residency is not an acceptable reason because it’s a form of discrimination that the Civil Rights Act strictly prohibits.

I.D. Required Only in Limited Circumstances

The waiter had no right to ask the guests for identification.  When is proof of residency required?  One of the most obvious instances is obtaining a driver’s license or showing proof of citizenship to get a U.S. passport.  Many jobs require proof that you’re legally eligible to work in the U.S. and laws requiring a person suspected of a crime to show identification are legal as well.

The restaurant contacted Carillo with an apology after the story showed up on social media accounts.  The restaurant’s manager confirmed the behavior was not within company standards and the waiter was ultimately fired.  When the restaurant offered to host Carillo and her friends as “VIP guests,” Carillo and her friends declined the offer but, instead, asked Saint Marc Pub-Café to donate 10% of the weekend’s sales to an organization that advocates for immigrants living in the country illegally.

Did the patrons have another option?  They certainly could have brought a discrimination suit against the restaurant. Certain types of discrimination and civil rights violation allegations require a person file a claim or complaint with a federal or state agency before a lawsuit is brought, but Carillo likely would have had no problem getting the go-ahead to file a lawsuit.  At that point, it would have been up to Carillo to prove by a “preponderance of the evidence” (that it’s more likely than not that the allegations are true) that the restaurant discriminated against her.

Alford Plea: How a 19 Year-Old Teen Gets Community Service for Sexual Assault

A 19-year old Idaho teen that was accused of kicking a coat hanger up the rectum of a mentally disabled teammate plead guilty and received a mere sentence of 300 hours of community service.  Former high school football player, John R.K. Howard, was originally charged with forcible penetration by use of a foreign object, but the case was later found not to be about sexual assault and the teen was ultimately sentenced on a felony injury to a child charge.

According to the victim’s account of what happened, one of his friends motioned him over for a hug whereupon another teammate shoved a coat hanger into his body, after which Howard kicked the hanger pushing it further into his body.  Howard admitted he kicked the victim, but denied that he intentionally kicked the hanger itself; in fact, his attorney argued Howard may not have even known about the hanger.

The case caused quite an uproar in the small town of Dietrich, Idaho.  The victim’s family argued the victim had been continually bullied, while those in support of Howard and the other students charged urged the victim had fabricated the whole incident at the request of his parents for the sake of the financial gain that would come out of a lawsuit.  Despite the murky facts the case presents, Howard chose to plead guilty under an Alford Plea.

alford plea“I’m Guilty, But Not Really”

When a defendant enters a guilty plea, they’re admitting their guilt to the crime, usually as a trade-off for a reduced charge and a lesser sentence.  An Alford Plea gives the defendant the benefit of the lesser sentence without admitting guilt—the defendant gets to maintain his or her innocence for the crime.

Judges do have discretion to either accept or reject a plea, so maintaining innocence isn’t normally something that you would see when entering a guilty plea.  The Alford plea originated from a U.S. Supreme Court decision that held a judge can accept a guilty plea from a defendant that doesn’t really want to admit guilt; this allows the defendant to get the benefit of the bargained-for sentence even though they’re wavering on actual guilt.  When entering this kind of plea, Judges will ensure:

  • Whether the defendant is making a smart decision. Does the defendant understand what the plea means?  Does the defendant understand the rights they’re giving up?  Does the defendant understand that, even though they’re maintaining their innocence, they’ll still be considered (and treated as) guilty?  It will still be a criminal record just the same.
  • Is there enough evidence against the defendant for a guilty verdict at trial? You can’t plead guilty under an Alford Plea if there isn’t enough proof you’ve committed the crime.

Alford Plea Benefits Both Sides

Under an Alford Plea, a defendant admits that the evidence against them would likely persuade a judge or jury to find a verdict of guilty beyond a reasonable doubt, but maintains his or her innocence.  That doesn’t exactly sound like a real guilty plea then, so why are they even allowed?

In the case that went to the U.S. Supreme Court that led to the development of the Alford Plea, at the defendant’s guilty plea hearing he testified that he didn’t commit the crime he was charged with, but was pleading guilty to avoid getting a death penalty sentence.  That’s the plus side to any guilty plea—pleading guilty to a lesser crime to avoid a heavier sentence.  For the state, it’s about judicial efficiency, but for a defendant it’s about not gambling the odds.

Not every state allows Alford Pleas and in those states a defendant would have to plead “not guilty” to maintain their innocence.  For all intents and purposes, this costs time and money because it leads to a lengthy trial.  Plea deals keep cases off the docket, ensure time served, and give defendants the benefit of a lesser sentence.

Teen Could Get Conviction Dismissed

The evidence against Howard must have been damning for him to take the plea, but it paid off for him because he won’t have to serve any jail time.  The sentenced Howard to 300 hours of community service, but granted a withheld judgment.  Under Idaho law, judgments can be withheld to get them off the docket.  The benefit of this kind of judgment is that it gives the defendant a chance to have his record cleared later.

Here’s how it typically works—a defendant pleads guilty, is granted a withheld judgment, the case is closed, and, if the defendant abides by the term of their guilty plea, the conviction gets dismissed.  Think of it like putting your case on hold—a probationary period if you will.  If you behave, don’t get in any more trouble, and follow the terms of your guilty plea agreement with the state, then your case gets dismissed at the end of the probationary period.

Immigration: Understanding the United States’ New Policies

Under the Obama administration, enforcing immigration policies meant focusing on dangerous criminals and keeping families together, not a hard-lined approach that would deport every undocumented immigrant.  Times have changed, though, and Trump’s executive orders, titled Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States, changes the enforcement practices of our nations’ immigration laws.

Veiled Rule Really Includes All Undocumented Immigrants

immigrationAlthough Obama took a more progressive approach during his first term, deportations dropped during his second term and priority was given to dangerous criminals—not to those immigrants whose only violation was being in the country illegally.  In 2014, the Department of Homeland Security (DHS) created the Priority Enforcement Program, which focused on deporting undocumented immigrants that posed threats to public safety, national security, and border security.  This program within the DHS has now been terminated because under Trump’s executive order undocumented immigrants that:

  • have been convicted or charged of any criminal offense,
  • have committed a chargeable criminal offense,
  • have engaged in fraud (think visa fraud) or willful misrepresentation in connection with any official matter or application before a governmental agency,
  • have abused any program related to receipt of public benefits,
  • are subject to final order of removal, but have not complied with their legal obligation to depart the U.S., or
  • in the judgment of an immigration officer, otherwise pose a risk to public safety or national security are to be given priority for deportation.

Let’s be clear here.  The policy includes virtually every person in the country that is here illegally.  Under this new policy, any unauthorized immigrant that has committed a chargeable criminal offense is to be deported.  Crossing the border illegally is in and of itself a criminal offense, so all those campaign promises that he only wanted to deport criminals wasn’t entirely true.  The only other way an immigrant could be here illegally is by overstaying a visa.

Department of Homeland Security Memos Shifts Policies Further

Secretary for the Department of Homeland Security, John Kelly, released a set of implementation memos that give guidelines on how to enforce Trump’s policies under his executive orders.  According to the DHS, these memos are “designed to answer some frequently asked questions about how the Department will operationally implement the guidance provided by the president’s order”.

In short, the memos expedite deportation, tighten immigration laws for asylum seekers and unaccompanied minors entering the country, could send immigrants awaiting immigration proceedings in the United States back to Mexico, seek to publicize crimes by undocumented immigrants, build new detention facilities, strip immigrants of privacy protections, and enlist local police officers to enforce immigration policies.

Here’s a closer look at some of the changes.

  • Although the memos do list specifics about who is to be given priority for deportation in accordance with Trump’s executive order, the memos direct that the DHS will no longer exempt classes or categories of removable aliens. This is contrary to the policies under Obama, who worked to keep illegal immigrants with strong ties to their communities and this country, including those with citizen children, here in the United States.
  • Establishes the Victims of Immigration Crime Engagement (VOICE) Office. This one allows the VOICE office to release information about the offender to victims and their families.  Further, it terminates any and all resources used to advocate on behalf of illegal aliens; all resources are reallocated to the VOICE office.
  • Directs establishment of regulations to collect civil fines and penalties from illegal aliens.
  • Strips Privacy Act protections from any person that is not a U.S. citizen or lawful permanent resident.
  • Expanded expedited removal processes for undocumented immigrants that haven’t been here long. Immigration law says undocumented adults captured within 2 years of entering the U.S. can be removed without a hearing.  In the past, DHS policy limited this policy to those captured within 14 days of entering the country, but, even though the memo doesn’t give a specific change of time frame, this will likely no longer be tolerated based on the essence of the memos.
  • Criminalizes those who help unaccompanied children. Any individual who “facilitates the illegal smuggling or trafficking of an alien child into the United States” is subject to deportation and/or prosecution.
  • For those that entered the country through a neighboring territory, the memos authorize their return to that territory where they will wait for the outcome of their removal proceedings. This is true even if that territory isn’t their country of origin.

Although some of the information contained in the memos references already existing laws, the message is clear—violating immigration laws will no longer be tolerated.  Under these policies, the government no long considers violating immigration laws a secondary offense and the memos direct Immigration and Customs Enforcement to hire 10,000 additional officers and agents to implement these new policy changes.

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Immigration Ban 101: Understanding Trump’s Executive Order

Trump’s executive order on immigration has created mass confusion, waves of legal battles, and incited outrage across the nation.  In the chaos that ensued after the executive order dropped, legal professionals began filing lawsuits that eventually led to a temporary suspension of the ban. Although the initial decision by the Ninth Circuit Court of Appeals is foretelling the executive order would ultimately be held unconstitutional, let’s take a closer look at the immigration policies Trump wants to implement.

Immigration Ban

Who’s Covered?

  • The order suspended new refugee admissions for 120 days, which suggests new vetting procedures were on the way. Although Trump says he wants a heavier regulated process, the U.S. refugee admissions system is already strict.  Refugees typically apply through the Office of the United Nations High Commissioner for Refugees (UNHCR), which then goes through several databases, including the State Department, the National Counterterrorism Center/FBI’s Terrorist Screening Center, the Federal Bureau of Investigation, Interpol, Drug Enforcement Administration, and the Department of Defense.  Currently, it can take anywhere from 18 to 24 months for the vetting process.
  • The order suspended the Syrian refugee system Last year, Trump’s Vice President, Mike Pence, tried to stop resettlement of Syrian refuges into the State of Indiana, but was blocked by an appeals court who ruled his attempt as “nightmare speculation”.  The order also requests review of a state’s right to accept or deny refugees for resettlement in their state, which is no doubt a nod to Pence.
  • The order bans entry into the U.S. from seven majority-Muslim countries for 90 days. Those countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, but more countries could be added at any point under the discretion of the Department of Homeland Security.  The ban was unclear as to whether the restriction included legal U.S. residents, which created chaos for individuals that were traveling when the order hit.  The Department of Homeland Security later clarified that some legal residents that didn’t pose a legal threat would be allowed in.  I’m not sure you can call that much of a clarification, though, as it’s still vague.
  • The ban included denial of entry of dual-nationals. This means even if you hold a passport from another country, but also one from one of the 7 above-listed countries, you could be banned from entering the U.S.
  • Prioritize refugees based on religion. While Trump claims it isn’t a ban on Muslims, there is a small provision within the executive order that says priority should be given to those of a minority religion, implying those religions other than Muslim will be given preference.
  • Lower the total number of refugees to be accepted from any country in 2017. This isn’t a new concept, as each year the president determines how many refugees will be admitted into the U.S., but the number is down from the previous 110,000.  While the U.S. has traditionally been one of the largest refugee resettlement countries in the world, this could easily change as Trump lowered the number to 50,000.

What Can We Expect to See Next?

While the current executive order was blocked by a federal court, this could all be a moot point as Trump has already announced his plans to rescind the current order and issue a new one that’s tailored around the Ninth Circuit Court of Appeal’s decision.  Sounds like a façade, only to appease the constitutional issues raised by ban, as Trump has made his intentions clear about who he wants to allow in the country.

One of the main arguments against the ban is that it’s unconstitutionally discriminatory based on religion.  Even if a new executive order is issued, it doesn’t seem likely Trump can avoid another lawsuit for discrimination because who he wants to prohibit from entering the country is entirely grounded on a person’s religion and nationality.  At this rate, we’re likely to see a constant stream of legal battles over the next 4 years.

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