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Can’t Revoke Citizenship Due to “Immaterial Falsehoods,” SCOTUS Rules

What does it take to remove a person’s citizenship? With all the discussion today about crimes that illegal immigrants have committed, border walls, travel bans (but not a ban!), and tougher ICE enforcement, it might be helpful to get some clarity on some of the finer points of immigration law.

The Details of the Case

Divna Maslenjak was granted refugee status and became a U.S. citizen in 2007. Immigration officials later found out that Maslenjak had lied about her husband’s military status. Instead of fleeing Bosnian conscription, he had served as an officer in a Bosnian military unit, a unit that was later accused of war crimes. Federal prosecutors charged Maslenjak with obtaining her citizenship illegally by lying on her immigration papers.

Maslenjak argued that the lie was immaterial, but the judge instructed the jury that any false statement on her application was sufficient for a guilty verdict. The jury found her guilty and Maslenjak was stripped of her American citizenship. Maslenjak appealed to the Sixth Circuit and then to the Supreme Court, arguing that putting false statements on immigration documents should only result in revocation of citizenship if the lie was material to the application process. The Supreme Court ruled in favor of Maslenajk.

Justice Kagan provided an example that illustrates this point: Suppose that a man takes a painting illegally. One would assume that meant the man had stolen the painting from the art house, or used a fraudulent credit card to obtain the painting. Both of those would be material and would most likely result in the painting being returned to the art house from where it came. However, if the man ran a stop sign on his way to the art house to legally purchase the painting, then the crime, running a stop sign, would not be considered material to obtaining the painting.

citizenshipIs This Good or Bad For Immigrants?

Obviously, the purpose of this ruling is to make it more difficult for the federal government to take a person’s citizenship. It is legally impossible to remove a natural born citizen’s status unless the citizen voluntarily renounces citizenship. Similarly, there is currently only one way for a naturalized citizenship to lose citizenship after being granted citizenship status: if he or she was discovered to have lied during the application process. The Court’s ruling raises the bar slightly, as it requires at least a casual connection between the application process and the applicant’s false statement before citizenship can be removed.

The idea of a relationship between the offending behavior and the crime itself is not a new idea in the law. Most criminal laws require at least a causation between criminal intent and the physical act itself. In a murder case, it is not enough for the prosecution that the defendant intended for the victim to die and that the victim be dead. Instead, the defendant’s intentions must cause the defendant to take some action to harm the victim. For example, an employee could wish an employer to die and the employer could die of a heart attack the next morning. The employee would not be guilty because the wish for the employer to die never caused the employee to take an action against his boss. Without that causation, there is no crime.

The Court’s unanimous ruling extends this basic principle of criminal law to cover false statements made by naturalized citizens. This is not a high bar to clear though, and it’s likely that Maslenjak will still lose her second trial – claiming that your husband was fleeing a military that committed war crimes when in fact the husband was in the military that was allegedly committing war crimes is a very big lie to tell. This might be a small comfort to those afraid of losing their citizenship, but in an era where xenophobia might be at an all-time high, a small comfort is better than nothing.

Title VII Claim: Court Rules Intentional Segregation is Not Enough

The car repair chain AutoZone has been in legal trouble for transferring an African-American man from a store with primarily Latin-American clientele to one with primarily African-American clientele. To make things worse, the evidence showed that it was part of a concerted plan on the part of AutoZone to, over time, match the ethnicity of their store employees to the ethnicity of the majority of the clientele of a given store. The man who was to be transferred, one Kevin Stuckey, was fired after he refused the transfer.

If separating stores by race sounds like segregation to you, that’s because it’s basically the textbook definition of it. The Equal Employment Opportunity Commission (EEOC) certainly thought so, and brought a Title VII claim against AutoZone over their practice of intentional segregation. However, in a recent ruling, the EEOC was handed a shocker of a loss. Let’s take a look at the EEOC’s claim and why the court chose to rule the way they did.

Title VII Segregation Claims

The lawsuit brought by the EEOC made a claim under a less common source of liability for employers under Title VII– section 2000e(a)(2). Section 2000e(a)(2) makes it illegal for employers to “limit, segregate, or classify…employees or applicants … in any way that would deprive or tend to deprive [them] of employment opportunities or otherwise adversely affect [their] status as an employee [based on a protected characteristic such as gender or race].” This is a lower requirement than the usual Title VII claims alleging adverse employment action based on a protected characteristic. As we’ve discussed in the past, adverse employment action includes things such as firing, refusal to hire, demotions, refusing promotions or pay raises, and transfers to a generally less desirable position.  The EEOC’s claim, on the other hand, needed only to establish that AutoZone had acted in a way that tended to deprive Mr. Stuckey of an employment opportunity.

title viiThe first part of the EEOC’s claim was to simply prove that there had been segregation based on race. AutoZone obviously contested this, saying that Mr. Stuckey’s transfer was due to a combination of his inability to understand Spanish and failure to get along with the manager at his location.

The EEOC’s case, however, was quite strong. They produced evidence, and even testimony from the manager of Mr. Stuckey’s location, that AutoZone was engaged in intentional segregation based on majority clientele for a given store. AutoZone had an establish practice during the time of only hiring Latin-American employees for the location-regardless of their ability to speak Spanish.

The Court’s Ruling

Unfortunately for Mr. Stuckey and the EEOC, the court didn’t feel they needed to consider whether segregation took place–intentional or otherwise. They instead focused their ruling on whether or not Mr. Stuckey’s required transfer would have had a negative impact on his employment situation.

As mentioned before, segregation cases are fairly rare these days, so perhaps due to the lack of case law on the issue the court decided to examine the potential for negative impact on employment in a very similar manner to the higher standard of an adverse employment action. They focused on the fact that the transfer was a lateral one, no difference in duties, pay, or hours, in determining that Mr. Stuckey’s transfer would not tend to deprive him of an employment opportunity.

The EEOC argued that if the segregation element of Title VII does not cover intentional segregation, it’s a particular odd choice to have a separate rule for it. They further argued that the humiliation and embarrassment of being subjected to racial discrimination was by itself enough to give rise to a cause of action under Section 2000e(a)(2). They reasoned that it doesn’t make sense that the law allows intentional racial segregation of employees so long as the situations are equal–the very definition of separate but equal. Unfortunately, the court did not agree and ruled that without a situation that sufficiently damaged Mr. Stuckey to create a claim it did not need to bother considering whether AutoZone had actually segregated its employees.

What Does This Case Mean?

Unfortunately, this Seventh Circuit Court of Appeals ruling does mean what the EEOC feared in its arguments-employers seem to be able to legally intentionally segregate their employees so long as they don’t do so in a way that damages their economic situation. This seems almost too ridiculous to be the case. However, the next step of appeals from the Seventh Circuit Appeals Court would be up to the highest court in the land-the U.S. Supreme Court. The Supreme Court reviews only a very small portion of cases and, given its current conservative make-up, it is hard to predict the result of such an appeal. For now, this is the final word on this topic-regardless of if it seems to fly in the face of the law itself.

Florida “Stand Your Ground” Law Ruled Unconstitutional

Just last week, in a ruling on Florida’s controversial “Stand Your Ground” law, a court ruled that an additional embellishment from the Florida legislature-strengthening the rule even further-is unconstitutional. The Stand Your Ground law has variations all over the country. However, Florida’s version has drawn particular scrutiny due to the highly publicized shooting of the unarmed Trayvon Martin by George Zimmerman.

Stand your ground laws are becoming more and more common, if no less controversial, so it’s important to understand exactly how they work. Let’s take a look at what stand your ground laws do, then take a deeper look at this case’s history and what it means for the future of Florida’s Stand Your Ground rules.

Stand Your Ground Laws

Stand Your Ground laws are fairly simple, although substantial, change in law considering how controversial they are. In general, to establish self-defense as a legal defense to a crime it is necessary to show that you first made an attempt to retreat before responding with force to a real or perceived threat. There is generally an exception to this when you are in your home known as the “castle doctrine.”

Under a Stand Your Ground law, this requirement to even attempt retreat is removed. In other words, if you have a reasonable belief of an imminent threat of death or serious bodily harm you may immediately escalate to force for self defense–lethal or otherwise. The controversial part of this is that it removes the requirement of an intermediate attempt at escape. The attempt to retreat required by law is usually not so rigid as to require you to run away. If you have no means of escape or de-escalation then no attempt to retreat may be as much as you can do. Under a Stand Your Ground law, regardless of the situation you may immediately escalate to lethal force as self-defense. In the case of George Zimmerman this led to a self-defense ruling for gunning down an unarmed teen while he could have easily escaped.

stand your groundFlorida has had a Stand Your Ground rule in place since 2005. This law gave courts the ability to dismiss charges, such as those against Zimmerman, where the judge found evidence of reasonable self defense. It is this ability to dismiss that has led to this most recent ruling.

In 2015, the Florida Supreme Court ruled that these Stand Your Ground dismissals would come in a pre-trial hearing where the defendant would need to prove that they had a valid self-defense claim. This is standard, if you have a defense it’s up to you to prove it as opposed to forcing a prosecutor or plaintiff to prove a negative. In fact, the very existence of this hearing is beyond what is standard in criminal trials and allowed for much quicker and cheaper results potentially.

However, the response from the NRA to a ruling stating that you’re responsible for proving your own defenses was immediate serious criticism. Nearly immediately after the ruling they began putting heavy pressure on the Florida Governor-Gov. Scott-to push through a law reversing the situation. Just last month, this law finally came to fruition. The new law worked exactly the opposite of the Florida Supreme Court’s ruling. It required the prosecution to make provide clear and convincing evidence in a pre-trial hearing that there wasn’t self-defense in a given case. This obviously flipped the usual evidentiary rules on their head-taking the Florida Stand Your Ground law above and beyond where it was when George Zimmerman was tried. This sort of evidentiary hearing is generally reserved for cases where there is a potential for abuse on the part of plaintiffs such as libel or fraud cases. The change was especially shocking given that Stand Your Ground itself is already a serious change to the usual rules of criminal law.

Gov. Scott’s law was met with immediate criticism, including from the Florida Supreme Court itself. So perhaps it’s no surprise that less than a month later we’re already seeing a case ruling it unconstitutional.

The Government Overstepping Its Bounds

The judge’s ruling points to the unconstitutional overreach of Gov. Scott and Florida legislators in making this law in the first place. Judge Milton Hirsch, a Circuit Court Judge, based his ruling on the laws violation of constitutional separation of powers.

“As a matter of constitutional separation of powers…procedure cannot be legislatively modified,” The Florida Constitution specifically provides that the Florida Supreme Court determinines court practice and procedure. The only exception to this provided by the Florida Constitution is a legislative vote by super-majority–a situation that was not the case here. Evidentiary issues are considered procedural. Thus, the court here found the new law unconstitutional.

If the legislature wants to pass substantive laws, from gun control to street sweeping regulations, that’s totally within their right. They can make the laws which the courts then enforce. However, especially under the Florida Constitution, they do not have to power to change procedural rules such as filing due dates or evidentiary burdens.

The Future of the Case

As important as this ruling is, restoring normal order to criminal proceedings in Florida, there is absolutely no question that the decision will be appealed by the Florida Government. This means that the life of this new Stand Your Ground embellishment will probably not be determined for quite some time. But the law is exactly the opposite of a ruling of the Florida Supreme Court and the Florida Supreme Court has itself criticized the law as overreach, it does seem like the death knell of the rule may be a bit of a foregone conclusion.

Martin Shkreli Goes on Trial

The man who charged America $750 for Daraprim, an anti-AIDS pill, is going to trial.  However, Martin Shkreli is not on trial for raising the pills by 5,000%, but for defrauding shareholders. Shkreli is accused of using money from one hedge fund to pay deficits in a previous hedge fund. Between 2009 and 2014, Shkreli allegedly began a fund, took bad stock bets, started another fund, used the money from fund #2 to pay fund #1, and repeated the process numerous times before his rise to infamy turned the spotlight on him. Federal agents arrested Shkreli on December 19, 2015 for security fraud.

Shrekli is Not the First Pharma Executive to Face Trial, and Won’t Be the Last

Shkreli is not the first pharmaceutical executive to go on trial, although he is the most famous and hated one. Barry Cadden avoided charges of second-degree murder, but was found guilty of multiple fraud, conspiracy, and racketeering charges. Cadden allowed his business, New England Compound Company, to use expired ingredients and falsified logs to mislead regulators. As a result, people nation-wide were given tainted injections for back injuries. The tainted injections lead to an outbreak of fungal meningitis that affected more than 700 people. The scandal ultimately resulted in the deaths of 76 of those ill. Cadden has been sentenced to 9 years in prison.

shkreliShareholder’s Profits Above All Else Is Not a Sustainable Business Strategy

Shkreli often justified his decision to raise the price of Daraprim to such high marks by claiming that he was acting in the best interests of his shareholders. That claim sounds absurd in light of his upcoming trial, but it does raise a critical philosophy in our legal system: business executives have an absolute duty to act in the best interests of their shareholders, but owe nothing to the public at large. This ranking of interests is evident in Shkreli’s prosecution: raising prices to absurd levels has not resulted in any legal consequences for Shkreli, but blowing off his shareholders likely will. Even Cadden, who is being prosecuted for harming the public, is not liable for the deaths of consumers, but for lying to the government about the effects of his product.

Shkreli might believe that what he is doing is beneficial to his company, but these interests seem to be short-term gains only. The negative media attention and Congressional investigations were not expenses that Turing Pharmaceuticals, Shkreli’s former employer, wanted. Cadden lead NECC into Chapter 11 bankruptcy. In the long run, this kind of moral less pursuit of the company’s profit above all other considerations would appear to have dire effects on the long-term viability of the company itself. Companies should consider, not just the potential for short-term profits, but the long-term consequences as well. It might be considered smart business to take over an industry that people’s very lives depend on and then maximize that dependency for as much profit as possible. But then Americans shouldn’t be so shocked and outraged when men like Shkreli and Cadden abuse that system.

Travel Ban is Back… At Least Partially

The Trump Administration’s travel ban, and it’s many struggles in the courts, have been all over the news—on this blog and elsewhere. It’s been shot down, rewritten, shot down again, appealed and appealed again, and now the U.S. Supreme Court has finally had their say on Trump’s second crack at his immigration ban, temporarily barring Syrian refugees and entry to the U.S. from six Muslim-majority countries (Somalia, Sudan, Yemen, Iran, Syria, and Libya). Their preliminary opinion, final hearings are yet to come, was a unanimous ruling that the provisions of the second ban are constitutional and can be put into force—with some caveats.

Let’s take a look at the Supreme Court’s unsigned opinion from last week and see exactly what it does and why they say they ruled the way they did.

travel banThe Supreme Court’s recent order essentially removes the injunction from the executive order entirely, allowing the provisions of the ban to go into immediate effect. We’ve gone over the provisions of both the original order and its subsequent revisions in depth previously, so we go into that too much here. However, what we will have to parse out is the compromise the Supreme Court required to allow Trump’s Muslim ban to go into effect—an exception for people with a “credible claim of a bona fide relationship with a person or entity in the United States.”

According to the Supreme Court this includes situations where somebody is trying to enter the U.S. and can show that they have a close family member, they have a job waiting for them in the country, or they’ve been excepted to a university. These specific situations certainly create an exception to Trump’s order, allowing people in these situations to enter the U.S. regardless of the order. However, these situations are offered as “illustrative” of a bona fide relationship rather than an exhaustive list. This means that the door is open to figure out situations which create similar levels of bona fide relationship. Unfortunately, the Supreme Court was not forthcoming with analysis of how to determine when these situations exist outside their specific examples. To be honest, they weren’t even particularly clear about the outer bounds of their specific examples-as we’ll see when we talk about the implementation and legal backlash to this order.

So why did the Supreme Court give the travel ban order its ok? While the three most conservative Justices would have been happy to allow the order to go forward without caveat, the bona fide relationship compromise was largely responsible. The Court looked at the public interest requirement of an injunction and balanced the interest of the U.S. public in being allowed access to the U.S. against the national security interests claimed by the government. Whether or not you agree with them, the Supreme Court determined that the hardships caused to the U.S. public (citizens specifically) are substantially alleviated if those with bona fide relationships to those citizens are allowed entry into the country. With the caveat in place, the Supreme Court unanimously felt that the remaining hardship the order caused was outweighed by the governments historically strong interest in national security.

Implementing the Order

Now that the Supreme Court has given the order the go ahead, the government will have to start implementing that order again-an undertaking which last time led to unprecedented fallout due to poor execution and organization. This time, the Department of Homeland Security has promised implement the executive order “professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”

In the last week they have released what they consider to be the outer boundaries of what constitutes a bona fide relationship. Familial relationships are limited to parents, spouses, fiancés, sons, daughters, son or daughter-in-laws, or siblings already in the U.S. This notably, and as we’ll see later contentiously, excludes grandparents, grandchildren, aunts and uncles.

When it comes to business, employment, or university relationships will need to be formally documented. Relationships of this sort will not be allowed if they are formed “for the purpose of evading the ban.” It’s not clear how these situations will be identified. Students, employees, lecturers, and journalists can get into the county if they have a “valid” invitation or employment contract. Again, there is little to define what makes a document valid.

Ultimately, even these clarifications need clarifications to avoid chaos. TSA agents are ultimately going to be deciding who has a bona fide relationship, a ridiculous requirement for anybody who isn’t an immigration attorney unless we can have very clear rules of what constitutes a bona fide relationship and how somebody can hope to prove that such a relationship exists.

As it is, the situation is too vague to continue. Many predicted lawsuits to quickly follow the Supreme Court’s ruling, and they already have been proven right.

Hawaii’s Emergency Motion and More to Come

Just last week, right after the Department of Homeland Security published their guidelines, Hawaii filed an emergency motion asking a federal court to rule that the guidelines violate the Supreme Court’s order by excluding relationships such as grandparents and uncles. They’re asking the court to say that the Trump administration cannot enforce the guidelines as written.

The Supreme Court’s order is incredibly vague and Hawaii’s is unlikely to be the last lawsuit stemming from the ruling. However, the truth is that the order is just the tip of the iceberg of what’s to come. The real hearings on this case won’t be in front of the Supreme Court until October. Until then, we’ll be left trying to parse the puzzle of the outer bounds of a bona fide relationship.