Archive for the 'Immigration' Category

Border Patrol Sued Over Traffic Stops

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With arguments over Arizona’s controversial immigration law wrapping up in the Supreme Court last week, the debate over immigration (both legal and illegal) into the United States seems to get more heated every day, and more states considering immigration laws similar to Arizona’s, a recentlawsuit (also reported here) may have flown below your radar.

The ACLU is suing the U.S. border patrol agency Immigration and Customs Enforcement (ICE) over traffic stops that they allege are racially biased and overly-aggressive.

While the basis for many states passing their own immigration laws is the claim that the federal government is not doing enough to stem illegal immigration, the numbers show that during the Obama administration, deportations of illegal immigrants have reached an all-time high, and staffing of border patrol agencies has increased. Furthermore, immigration authorities have placed a heavy priority on deporting illegal immigrants who have committed violent crimes while in the U.S. Anyone who prefers a “get tough” strategy for dealing with illegal immigration should be thrilled at this information, but, for some reason, it largely goes unreported in the media.

While anti-immigrant forces may not have noticed that the Obama administration is being more aggressive against illegal immigration than any other president in decades, people who advocate for the rights of immigrants, particularly the basic civil liberties of undocumented immigrants, certainly have noticed this trend, and, as one might imagine, are not happy about it.

The issue in this lawsuit mostly has to do with racial profiling – the practice of law enforcement agencies targeting members of a particular racial or ethnic group based on the belief that they’re more likely to have committed a crime.

This practice is unlawful in almost any context. The lawsuit asks the court to issue an injunction against the border patrol barring them from engaging in any traffic stops until they have undergone special training on how to avoid racial profiling.

The law governing civil liberties and immigration is a little different from the privacy and civil rights laws that apply in almost any other context, and it can be confusing, both for ordinary individuals, and for the officers charged with enforcing it. When at or near a border crossing, border patrol agents have significant latitude in stopping and searching vehicles when they have any suspicion that violations of immigration laws are occurring.

However, when far away from the border, their power is more or less the same as any other police officer. If they want to stop a vehicle, they have to have a reasonable suspicion that unlawful activity is afoot.

This case was filed in Washington State, and it’s not clear from the articles I’ve found where the traffic stops took place. It’s possible that they occurred near the border with Canada, which is a major entry point for illegal immigrants, which receives much less attention than the U.S.-Mexico border.

In its lawsuit, the ACLU is alleging that such racially-motivated traffic stops are becoming increasingly common, as the U.S. tries to improve security along the northern border, which is much longer than the U.S./Mexico border, and, compared to that border, has been ignored by immigration authorities in the past.

While I am fine with enforcing our current immigration laws (including the deportation of illegal immigrants, with a particular focus on those who have committed crimes in the U.S.), I believe that the constitution, including the protections in the Bill of Rights, should apply to everybody who is in the United States, or otherwise under its jurisdiction.

And I think that basic notions of due process and equal protection should apply when enforcing immigration laws. Call me crazy, but I don’t think it’s unreasonable for the legal protections we would readily extend to a serial killer to also apply to a person who is physically present in this country without the correct paperwork, because they want to make a better life for themselves and their family. But I guess that’s a radical position in this day and age.

Reading the comments on some of the articles covering this story is kind of upsetting. There are a lot of people saying things to the effect of “hey, ACLU, just let the officers do their jobs!” or “who cares about the ‘rights’ of a bunch of illegals?” etc., etc.

Putting aside the fact that the people filing this lawsuit are American citizens, I think the best test of our commitment to the rule of law and the Bill of Rights is how consistently we apply it to everybody, especially the least popular and most vulnerable groups of people.

And action through the judicial branch of government (i.e., lawsuits) is often the only way to ensure that the other two branches of government live up to the promise of the constitution and Bill of Rights.

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Twitter Jokes, Deportation, and National Security

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You may have recently heard about two British tourists who were deported from America for posting some questionable jokes on Twitter.  A few weeks ago Leigh Van Bryan and Emily Bunting were flagged at the airport by the Department of Homeland Security (DHS).  DHS stated that their Twitter jokes referenced plans to “destroy America”, and “digging up Marilyn Monroe’s grave”.

The two friends were detained and questioned by agents for 12 hours regarding the suspicious tweets.  Bryan and Bunting argued that the phrase “destroy America” is simply British slang for partying in the U.S.A., and the Marilyn Monroe reference was a joke from the T.V. show Family Guy.  After further questioning yielded no evidence, the two were ordered to return to the U.K. and were told that they must re-apply for a visa before they could return to the U.S.

Now, this might seem like a comical incident, but a lot of folks are up in arms over the DHS’ harsh treatment and seemingly unnecessary overreaction.  A lot of people reacted by asking questions like, “Why deport these people?  They can’t single-handedly destroy America!!!”

And indeed, this incident raises a lot of questions for me.  I mean, how far does this national security business go anyway?  Can’t we tweet in peace?  What exactly is a “threat to national security” that will subject a person to removal / deportation?  We all know that people can obviously be deported for conduct like acts of terrorism or egregious crimes.  But posting on Twitter?  I mean, come on!

Recently I read a very well-written (and somewhat lengthy) article on the question of “What is Homeland Security?”  In this article, Christopher Bellavita discussed the origins of ideas like “homeland security” and “national security”.  I found this article to be pretty helpful for understanding puzzling incidents like this deportation case.  These ideas are important to consider, especially because they have definite impacts on our current legal standards in areas like immigration law and privacy law.

Bellavita explains that our nation only started really seriously speaking of national security in 2001 after 9/11.  Prior to this, we spoke of “defense” as in “Department of Defense” or “national defense”.  Now the notion of national defense is a pretty narrow one.  Defense speaks of external threats- specifically, foreign military invasions where the enemy can be clearly identified.  This is your classic capture-the-flag, Cold-war missile mentality where the threats belong to identifiable camps.

In contrast, “Homeland Security” is a broad umbrella term encompassing both internal and external threats to American safety.  It involves the collective efforts of the military, the FBI, law enforcement departments, immigration enforcement, and many other agencies.  It even covers threats like natural disasters and catastrophes.  With a “security” mindset, it may not be so clear as to what the threat is.  The overall aim is not to identify any specific military enemy, but rather to maintain an atmosphere of safety and order inside our borders.

So we can say that people who react by saying, “they couldn’t possibly destroy America by themselves” are probably operating from an older “defense” standpoint (or, they have very high expectations for single-man armies from watching too many Rambo movies).  That is, it makes no sense to deport persons who don’t pose a threat in the traditional, militaristic way- they didn’t belong to any military force, they didn’t pack any weapons, and they weren’t wearing uniforms or badges.

But from a “national security” standpoint, Bryan and Bunting’s deportation might be just a tad more understandable.  If the effect of a tweet is to create an overall panic in the American public, then that might be considered a threat to national security, even if it’s not as overt as say, a missile attack.

The Department of Defense has been around since the 1940’s, whereas our government only recently implemented an Office of Homeland Security in 2001 after 9/11.  But many folks still haven’t caught on to the switch from defense to security.  I think our situation here with the Twitter jokes clearly illustrates this.

Don’t get me wrong- in my own opinion I think that either way you look at it, defense or security, this is pretty much an overreaction by the DHS.  It probably shouldn’t have taken all of 12 hours to find out whether these were some truly bad guys.  Maybe we all need to watch more Family Guy, or brush up on our British slang.

And one thing is clear- I spy about a million definitions of “terrorism” floating around in all the laws and acts out there.  As “national security” interests expand, the definition of terrorism needs to be more clear, not less.  For now, here’s a list of “sensitive words” to avoid while tweeting, since they’re apparently being monitored by the guys over at DHS.

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Top Legal Stories of 2011

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2011 has been an interesting year. The economy remained sluggish. The 2012 presidential campaign got into full swing. We had a war in Libya (remember that?). Of course, this is a law blog, so I won’t dwell on those subjects except to the extent that they have a significant legal angle.

But there’s still plenty to write about – 2011 has been an incredibly eventful year in the legal world. Important constitutional questions about the power of the president were brought to the forefront of public discussion. The Supreme Court agreed to hear what may well be its most momentous case in decades. A longstanding policy regarding sexual orientation and military service was changed. And there were plenty more, far too many to discuss in a single blog post.

So, without further ado, here are what I view to be the most important legal news stories of 2011, in no particular order, and chosen by my subjective opinion of which stories were the most interesting, along with a bit of arbitrary whim. So, it’s the definitive list, obviously.

  1. The legality of the military invention in Libya: 2011 may be remembered as a year of profound change in the Middle East, with one of the most notable cases being in Libya, where the U.S. and its allies, backed by a UN resolution, launched air strikes, helping rebels overthrow Moammar Ghadaffi. However, there has been some controversy over America’s role in the operation. Under the War Powers Resolution, passed after the Vietnam War, the President must obtain the approval of Congress for any overseas military engagement lasting longer than 60 days. President Obama did not seek such approval (to be fair, every president since the law was passed has ignored it, arguing that it’s unconstitutional). Given the divided political culture in Washington, some politicians and commentators have argued that the U.S. intervention in Libya was illegal. This controversy brought the War Powers Resolution back into the public limelight, and sparked a heated (though brief) public debate about this important constitutional issue.
  1. “Don’t ask, don’t tell” is repealed: The policy that barred gay and lesbian soldiers from serving openly in the U.S. military was repealed in December of 2010, and the repeal went into full effect in September of 2011. As of the writing of this blog post, there have been no reports of any significant problems resulting from the repeal. There are predictions that, in the long run, allowing gays and lesbians to serve openly will have broader positive implications for expanding the legal rights of gays and lesbians.
  1. Massive employee lawsuit against Wal-Mart thrown out: The largest class-action lawsuit in U.S. history (and it’s now likely to hold on to that record forever, for reasons that will soon be obvious) was thrown out by the U.S. Supreme Court on the grounds that the proposed class – comprising 1.6 million current and former female Wal-Mart employees – was too large. The court never ruled on the merits of the plaintiffs’ claims that Wal-Mart engaged in a pattern of gender discrimination, leaving the plaintiffs open to bring a new lawsuit with a smaller class of plaintiffs, which marks a trend of the Roberts court limiting consumer class-action lawsuits.
  1. New York legalizes same-sex marriage: The state of New York became the largest state in the country to legalize same-sex marriage. It also marked the first time a Republican-majority state legislature passed such a law. Once again, it brought into focus the fact that the federal government does not recognize these unions, denying lawfully-married same-sex couples the many federal benefits that come with marriage.
  1. States take immigration enforcement into their own hands: Several U.S. states set themselves up for a legal showdown with the federal government over who has (and doesn’t have) the power to enforce federal immigration laws. Immigration is generally considered the exclusive domain of the federal government. However, with immigration becoming a hot-button political issue, many states began passing laws giving state authorities unprecedented authority to enforce immigration laws. The federal government, concerned about diplomatic relations with foreign countries and maintaining a consistent nationwide immigration policy, is challenging some of these laws in court. You can bet that 2012 is going to see much more of this.
  1. Supreme Court to hear healthcare reform cases: Legal challenges to President Obama’s signature legislative accomplishment – the Patient Protection and Affordable Care Act – began almost immediately after the law was passed. Federal courts considering the constitutionality of the “individual mandate” (the provision of the law that requires almost all Americans to obtain health insurance or pay a financial penalty) have come out on both sides. The Supreme Court, as everybody predicted, is going to hear the case, and hopefully resolve the issue once and for all. However it rules, you can bet that the court’s decision (expected in the summer or fall of next year) is going to be one of the top legal news stories of 2012.
  1. Free speech applies to the worst of the worst: Westboro Baptist Church, the group best known for its virulent anti-gay stances, and its claims that every bad thing that happens in the world is a result of God punishing humanity for allowing gay people to exist, and picketing the funerals of U.S. soldiers killed overseas, which, naturally, the friends and families of these soldiers found incredibly upsetting. One family sued the church for intentional infliction of emotional distress. The Supreme Court ruled that the church’s actions were protected by the First Amendment. Most legal commentators reluctantly agreed that the court’s ruling was correct, even if almost everyone found it personally distasteful.

2011 was definitely an eventful year in legal news. And considering that most of the stories discussed above are far from over, I wouldn’t be too surprised if a lot of them make the 2012 list, as well.

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Alabama’s New Immigration Law Toughest in U.S.

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As predicted, Arizona’s fiery immigration policies are having a chain reaction effect on other states.  Several states have attempted to institute laws that are similar to Arizona’s controversial SB 1070 law.  The most recent state to join the fray is Alabama, which passed a tough immigration law just a few weeks ago.

Now, we here at LegalMatch have blogged extensively about Arizona’s policies, which touch upon several aspects of immigration including birthright citizenship and employer punishments.  However, Alabama’s law contains many unique restrictions on illegal immigrants that are not included in any other state policies.  The law is poised to go into effect this September and contains the following provisions:

  • All business must check the legal immigration status of all workers using the E-Verify system
  • Schools will be required to find out if all students are in the country legally (data is to be used for the purpose of “statistical analysis” rather than preventing students from enrolling)
  • Permits police to arrest persons suspected of being an illegal alien if stopped for a different reason
  • Makes it a crime for persons to knowingly give rides to illegal immigrants
  • Makes it a crime for a landlord to knowingly rent property to an illegal immigrant
  • Makes all contracts entered into by an illegal immigrant unenforceable

Now that’s an extensive list.  The law also contains other provisions which have not been elaborated upon, including a restriction on voting.

Hands down, the most controversial aspects of the new law are the requirements regarding schools and landowners.  Many feel that the new regulations will allow for more extensive criminal profiling in areas that have traditionally been less vigilant.

Yet, as drastic as it is, Alabama’s new baby is getting much less attention compared to Arizona’s law.  Some writers are surprised at the lack of outrage towards the new law, given its unprecedented reach and scope.  To me there are several reasons why many people don’t know (or care) about the Yellowhammer State’s immigration developments.

For one, the illegal immigrant population in Alabama is not as pronounced as in other states like California or Arizona.  It is estimated to be at about 120,000 people.  While this indicates a nearly 5x increase over the last decade, this is still a very minimal figure comparatively speaking.  Also, the state of Alabama is not really well-known for being reliant upon immigrant work like Arizona is.  So the question of regulating illegal immigrants is somewhat more separate from the economic aspects of Alabamian life.

But I think that what’s really happening is this- we are simply getting used to hearing about the introduction of doomsday-like illegal immigration policies all over the nation.  Most readers are probably saying to themselves, “Oh, another one?”

Some legal experts feel that the law will be able to withstand legal challenges which are sure to be mounted against it.  The main justification is that Alabama has a legitimate state interest in enforcing such strict measures.  And then there’s the argument that illegal immigrants don’t have any citizens rights because they are not part of “The People” as defined in the Constitution.

Personally I agree that the immigration situation is a problem. And I agree with certain measures in the Alabama law, especially the one that requires employers to check and register workers with E-Verify.

However, I do feel that Alabama could accomplish its aims using much less restrictive means.  In particular, the requirements for schools, landlords, and contract rights are questionable in my opinion.  Rather than making national immigration policies more efficient, these requirements seem to exist only for the purpose of frustrating the immigrant population.

In fact, the first thing I thought about when I learned about property restrictions on illegal immigrants in Alabama was America’s immigrant policies during World War II.  During that time in the 1940’s, Japanese-Americans were forbidden from owning real estate, and many Japanese-American citizens lost a significant amount of property due to internment policies.

Granted, that was a time of war and such extreme policies were enforced out of military necessity.  But in this regard, Alabama’s latest law does seem to send the message:  America is at war.  Ok, maybe it’s not an all out military war, but this is definitely a conflict, and certainly one involving boundaries and territory.  For many, illegal immigration is a serious matter that is nearly tantamount to an act of war.

We’ll have yet to see if the times really are so dire as to require these restrictive measures against illegal aliens.  I project that some of the Alabama provisions will stand (namely, the E-Verify requirements) while many of the other ones will be required to stand down.

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Chipotle Raids Raise More Issues with Illegal Immigration

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The U.S. seems to have a labor problem.  Hard-working, senior workers from companies are forcefully being kicked out by the Immigration and Customs Enforcement (ICE), and while immigrants cringe to find new jobs, companies are trying to fill these positions with cheaper labor.

The ICE has been conducting many raids in companies that employ undocumented workers.  The latest company to bare the effects of ICE raids is popular fast food chain Chipotle.  Many workers and managers have been forcefully kicked out of Chipotle because of their illegal status.  However, most of these workers have worked with Chipotle for years, speak English well, and were working towards moving themselves up in the company.  Moreover, most of these workers have lived in the U.S. for years and have children that are U.S. citizens.

Although many workers have been fired, their hope of maintaining a life in the U.S. has not dwindled.  In fact, some of the workers who were fired find other jobs with other fast food chains rather quickly.  Others are having more trouble.

What is bothering immigration advocates is the fact that these workers were working sincerely out in the public.  With these sorts of audits, there is a belief that many workers may turn to “undocumented” jobs where their work and pay will be “under the table.”  This, in turn, hurts the U.S. more than helps it.  It is better to have illegal workers working out in the public, rather than earning money under the table.  Although the ICE thinks that it is helping the quality of U.S. labor through these raids, in a way it may be encouraging compensation that will be undocumented and hidden.

Is it even likely that workers will turn to these “under the table” like positions?  Why yes, it is.  Many immigrant workers also are complaining that they are not able to find jobs because of the “Chipotle” tag on their resume.  Due to all the labor riots, protests, and media publicity surrounding Chipotle’s labor practices, companies seem to be hesitant in hiring ex-Chipotle workers.

Unfortunately, the Obama administration has not been of much help regarding such immigration issues.  Obama’s views have been described as “vague and lacking substance.”  What this administration really needs to focus on is the consequences of the ICE raids.

Overall, such raids do nothing but harm.  Granted, having workers with illegal statuses in the U.S. workforce is not a good thing for our country.  However, when there are workers who have worked with a company for years, speak English well, and have family that are U.S. citizens, is it really wise to kick them to the curb?  Is it wise to encourage “under the table-like employment?”

Rather than the ICE kicking such workers out, the ICE could document the number of workers in each of these companies and do a profile check to see how many years the worker has been with the company, any family they have, etc.  Then, based on such details, the ICE could either help these workers achieve legal status, or ask the companies to terminate the employment.  This way, companies will not lose skilled and loyal workers, and the U.S. can effectively work towards finding a solution to the illegal immigrant issue.

Although the illegal immigration issue is much more complex and not likely to be solved with a “quick fix,” our government needs to realize that kicking illegal workers out on the curb via ICE raids is not a solution to the problem.  In fact, it will only increase the problem as these workers strive to make ends meat.

Rather than conducting raids, the ICE should implement a procedure where stats on these workers is documented, and aid is given to them to achieve illegal status based on factors such as length of employment, etc.  With such tactics, major companies can keep their hard-working and loyal workers, and our news will be filled with more pertinent issues rather than what is going on at McDonalds or Chipotle.

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