Archive for the 'Immigration' Category

Are We Headed Towards a Burkini Ban?

Many towns in France have been attempting to ban burkinis. What’s a burkini you ask?  Simply a swimsuit that covers the arms, legs and hair.  So why the outrage?  They’re worn by Muslims as a sign of modesty and faith and some consider them a religious symbol.

France has laws in place mandating religion is supposed to be completely separate from public life, but because some consider the burkini a religious symbol of the Islamic faith, politicians want to ban them all together from their beach towns. This is probably really just a scared reaction, discriminatory nonetheless, from the number of recent attacks on France by Islamist extremists.

So, now you’re telling me that if a woman wants to go to the beach and keep her arms, legs and hair covered that she can’t do it? This is definitely taking it too far.

The bans have been lifted, which were recently struck down by France’s highest administrative court as a violation of fundamental freedoms, but one can only wonder if the United States is headed in the same discriminatory direction.

State Bans On Sharia Law Evidence We’re No Different Than France

Sharia, also spelled Shariah, is the fundamental religious concept of Islam.  It’s not really law, but rather, it’s a way of life—a duty or a set of guidelines that one must follow.  The term literally means “the path leading to the watering place.” One of the main tenets of Sharia law lowers the status of women to have no control of their own bodies and lives.  Herein lies one of the big issues surrounding Sharia.   Burkini

The problem came heavily to light when a New Jersey judge refused to grant a woman who was raped and sexually abused by her husband a restraining order because the husband’s actions aligned with his Muslim beliefs.  The case was ultimately overturned on appeal, but since then, states have been cringing at the thought of allowing Sharia principles to make their way into our court system and, thus, began a movement to ban it all together.

In 2010, Oklahoma residents voted in favor of referendum SQ 755, which would have mandated courts not to consider international or Sharia law. The law was challenged and a federal judge found the law to be unconstitutionally discriminatory.  Now, states can’t outright ban Sharia law, but what they have done is pass legislation banning foreign law all together. Many other states have considered passing similar legislation.

Take Soleimani v. Soleimani, for example, a 2012 case where a jury refused to recognize a mahr agreement made between a woman and her husband, which entitled her to $677,000, simply because a Kansas law prohibited the application of foreign law.  While I understand the concept of not allowing foreign laws to supersede our own laws, especially when it comes to situations that subject a person to harm, absolutely refusing to acknowledge an agreement is contrary to our judicial precedent.

A contract is a contract, regardless of where it came from and contractual intent doesn’t change just because it’s labeled a mahr agreement. Don’t get me wrong, I wholeheartedly disagree with the idea of allowing a husband to rape his wife simply because his religion allows it, but a mahr is essentially a gift from a husband to a wife once marriage is complete.  They require nothing that would be illegal here in the U.S., so why refuse to recognize it?

Courts will consider the law of the land in which the contract was made and, yes, Kansas law prohibited the application of foreign law which is how the jury came up with their decision, but the foreign agreement could have very easily been used as extrinsic evidence of contractual intent to settle the contract dispute in accordance with our laws.  This is not a new concept and we don’t need a masked discriminatory law put in place to require the courts to follow our already existing laws.

History is Repeating Itself

Essentially the same problem presented itself with the issues surrounding the migration of Syrian refugees. Numerous states took steps to prevent refugees from taking up residence purely based on the refugee’s cultural association, which is essentially no different than trying to ban Sharia law.  Just last week, Donald Trump spoke on his plans for immigration policy, which included plans to suspend immigration from certain countries.  Let’s be honest, though, with his very public statements, among many alike, of his plan to ban Muslims from entering the country, this is just a politically correct attempt to soften his previous harsh stance.

Although the idea of banning a full-body swimsuit seems ludicrous, based on our history and the political agenda of some, it’s not that the farfetched to think our country would try to implement similar measures. It’s nothing more than a discriminatory motive.  Part of what makes this country great is the concept of freedom—religious freedom is part of that.

Mother Abuses 7-Year Old Son & Claims Indiana’s Religious Freedom Law as Defense

The breadth of using religious freedom as a justification for bad behavior has reached a whole new level. An Indianapolis woman abused her 7-year-old son with a coat hanger and is now claiming Indiana’s religious freedom law as a defense.

Kin Park Thaing was arrested and charged with felony child abuse and neglect of her son after his school teacher found red welts on the child’s back. The teacher contacted police and child welfare officials, after which the boy was taken to a local hospital. The examining doctor found 36 bruises and welts across the boy’s back, thigh, and left arm, as well as a curved bruise in the shape of a coat hanger across his cheek.

Thaing claims she was only stopping her son from dangerous behavior he was exhibiting towards his younger sister. According to court documents, her son could have seriously harmed his sister and she was, “worried for my son’s salvation with God after he dies.” Thaing further went on to state, “I decided to punish my son to prevent him from hurting my daughter and to help him learn how to behave as God would want him to.”

Court documents cited scripture, arguing that a parent who “spares the rod, spoils the child.”

The judge, however, wasn’t buying it and refused to dismiss the felony charges against the mother. Thaing is set for trial in October.

What is the RFRA and How in the World Can It Be Use as A Defense?

The Religious Freedom Restoration Act is a law that allows individuals and companies the right to assert their free exercise of religion when it is, or may be, substantially burdened. RFRA gained national attention when many critics argued it was a masked license to discriminate against the LGBT community.

Thaing’s attorney, however, argues that the RFRA gives the mother the right to discipline her children according to her beliefs and that the state shouldn’t interfere with her fundamental right to raise her children as she deems appropriate.

Prosecutors, on the other hand, argue the abuse went beyond religious instruction, went beyond what most parents would consider reasonable, and that, regardless, Indiana has a compelling enough interest to protect a child from abuse to outweigh Thaing’s religious right.

Argues Religious Freedom Allows Her the Right to Discipline How She Pleases

Discipline, yes. Abuse, no.  This is definitely a tricky area because, yes, parents should be allowed to discipline their children without interference. At the same time though, where do you draw the line between discipline and abuse?  It’s a slippery slope and one Indiana has already partially answered.

In 2008, the Indiana Supreme Court gave wide latitude to parents in Willis v. State of Indiana to discipline their kids when they overturned a felony conviction of a mother who used a belt or electrical cord to discipline her 11-year-old son.  Unlike Thaing’s case, no religious defense was claimed.  Instead, the court ruled that the child was struck in areas where corporal punishment was usually inflicted and, since it left no permanent damage, this particular form of discipline met the “reasonable” standard.

So, permanent damage appears to be the standard, at least in Indiana, and that leaves a lot of wiggle room for pushing the envelope between discipline and abuse. Bruises and welts certainly don’t leave permanent damage but, again, at what point do we draw the line?  Pictures of the boy’s back have been released and it’s not pretty.

Religious and Cultural Differences Once Again Make Their Way into Our Courts

Thaing’s attorneys are arguing that, as a Burmese refugee, Thaing’s failure to understand the law is merely a cultural difference and many are hoping the court will consider these differences on parenting. However, this isn’t the first time we’ve seen religion cited as a reason for actions that we would consider criminal.

In 2010, although eventually overturned, a New Jersey judge refused to grant a woman who was raped and sexually abused by her husband a restraining order because the husband’s actions aligned with his Muslim beliefs.

A good number of states are, however, against recognizing any kind of foreign or religious law into our legal system. Several states have passed legislation banning foreign and religious laws, regardless of whether or not it would permit something already legal.

In 2012, a jury refused to recognize a mahr agreement made between a woman and her husband, which entitled her to $677,000, simply because a Kansas law prohibited the application of foreign law.

Cultural and religious beliefs should be taken into consideration when determining whether there’s any malicious intent, but it shouldn’t outweigh or negate what our laws consider criminal, which leads us back to the standard that were set in the 2008 Willis decision.  If the punishment is reasonable and there’s no malicious intent, then a parent is probably within their rights.

That’s ultimately what a jury will be left to consider—a reasonableness standard. Spanking is one thing, but 36 severe bruises and welts?

Tragedy Sparks Gun-Control Policy Change for Government’s No Fly List

It’s no surprise that the tragedy of the recent Orlando massacre sparks yet another heated political debate on our country’s gun-control policy. If you’ve been following recent news, presidential candidates have both introduced new gun-control measures they believe will solve this country’s mass casualty problem at the hands of gun use.

Presidential candidate Hillary Clinton plans to strengthen background checks for those trying to purchase a gun, while Presidential candidate Donald Trump is generally against any major gun control policy change. One thing both candidates have seemed to agree on since the news of the Orlando tragedy is that no one on the government’s “No Fly List” should not be allowed to purchase a gun.  This has sparked an even bigger debate about whether enforcing stricter gun-control measures against those on the no-fly lists is even constitutional to begin with.

The National Rifle Association (NRA) believes, “Restrictions like bans on gun purchases by people on ‘watch lists’ are ineffective, unconstitutional, or both.” The American Civil Liberties Union (ACLU) has expressed a similar position in that the current issues with the no-fly lists should be fixed before restricting gun rights.

According to the group’s National Security Project Director, “The standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error…” The group hopes to help implement change to allow those on the list a proper means to challenge their placement on the list because of the significant consequences it can have on an individual’s life.

If You’re On the List, You Won’t Be Getting In or Out of the Country

The No Fly List prohibits individuals on the list from boarding any commercial aircrafts for travel in or out of the United States; it was created after the attacks on 9/11 to prevent specific known or suspected terrorist threats. TSA Security

Obviously the easiest way to end up on the list is to be suspected of direct terrorist activity. How the government determines you to be a suspect of terrorist activity is unclear.  Reportedly anyone arrested or convicted for acts of terrorism, bombers, hostage takers, assassins, and associates of terror groups are among the list.  Frequent travel to certain countries will likely get you on the list as well.

Many critics argue non-violent political activists or social media users can get put on the list for things they say that the government deems worrisome. Others argue they were put on the list because they refused to be informants for the government.

Clerical errors are another way to get on the list; either by having a similar name or someone making a mistake when adding a name to the list. Those with warrants out for their arrest or suspicions of other criminal activity unrelated to terrorism have been known to be on the list as well.

Possible Due Process and Civil Liberties Violations

Scrutiny of the list began early on because no one really knows the exact process the government uses to add people to the list. The government maintains secrecy is necessary for national security. It definitely makes sense that a level of secrecy is needed, as you don’t want potential terrorists to be tipped off, but it’s a fine line to draw between national security and constitutional due process protections.

In 2005, TSA officials stated that at least 30,000 people had complained that their names were on the list and were only matched within the system because their names were an exact match to someone else. Passengers are not told when they book a ticket that their name has been flagged and don’t usually find out about it until they go to check in the day of their flight. Once they arrive and are told they can’t fly due to being on the list, they’re not going anywhere unless they can differentiate themselves and this leads to missed flights and a denial of boarding access all together.

Obviously that’s a problem when a person that isn’t supposed to be on the list has a name that matches someone else. With such secrecy about the list, it’s hard to determine whether due process rights are being protected and whether the government is providing the proper means to get off the list if wrongfully put on it.

Getting Off the List Isn’t Easy

Critics argue it’s nearly impossible to get off the list once you’re on it. There is a procedure available for travelers who are delayed or denied boarding an aircraft. Travelers can complete an online application at the Department of Homeland Security website, which requires several identifying documents. Once reviewed, the traveler will be notified via letter whether any corrections of data information have been changed, but it doesn’t typically take a traveler’s name off the list and doesn’t usually provide a wealth of information.

It’s a process and definitely not an easy one. It’s a major problem because travelers aren’t always told why they’re on the list, the reasons they’re barred from travel, or given a chance to challenge the findings that put them on the list in the first place.

The Unheard Cases on Justice Scalia’s Docket

The late Justice Scalia’s vote on the cases to be heard on the Supreme Court’s docket may have been obvious to his fellow justices and others. However, they count for nothing in regards to the Supreme Court’s decisions. On cases where the Court splits 4-4, the only options are to leave the lower court ruling in place and have no precedent set for the rest of the country or hold the case until a replacement is confirmed. The issued opinion will read “The judgment is affirmed by an equally divided court.” It is likely that in the event of a tie vote that the Court will order the case to be argued again once a new justice is selected.

Currently, the Court has three conservative justices: Chief Justice Roberts, Justice Thomas and Justice Alito. The liberal justices are: Justices Kagan, Breyer, Ginsburg, Sotomayor. Justice Kennedy, a Regan appointee like Scalia, is the swing vote of the Court. Supreme Court

Abortion: The justices will decide on Whole Woman’s Health v. Hellerstedt, which challenges a Taxes abortion law requiring doctors who perform abortions have admitting privileges at hospitals and will require clinics to have hospital-like standards. The lower court ruled in favor of the provisions. If the Supreme Court is split, this ruling would stand and the number of clinics left performing the procedure would be about 10, from the 40 currently existing.

Immigration: The court will decide on United States v. Texas, a case focused on whether President Obama’s executive actions regarding immigration were constitutional. Twenty-six states, including Texas, are challenging programs that would allow undocumented immigrants to apply for work authorization and associated benefits. The lower courts have temporarily frozen the programs and are siding against the administration.

Affordable Care Act: The court is scheduled to hear Zubik v. Burwell, a challenge to the contraception mandate in the Affordable Care Act (Obamacare). The challengers of the mandate include hospitals and universities, stating that they have religious objections with the requirement of providing birth control coverage. This was likely going to be a win for the conservatives of the Court, but is now assumed that it will end with a 4-4 opinion.

Justice Scalia did hear several cases, but passed away before the Court could issue an opinion on the cases. Many scholars made educated guesses on how the Court would be divided on each issue. Justice Scalia’s record in the Court allows scholars to predict which way he would have voted. Draft opinions written by Justice Scalia will not count towards a vote though, because an opinion is not official until it is released to the public.

However, these cases, similar to the cases that were never heard by Scalia, will be decided by an eight person Court in most cases unless a justice recuses him or herself. One of these cases is Fisher v. University of Texas, a case regarding affirmative action, where Justice Kagan recused herself due to prior involvement as solicitor general.

Can Donald Trump Actually Take Care of “the Muslim Problem” and Make America Great Again?

Donald Trump. A man so American that bald eagles attack him in fits of jealous rage. Lately, he has also become the political poster boy for the Islamophobia that seems to be gripping certain constituents in the United States. However, what exactly are his proposed plans to resolve “the Muslim problem” in the United States, and are these plans even legally feasible?

1. Shut Down Mosques

Trump declared that select mosques within the United States should be shut down. This alone appears to be a systematic denial of religious freedom, which is protected by the First Amendment. Many of the original colonists in this country came here to avoid religious persecution. The most popular secular holiday in the United States, Thanksgiving, involves a celebration of the religious freedom achieved by the Puritans by coming to the new world. That is not to say that there has never been any effort to suppress certain religious practices by the government.

However, laws designed to prohibit certain religious practices, even Hileah’s attempt to ban the Santeria practice of animal sacrifice, have been declared to be unconstitutional as a violation of religious freedom. Any ban on religious worship in buildings specifically designated for religious worship will likely be declared to be unconstitutional under the First Amendment because while the interest of keeping American safe from “homegrown” terrorists is a compelling government interest, any law that permits the shutting down of mosques could not possibly be deemed to be narrowly tailored enough to truly advance that interest. 

Most likely, if such a law were enacted and then challenged in court, it would be seen as unconstitutional pursuant to Cutter v. Wilkinson, which was a challenge by prisoners in Ohio against the prison’s refusal provide them with an adequate space to worship within the confines of the prison. Just as the prison could not force the prisoners to restrict the practice of their religion to their cells, so the federal government cannot force Muslims to restrict the practice of Islam to their homes.

2. Bar All Non-Citizen Muslims from Entering the United States

If Donald Trump were to become president, he would not be able to actually enact his own ban on the immigration of Muslims, even under his power of commander in chief during wartime. Any ban by presidential order would be determined to be in violation of the United Nations’ International Covenant on Civil and Political Rights, which prohibits all participating countries, including the US, from banning immigration solely on religion.

Congress is the only government entity that can pass laws superseding any international treaties made through the United Nations, since Congress is responsible for the United States’ participation in that organization. Thus, Donald Trump would need to convince Congress to enact a ban on Muslim immigration. Although a mass ban on immigration based on religion is practically unheard of, Congress has enacted mass bans on ideological principles before, most notably against foreign Communists. These bans have been held as constitutional, despite the unconstitutionality of laws placing restrictions on Americans who hold the same views as the banned foreigners. Ergo, Congress could enact a ban on all Muslim immigration that may be held to be constitutional by the courts.

If Donald Trump wanted to avoid having to rely on Congress, he could ban all foreign Muslims on an individual basis. Congress has given the president the power to bar the immigration of anyone whose entry into the United States could have “potentially serious adverse foreign policy consequences” for the US under 8 U.S. Code § 1182. In the broadest sense, any president could make an argument that any foreign Muslim’s presence in this country could have adverse foreign policy consequences. Also, the president has the power to bar the immigration of anyone who fails to be “attached to the principles of the Constitution” in accordance with 8 U.S.C. § 1427(a). Thus, the president can deny immigration to anyone who professes to support Sharia law, or any other religion-based set of law, to the detriment of the enforcement of the Constitution. However, this would not necessarily work to bar all Muslims from immigrating to the United States.

3. Require All Muslim Americans to Carry Special Identification Cards and Be Registered on a National Database

Donald Trump has yet to clarify if his mandatory database for Muslims would involve self-registration or if it would be compiled in the same manner that the no-fly list is assembled, through the suggestion of others based on information gathered about the people on the list. The government has enacted self-registration policies before, where people register with the government for a certain purpose. The most infamous of these registrations have been the Communist registration during the “Red Scare” and the registration that preceded the American internment camps of the 1940s.

However, only mandatory self-registration policies based on race, national origin, familial status, and economic status have been held to be legal. Conversely, the Supreme Court of the United States held in United States v. Robel that mandatory self-registration for ideological purposes is a violation of freedom of association. Thus, mandatory self-registration for religion would likely also be found to be illegal.

Although the ACLU is currently challenging certain aspects of the no-fly list and other, similar databases, this type of surveillance database is legal. Thus, Donald Trump could choose to focus efforts on compiling a list of all Americans who attend Islamic religious services and/or profess to be a Muslim. However, there would not be any actual registration involved.

Requiring all Muslims to carry special identification cards would likely be unconstitutional under United States v. Robel. The issuance of such cards would likely require self-registration, which is unconstitutional.

4. Expand the New York Police Department’s Muslim Surveillance Program to the Whole Country, and Permit Warrantless Searches of Mosques

Donald Trump has expressed his desire to expand the surveillance tactics used by the New York Police Department (NYPD) on Muslims living in New York and New Jersey to be used on all Muslim Americans. These tactics included having plainclothes cops monitoring buildings at all hours of the day and infiltrating student organizations for the sole purpose of gathering information on all members of those organizations. The exact tactics appear to be perfectly legal, and even commonplace, on the surface. However, the legality of the NYPD’s extensive surveillance of people just based on their faith is currently being challenged in the federal courts. Until that case is determined, it is unknown whether or not Donald Trump would be able to legally expand their tactics to the whole of the United States.

Warrantless searches of buildings are only permitted in two instances: in the case of exigent circumstances and in order to secure the area in which the police are attempting to arrest a suspect. Exigent circumstances prompting a warrantless search only exist when evidence may be easily destroyed by the time a search warrant is issued. It is unforeseeable that exigent circumstances would be commonplace in mosques to allow for the warrantless searches that Donald Trump seems to want.

As for a search of the area while arresting someone, this is a very limited search that would not permit for a thorough search of a whole building, which is what Donald Trump appears to be after when he refers to searching a mosque. Any other kind of warrantless search is prohibited by the Fourth Amendment. That is not to say that such a search will never be permitted, as the ban on such searches may be ignored if the political climate is right. After all, Congress famously suspended habeas corpus, which is the right to challenge unlawful imprisonment, during the Civil War.

5. Deporting Syrian Refugees Who Have Entered under Obama’s Presidency

As president, Donald Trump may be able to seek the deportation of some of the Syrian refugees under the Smith Act, which permits the deportation of immigrants who are or have been affiliated with organizations that advocate the overthrow of the American government. Thus, so long as a Syrian refugee had actually belonged to Daesh, also known as IS or ISIS, or provided support to Daesh at some point prior to fleeing Syria, they could be deported in accordance with the Smith Act. However, such a deportation scheme would involve a lot of work, as the government would need to provide evidence showing that the involvement was more than just merely cooperating with Daesh in an effort just to survive or being sympathetic to Daesh’s cause.

Alternatively, Donald Trump’s administration could refuse to grant permanent resident status to Syrian refugees, deny renewal for any visas that were granted to the refugees, and then deport them for overstaying expired visas. However, as some Syrian refugees have been here for more than a year and are already able to apply for permanent residency, this plan may not work for all of the refugees.

As one can see, not all of Donald Trump’s presidential goals could actually be achieved. However, there are a surprising number of ways that some of his plans could actually be deemed to be completely legal, supported by both the Constitution and judicial decisions. It certainly serves as food for thought going into the 2016 presidential race.

 



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