Archive for the 'Immigration' Category

So How About that Wall?

President-elect Donald Trump made building a wall on the US-Mexico border a pillar of his campaign. Post-election interviews reveal he intends to keep and act upon this campaign promise. No matter one’s opinion on whether building such a wall is right course of action, there are many practical concerns to be addressed.

How Big and How Expensive will it be?

The US-Mexico border is 1,989 miles long and the President-elect has proposed 35-foot-tall walls. As far as cost, some good estimates can be made as US Customs and Border Protection already began building some fences in 2007 and the Government Accountability Office released a report on the costs and issues faced. The GAO reported that the amount of fence constructed already has cost up to $5 million per mile. Basic math then tells us that this could cost $10 billion just for a fence along the entirety of the border. However, the President-elect has promised a “wall”, this may prove to be even more expensive. Furthermore, the current work was done to tackle areas of public land first to avoid dealing with private land owners. Eventually, the government must either get permission to build across private land or take the land through a process called eminent domain.

How will the Government Get the Land?

TrumpCan the government really take land from private land owners? Yes, it can, both state governments and the federal government may do so. The Constitution specifically allows the government to do so as long as they pay fair market value for the land. That is, if the government wishes to seize the land and the owner refuses to sell it willingly the government may seize it against the owner’s wishes as long as the government pays fair market value.

Another requirement is the seized land must be used for some public purpose. This mean that eminent domain cannot be used to seize land for purely private purposes. For example, a state governor could not use eminent domain to seize land for their friend to build a private home on the land. On the other side, clearly public uses are easily approved, such as seizing land for public utility purposes like electricity poles and telephone cables. Many projects fall in the middle of this spectrum so the legitimacy of eminent domain is questionable in these areas. However, Supreme Court cases on this issue though have found this to be almost a non-issue. In particular, the Supreme Court case of Kelo v. City of New London rendered this issue almost unimportant. In Kelo, the city of New London, Connecticut wished to seize Ms. Susette Kelo’s home so that the headquarters of a private company could be built on the land. While Ms. Kelo asserted that this was a private use, the Supreme Court disagreed. The ruling in Kelo has set precedent that questionable eminent domain takings will usually be upheld by US courts.

Overall, a border wall would likely not encounter any issues with eminent domain. It’s clearly for a public purpose, national security and immigration. With this hurdle passed, the only issue would be fair market value for the land. US Customs and Border Protection has already estimated this cost to be about $800,000 per mile.

Is This Already Happening?

Yes, it is already happening. When US Customs and Border Protection began building these border fences in 2007 they needed some private land that is on the US-Mexico border. Many land owners willingly sold their land, while others chose to fight the taking in court. Unfortunately for the land owners, courts consistently ruled for the federal government. This very thing happened when US Customs and Border Protection needed Dr. Eloisa G. Tamez’s ancestral land to build a border fence. Dr. Tamez took the federal government to court. In 2013 a US court ruled that US Customs and Border Protection could take Dr. Tamez’s land that had been inhabited by her family since 1767. Dr, Tamez’s case is not unusual and similar incidents are very likely to occur if the President-elect carries out his campaign promise.

Is This Really Going to Happen?

It looks like the President-elect’s plan is entirely possible and plausible. The federal government would likely be able to acquire any border land it needs for the wall through eminent domain. The only hurdle would be the cost, which would have to be set aside by Congress. However, this likely will not be an issue either as Congress has consistently approved funding for border fencing and border patrols. Overall, if the President-elect decides the act upon this campaign promise there will be very little to stop him.

What People Ought to Know About Louisiana’s New Marriage Law

Many foreign-born people have been denied marriage licenses in Louisiana after the state passed restrictions on marriage based on immigration. Proponents of this bill claim it deters marriage fraud by preventing illegal immigrants, including terrorists, from getting married. But, this bill has also prevented many legal immigrants from obtaining marriage licenses, and has mostly impacted Louisiana’s Laotian and Vietnamese refugee communities.

House Bill No. 836

The bill introduces new requirements for a Louisiana marriage license, including requiring a birth certificate. Birth certificate requirements differ for U.S.-born persons and foreign-born persons. A U.S.-born person may obtain a judge’s waiver if unable to provide a birth certificate. But, this waiver exception does not apply to people born outside the U.S., even if he or she can produce an unexpired visa or proof of citizenship.  In short, if a foreign-born person cannot produce a birth certificate, then he or she cannot get married in Louisiana.

The Story of Marilyn Cheng and Out Xanamane

Marilyn Cheung and Out Xanamane’s marriage license struggles highlight the absurdity of this bill. This Louisianan couple, like many in Louisiana’s Laotian community, had a traditional Buddhist ceremony in 1997, but never obtained a formal marriage license mistakenly believing they had a common law marriage. The couple learned they were not legally married when Mr. Xanamane discovered he had liver cancer and was not covered by Ms. Cheung’s insurance. Although the couple have lived as husband and wife for nearly 20 years and have four children together, Louisiana does not recognize common law marriages. Marriage

Subsequently, the couple went to a Louisiana courthouse to obtain a formal marriage license. Even though Mr. Xanamane brought his green card, refugee documents and driver’s license, they were turned away because Mr. Xanamane did not have a birth certificate. Mr. Xanamane has legally resided in the U.S. since 1986, but he was born in Laotian village in 1975 when the country fell to communism. His family fled the country and he never received a birth certificate. Thus, despite Mr. Xanamane’s liver condition, the couple drove fourteen hours round -trip to Alabama where the court accepted Mr. Xanamane’s immigration documents and issued them a marriage license.

Ms. Cheung and Mr. Xanamane are not the only couple enduring hardships under this new law. Since the law was enacted, about six to eight couples every month have been denied marriage licenses in Orleans Parish alone.

Is the Bill Xenophobic or a Necessary Protection of American Sovereignty?

Proponents claim this legislation prevents illegal immigrants, and possibly terrorists, from obtaining citizenship through marriage. But, the birth certificate requirement place unnecessary burdens on legal immigrants, particularly on Louisiana’s Laotian and Vietnamese refugee communities.

Many foreign-born people legally reside in the U.S. without birth certificates. Simply requiring valid immigration paperwork, like Alabama, would be equally effective in preventing illegal immigrants from obtaining marriage licenses. Moreover, requiring birth certificates unlikely deters terrorists legally in the U.S. from marriage, since many terrorists come from countries, including the U.S., that do issue birth certificates.

While the bill remains ineffective in deterring terrorists from marriage, it does have a disproportionate impact on Louisiana’s Vietnamese and Laotian refugee communities. In the 1970s and 1980s, many refugees from Vietnam and Laos went to Louisiana to seek asylum from war and communism. Many of these former refugees have since obtained green cards or U.S. citizenship, but do not have birth certificates. Refugees and other immigrants fleeing violent-life threatening situations, were either never issued birth certificates or were unable to bring one. Moreover, refugees tend to come from countries with failed governments, and thus, it would be impossible to obtain a birth certificate, even if one was originally issued.

Since the birth certificate requirement is unnecessary to achieve its purpose in preventing illegal immigrants from marriage, we can only conclude it was enacted to place hardships on the Vietnamese and Laotian refugee communities in Louisiana. But, if we give Louisiana’s legislature the benefit of the doubt, the bill is at best a poorly thought-out law that needlessly inconveniences foreign-born people living in United States legally.

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.



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