Archive for the 'Immigration' Category

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.  Trump

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.

 

A Breakdown of San Francisco’s Sanctuary Policy

san francisco sanctuary citySan Francisco’s sanctuary policy has recently come under scrutiny in light of the recent shooting of a woman named Kathryn Steinle. The 31-year-old woman was walking with her father on Pier 14 along the Embarcadero near the San Francisco waterfront when she was fatally shot by Juan Francisco Lopez-Sanchez.

The suspect had been deported five times, and had seven felony convictions. After having served 46 months for the felony of re-entering the U.S., he was sent from a prison in Victorville in San Bernardino County to San Francisco by the Federal Bureau of Prisons. When he returned to San Francisco, federal immigration officials requested that he be held so that he could be deported to his native Mexico. But the sheriff’s department did not honor that request. He was released on April 15th after drug charges against him were dropped.

While many have criticized the sheriff’s department for releasing Mr. Sanchez, the department was merely following San Francisco’s 26-year-old sanctuary law, under which the city does not honor requests for immigration detention. Sheriff Ross Mirkarimi stated that his agency released Mr. Sanchez in accordance with an October 2013 city ordinance that was signed by the mayor.

Under that ordinance, law enforcement officials “shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release” unless there is a very strict exception. According to the exception, the city is allowed to hold an inmate for immigration officials if he or she was convicted of a violent felony within the previous seven years, and is being held on a pending violent felony. There is nothing to suggest that Mr. Sanchez met either provision.
However, the San Francisco Chronicle gained access to city records that indicate Mr. Mirkarimi acted beyond the directions stated in the ordinance. Just two weeks prior to the transfer of Mr. Sanchez to San Francisco, on March 9th, Mr. Mirkarimi issued an order to the members of his staff forbidding all holds of inmates requested by federal immigration officials. His memo stated that the detainer policy of the San Francisco Sheriff’s Department is that Immigration Detainers from Immigration & Customs Enforcement (ICE) are not to be honored or booked. This represented a change from his previous policy, which permitted detainers in specific critical cases.

According to SFGate, an attorney named Freya Horne, who works with the Sheriff’s Department, stated that federal authorities should have acquired a court order if they wished Mr. Sanchez to be detained. Without a court order, he was to be released based on the city’s ordinance. Immigration holds are not perceived as orders that are legally binding; they are considered to be requests. In response to Ms. Horne’s statement, Virginia Kice, a representative from ICE, said that acquiring such orders would not be feasible.

Nevertheless, there must have been something that the authorities could have done to prevent this tragedy from occurring. While neither the sheriff’s department nor ICE seems willing to accept responsibility for the release of Mr. Sanchez, both must take steps to ensure that tougher measures are in place. Perhaps San Francisco’s sanctuary policy needs to be revised so that it does not protect individuals who repeatedly commit crimes, even if they are not violent crimes. Mr. Sanchez was first arrested in Arizona, where he was charged with “inhaling toxic vapors.” He was later arrested because of drug charges in Arizona, California, Washington, and Oregon.

Mr. Sanchez claims that the shooting was an accident because the gun, which he alleges he discovered wrapped in a shirt, fired, and he did not intend to shoot Ms. Steinle. Some have described what happened as an isolated incident, and that any change to San Francisco’s sanctuary policy will only serve to foster distrust on the part of undocumented immigrants toward authorities. And as a result, undocumented immigrants will be less likely to come forward in the event that they are victims of, or witness, a crime.

However, according to Jeff Stone, a Republican state senator who represents Riverside, there have been many other cases in California, Texas, and other states in which undocumented felons were not deported, and went on to commit egregious crimes. Mr. Stone has submitted a proposal for a bill to amend the 2013 California Trust Act, which currently restricts cooperation between local authorities and federal officials. If the proposed bill were to become law, such cooperation would be required in cases where undocumented immigrants who are being held are felons, particularly if they have been arrested on drug charges.

Human Rights Violations by the U.S. Border Patrol Must Stop

Jesus Castro Romo, has been awarded $497,000 to supplement for damages caused by a Customs and Border Protection (CBP) agent, Abel Canales. Canales shot Romo in the back when doing a routine 2010 immigration stop. On February 5th, Judge James Soto demanded the payment of $553,000 awarded to Romo, but reduced it by 10% since Romo was illegally trying to cross the border and therefore semi-responsible for his injury.

U.S. Border PatrolCanales was later sent to prison after his involvement with a drug cartel was discovered, deeming his defense untrustworthy. Castro is not only one of the only survivors of such CBP shootings, but federal courts have almost always rejected claims made by immigrants against single agents or the federal government. The ruling is one of the first to protect a Mexican citizen’s civil rights and deem the U.S. border agents and the federal government to be guilty.

More often than not, non-U.S. citizens are not awarded the same civil rights as U.S. citizens. Even more disheartening, 67 cases of border shootings from January 2010-October 2012 demonstrate a clear issue with CBP use of force. James F. Tomsheck, who used to head the CBP internal affairs, was removed and placed to a senior Border Patrol post, after he disclosed the indiscretions of the CBP.

Tomsheck divulged a less than flattering indictment of the CBP’s integrity:

  • “CBP has a culture of impunity, seeing itself as above reproach and ‘constitutional constraints,’ and aims to shield agents’ misconduct and a massive corruption problem from outside scrutiny.”
  • “Border Patrol officials have consistently tried to change or distort facts to make fatal shootings by agents appear to be ‘a good shoot’ and cover up any wrongdoing.”
  • He also believes that “thousands of employees hired during an unprecedented expansion of the agency in the post-9/11 era are potentially unfit to carry a badge and gun.”

Although crossing the border into the U.S. from Mexico is illegal, the United States is still responsible for upholding international human rights with every person it encounters. Enforcement policies are largely ignored, and the use of force upon immigrants is inhuman and in violation of basic civil rights. A CBP reform needs to occur to end the fatal killings of Mexican citizens.

Obama’s Influence on the Battle over Immigration Reform

The battle over immigration reform has reached a boiling point.

Obama Immigration ReformDuring his presidency, Barack Obama has promised to act on his long-term efforts to reform the country’s immigration policies, and did so by announcing a controversial executive order on November 20, 2014. Obama has been quoted as saying, “I believe that America is a nation of immigrants. Everybody agrees that the system is broken; there has been ample opportunity for Congress to pass a bipartisan immigration bill that would strengthen our borders, improve the legal immigration system and lift millions of people out of the shadows, so that they are paying taxes and getting right by the law.” However, despite America’s “200 year history” of welcoming immigrants, the system has broken down in the last couple of decades.

The debate, now dominating the media, began during his presidency on June 15, 2012, when President Obama created a new policy calling for deferred action for certain undocumented young people, who came to the U.S. as children. The “Dream Act”, also known as the Deferred Action for Childhood Arrivals (“DACA”) was implemented on August 15, 2012, and those affected are appropriately called the “Dreamers”

Although the Dream Act did not create legalization and citizenship, it did, at the very least, initiate important opportunities for some the country’s young undocumented immigrants. Some of the concessions granted include allowing young people to remain in the country without fear of deportation and obtain work permits, which inevitably increases their chances for economic and social incorporation. Many are now afforded the same rights as other aspiring young people such as opening their first bank account, obtaining their first credit card and landing their first professional job.

However, there are many restrictions which exclude the country’s youth from possible deportation including the requirement of entering the U.S. before the age of 16, being under the age of 31 before June 15, 2012, being present in the U.S. for 5 years, graduating from high school or obtaining a GED, being accepted to college and having good “moral character.” Finally, it in no way addressed the constant threat of deportation of their immediate family.

Critics of immigration reform are often quoted as saying, “But who will pay for all these people to stay in our country.” However, they fail to recognize that undocumented immigrants have long contributed to the success of state economies.

Some of the highlights of Obama’s recent historic executive order are as follows:

  • There has been massive exploitation of undocumented immigrants by low pay, but because of the risk of being torn apart from their families, they comply. Additionally, the companies who are paying living wages, are strained by the competition, and will inevitably succumb to these unethical practices.
  • Since his presidency, Obama has worked extensively to secure the southern border with more agents and security than ever in history. For example, in the past 6 years, illegal border crossings has been cut down by more than half.
  • Instead of resorting to an executive action, Obama attempted to work with Congress. In fact, 68 democrats, republicans and independents came together to pass a bipartisan act which would have doubled security agents and allowed undocumented immigrants to stay if they paid a fine, paid taxes and went to back of the line This would have help grow the economy and decrease the deficit. Unfortunately, the House of Representatives refused to allow the bill to pass, despite the constant criticism from the far right on Obama’s efforts to fix the economic disaster, which almost placed the country into a recession before he was even elected.

As Obama explained, deporting millions of undocumented immigrants is not good for the country and far from realistic.  He pointed out that they work hard, support their families with significantly lower wages than equally qualified citizens, worship in community churches, are largely patriotic and most of their children already live in the U.S., many of which are citizens.  In fact, former President Bush, who is very conservative, was quoted as saying immigrants are “part of American lives.” However, there are restrictions to Obama’s order which, contrary to public opinion, actually satisfy most of the concerns from the conservative opposition. The following are the main provisions of the order:

  • Increased resources at the border, with more security.
  • Implementation of a process to make it easier and faster for high skilled immigrants and business entrepreneurs to stay in the country (which big business leaders support.)
  • Immigration laws that are broken, which result in those responsible being held accountable, including the deportation of felons, criminals and gang members, as opposed to families, children and single mothers.
  • The requirements to avoid deportation are an immigrant must be in the country for 5 year, have children who are American citizens or legal residents, register, pass a criminal check and pay taxes.
  • Undocumented immigrants must not enter illegally from this point forward.

In my opinion, the executive order is far from perfect. It gives too many concessions to those who oppose equality. Nonetheless, legal challenges to the order will no doubt be brought by republican controlled Congress, including threats of impeachment constantly looming over the president (especially by the House Speaker John Boehner). Therefore, many of the details of any executive order will be vulnerable to court action. Additionally, Congress will inevitably threaten a government shutdown, mirroring the one that rocked the nation in 2013, which focused on the republicans desire to defund the “Patient Protection and Affordable Care Act”. However, Obama remains defiant in the face of such threats and was steadfast in his promise to take action. Hopefully, the opposition will see the light and allow the country to grow and prosper, while staying true to equality for all.



<