Archive for the 'Immigration' Category

Will the Real ID Law Prevent You From Flying?

One of the underreported details of the 9/11 attacks is that the hijackers illegally obtained Florida driver’s licenses to board the planes. Although a few of the IDs were forged, most of the licenses were real. The terrorists obtained their licenses by bribing a collaborator to certify their residency and then duplicating the licenses that they obtained. Congress responded to this chain of events by passing the Real ID Act. The Real ID Law requires that state driver’s licenses contain a minimum level of information before the holder is allowed to board an aircraft. For a state license to meet the standards of the Real ID Act, the license must contain:

  • Full legal name
  • Signature
  • Date of birth
  • Gender
  • Unique identifying number
  • Principal residence address
  • Front-facing photograph of the applicant

Additionally, the law also requires that the applicant present documentation of name, birth date, social security number and an ID with a photo or an ID with full legal birth name and birthdate. Yes, a person needs an ID in order to obtain a commonly used ID; but more on that later.

Real ID LawAlthough the Act was passed in 2005, five states, Missouri, Minnesota, Illinois, New Mexico, and Washington, have not updated their driver’s licenses to meet federal standards. This actually isn’t surprising; the Real ID Act was extremely controversial when it was first passed and it was doubtful that any states would actually comply. Missouri went so far as to pass a law in 2009 prohibiting state officials from even considering complying with the Real ID Act. However, the TSA forbids travel with state driver’s license that does not comply with the Real ID Act. People using driver’s license that do not meet the Real ID Act’s requirements would not be able to board a plane.

Alternatives to State ID

States have had a variety of reasons for opposing the ID law.Conservative leaning states saw the Real ID Act as federal overreach; liberal leaning states believe the requirement to have an ID to obtain an ID was discriminatory against minority groups that make less income. People concerned about having their birth date or parts of their social security number have opposed it. As a result, the federal government has often granted extensions to states to meet the requirements. Missouri was granted an extension if it agreed to repeal its Real ID Act ban. The extension would allow Missouri residents to continue using their non-complaint driver’s license until January 22, 2018.

Of course, the Real ID Act only affects driver’s licenses. If you use a driver’s license that doesn’t comply with the Real ID Act, you will be barred from entering the plane unless you have other forms of identification. So even if you live in one of the five states that still refuse to comply, you can always use a passport or an ID issued directly by the Department of Homeland Security to fly. Some states even issue licenses that comply with federal regulations even though they still use the old pre-Real ID Act licenses – check your local DMV for details.

On the other hand, these alternative identifications create additional expenses. Obtaining a passport, ID from DHS, or a state ID that matches the requirements will cost more money. This is a constitutional concern, as the Supreme Court has historically found traveling between states to be a fundamental right. Charging people extra money would potentially burden this right. Unlike voting though, there are other means of moving around the country. It is possible to travel from New York to Missouri by driving a car, riding a bus, or forming a carpool. With states like Missouri reversing their Real ID Act ban, it’s only a matter of time until all state driver licenses are regulated by federal standards.

9th Circuit Rules that Government Broke Agreement to Protect Non-Citizen Children

Flores v. Meese, now known as Flores v. Sessions in light of our new Attorney General, is a twenty year old case which resulted in a settlement agreement resulting from now defunct Immigration and Naturalization Services (INS) holding unaccompanied children of immigrants for long periods of time with no beds, little food, and unreliable access to clean water. The settlement dealt with improving the conditions, and-most importantly-duration of hold times on children. The main way the settlement did this was by requiring second bond hearings to allow for non-citizen children to be released in a manner that-barring a danger to society-fits the best interest of the child.

The Ninth Circuit Court of Appeals ruled last week, and not for the first time since the settlement, that Immigration and Customs Enforcement (ICE) is not living up to the terms of its agreement. The settlement, in part, requires the government to hold children no longer than reasonably necessary. Judges have previously ruled that the government has failed to live up to this requirement. They also had failed to keep records of minors held more than 3 days, another settlement requirement. While there is evidence of their violations already, this practice makes it very hard to know exactly how often they have mistreated minors.

jeff sessionsTo understand this most recent ruling, let’s take a look at the facts of the case, the history of the settlement, and the ruling itself.

The Government’s Mistreatment of Children

So we know that the gist of the settlement agreement requires holding unaccompanied non-citizen children in safe conditions and providing bond redetermination hearings, reassessing how and whether a child should be released, in order to best protect unrepresented children. With this in mind, the settlement generally requires agencies to lean towards just releasing these children-usually as quickly as reasonable. The facts in this case make it clear that this was not at all the case.

The facts before the judge in this case showed unaccompanied children (some as young as nine-years-old) held in prison-like conditions, often for over a year, with no bond redetermination hearings. The children were threatened with pepper-sprayed, kept in cells so cold they were referred to as “iceboxes” with only a sheet of aluminum foil for warmth. The cells had cement benches with mattresses on top as beds. The children sometimes went without working toilets or showers.

History of the Settlement

As horrifying as these facts are, they pale in comparison to the facts that led to the settlement in the first place. In the late 90s, the Flores v. Meese case dealt with a 15-year-old refugee out of El Salvador named Jenny Flores. During this time, INS had a practice of arresting children suspected of being undocumented and holding them in what were essentially prisons until their parents turned themselves in for potential deportation. Essentially holding children to coerce their parents into allowing themselves to be deported. These children were held in cells with as many as 100 people, given little food and water, and provided no education or recreation time.

To make the lawsuit go away, the government agreed to sign a consent decree which essentially amounted to a settlement agreement to enforce standards for both the care and release of non-citizen children as we’ve discussed above.

What the Settlement Requires

The Flores settlement has several requirements to it. However, these requirements can essentially be broken down into three broader stipulations. First, the government needs to, unless the children are a danger to society, release children from their detention facilities with as little delay as possible to either their parents, guardians, or-as a last resort-to programs willing to take custody of the child in question. Second, if the government can’t release the children they need to keep them in a place suitable to their age and needs. Finally, the government has to implement standards relating to how these children must be cared for in immigration detention facilities–something the government has still not done twenty years after they agreed to the settlement.

These broad provisions cover most of the agreement. However, for this case, it’s important to understand at least one specific provision of the Flores settlement–paragraph 24A. Paragraph 24A is the section of the agreement which requires the government to give bond re-determination hearings to these children. This is not a bond hearing, federal law already sets release for an undocumented person at $1,500, this is a follow up hearing to reconsider whether a bond is necessary as many of these children’s parents simply can’t afford a bond. The government has been going years without providing these hearings to some children, and that was central to this most recent ruling.

HSAThe Government Loses Its Argument that the Settlement is Defunct

To say that the facts were stacked against the government in this case is an understatement. They had essentially been ignoring the terms of the Flores settlement for years on end–continuing to mistreat these children. However, the government took the position that they hadn’t been bound to the settlement for years-arguing that the Homeland Security Act (HSA) and the Trafficking Victims Protection Reauthorization Act (TVPRA) had overruled the settlement.

The judge in this case was quick to shoot them down. Generally, if you want to say you are bound by an agreement you are a party to you better have a dang good reason and the court simply wasn’t ready to bite on this one.  The HSA and the TVPRA do both deal with how the government should deal with unaccompanied non-citizen minors. However, they don’t mention overruling the Flores settlement or bond rehearings for non-citizen children. In fact, when it comes to these children both laws focus exclusively on making decisions in the children’s best interest. The laws include provisions seeking to investigate detention facilities to ensure proper care and placement on non-citizen children. To argue that holding them for years without a chance to reevaluate their bond status is laughable; the court found that the government’s arguments didn’t hold water.

To make matters even worse for the government, the same court had rejected the very same arguments only a year before when the government had argued that the provisions of the Flores settlement only applied to unaccompanied minors and they were under no constraints in how they treated accompanied minors. With that in mind, it was certainly no surprise to see the government shot down in flames on these arguments.

What Happens To the Children?

With the Flores settlement ruled to be in full force, the government will need to provide the bond reconsideration hearings they have been placing on the back burner. While the terms of the settlement favor release as quickly as reasonable to the minor’s family-it does not require it in all cases. At a minimum, the court’s ruling should at least offer these children a chance to escape years of prison-like detention when they likely want nothing else but to be receiving an education.

The Flores settlement is a fairly bare bones agreement. The truth is it was never intended to be a permanent solution. The settlement expires 45 days after the government put out final regulations on how detained non-citizen minors should be treated. The only reason this case is being litigated is because, as mentioned above, the government simply hasn’t bothered to do so in the last 20 years. While the HSA and TVPRA fill some gaps, the fact that our lack of legal regulation allows for situations such as the facts in this case to continue is a black eye on the United States as a whole.

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

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

The Details of the Case

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

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

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

citizenshipIs This Good or Bad For Immigrants?

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

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

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

Sanctuary Cities Face Sanctions Under a New Bill

Since even before Trump’s election, immigration has been one of the most contentious topics of law in the public eye. Since the election of Trump, that contentiousness has spilled out into a battle between the Federal government and state and local governments as these governments resist allowing the hand of the fed into their own approach to immigration. Certain cities have drawn Trump’s ire more than any others. These so-called sanctuary cities such as San Francisco and Los Angeles have been on the receiving end of particularly vicious tweets and public commentary from Trump for their comparatively lax approach to immigration law and refusal to cooperate with the expanded powers of Immigration and Customs Enforcement (ICE) Agents under the Trump administration. This ire has also included an executive order from back in April pulling federal funding which was subsequently blocked in the courts until both the definition of “sanctuary city” and the amount of funding to be withdrawn was substantially limited.

The deadline for cities to respond to the terms of this order has come and past last week, so we can expect more action on this order in the near future-likely in the courts. However, in the last few days, conservative disapproval of “sanctuary citizens” has manifested itself in an entirely new form—a bill that has passed the House called the “No Sanctuary for Criminals Act.” (NSCA)

sanctuary citiesThe bill has yet to pass through the Senate, although the Republican majority there makes its passage very likely.  However, it’s important to note that it is still a bill and not yet a law. But the act itself is so likely to pass that it’s worth preparing for its implications and near certain legal backlash.

The primary effect of the “No Sanctuary for Criminals Act,” despite the name’s implication that it impacts specific criminals, is to target “sanctuary cities” with substantial funding hits. The law essentially sanctions any city who refuses to turn over people to ICE or jail people on behalf of federal authorities. It similarly sanctions cities that won’t comply with ICE actions of any type—requests to hold suspected undocumented immigrants and the like.

Specifically, the bill makes it so that jurisdictions which fall out of line become ineligible to receive any funds under the Immigration and Nationality Act, the “Cops on the Beat” program, the Omnibus Crime Control and Safe Streets Act and any other grant from the Department of Justice or Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization.

This is a potentially enormous amount of money to pull from these jurisdictions. Under the bill, this money would be redistributed to jurisdictions in compliance with the Act.  However, just like the executive order before it, the bill has received substantial criticism as to its constitutionality which will likely culminate in a lawsuit should it pass the Senate.

The 10th Amendment and Spending Restrictions

The majority of the concerns voiced over the NSCA are in regard to the 10th Amendment. The text of the10th Amendment reserves all rights not given to the Federal government under the constitution for the states. However, as part of the implications of this, it also prevents the Federal government from compelling the states or their agents to action unless they specifically have the power to do so under the Constitution.

This rarely comes up in a modern context and the Supreme Court have become more and more reticent about limiting federal action on 10th Amendment grounds. However, they have done so several times in the past several decades. For instance, in 1998 they ruled a law unconstitutional where it required state and local law enforcement to conduct background checks on those trying to buy handguns. The law amounted to the federal government forcing state participation in a program and was thus ruled unconstitutional.

This isn’t much of an issue for the “No Sanctuary for Criminals Act.” It doesn’t so much command the states or their jurisdictions to act so much as pull the funding rug out from underneath them if they don’t. This can cause its own constitutional problems however in terms of how the federal government may handle funding.

The federal government generally has the power to distribute funds as it sees fit. However, when funding provisions are so draconian as to be coercive they are unconstitutional. This has most recently come up in the context of the Affordable Care Act in 2012 with the Supreme Court ruling that the funds pulled from states refusing to participate represented a “gun to the head” of the states.

To be constitutional, funding provisions and restrictions must meet five requirements:

  1. The spending must promote the general welfare;
  2. The conditions on the funds must be clear and easy to understand;
  3. The conditions must be related to the goal of the program it is associated with;
  4. The condition must not itself require the states to act unconstitutionally; and
  5. The funding conditions must not be coercive.

The first three elements aren’t really an issue here. The clarity of the act isn’t really an issue and they’ve made a clear point of trying to limit the funding cuts to areas that could be considered related to immigration and national security. But the breadth of the cuts themselves will likely become contentious if the bill becomes a law as states seek to limit the bill to only strictly related funding sources.

The fourth element is interesting and will likely be a source of a great deal of future litigation. The ACLU has voiced concerns that the bill could demand cities to act in violation of the 4th Amendment by requiring local law enforcement to hold people without due process or probable cause when directed to by the federal government.

However, it is the last element, coerciveness, which has been the target of most of the conversation when it comes to the constitutionality of the NSCA. This is partially because what exactly makes a spending provision coercive under the law is a bit hard to nail down. The most obvious element of coerciveness is just how much money is in question. The exact amount necessary has ranged substantially from case to case. In some cases, the amount to be pulled by the NSCA might qualify, in others far more is necessary. The ACA case has implied that the amount is not the only consideration however. Where a state or jurisdiction has grown to rely on a source of funding, that likely factors into whether pulling that funding is coercive. It also makes a funding provision more coercive if a new program is put in place and funding from a more established federal program requires involvement in this new program. The NSCA may run afoul of this somewhat due to the many older programs it denies funding from where jurisdictions fail to follow the provisions of their new program.

The Future of the NSCA

So, are the funding provisions of the NSCA unconstitutionally coercive? Unfortunately, the answer is an unhelpful maybe. There are certainly some elements that point in that direction and a large portion of the determination will come down to exactly how much money a given jurisdiction stands to lose. However, coerciveness is a poorly defined, heavily fact-specific legal concept. It’s just impossible to reasonably say one way or another. However, will there be lawsuits challenging the constitutionality of the NSCA if it passes the Senate? Yes, absolutely. However, for now the NSCA is just a bill. Until it becomes a true law, we can expect that the many critics of the spending provisions will stick to making themselves heard in the public and not yet in the court.

Travel Ban is Back… At Least Partially

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

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

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

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

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

Implementing the Order

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

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

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

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

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

Hawaii’s Emergency Motion and More to Come

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

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