Archive for the 'Immigration' Category

ICE Faces Criticism for “Sensitive Locations Policy”

Out in New Jersey, the Chief Justice of the New Jersey Supreme Court Stuart Rabner has come out hard against the exception in the Immigration and Custom Enforcement (ICE) Sensitive Locations Policy. In a letter asking for an end to the practice, the high ranking judge criticizes ICE’s practice of waiting in courthouses for undocumented immigrants who are victims of a crime, defendants in a case, or simply there to testify in proceedings. He argues that the practice not only denies access to the courts to people who are undocumented by making them fear arrest and deportation, it also torpedoes the legal process by guaranteeing a lack of cooperation in ongoing cases where somebody might get grabbed by ICE on the way out of testifying against a criminal.

He’s not criticizing the practice for no reason. Just in the last couple months ICE agents have arrested several undocumented immigrants in courthouses. Just recently they have arrested a woman  seeking a protection order  to keep her safe from an abusive spouse. Another man was arrested as he left a proceeding, otherwise free to go after a civil case.

ICE agents have responded to Rabner with a resounding no. As written, the Sensitive Locations Policy places no restrictions on arrests made at courthouses. Even if it did, the actual protections of the policy are far from absolute even where they do apply.

ICEICE’s Sensitive Locations Policy

The Sensitive Locations Policy is very much what it sounds like-a policy of ICE limiting enforcement actions at sensitive locations. These locations include schools (either at the school or when a parent is picking up or dropping off a child), medical treatment facilities, places of worship, ceremonies like weddings and funerals, or during public demonstrations such as a march or rally for a cause. You’ll notice courthouses are nowhere on that list.

Courthouses not only don’t make the cut in this policy as written, they are explicitly not included. Even if they were, the policy isn’t a blanket ban on arrests in sensitive locations but rather more of a strong suggestion. First, it only limits enforcement actions. This includes actual apprehensions, arrests, searches, or surveillance. However, it doesn’t include them entering a sensitive location to get records or documents to later use against undocumented immigrants, serving subpoenas or notice of proceedings, and other more administrative actions.

Although it suggests that arrests at sensitive locations be avoided, the policy doesn’t stop ICE from making arrests.  Agents just need permission from a supervisor before proceeding. Even without permission, they can make an arrest-so long as they do so as discreetly as possible-where there are circumstances related to national security, terrorism,  public safety, or destruction of evidence.

The policy is in place to ensure that everybody is free to utilize crucial services without fear of repercussion. Education, health care, worship-all incredibly important. Doesn’t it seem odd that legal services aren’t on that list? Don’t we want everybody to enjoy the protections of the law and help others when they witness crimes? The protection of our laws-both for undocumented immigrants and citizens whose cases they might testify in-are a similarly crucial service to education of health care. However, the sad truth is that even were courthouses included in the policy the protections might still not be enough.

Sensitive Locations Policy Not as Strong a Protection as it Was

To say that the attitude towards immigration has changed after the Obama administration passed the torch to President Trump. Besides Trump’s failed immigration ban orders, he has also issued an executive order which drastically changes the approach of ICE agents.

Under the Obama administration, ICE agents were told to prioritize targeting gang members and violent criminals for deportation. For the most part, they were not going after anybody else. Trump’s order substantially expands those ICE is meant to target. Under Trump the agency is to target, in no particular order, undocumented immigrants who “have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” If that sounds extremely broad, that’s because it is. Gone are the days of prioritization, every illegal immigrant is equally targeted.

What Trump’s order notably does not do is change the Sensitive Locations Policy, he has given ICE agents much wider leeway in how they act. This has led to much less strict consideration of the policy than in previous years. Just in the last few months ICE agents have raided a pre-school in San Francisco (apparently mistakenly), arrested a California man right after he dropped off his daughter at school and while he drove his other daughter to her classes. In Virginia, two men were arrested as they left the homeless shelter offered by their church.

Judge Rabner has a good point, access to the courts is crucial for our justice system to operate properly. However, as it stands it looks like the protection the Sensitive Location Policy would offer to undocumented immigrants seeking the protection of the law would be middling at best.

Trump Pushes Travel Ban Towards U.S. Supreme Court

The Trump Administration recently filed a petition to the United States Supreme Court requesting it hear its appeal of a decision by the United States Court of Appeals for the Fourth Circuit regarding Trump’s controversial travel ban. The Fourth Circuit Court upheld a lower court’s decision in Maryland which blocked implementation of the travel ban. Another lower court in Hawaii also blocked implementation of the travel ban. Trump signed the travel ban into effect via executive order earlier this year. The Ninth Circuit Court heard oral arguments from the government requesting reversal of the Hawaii court’s decision, but a decision on that appeal has yet to be issued. In addition to the petition to the Supreme Court to review the Fourth Circuit Court’s decision on the merits, the Trump Administration has asked the Supreme Court to grant stays of the lower court rulings in both Maryland and Hawaii. The Supreme Court generally makes a decision on stays quickly, and if it does in this case, the travel ban will be reinstated while the nation, and world, wait to hear its decision regarding the Fourth Circuit.

TrumpThe Arguments For and Against the Travel Ban

Trump’s travel ban targets individuals from six predominantly Muslim countries, temporarily preventing them from entering the United States for a period of 90 days. According to the Trump Administration, the purpose of the ban is to keep the country safe from terrorism until proper vetting procedures are put into place. In its petition to the Supreme Court, the Administration argues the President has broad power pursuant to the Constitution and Acts of Congress to stop outside individuals from entering the United States when he deems it a necessary security measure, particularly when the countries involved “sponsor or shelter” terrorist activity.

But challengers to the travel ban say it violates the First Amendment, which prohibits the government from interfering with the free exercise of religion. They further argue the travel ban is a clear abuse of the President’s power, resulting from his hostile views toward Muslims as demonstrated during his presidential campaign.

Supporters of Trump and his travel ban may be looking to the President’s Supreme Court nominee Neil Gorsuch for its reinstatement, but it is difficult to say where the newly appointed justice stands on the issue. In his confirmation hearings earlier this year, Associate Justice Gorsuch emphasized the importance of protecting freedom of religion, as guaranteed under the Constitution. During his testimony, he went on to state the Supreme Court has held that due process rights extend to undocumented individuals in the United States, and he would apply the law.

The Issues That Are Now Before the Supreme Court

A key legal question in this case is the constitutionality of Trump’s executive order implementing the travel ban, and whether he has exceeded the scope of his presidential authority by barring entry of aliens into the United States. In addition to its argument that the President has broad authority to suspend or restrict entry when he deems it in the nation’s interest, the Trump Administration asserts in its petition that the Supreme Court has never nullified religion-neutral government action based on mere speculation about an official’s ill-disposed motivations, particularly when such speculation is based on statements made by the official during a political campaign. The Administration requests the Supreme Court grant its petition for review of the Fourth Circuit Court’s decision before its summer recess begins end of June, which would allow both sides to prepare for oral argument when the Supreme Court’s new term begins in the fall. The Supreme Court has asked the challengers to the travel ban to respond to the petition by June 12.

All eyes will be on the Supreme Court as it decides fairly soon what to do with the government’s urgent requests, decisions that will be highly impactful in the months to come. It will take five votes from the Supreme Court justices to stay the two lower court decisions blocking the travel ban, and four votes for the petition for review of the Fourth Circuit Court’s decision to be granted. The Supreme Court’s ruling on the stay requests is expected soon; if granted, it will immediately reinstate the travel ban. This poses a potential problem for challengers to the travel ban, which imposes a 90-day restriction on individuals trying to enter the United States. If the Supreme Court grants review of the Fourth Circuit Court’s decision, and it is expected it will (in light of the constitutional issues at stake regarding the scope of a president’s power), the travel ban would no longer be in effect by the new Supreme Court term in the fall, making the case moot at that point.

It’s Official: Texas Voter ID Law Violates the Voting Rights Act

On Monday April 17th,  a Federal Judge ruled that the voter ID laws enacted in Texas were enacted with not only the intent to discriminate against minorities but with the purpose of discriminating against those minorities.  This is a huge ruling with implications for both the law, S.B. 14, and the state of Texas as a whole.  This ruling has the potential to leave any law related to voting coming out of Texas subject to federal approval in the future.

However, this ruling is far from out of the blue.  The story of S.B 14 has been a back and forth saga through the courts since 2011.  Let’s take a look at the history of this bill, this most recent ruling, and what that ruling means.

Texas Voter IDThe History of S.B. 14

S.B. 14 is a law which substantially limits the acceptable types of voter IDs in Texas, often in particularly odd ways.  For instance, a hunting license is acceptable ID to vote but a student ID would not.  This is just the tip of the iceberg to what represented an enormous amount of limitations on what was acceptable identification to allow somebody to vote.  While there were suggestions to make funds available to educate the public on the details of the new restrictions and assist poorer voters to obtain sufficient identification, these suggestions were shot down at every turn and nothing of the sort made it into the final law.

When this law was initially passed in Texas in 2011, the Voting Rights Act (VRA) gave the Attorney General (AG) the power to review and shut down voting laws coming out states which had historically had discriminatory voting practices–think Jim Crow and the South.  With the effect the limitations would have and the lack of education on these effects in mind, the Attorney General at the time-Eric Holder-exercised this power and shut down the law.  While challenged this in the courts, AG Holder’s decision was upheld.

However, in 2013, a Supreme court ruling known as Shelby substantially limited the powers of the VRA.  Section 5 of the VRA allowed the federal government to pre-clear any voting laws coming out of states that previously had issues, as discussed above.  In Shelby, the Supreme Court analyzed the constitutionality of the VRA and Section 5 in particular.  They ultimately determined that, while Section 5 itself was constitutional, Section 4 was not.  Section 4 was the part of the VRA that allowed enforcement of Section 5.  Without this section, the pre-clearance requirements of the VRA were rendered essentially toothless.  The reasoning behind the Supreme Court’s decision was that justifications for the VRA’s restrictions-the history of discriminatory voting practices-was not the same concern it was when the VRA was enacted in the 60s.  Whether this is true or not, the Supreme Court decided that the provisions of the VRA needed to be reviewed by Congress if they were to remain in effect.

In the wake of this decision, many states-Texas, Mississippi, North and South Carolina-passed voting laws which had previously been shut down as potentially discriminatory by the federal government.  Among these was S.B. 14.  However, the law was immediately challenged in court.  In 2014, the law was determined to have discriminatory intent and purpose and struck down.  It was then appealed to the 5th Circuit Court of Appeals, which upheld the ruling in part, but asked the lower court to revisit the matter of discriminatory intent.

This brings us to ruling of last week.  However, as opposed to the initial ruling, there was one huge difference–AG Jeff Sessions.  Jeff Sessions has made it clear that the potential for discriminatory voting laws is not a priority under his watch, and told his attorneys at the Department of Justice to drop this case altogether.  Despite this, and a request from the DoJ plaintiffs to drop the case, Judge Ramos-the judge handling this case-looked to the facts already submitted in coming to a resounding yes on the discriminatory intent and purpose behind S.B. 14.

Discriminatory Intent and Discriminatory Purpose

Discriminatory intent is shown where racial discrimination is a-although not necessarily the only-motivation behind a governing body’s decision.  Discriminatory purpose goes a little further than intent, implying that the law was enacted because of the adverse effects on an identifiable group.  A law demonstrating discriminatory purpose or effect is unconstitutional. A discriminatory impact is not enough on its own for a law to be unconstitutional on its face, there needs to be at least a partial discriminatory motive.

Judge Ramos found such an intent and purpose behind S.B. 14.  In determining to this, she looked to a number of things.  She noted not only the disproportionate impact that the carefully chosen ID limitations had on minorities, she also pointed to racist remarks made by legislators during deliberations on the law, the bypassing of usual procedures in passing the law, and the outright refusal to include anything which would help the public understand the laws.  Additionally, any amendment proposed to make the provisions less harsh–easing registration procedures, reducing costs to purchase the IDs necessary to vote, expanding the acceptable types of identification-were all rejected with essentially no consideration.  In fact, the Texas Congress was specifically advised of the disproportionate impact that the law would have and advised on a number of ways to lessen this disproportionate impact on minorities-they rejected all of them.

The stated goal of the bill was to avoid voter fraud.  However, despite the Texas Legislature being shown evidence that in person voting happened in about two out of every twenty million cases in the last decade and provided evidence that mail-in voting was much more commonly vulnerable to fraud, the Legislature didn’t feel the need to include any provisions on mail-in voting and focused exclusively on in-person voting.

With all this in mind, Judge Ramos ruled that she could find no non-discriminatory purpose for how Texas had approached S.B. 14.

What Will This Ultimately Mean

Unfortunately, despite years of rulings saying this law was intended to prevent minority voters from being represented at the polls, there’s a good chance this law will win out in the end.  Jeff Sessions has, as Attorney General, told the attorneys of the DoJ to cease litigating the case completely.  While Judge Ramos followed through with the case, Texas will certainly appeal her decision.  This appeal will probably have no lawyers opposing Texas, unless an outside group steps in to handle the litigation.  If this is the case, the chances of beating this law drop precipitously.  However, should somebody step in to help fight the law this is a case that has a good chance to make its way to the Supreme Court.  As it stands, even with the addition of Justice Gorsuch, the makeup of the court makes it likely that this law would be struck down and Texas would continue to require preclearance from the federal government for any new law effecting voters.

This hasn’t been a particularly good year for Texas when it comes to their voting process being ruled racially discriminatory.  Two separate courts have already ruled, this year alone, that Texas’ district maps are gerrymandered to “pack and dilute” minority votes.  The determination of Shelby limited the VRA on the premise that discriminatory voting practices were a thing of past generations.  However, this ruling and many other rulings this year have shown the opposite.  It is unlikely that congress, in its current state, will pass any legislation giving teeth back to the VRA.  However, as cases like this are appealed to the Supreme Court, they have the potential to create precedent for a future court ruling reevaluating Shelby.  However, it seems unlikely in the near the future.  Only time will tell how momentous this ruling may be, for now Judge Ramos’ ruling will serve to protect voting rights for minorities in Texas.

Proof of Residency is Not Required to Eat Out

Are you required to show identification before sitting down for lunch?  If you’re ordering alcohol, sure.  But what if you were asked to show proof of legal residency?  Brenda Carrillo and a friend sat down at the Saint Marc Pub-Café, an upscale eatery in Huntington Beach, when a waiter asked:

“Can I see your proof of residency?”

When the patrons repeated the question back to the waiter in disbelief, the waiter responded with:

“I need to make sure you’re from here before I serve you.”

Is this legal?  After complaints to the manager, the patrons were offered to be re-seated, but declined and left the restaurant.  Castillo commented that she had never felt so judged in her entire life.

Proof of ResidencyNo Shoes, No Service

You know those signs that read, “We reserve the right to refuse service” or “No shoes, no service”?  Can a restaurant really refuse service to whoever they want?  The short answer is no.  After Trump’s inauguration, it seems some feel emboldened to start showing their prejudices and, despite the waiters cruel and discriminatory intent, it doesn’t come as much of a surprise to hear these types of stories popping up across the country.

When is a restaurant justified to legally refuse service then?  For starters, a restaurant can never refuse service based on discrimination.  The Civil Rights Act of 1964 explicitly prohibits places of public accommodation from discriminating based on race, color, religion or national origin.  Although a restaurant is considered private property, it’s still considered a place of public accommodation—equal protection laws still apply.

There aren’t necessarily a set of circumstances that would warrant a legal right to refuse service but, as a general rule of thumb, restaurants can refuse service if a guest puts the health, safety, or welfare of the establishment, or other guests, at risk.  That doesn’t help much, does it?  Certainly not an exhaustive list, but here are a few instances when a restaurant could legally refuse service:

  • When a guest is acting unreasonably rowdy or threatening other patrons,
  • When a guest doesn’t meet the company’s health requirements (think lacking adequate hygiene),
  • When a guest breaks lawful rules such as no-pet policies,
  • When the establishment has met capacity limits, or
  • When the establishment is getting ready to close.

Have you ever seen those signs that say ‘dress shirt and tie required’?  A restaurant can even refuse service if a guest doesn’t meet their clothing requirements., but refusing to serve a patron based on residency is not an acceptable reason because it’s a form of discrimination that the Civil Rights Act strictly prohibits.

I.D. Required Only in Limited Circumstances

The waiter had no right to ask the guests for identification.  When is proof of residency required?  One of the most obvious instances is obtaining a driver’s license or showing proof of citizenship to get a U.S. passport.  Many jobs require proof that you’re legally eligible to work in the U.S. and laws requiring a person suspected of a crime to show identification are legal as well.

The restaurant contacted Carillo with an apology after the story showed up on social media accounts.  The restaurant’s manager confirmed the behavior was not within company standards and the waiter was ultimately fired.  When the restaurant offered to host Carillo and her friends as “VIP guests,” Carillo and her friends declined the offer but, instead, asked Saint Marc Pub-Café to donate 10% of the weekend’s sales to an organization that advocates for immigrants living in the country illegally.

Did the patrons have another option?  They certainly could have brought a discrimination suit against the restaurant. Certain types of discrimination and civil rights violation allegations require a person file a claim or complaint with a federal or state agency before a lawsuit is brought, but Carillo likely would have had no problem getting the go-ahead to file a lawsuit.  At that point, it would have been up to Carillo to prove by a “preponderance of the evidence” (that it’s more likely than not that the allegations are true) that the restaurant discriminated against her.

Trump: Can He Just Take the Land to Build His Wall?

If you say “The Wall” anywhere in the United States, whoever you’re talking about will almost certainly know what you’re referring to–the wall along the border of Mexico which was one of President Trump’s most frequent talking points during his campaign for the presidency.  The controversial topic of building a wall of dubious use and dubious necessity, estimated to cost in the tens of billions of dollars, has also been accompanied by equally controversial claims that the wall would be paid for by the Mexican government.  With statements out of Mexico fairly unequivocally stating that this will never be the case, the wall has moved forward but with U.S. taxpayers footing the bill.  In fact, even before President Trump was officially inaugurated, the Department of Homeland Security had already begun sending of Declarations of Taking seizing land along the border by eminent domain.

trumpThis isn’t the first situation where the government has sought land along the border–about a decade back the Bush administration seized quite a bit of border territory to build fencing under the Secure Fence Act of 2006.  The letters already sent to those along the border state that the Department of Homeland Security will be taking the land from property owners–with at least one letter offering $2,900 for approximately 1.2 acres of land.  Those receiving the letters have stated that they feel like they have no recourse in the face of these letters, either because they believe they have no rights or because they simply fear facing the awesome force of the Federal Government.

However, not all have felt this way.  As the letters continue to roll out, several property owners who would be effected have sought legal help and have ongoing cases against the government.  Understanding your rights in the face of eminent domain proceedings requires an understanding of the complex area of law which is government takings.  With in mind, let’s take look at when and how the government may seize private property, as well as the sorts of legal actions you can take in response to such a taking.

What is an Eminent Domain Proceeding?

Under the Fifth Amendment and the Takings Clause of the Constitution, the U.S. government has the power to take property from private citizens under the principles of eminent domain.  The government does this through a process known as condemnation–marking specific property for destruction, modification, or government use.  However, the government does not have the power to go around taking property randomly–although the power of the Takings Clause is broad. For the government to take private property, they must show that they are taking the land for public use and must provide the owner with just compensation for the taking.

There are two types of government takings. The first form is simple: any time the government physically occupies any portion of privately owned land that is a taking. This includes both temporary and permanent occupation of property.

The second form of taking is a bit more complex-regulatory takings.  This is where the government passes a law–usually a law regulating the use of land–which removes all (and I do mean all) viable economic uses for a piece of property.  But it gets a little more complex from there with the courts looking to whether a regulation interferes with investor-backed expectations for use of the property, what reasonable uses existed for the property, and whether a law has greater effect on some property owners than on others.

Once a government action is established as a taking, they must justify it as taken for the public use.  A government official can’t take private property for their own private use, the taking must benefit the public and someway.  However, benefit the public in some way is essentially where the analysis ends.  From court to court exactly what makes a taking for public use may vary to some degree.

So we have a taking and it’s for the purpose of public use, now the government has to provide just compensation. Where the full property is taken the government must generally pay the fair market value of the property as if the owner were to sell their property to a purchaser at the time the condemnation was issued.  The same is true is a regulation removes all economically viable use from the land.  Where the government only takes part of a property, there a couple of approaches the courts will take.  It is most common however to look at the difference in the value of the property before and after the condemnation occurs and simply require the government to pay the difference.

What are Kind of Legal Actions Come Up When the Government Seizes Land?

So we’ve seen the way eminent domain seizures work, now what are your rights in the face of a condemnation action?  The first thing you’re almost certainly asking is the same thing those along the Texas border have been asking in the media–can I stop the government from taking my property?  Unfortunately, this is a particularly challenging thing to do if the government can establish a public use for the property it is taking.  You are basically required to prove that your losses from the taking would be greater than the overall benefit to society created by the public use for which the land is being taken.  This is not only extremely hard and complicated to establish, it is also rarely the case.  Thus, while you can and should seek your day in court on the issue if you believe you are being treated unfairly, the government will usually get its way once it begins a condemnation proceeding.  However, where you do succeed the courts can grant an injunction preventing the government from taking your property.

The more common ways of challenging a condemnation proceeding strike at the basic requirements on the government to show that any given taking is constitutional–public use and just compensation.  A case attacking public use would essentially argue that the government has no good reason which benefits society behind their taking.  However, given the direction case law has gone in regards to what constitutes a public use, this is a hard point to succeed on barring clear abuse of the takings clause.  For example, despite the controversial nature of the wall Trump intends to build, it is very unlikely that any of the property owners along the border could challenge a taking on grounds that the wall has no public use–even if they personally opposed the idea of building a wall or wanted to bring evidence that the wall would not achieve its stated purpose.  The government can almost certainly establish that the wall has a reasonable public use of some sort–from security to immigration reform.

A few of the lawsuits from along the border of Texas deal with something very rarely seen in eminent domain proceedings–treaty rights.  A few property owners own property in the floodplains of the Rio Grande.  A treaty between the U.S. and Mexico forbids the building of any structures which could displace floodwaters into nearby communities.  One or two lawsuits have alleged that takings by the U.S. government to build a wall on this land would not satisfy public use requirements as they would violate this treaty.

Sometimes, the Best Answer is the Simple Answer

Perhaps the most common way to challenge a condemnation proceeding is to say that the government is not paying you enough–they haven’t provided you just compensation.  This is much easier to establish, simply show how much your property was worth and show that the government didn’t give you that much.  This is the path most of the lawsuits from property owners along the border have taken.  As you might imagine, many don’t consider $2.9K just compensation for over an acre of land.  The actual value of acreage in Texas varies substantially depending on where it is purchased.  However, in many places it can go for much more than the government has offered here.

While it is not particularly the case for those along the Texas border, there have been many situations where the government commits a taking but does not acknowledge that taking.  In this case, a property owner would need to bring a lawsuit against the government saying they have taken their property–a process known as an inverse condemnation proceeding.  This requires the person bringing the party bringing the lawsuit to establish that a taking has in fact occurred, and they have not been justly compensated.

The property owners along the Texas border, their property being condemned and purchased on the taxpayers’ dime, certainly have rights in the courts.  They can and should challenge any taking that does not appropriately compensate them.  However, it is unlikely that these property owners will be keeping their land.  It is much more likely that the costs of taking this land from these private owners will simply be another expense on the many billion-dollar pile that Trump’s wall is posed to cost.