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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.

Immigration: Understanding the United States’ New Policies

Under the Obama administration, enforcing immigration policies meant focusing on dangerous criminals and keeping families together, not a hard-lined approach that would deport every undocumented immigrant.  Times have changed, though, and Trump’s executive orders, titled Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States, changes the enforcement practices of our nations’ immigration laws.

Veiled Rule Really Includes All Undocumented Immigrants

immigrationAlthough Obama took a more progressive approach during his first term, deportations dropped during his second term and priority was given to dangerous criminals—not to those immigrants whose only violation was being in the country illegally.  In 2014, the Department of Homeland Security (DHS) created the Priority Enforcement Program, which focused on deporting undocumented immigrants that posed threats to public safety, national security, and border security.  This program within the DHS has now been terminated because under Trump’s executive order undocumented immigrants that:

  • have been convicted or charged of any criminal offense,
  • have committed a chargeable criminal offense,
  • have engaged in fraud (think visa 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 final order of removal, but have not complied with their legal obligation to depart the U.S., or
  • in the judgment of an immigration officer, otherwise pose a risk to public safety or national security are to be given priority for deportation.

Let’s be clear here.  The policy includes virtually every person in the country that is here illegally.  Under this new policy, any unauthorized immigrant that has committed a chargeable criminal offense is to be deported.  Crossing the border illegally is in and of itself a criminal offense, so all those campaign promises that he only wanted to deport criminals wasn’t entirely true.  The only other way an immigrant could be here illegally is by overstaying a visa.

Department of Homeland Security Memos Shifts Policies Further

Secretary for the Department of Homeland Security, John Kelly, released a set of implementation memos that give guidelines on how to enforce Trump’s policies under his executive orders.  According to the DHS, these memos are “designed to answer some frequently asked questions about how the Department will operationally implement the guidance provided by the president’s order”.

In short, the memos expedite deportation, tighten immigration laws for asylum seekers and unaccompanied minors entering the country, could send immigrants awaiting immigration proceedings in the United States back to Mexico, seek to publicize crimes by undocumented immigrants, build new detention facilities, strip immigrants of privacy protections, and enlist local police officers to enforce immigration policies.

Here’s a closer look at some of the changes.

  • Although the memos do list specifics about who is to be given priority for deportation in accordance with Trump’s executive order, the memos direct that the DHS will no longer exempt classes or categories of removable aliens. This is contrary to the policies under Obama, who worked to keep illegal immigrants with strong ties to their communities and this country, including those with citizen children, here in the United States.
  • Establishes the Victims of Immigration Crime Engagement (VOICE) Office. This one allows the VOICE office to release information about the offender to victims and their families.  Further, it terminates any and all resources used to advocate on behalf of illegal aliens; all resources are reallocated to the VOICE office.
  • Directs establishment of regulations to collect civil fines and penalties from illegal aliens.
  • Strips Privacy Act protections from any person that is not a U.S. citizen or lawful permanent resident.
  • Expanded expedited removal processes for undocumented immigrants that haven’t been here long. Immigration law says undocumented adults captured within 2 years of entering the U.S. can be removed without a hearing.  In the past, DHS policy limited this policy to those captured within 14 days of entering the country, but, even though the memo doesn’t give a specific change of time frame, this will likely no longer be tolerated based on the essence of the memos.
  • Criminalizes those who help unaccompanied children. Any individual who “facilitates the illegal smuggling or trafficking of an alien child into the United States” is subject to deportation and/or prosecution.
  • For those that entered the country through a neighboring territory, the memos authorize their return to that territory where they will wait for the outcome of their removal proceedings. This is true even if that territory isn’t their country of origin.

Although some of the information contained in the memos references already existing laws, the message is clear—violating immigration laws will no longer be tolerated.  Under these policies, the government no long considers violating immigration laws a secondary offense and the memos direct Immigration and Customs Enforcement to hire 10,000 additional officers and agents to implement these new policy changes.

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Travel Ban 2.0: Trump’s Second Attempt to Ban Immigration

The initial executive order out of President Trump’s White House regarding limiting immigration to the U.S, widely known as the “Muslim Ban,” was an unmitigated disaster.  Rolled out overnight, the order caused chaos across the country as agencies tried to put the order’s new rule into force.  It also drew immediate legal challenges from numerous states, all challenging the order-in whole or in part-as unconstitutional.  Several of these legal challenges succeeded; most notably a challenge out of the state of Washington which culminated in a preliminary injunction–an order preventing the “Muslim Ban” from taking effect whatsoever until the Washington case is fully litigated.  In the face of court order saying that the order was most likely unconstitutional, and the fallout of the original implementation of the order, President Trump did something we perhaps should all have expected-he signed and put into force a nearly identical order.  On Monday, March 6th, President Trump issued an executive order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States.”

In the past we’ve already covered the effects of the ban, the constitutional problems intrinsic to the ban, the many lawsuits brought after the ban was passed, and the injunction which ultimately put an end to it.  So with that in mind, you’ve got to know that we’ve got some thoughts about Trump’s second iteration of the ban.  So without further ado, lets dive into it–the changes between this new order and the original order courts ruled to be likely unconstitutional, the chances that this order will stand, and the legal challenges the order already faces.

How is This Order Different From the One Courts Already Stopped?

travel banThe short answer, it isn’t very different.  The order still targets specific Muslim majority countries, barring immigration from those countries for 90 days. It also still cuts the number of refugees allowed to be admitted to the U.S. per year by more than half.  However, with this being said, there are some important changes in effect from the initial order–mostly designed to make the order appear more kosher to the courts.

The new version of the order has removed the indefinite ban on the U.S. taking in any refugees out of Syria.  Instead, the order includes a 120-day freeze on taking in those refugees.  However, the order also includes the ability to renew the ban for a longer period of time upon review.  It also doesn’t include any limits on the number of times the ban can be renewed, so in effect the ban could very well be indefinite.

The order also has removed Iraq from the original list of countries slapped with a 90-day immigration ban, leaving only the other 6 original countries.  The reason for this change is a request from the Defense Secretary, fearing that such a ban would injure the U.S.’ ongoing efforts to fight ISIS in Iraq.  The order doesn’t take a ban on immigration out of Iraq off the table though, threatening to put the country back on the list if Iraq’s  leaders don’t increase their amount of intelligence they share with the U.S.

The new crack at the ban also has eliminated language specifically offering preferential immigration status to “persecuted religious minorities.”  This was one of the most widely criticized elements of the order, both by the public and in legal challenges to the order.  The thought being that the provision was designed to favor other religious groups over Muslims.

As opposed to the frenetic same-day introduction of the last immigration ban, the Trump administration has allowed for a slower implementation and time to prepare for implementation.  The ban only goes into effect ten days after its signing–March 16.

The order has a number of other changes.  The order includes specific details about why the six countries hit with the 90-day ban were selected; presumably to strengthen the order against the many legal challenges saying the order was targeting countries based on their Muslim majority.  The order focuses its details sections on the statistics regarding terrorism for each country selected.  The order also no longer affects current visa holders or refugees already granted asylum.

So you’ve likely noticed that these changes are, intentionally, targeted at trying to make the order stand up to the scrutiny of the courts.  In order to determine whether it has succeeded, let’s look at why the last order got hit with an injunction.

Why Was the Last Order Blocked?

Since we’ve covered this issue in previous articles, we’ll keep the discussion of why the last order couldn’t pass constitutional muster on the short side.

A preliminary injunction is granted where the party seeking it can show that they are likely to succeed in their arguments, there would be irreparable harm if the thing they seek to stop isn’t stopped immediately, there isn’t a public interest against granting an injunction, and the party seeking the injunction will be more harmed by what they seek to stop than the party you’re bringing the injunction against will be harmed by the injunction itself.  In the case brought by Washington, the court ruled that they were likely to succeed in their arguments that the immigration ban unconstitutionally singled out targets based on religion or national origin–in other words the order discriminated likely discriminated against protected classes.

Will the New Order Stand Up in Court?

The White House certainly believes its changes, although extremely minor in practice, are enough to allow the order to pass muster.  In fact, the Department of Justice has already filed briefs saying that the revisions have rendered all the legal cases regarding the first order moot.  In other words, the injunction has no further effect and the new order must be challenged or not on its own merits.

However, as of March 9th, Washington state lawyers have taken the stance that the changes are so minor as to amount to essentially putting lipstick on a pig.  They argue that the prejudicial purpose behind the order remains and its most offensive portions are essentially untouched.  For this reason, they’ve asked the federal judge who placed the preliminary injunction on the original order to expand his order to cover the “Muslim Ban 2.0.”  A similar attempt to challenge the ban has been brought by Minnesota and Hawaii.  The Attorney Generals for Massachusetts, New York, and Oregon have all made it known that they intend to join in on the challenges brought by Hawaii, Minnesota and Washington.

So will the new and improved “Muslim Ban” stand up?  We’ll have to see how the courts rule.  However, the order has changed very little in actual effect.  It still targets specific nationalities in almost exactly the same manner and it still exclusively targets Muslim majority countries.  The same reasons it was likely unconstitutional before are all still there.  Even if the order itself has removed some of the language making obvious attempts to target Muslims and provided an alternate explanation, Trump’s own statements on immigration and the previous order still can be used as evidence of the discriminatory purpose to the new order.

Nothing in law is ever truly certain, but the definition of insanity is doing the same thing and expecting different results.  The new ban is very similar to the previous order, it seems unlikely that it will pass constitutional muster with such minimal changes.

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Immigration: Why Did Border Patrol Ask for ID on a Domestic Flight?

A recent domestic flight was boarded by immigration officers who asked to see passengers’ identification. The flight from San Francisco to New York was met by two U.S. Customs and Border Protection (“CBP”) agents who were conducting a search at the request of Immigration and Customs Enforcement. According to CBP, an immigrant who had legal immigration documents received a deportation order after multiple criminal convictions for domestic assault, driving while impaired, and violating a protective order. The agents were in search of this unidentified immigrant, but did not find the person on the flight.

Was this Action Typical?

According to the New York Civil Liberties Union, law enforcement officials sometimes board airplanes to apprehend a suspect or fugitive. They occasionally may pull someone off a flight or officers will enter a plane to make an arrest. However, it is highly unusual for officials to do what they did here – wait outside an arriving plane to ask for identification from each passenger.

ImmigrationWhy Did CBP Ask Passengers for ID?

During campaign season, President Trump promised his supporters he would deport “bad dudes” or “bad hombres”, a term he coined for immigrants convicted of crimes. It appears he’s trying to make good on his promise.

Asking for identification from each passenger was without a doubt atypical for CBP and certainly not protocol. Due to this unusual action by CBP, people are starting to question whether it was connected to President Trump’s new immigration guidelines. Under the Obama administration, U.S. Immigration and Customs Enforcement (“ICE”) prioritized finding and deporting undocumented immigrants with prior criminal convictions. The Trump administration has taken this one step further. Under the Trump administration, the Department of Homeland Security issued guidelines to ICE and CBP empowering federal agents to detain, target and deport any immigrant currently in the United States without documentation. This includes immigrants who have no past criminal convictions.

What are the Immigration Laws in the U.S.?

The Immigration and Naturalization Act (“INA”) is the body of law that governs current immigration policy.

There are essentially three ways to legally immigrate to the United States. First, an immediate family relative can sponsor anyone seeking immigration visas so long as the immigrant is at least 21 years old and can demonstrate either the sponsor or the immigrant has the financial means to support him or herself in the United States. Second, individuals who leave their home country to avoid persecution can obtain refugee status through the U.S. Embassy, thereby obtaining refugee and asylum status. Third, lawful permanent residency allows for a foreign national to work and live lawfully in the U.S. This is known as obtaining an employment or work visa.

Are Immigrants a Problem in the U.S.?

Recent statistics show that there are a record 61 million immigrants and their American-born children who live in the United States. Given the limited ability for most immigrants to immigrate to America legally, there are an estimated 15.7 million who live here illegally. These people are known as undocumented (or illegal) immigrants, and they are foreign people who have no legal right to remain in the U.S.

As with any group of people, some immigrants are criminals, but it is dangerous to assume all immigrants are “bad dudes.” Not only is it an unsubstantiated stereotype, it also unfairly categorizes an entire group of people based purely on their immigration status. The fact that this stereotype is perpetuated by the President of the United States, the most powerful position in the world, encourages narrow-minded thinking.

President Trump’s new stricter guidelines that encourage targeting, detaining and deporting immigrants are consistent with his campaign and presidency which seem to focus on dividing our nation instead of uniting it.

Immigration Ban 101: Understanding Trump’s Executive Order

Trump’s executive order on immigration has created mass confusion, waves of legal battles, and incited outrage across the nation.  In the chaos that ensued after the executive order dropped, legal professionals began filing lawsuits that eventually led to a temporary suspension of the ban. Although the initial decision by the Ninth Circuit Court of Appeals is foretelling the executive order would ultimately be held unconstitutional, let’s take a closer look at the immigration policies Trump wants to implement.

Immigration Ban

Who’s Covered?

  • The order suspended new refugee admissions for 120 days, which suggests new vetting procedures were on the way. Although Trump says he wants a heavier regulated process, the U.S. refugee admissions system is already strict.  Refugees typically apply through the Office of the United Nations High Commissioner for Refugees (UNHCR), which then goes through several databases, including the State Department, the National Counterterrorism Center/FBI’s Terrorist Screening Center, the Federal Bureau of Investigation, Interpol, Drug Enforcement Administration, and the Department of Defense.  Currently, it can take anywhere from 18 to 24 months for the vetting process.
  • The order suspended the Syrian refugee system Last year, Trump’s Vice President, Mike Pence, tried to stop resettlement of Syrian refuges into the State of Indiana, but was blocked by an appeals court who ruled his attempt as “nightmare speculation”.  The order also requests review of a state’s right to accept or deny refugees for resettlement in their state, which is no doubt a nod to Pence.
  • The order bans entry into the U.S. from seven majority-Muslim countries for 90 days. Those countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, but more countries could be added at any point under the discretion of the Department of Homeland Security.  The ban was unclear as to whether the restriction included legal U.S. residents, which created chaos for individuals that were traveling when the order hit.  The Department of Homeland Security later clarified that some legal residents that didn’t pose a legal threat would be allowed in.  I’m not sure you can call that much of a clarification, though, as it’s still vague.
  • The ban included denial of entry of dual-nationals. This means even if you hold a passport from another country, but also one from one of the 7 above-listed countries, you could be banned from entering the U.S.
  • Prioritize refugees based on religion. While Trump claims it isn’t a ban on Muslims, there is a small provision within the executive order that says priority should be given to those of a minority religion, implying those religions other than Muslim will be given preference.
  • Lower the total number of refugees to be accepted from any country in 2017. This isn’t a new concept, as each year the president determines how many refugees will be admitted into the U.S., but the number is down from the previous 110,000.  While the U.S. has traditionally been one of the largest refugee resettlement countries in the world, this could easily change as Trump lowered the number to 50,000.

What Can We Expect to See Next?

While the current executive order was blocked by a federal court, this could all be a moot point as Trump has already announced his plans to rescind the current order and issue a new one that’s tailored around the Ninth Circuit Court of Appeal’s decision.  Sounds like a façade, only to appease the constitutional issues raised by ban, as Trump has made his intentions clear about who he wants to allow in the country.

One of the main arguments against the ban is that it’s unconstitutionally discriminatory based on religion.  Even if a new executive order is issued, it doesn’t seem likely Trump can avoid another lawsuit for discrimination because who he wants to prohibit from entering the country is entirely grounded on a person’s religion and nationality.  At this rate, we’re likely to see a constant stream of legal battles over the next 4 years.

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