August 28, 2018: Trump and the ‘Emoluments Clause’
The ascension to the US Presidency of an apparently unprincipled businessman causes all manner of conflicts of interest, both real and apparent. One such opportunity for Mr. Trump to personally profit from his public office has been particularly open and obvious; his name appears on an opulent hotel building in the District of Columbia that once housed the Old Post Office and has been leased by the US Government to Trump's business. The Secret Service, charged with protecting the president, also pays the Trump organisation a massive monthly rent for space in Trump Tower. Never before had an administration had its hands so conspicuously and simultaneously dipped in the worlds of business and government.
The discussion about the propriety of this business/government interrelationship has brought to new prominence two previously obscure anti-corruption provisions of the Constitution of the United States: the so-called ‘emoluments’ clauses. The so-called Foreign Emoluments Clause in Article 1 states that ‘no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind, from any King, Prince or foreign State.’ The Domestic Emoluments Clause is in Article II and reads ‘The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.’
In 2017 the District of Columbia and the State of Maryland filed suit in federal court against Donald J. Trump in his individual and government capacities. In an opinion denying Trump’s motion to dismiss the lawsuit the trial court judge summarized the claims as follows:
Plaintiffs [the District of Columbia and the State of Maryland] have alleged that the violations consist of the President's actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments (or any of their instrumentalities) in connection with his and the Trump Organization's ownership of Trump International Hotel in Washington, D.C. They seek declaratory relief establishing their rights vis-a-vis the President's actions as well as injunctive relief prohibiting him from further violating the Clauses."
A full copy of the Opinion can be found here. In factual support of their claims, the plaintiffs provided information concerning the use (and thus profit to Trump) of the Trump Hotel by foreign heads of states, the governor of Vermont and other public figures.
This case is apparently the first time the word ‘emoluments’ had ever been construed—that is, defined and applied in a controversy—with respect to a sitting president. The judge found that ‘emoluments’ was not limited to out-and-out bribes but could cover any business transactions with foreign governments where Trump derived a ‘profit, gain or advantage.’ The parties were ordered to file a ‘Joint Recommendation’ on how to proceed, and the defendant was given time to appeal the ruling before so doing.
One reason this civil action is important is that it gives the opportunity for further discovery into the business dealings of the current president. Financial documentation that has not emerged to date may well be relevant to the proceedings in this Maryland courtroom as well as proceedings brought by the Special Prosecutor and even possible impeachment actions. The broader importance of this decision is that once again, a court has found that the president is not above the law. He, too, must answer to the Constitution.
August 7, 2018: Lessons from a book-burning
The German writer Erich Kästner (1899-1974) deserves to be better known in the English-speaking world. He authored a number of children’s books (perhaps the most famous is Emil and the detectives) but also wrote poetry, essays and novels that brought him into the crosshairs of the Nazis. In the first of the major book-burnings, in Berlin on May 10, 1933, Kästner was one of the few authors who turned up in person, as part of the crowd of 40,000 people, to watch his books being burnt in the pyre of 20,000 volumes. He remained in Germany throughout the war, managing to avoid incarceration although he was forbidden to publish.
On the occasion of the 25th anniversary of the Berlin burning Erich Kästner gave a speech to the Hamburg chapter of the international writers’ group PEN. What follows is an extract from the end of that speech, given on May 10, 1958, in my own feeble translation. It not only speaks of the past, it warns us about the future.
No one knows, before the determining moment comes, whether he is made of the stuff of heroes. No people and no elite may fold their hands in their laps and hope that, in the worst case, in the very worst case, enough heroes will arise.
And even if they were to appear in the thousands, these individual heroes—they would come too late. In the modern undemocratic state the hero is an anachronism. The hero without a microphone and a newspaper behind him is a tragic buffoon. His humane greatness, as unquestionable as it may be, bears no political fruit. He becomes a martyr. The official cause of death is pneumonia. He becomes a nameless death notice.
The events of 1933 to 1945 should have been fought in 1928 at the latest. After that, it was too late. One dare not wait until the fight for freedom is labelled treason. One dare not wait until the snowball turns into an avalanche. One must crush the rolling snowball; no one will be able to stop the avalanche. The avalanche will stop only when it has buried everything in its path.
That is the moral, that is the lesson of what happened to us in 1933. That is the conclusion that we must draw from our experiences, and that is the conclusion of my speech. Would-be dictatorships can be fought only before they take power. It is a matter of scheduling, not of heroism. As Ovid wrote his Principiis obsta, when he called out ‘Fight the beginning!’ he was thinking of happier topics. And as he continued ‘Sero medicina paratur!’, meaning ‘Later on, no salves will help,’ he was not thinking of politics and dictators. Nevertheless his warning applies in every case and in ours. Nevertheless it applies here and now. Nevertheless it applies always and everywhere.
July 24, 2018: The importance of being diligent
We continue with Part III of a series of blogs on recent decisions by the Supreme Court of the United States on the issue of voting rights. Our author once again is Mari C. Bush, a trial lawyer and blogger in Boulder, Colorado.
In the third of a trio of voting rights cases the Supreme Court dealt in Benisek et al v. Linda H. Lamone, Administrator, Maryland State Board of Elections et al., (June 18, 2018), with claims by a group of Republican voters in Maryland. The GOP voters asserted that their Congressional District was "gerrymandered" in 2011. This group sought a preliminary injunction six years later, alleging that injunctive relief was needed to stop elections from going forward under the 2011 plan.
The Benisek decision was published on the same day as Gill v. Whitford; for a summary of that decision see last week’s blog. The facts and procedural posture of Benisek made it easy for the Supreme Court to avoid dealing with the substance of gerrymandering's effect on voters' rights.
In contrast to many opinions from the Supreme Court, Benisek is a "per curiam" decision and also relatively short in length. "Per curiam" is legal Latin for a unanimous decision that comes down from the entire court. As such, it does offer a very broad framework for potential future litigants seeking review of preliminary injunction decisions---in and out of the voting rights arena.
The Supreme Court recognized the logical inconsistency in bringing an action for injunctive relief in 2017 to challenge a redistricting plan that had been drawn up nearly six years previously. The very basis of seeking a preliminary injunction is to avoid the claimed "manifest and irreparable injury" that would result from some event or action taking place. The fact that the appellants waited so long to bring their claims undermined the urgency of their request and the necessary showing of diligence. Moreover, the specific relief sought by the appellants involved a very short turnaround time frame by the court. Another key element is whether the appellants established a likelihood of success on the merits of their underlying claim of wrongful gerrymandering.
Preliminary injunctions are not granted as a matter of course. The trial court—here, the United States District Court for the District of Maryland—takes into account the specific factual and legal underpinnings of a controversy when deciding whether to "enjoin" the identified actions. Only where the District Court's decision is shown to be an abuse of discretion will the Supreme Court overturn the lower court's ruling on a preliminary injunction.
The per curiam opinion of the Supreme Court held that the group of Republican voters failed to meet the requisite legal showing to warrant a preliminary injunction. The District Court's decision was affirmed.
The Benisek decision also mentioned the need to give "a due regard for the public interest in orderly elections supported by the District Court's discretionary decision to deny a preliminary injunction and to stay the proceedings. " As additional voting rights cases are before the Supreme Court—or the lower courts, for that matter—attention should be paid to how this "public interest in orderly elections" is further defined.
July 17, 2018: Gerrymanders, a protected species
We continue with Part II of a series of blogs on recent decisions by the Supreme Court of the United States. Our author once again is Mari C. Bush, a trial lawyer and blogger in Boulder, Colorado.
To the extent that part of the US political system is a swamp, one of its nastiest and longest-living inhabitants is the gerrymander. The gerrymander's existence was first noted in an 1812 edition of "The Boston Gazette." At that time Massachusetts had a governor named Elbridge Gerry. The shape of a newly drawn state senate district--- a district that would strongly favor Governor Gerry's party--- resembled an amphibian. Hence, this political newt-like creature was named a "gerry mander"-- and over time the two words evolved into a singular term: gerrymander.
The gerrymander has lurked within and feasted upon American politics in the two centuries since it was first sighted. Its anti-democratic characteristics continue to "shape" elections to this day. Over the years, the Supreme Court of the United States has opined about this creature, but the Court's rulings have never resulted in the extinction of the gerrymander. Rather, some analysts believe the gerrymander has in essence achieved protected status in the United States.
The most recent "gerrymander" opinions were released in June 2018. Because of the upcoming elections and census, as well as consideration of a nominee to the Supreme Court, these voting rights issues are particularly pertinent.
The opinions concerned voting districts in Wisconsin and Maryland. In both instances, SCOTUS majorities avoided ruling on the substantive issue of fairly-drawn voting districts, relying on procedural technicalities to reach their decisions. This blog will focus on the Wisconsin decision; the Maryland decision will be summarized in a forthcoming entry.
The Wisconsin dispute, Gill et al v. Whitford,( June 18, 2018), stemmed from claims of unfair "cracking and packing" of single-member state legislative districts drawn by the Wisconsin Legislature following the 2010 census. This districting plan is known as Act 430. The Gill plaintiffs claimed that Act 430 rearranged the districts, spreading Democrats into districts where they would never be able to achieve a majority; and also "packing" Democrats into certain districts that were already heavily Democratic. The effect of Act 430 made Democrats less competitive overall, resulting in vote dilution for that party.
The Court majority approached the case on the procedural issue of "standing"--whether the plaintiffs have the legal right to pursue these claims in federal court. The Court determined that the particular plaintiffs did not have legal standing because voting is "individual and personal in nature" so the challenging voters must be able to demonstrate that they suffered a legal injury entitling them to proceed with their claims in federal court. In essence, the Court ruled that the plaintiffs did not put forward the parties, nor the legal and factual basis to warrant the attention of the federal courts---the plaintiffs failed to establish the facts and legal arguments to prove they had "standing" in the federal courts.
Interestingly, Chief Justice Roberts authored the Gill opinion, but was joined by Justices Kennedy, Ginsburg, Breyer, Alito, Kagan and Sotomayor. Justices Thomas and Gorsuch joined in parts of the majority opinion. The most instructive part of Gill, however, is the detailed concurring opinion penned by Justice Kagan, and joined by Justices Ginsburg, Breyer and Sotomayor. In the concurring opinion Justice Kagan explained that she agreed with the majority opinion. She continued, however, to set forth a road map for these and future plaintiffs who contend their state's districts result in vote dilution. Justice Kagan writes:
Everything said so far relates only to suits alleging that partisan gerrymander dilutes individual votes. That is the way the Court sees this litigation. [citation to record omitted]. And as I'll discuss, that is the most reasonable view. [citation to record omitted]. But partisan gerrymanders inflict other kinds of constitutional harm as well. Among those injuries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations and some of their members. The plaintiffs here have sometimes pointed to that kind of harm. To the extent they meant to do so, and choose to do so on remand, their associational claim would occasion a different standing inquiry than the one in the Court's opinion." (emphasis added).
The concurring opinion describes how gerrymandered districts can be be challenged on First Amendment grounds to overcome "legal standing" arguments. Justice Kagan also chronicled the beginnings and development of the term "gerrymander." Further, she explained the troubling impact of technology in crafting legislative districts:
And our history offers little comfort. Yes, partisan gerrymandering goes back to the Republic's earliest days; and yes, American democracy has survived. But technology makes today's gerrymandering altogether different from the crude linedrawing of the past. New redistricting software enables pinpoint precision in designing districts. With such tools, mapmakers can capture every last bit of partisan advantage, while still meeting traditional districting guidelines (compactness, contiguity, and the like). [citation to record omitted]. Gerrymanders have thus become ever more extreme and durable, insulating office holders against all but the most titanic shifts in the political tides. The 2010 redistricting cycle produced some of the worse partisan gerrymanders on record. [citation omitted] The technology will only get better, so the 2020 cycle will only get worse.
Justice Kagan's concurring opinion is a great example of how Supreme Court decision-making can reference and take into account the historical and practical context of a legal issue. The impact of technology, for example, would not typically find its way into a constitutional opinion penned by a strict adherent to "strict constructionism." The Founding Fathers did not discuss how computer software can undermine the democratic process.
The conclusion of the concurring opinion articulates the role of the Supreme Court in today's world:
Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that 'a denial of constitutionally protected rights demand judicial protection.' [citation omitted] Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians' incentives conflict with voters' interests, leaving citizens without any political remedy for their constitutional harms. Of course their dire need provides no warrant for courts to disregard Article III [the Constitutional section dealing with the establishment of courts]. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue. Courts---and in particular this Court---will again be called upon to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.
July 10, 2018: The US Supreme Court and the right to vote
Today we have a guest blogger, the award-winning American trial lawyer Mari C. Bush, whose contributions last graced this page in August 2017. Ms. Bush practices in the area of civil litigation, with particular expertise in representing individuals in complex personal injury cases; she also serves as a mediator and arbitrator. Ms. Bush will be joining us periodically with thoughts and updates on US law-related matters. She can be reached at email@example.com
Last month the Supreme Court of the United States (SCOTUS) issued opinions in several major “voting rights” cases. While it is impossible to distill these decisions in a few paragraphs, hopefully this brief summary (and summaries to come) will provide a useful introduction to this important area of the law.
As the opinions detail, voting in the United States is subject to both federal law (law governing all of the states) and state and local laws. With the retirement of Justice Kennedy, the upcoming off-year elections, and ongoing planning for the census, the Supreme Court’s views concerning gerrymandering, state and local voting requirements and what the “right to vote” means are all the more consequential.
On June 11, 2018, the Court issued its 5-4 ruling in Husted v. Philip Randolph Institute et al.For ease of reference in the context of other “voting” cases this term, Husted is the “Ohio” case about the state’s law that purged voting lists under certain circumstances. The Ohio election law cancelled the voter registration of any voter who failed to vote in two elections and didn’t return a postcard to election officials.
The Ohio practice came into sharp focus when Mr. Larry Harmon, a veteran of the United States Navy, was not able to vote at his local polling place in 2015. Although Mr. Harmon had lived at the same address for over 16 years, he did not vote in two elections (2009 and 2010). Ohio officials claimed that Mr. Harmon failed to return the postcard notices needed to maintain his voter eligibility; Mr. Harmon indicated he did not receive the notices.
The case analyzed whether the Ohio practice and actions were consistent with the National Voter Registration Act (NVRA) (1993) and the Help America Vote Act (HAVA) (2002). These federal statutes, taken together, were intended to (1) make voter registration easier; (2) keep voter registration lists current and accurate; and (3) direct states to maintain a process to remove ineligible voters from polling lists.
The majority decision, authored by Justice Alito and joined by the conservative members of SCOTUS--- including the now-retiring Justice Kennedy--- upheld the Ohio practice that struck Mr. Harmon off the list of eligible voters. Their opinion focuses on statutory construction, reconciling the Ohio election laws with the NVRA and HAVA.
A likely outcome of Husted is that other states may adopt the Ohio approach in an effort to reduce the number of eligible voters. In a likely portent of other voting rights cases and related political debate, there were two dissenting opinions. Justice Breyer authored a dissent in which he was joined by Justices Sotomayor, Ginsberg and Kagan joined. Interestingly, Justice Sotomayor filed her own dissenting opinion, as well. Justice Sotomayor’s dissent sets forth an extensive historical and policy context for the NVRA, emphasizing the anti-purging basis for the federal statute. The Ohio practice undermines the NVRA because, in Justice Sotomayor’s view, it serves as a purging mechanism that disproportionately impacts the poor, minorities and the elderly. A key element of the dissent by Justice Sotomayor is the reiteration of case law support for the concept of a “fundamental right to vote.” As stated in her dissenting opinion, Justice Sotomayor writes:
In concluding that the [Ohio practice] does not violate the NVRA, the majority does more that just misconstrue the statutory text. It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the
very disenfranchisement of minority and low-income voters that Congress
set out to eradicate. States, though, need not choose to be so unwise. Our
democracy rests on the ability of all individuals, regardless of race, income
or status, to exercise their right to vote.
What the “right to vote” means in the United States today was further addressed in other recent voting rights decisions (to be discussed in the near future) and will form part of the political discussion for years to come. As U.S. Senator Elizabeth Warren recently commented, what other fundamental rights have to be exercised every two years or they are lost? If a citizen does not assemble or engage in “free speech” or “religion” every two years, their rights in these categories are not lost. Why then should the right to vote require periodic exercise to exist?
July 3, 2018: When enough is enough
My recent holiday in my US home town of Tucson, Arizona coincided with a national day of protest against the US Government’s cynical policy of discouraging unauthorised entry to the US by separating family members who cross the border together. So on Saturday June 30 I smeared on sunscreen, took my hat against the expected temperature of nearly 40 degrees, and went out to protest. Tucson being a smallish town of only 400,000 or so, we did not have the turnout of a New York or Washington DC. About 1200 of us showed up in a downtown park, under the banner of ‘Families Belong Together,’ to crowd into whatever shade we could find, listen to speakers and take comfort in the presence of like-minded people.
There are some modest signs of pushback at least in Tucson against the family separation policy. Some federal judges in the District of Arizona have been explicitly recommending in their disposition of cases that defendants be reunited with their families. A prominent local retired state court judge has called on his federal colleagues to rebel against the unconstitutional deprivation of due process rights permitted (even required) by ‘Operation Streamline.’ Because the ‘zero tolerance’ policy dictates that all illegal entrants be criminally charged the federal dockets in border states such as Arizona are groaning under the numbers of persons who need to be tried, the federal Department of Justice has created the Streamline process, is to have mass hearings, entries of pleas, and sentencing so that 50 to 70 people can be dealt with in a single afternoon.
Back at the rally, while we waited for the speakers we had plenty of time to evaluate the various signs carried by participants. Some notable ones:
- ‘Resist like it’s 1933’
- ‘Jesus doesn’t want children in cages’
- ‘No human being is illegal’ (this in English and Spanish)
- ‘#Resisttrump’ (short and to the point)
- (Superimposed on a silhouette of Trump) ‘Does this ass make my country look small?’
- And my favourite: ‘When they came for the children I said “Hell no.’’’
When Trump comes to the UK on July 13 this middle-aged lawyer will join the ‘Together Against Trump’ march. Thanks to Tucson I have my placard all ready.
May 8, 2018: The caravan
Last week a caravan of migrants, primarily from Central America, arrived at the US-Mexico border in Tijuana. This was not the first time that a group of people had banded together to make the dangerous journey northward through Mexico, but it became famous because the President of the United States started Tweeting about it. (I’m not going to put in links to those Tweets; if our readers want to search out the ravings of a barely literate ignoramus they will easily find them.) The caravan was presented as a danger to America and Attorney General Jeff(erson) Sessions—found by the US Senate in 1986 to be too racist to serve as a federal judge—ordered a surge of federal prosecutors to the border to meet them. Presumably to meet them and prosecute any who were caught going across the border without inspection. So far seven of their number have been caught and criminally charged with illegal entry.
Other migrants will try their luck at applying for asylum at the US border rather than trying to cross the border illicitly. In order to be eligible for asylum the applicants must, as a first step, demonstrate in an interview with an officer from the US Citizenship and Immigration Services that they have a credible fear of persecution based upon their membership or perceived membership in a social group. If they convince the USCIS officer they may be admitted to the US and be given a chance to apply for permanent residence in the country before an immigration law judge.
Much of the argument about Central American asylum seekers is centred on the claim that international asylum law requires them to apply for asylum not in the country they would like to live in but in the first safe country they reach. The President and his gang of advisers say that the Central Americans should apply for asylum in Mexico—overlooking through willful blindness at best the enormous danger faced by Central Americans in Mexico. The extent to which Central American migrants are preyed upon by Mexican police, army and criminals is clearly documented for those who want to see. One could start with widely-available books like Óscar Martínez’s The Beast and English language newspaper articles about how American pressure on Mexico to reduce the number of Central Americans reaching the US border has increased Mexican police brutality toward the migrants. A safe country indeed.
March 27, 2018: Play ball!
Three great religions will be celebrating holidays this week. Passover begins at sundown on Friday March 30, and Easter falls on the 1st of April this year. But before either of those holidays is a uniquely American* holy day--the opening on Thursday March 29 of the 2018 Major League Baseball season.
This is the earliest ever MLB opening and boy, do we need it. The rest of the news from America is nothing but Trump, mass shootings, and football-induced traumatic brain injury. It is time for the pastoral delights of baseball. And to those who claim, oh so wrongly, that (American) football is the national game, I say: Where is the football equivalent of ‘Casey at the Bat’? Or of Roger Kahn’s The Boys of Summer? Or The Art of Fielding or the nonfiction Moneyball or Bang the Drum Slowly, made into a beautifully heart-breaking film starring the young Robert de Niro? (‘From here on in, I rag nobody.’)
Baseball has not made serious inroads into life in Britain, at least outside the US expatriate community. However, there are now plans afoot to stage two games in June 2019 in London’s West Ham stadium, between the New York Yankees and the Boston Red Sox [sic]. Anything that could expand the population of baseball fans is good with this writer. But as for the 2018 season, well, I have seen the future, and the future is Dodger blue.
*Yes, I know that Toronto has an MLB team but somehow I can’t imagine Canadians getting too worked up about it now, during hockey season.
January 23, 2018: All the nicest people
Some weeks it seems like everyone who comes into my office has a criminal record. These people are rightly concerned about the effect of a caution, conviction, warning or even an arrest upon their ability to travel to the United States. This is not a problem restricted to what Rumpole of the Bailey affectionately called ‘the criminal classes’; official statistics show that 10 million British residents have a criminal record, with 1.69 million records being added every year. (Note, these are not all individuals new to the criminal justice system, neither are these 1.69 million discrete individuals or we would very quickly all have a criminal record.)
What accounts for this rate of criminality in the British population? Are we uniquely violent or vile, lairy or larcenous? One UK think tank has analysed the statistics from the UN-affiliated European Institute for Crime Prevention and Control and calls us ‘a high-crime society with a particular propensity to violence short of intentional homicide.’ (In the most recent statistics, analysed in 2012, Scotland was first in the world for assaults resulting in serious injury, with England in third place.) Certainly among those men who come to our office for advice about the US immigration implications of a criminal matter we find that the most frequently-reported conviction is some form of assault; for women it is more typically shoplifting.
The good news for these good people—and which of us could claim to be completely without sin?—is that most criminal convictions do not prevent travel to the United States. Even where the law violated has involved one of the unholy duo of drugs or ‘moral turpitude,’ travel with or without the need for a waiver of ineligibility/inadmissibility is often possible. For more on this subject please see our website articles Washington, We Have a Problem! Ineligibilities and Waivers and A Crime Involving Moral Turpitude! What in the World is That? or find your way to the office of a US immigration lawyer. Chances are, she will have dealt with your problem before
December 5, 2017: First they came…
A recent article in The Daily Telegraph reported on the fears of British citizens living in the US, that their visas could be subject to new scrutiny when the time comes for them to be renewed. This was a bit of spin placed upon what might look, at first glance, to be an anodyne bureaucratic policy change.
On October 23, 2017, the US Citizenship and Immigration Services announced that in the context of all nonimmigrant classification renewals/extensions, adjudicators would no longer be allowed to give deference to the previous approval. Rather, every criterion of every regulation must again be established in every extension petition—the continued existence in the UK of a multinational company that sponsored someone for an L-1 visa, for example, or the fact that graphic design is still a ‘specialty occupation’ so as to qualify for an extension of the H-1B classification granted three years ago.
The subtext of the article was that the recent US immigration crackdown is not limited to Latin Americans and Muslims, that it threatens ‘professionals from across the world who entered the country legally.’ However infelicitous its phrasing, the article should serve as a wake-up call to any remaining British citizens who still believe that the ‘special relationship’ offers them protection against the harsh imposition of US immigration law. In this context it would be wise to remember Pastor Martin Niemöller’s warning about the dangers of political passivity.
October 31, 2017: For adjustment of status applicants, no treats, just tricks
For many years the US Citizenship and Immigration Services (USCIS) and its predecessor agency did not routinely interview people who were applying for adjustment of status based upon employment. (Adjustment of status is the process by which a person who is already in the US on a visa is ‘adjusted’ from that visa status to the status of a lawful permanent resident, thereby becoming a ‘green card’ holder.) There was, and still is, a paper-based petition adjudication (the I-140) followed by a review of the application for adjustment (the I-485). Interviews were required only on a random, spot-check basis, in what amounted to between 5 and 10 percent of all cases.
On October 1 this changed. A presidential Executive Order entitled ‘Protecting the Nation Against Foreign Terrorist Entry into the United States’ was issued on March 6, accompanied by a memorandum on immigration. In the memorandum, which was directed to the Attorney General and the Secretaries of State and of Homeland Security, Executive Branch agencies were ordered ‘to rigorously enforce all existing grounds of inadmissibility and to ensure subsequent compliance with related laws after admission.’ Homeland Security, of which the USCIS is a part, has decided that one way it will choose to ‘rigorously enforce’ the immigration laws is to now require all employment-based applicants for adjustment to attend in-person interviews.
Further detail on this new requirement was furnished by the USCIS in one of their occasional ‘stakeholder’ conference calls, this one held on September 28. The Associate Director of the USCIS Field Operations Directorate, Dan Renaud, stated that cases filed before March 6, the date of the Executive Order, will be adjudicated under the previous no-interview procedure. All employment-based adjustment of status cases where the I-140 immigrant petition was filed on or after March 6, 2017 will be subject to an interview.
This new requirement is bound to lengthen the adjudication process for these applications, even though the USCIS confidently asserts that it will deal with this new workload ‘through enhancements in training and technology as well as transitions in some aspects of case management’ (whatever that means). Associate Director Renaud states that the USCIS aims to exhaust all employment-based visa availability every year and predicts that there will therefore necessarily be slowdowns in the adjudication of other cases, such as family-based petitions and naturalization applications. One possible result of the new process could be a renewed interest in consular processing as opposed to adjustment of status. Although consular processing, in which after I-140 approval the applicant applies for an immigrant visa in his country of nationality or previous residence, has recently been slower than adjustment of status, the new interview requirement may reverse this state of affairs.
September 26, 2017: Dual citizenship and the German elections
Until January 1, 2000 the only way to be a German citizen from birth was to have a German parent. Children born in Germany to non-German citizens had no right to German citizenship regardless of how long the parents had lived in Germany.
Based on data showing that the lack of access to citizenship impeded the assimilation into German society of foreign heritage residents the German parliament, the Bundestag, in May 1999 changed the law. Now children born in Germany can acquire German citizenship at birth if at the time of their birth at least one parent had been customarily resident in Germany for eight years and had the permanent right to remain in the country. In some cases those children may remain lifelong dual citizens, having German citizenship alongside the citizenship of their familial homelands. Many German residents are affected by this issue; according to 2015 data fully 21% of all German residents had a migration background—that is, either they or at least one of their parents were not German citizens from birth.
Dual citizenship is a topic laden with emotion in Germany, for many people (especially those dismayed by the recent influx of refugees and other immigrants into Germany) feel that retaining a second citizenship means that the person is not truly and whole-heartedly committed to Germany. The manifesto of Chancellor Merkel’s conservative union parties, the CDU/CSU, going into the September 24 election called for the prohibition of dual citizenship. The Social Democrats (SPD) would have allowed dual citizenship without restriction. The Free Democrats (FDP), a centrist party newly returned to the Bundestag, would permit multiple citizenship but would end with the third generation any dual citizenship based on heritage. The far-right party ‘Alternative for Germany’ (AfD) campaigned on an end to multiple citizenship for all but exceptional cases and the abolition of birthright citizenship granted to German-born children of foreigners.
In the wake of Sunday’s Bundestag elections Chancellor Merkel, whose Union attracted only 33% of the vote, will now attempt to build a coalition. She has ruled out cooperating with the AfD, which will be the first far-right party since the 1960s to have seats in the Bundestag, having achieved a worrying 12.6% of the vote. Will the Union carry out its manifesto pledge on citizenship, as part of an effort to woo back the estimated one million voters it lost to the AfD? Or will it shift to the left, to gather more voters from the SPD and FDP and clearly distinguish itself from its competition on the right? In the months to come the issue of what to do with dual citizenship may be an early indication of the new government’s direction of travel.
September 19, 2017: Fit to be President?
The past few weeks’ worth of US media coverage has understandably concentrated on the damage wreaked by hurricanes Harvey and Irma. (For a story about a much different and happier Harvey and Irma, click here.)
But back in April, well before the hurricanes, a bill was introduced in the US House of Representatives that would establish the ‘Oversight Commission on Presidential Capacity’ to evaluate whether Donald Trump is fit to continue as President. Twenty-eight Representatives, all Democrats, have announced their support for the bill. The commission would serve pursuant to section 4 of the 25th Amendment to the US Constitution, which provides that the Vice President will become Acting President upon certification that the President is ‘unable to discharge the powers and duties of his office.’ The required certification must be provided by the Vice President and a majority of either the Cabinet or a Congressionally-established body (the Commission). If the President states that he is in fact able to carry out his office, the matter, if still contested by the Vice President and a majority of either the Cabinet or the Commission, would be decided by Congress. The President would retain his office unless both of the houses of Congress decided by a two-thirds majority that he was unable to serve.
The 25th Amendment was added to the Constitution in 1965 to regulate several matters regarding succession to the presidency, either temporary or permanent, if the elected President leaves office during his term. For example, section 3 of the Amendment provides that if the President transmits a written declaration to the heads of the Senate and the House of Representatives that he is unable to discharge his duties, the Vice President shall be Acting President until and unless the President transmits a second declaration to the effect that he is now able to take up his duties again. This provision has been used on a number of occasions—for example, twice by President George W. Bush when he was sedated for a routine colonoscopy and Vice President Dick Cheney became Acting President for several hours.
Section 4 of the Amendment has never (yet?) been used. It made a wonderful basis for a political thriller written by Mario Puzo of Godfather fame, but the book (The Fourth K) did not make much of a splash. Perhaps a reprinting is in order?
September 5, 2017: Dogs’ best friend
Devoted readers of this blog will have seen that certain topics arise more often than others, three favourites being dogs, the country of Turkey, and odd Americana. Today, ladies and gentlemen, we have a trifecta. Let us tell you about the golden retrievers being flown from the streets of Istanbul to the US of A.
It turns out that golden retrievers were for a time a status symbol in Istanbul. However, as the supply of puppies increased to satisfy the demand, suddenly the dogs were no longer exclusive, no longer a status symbol, and no longer wanted. Many of them were then simply let loose on the streets, abandoned to the kindness of Istanbullus whose offerings of food and water can be seen on many a sidewalk corner in the city. (Not that cats are neglected; the street cats of Istanbul are famous and earned their own documentary entry in the 2016 Istanbul Independent Film Festival.)
Enter the dog lovers of America, who since 2014 have been flying golden retrievers from Turkey to new ‘forever homes’ in the US; just last month the 1,000th Turkish golden immigrant was welcomed. In Istanbul Turkish volunteers prepare the dogs for their transatlantic flights, even while musing that they, the humans, might not be able to get US visas for a comparable trip themselves. In 2016 Golden Retriever Rescue of the Rockies (GRRR) joined the effort; it will soon accept its fifth consignment of dogs. Unfortunately but perhaps inevitably, it calls them ‘Turkey Dogs.’
Gudeon & McFadden thanks our Coloradan friend and colleague Mari C. Bush for alerting us to this GRRRipping saga.
August 29, 2017: Labo(u)r Day
Disregard the calendar, which would say that autumn begins on September 22. Everyone in the UK knows that yesterday, the August Bank Holiday, marked the end of our summer and that autumn begins today. Before you know it, we’ll be turning back the clocks and starting our morning’s commute in the dark.
The Americans have one more week of summer, which traditionally ends for them on Labor [sic] Day, the national holiday on the first Monday of September.
Internationally the 1st of May is widely celebrated as International Workers’ Day, often giving rising to protest marches. Although that date marks an 1886 Chicago protest for workers’ rights the commemoration never caught on in the US. When the US Congress created a national holiday in celebration of workers and the trade union movement, the date chosen was the first Monday in September.
In the Communist-fearing 1950s the ‘international’ in International Workers’ Day was thought suspect. Therefore, in 1958 Congress requested the President to set aside the 1st of May as ‘Loyalty Day’ as ‘a special day for the reaffirmation of loyalty to the United States of America and for the recognition of the heritage of American freedom.’ Every year since then the president has done just that. For the first effort of the current president, click here. National Public Radio has a good article contrasting the various styles of Loyalty Day proclamations by presidents going back to Eisenhower.
So when Europeans are protesting, Americans are supposed to be pledging loyalty. And when Americans are supposed to be celebrating the trade union movement—in a country where only about 10% of the workforce is now unionised, as opposed to 20% in 1983—they are more likely to be celebrating the last day of summer, probably somewhere near a barbecue grill.
August 22, 2017: Lower the Confederate flag for good
While walking to my Tube stop last week I saw a poster stapled to a telephone pole, advertising an upcoming promotion by a nearby pub of ‘two for one’ drink specials from the American South. The poster bore as decoration several colourful iterations of the Confederate battle flag.
White supremacists’ use of this flag in the deadly violence in Charlottesville, Virginia has reignited an ongoing debate in the United States about the extent to which things and people from the Civil War, including not only flags but also monuments and buildings named after dignitaries from the breakaway Southern states, should still be honoured and/or displayed in 21st century America. In 2016 the Southern Poverty Law Center surveyed the country and found a total of at least 1,503 Confederate place names and other symbols in the US. The Charlottesville violence broke out over a protest to remove from a city park one such object, a statue of the Confederate General Robert E. Lee.
A quick recap: The American Civil War took place from 1861 to 1865. A total of 11 American states claimed the right to secede from the United States, uniting under the name ‘the Confederate States of America’ to pursue their desire for a less powerful central government and the continuation of slavery. More than 620,000 soldiers were killed by the time Lee surrendered his army at Virginia’s Appomattox Court House on April 9, 1865. President Abraham Lincoln was assassinated just days later by a disappointed southern sympathiser.
Many people in the UK will have been introduced to the Confederate battle flag (which was never the official flag of the CSA) in the 1980’s television series ‘The Dukes of Hazzard.’ In that programme the happy-go-lucky heroes zoomed around in a souped-up car named the ‘General Lee’ that bore the flag painted on its roof. The days when that flag could be used in connection with harmless hijinks are over. Autres temps, autres mœurs.
During my youth, back when dinosaurs roamed the earth, the Confederate flag was often used as a symbol of regional pride and of a bit of mischief-making as well. Those times are long past. As the emblem of a would-be country founded upon the evil of slavery, and the modern emblem of white supremacists, the Confederate flag has no place in decent discourse—even if you’re offering cut-rate alcohol. It should be brought down for good.
August 8, 2017: Pardon me? A Presidential pardon primer
Today we are happy to introduce our guest blogger, the distinguished American trial lawyer, Mari C. Bush. Ms. Bush practices in the area of civil litigation, with particular expertise in representing individuals in complex personal injury cases. She also serves as a mediator and arbitrator. In 2011 her contributions to the legal system were acknowledged by the Colorado Trial Lawyers Association with the Kenneth N. Kripke Lifetime Achievement Award. Ms. Bush can be reached at firstname.lastname@example.org.
President Trump’s recent tweets have raised interest in the concept of the presidential pardon. Constitutional scholars, law professors and political pundits all weigh in on the controversial question of whether a president can self-pardon. While we hope the question remains academic, a brief overview of the topic may be in order for all of us.
The Constitution of the United States, Article II, Section 2, Clause 1 provides as follows:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Given the actual wording of the Constitution, legal and political commentators for the most part agree that a president cannot issue pardons to prevent or undo their own impeachment or the impeachment of another. Likewise, a strict reading of the constitutional wording demonstrates that the power of the pardon applies only to “offenses against the United States”—in other words, it applies only to federal crimes and not to state crimes.
Where it gets trickier is the question of whether a president can self-pardon for a federal offense. Hypothetically, if a president were convicted of federal fraud charges, would he be able to issue his own pardon? The Supreme Court of the United States has not had to deal with this issue. Back in August 1974, days before President Nixon resigned, Mary Lawton prepared a memo in her capacity as acting assistant general in the Department of Justice’s Office of Legal Counsel. She concluded: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” As Nixon resigned and his pardon came from his successor, Gerald Ford, her conclusion was not challenged.
Well-known legal scholars agree with Ms. Lawton’s analysis. Separate Washington Post op-eds were written on this subject on July 21, 2017, one by Harvard’s Laurence Tribe, Richard Painter and Norman Eisen (chief ethics lawyers for Presidents George W. Bush and Barack Obama, respectively) and another by George Washington University’s Jonathan Turley. The Tribe et al piece reasoned as follows:
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
Professor Turley (and others) frame the issue somewhat differently. While a president may be able to self-pardon, it is legally unsettled and political suicide.
The presidential tweets may be better understood if one’s analysis is based upon Wikipedia and dictionaries rather than constitutional inquiry. For example, the term “pardon” historically referred to Christian “indulgences” that could be bought and sold. Why not engage in self-dealing for a “Christian” executive’s indulgences? Likewise, the dictionary defines a “pardoner” as a “person licensed to sell (papal) pardons or indulgences.” Surely, a president could regard himself as the ultimate salesman?
The Department of Justice maintains an Office of the Pardon Attorney. Typically, this office processes and reviews the many requests for “executive clemency.” The website for the Office of Pardon Attorney contains a lengthy FAQ section about executive clemency, eligibility and procedure. Of note: There is no FAQ devoted to the topic of self-pardon!
August 1, 2017: Deasy does it
United States immigration policy during the current administration is an ever-changing and highly-charged landscape. Many other internationally important issues—including tax policy, intellectual property, employment, international trade and where corporate headquarters are situated—act upon this volatile landscape. Countries must be especially alert as they interact with the United States in these turbulent times.
Ireland has responded by creating the position of ‘special envoy’ to work with the US Congress on matters related to the Irish citizens who are undocumented in the US. Leo Varadkar, Ireland’s new Prime Minister (‘Taoiseach’) named John Deasy to the role. Mr. Deasy, a member of the Irish legislature (‘Oireachtas’) from Waterford, will report directly to Mr. Varadkar and will work alongside the Irish Department of Foreign Affairs and the Irish Embassy in Washington, DC. In September the post of Ireland’s ambassador to the US will be assumed by Dan Mulhall, another Waterford product who is currently the ambassador to the UK.
Mr. Deasy attended university in the US and after graduation worked as a legislative assistant first for a senator and then for a member of the House of Representatives. This Congressional experience will be particularly helpful to Mr. Deasy in his new position, given the interplay between the legislative and executive branches in the US as immigration policy is debated and reshaped.
Historically, Ireland’s ties to the United States have been very strong, forged in large part by the substantial number of Irish immigrants who have made America their home over the centuries. (Over 10 percent of all Americans claim Irish heritage.) The current administration, headed by a president who has openly derided Hispanic undocumented immigrants, is now also drawing into its deportation ‘net’ the undocumented Irish, whose numbers are estimated at 50,000. Many of the Irish had managed to work and establish themselves with little risk in cities like Boston and New York, but those days may be over: On June 20, 2017 Immigration and Customs Enforcement detained John Cunningham, a well-known Irish community leader in the Boston area who had been living in the US without authorization for over a decade. He was detained after an Irish television programme aired in March in which he discussed the problems of living undocumented in the United States. (Not such a good idea, he undoubtedly thinks in retrospect.)
Perhaps other countries as well as US-based ethnic heritage associations will follow the Irish lead, appointing their own liaison officers to press their cases with the various organs of the US government. We wish them luck.
July 11, 2017: A decision in Hernandez v Mesa
In our blog of February 28 we reported on Hernandez v Mesa, the case brought by the parents of a Mexican teenager who was shot and killed in Mexico by a US Border Patrol agent standing on American soil. On June 26 the Supreme Court released its per curiam (unsigned) 5 to 3 decision remanding the case back to the lower court for proceedings in conformity with its June 19 decision in Ziglar v Abbasi. That case involved similar questions of the conditions under which the Court should allow lawsuits against federal employees for breach of Constitutional rights. Of the dissenters, Justice Thomas would have upheld the Fifth Circuit’s dismissal of the case, while Justice Breyer, joined by Justice Ginsburg, would have ruled that the parents’ lawsuit could proceed, with the lower court able to consider the agent’s claim for qualified immunity.
June 13, 2017: Sessions v Morales-Santana, the remedy.
In today’s Weekly Update we brought the news of yesterday’s decision by the Supreme Court to strike down as gender-discriminatory the US immigration provision that makes it easier for US-citizen mothers to pass citizenship to their children born out of wedlock than for US-citizen fathers. The rule applicable at the time Mr Morales-Santana was born was that in order for a child born out of wedlock to a US-citizen father to be a US citizen from birth the father must have been physically present in the US for at least ten years before the child’s birth, and that five of those years must have been after the father’s 14th birthday. (There were also other requirements, but only the physical presence issue was addressed in the decision.) However, a US-citizen mother could transmit citizenship to her child born out of wedlock as long as she had only one year of physical presence in the US.
One interesting question, which the court below (the Court of Appeals for the Second Circuit) had found to be ‘the most vexing problem in this case,’ was: If the differing physical presence requirements are discriminatory, what remedy does a court apply? Does it apply to both genders the tougher standard requiring at least ten years (as it was at the time), or does it apply the laxer standard of one year? In Morales-Santana the Supreme Court decided that starting yesterday and prospectively only, the physical presence requirement for US-citizen unwed mothers and fathers seeking to transmit citizenship will be the same. Unless and until Congress changes the law children who have only one US-citizen parent, whether the child is born in or out of wedlock, will receive US citizenship at birth only if the US-citizen parent had been physically present in the United States for at least five years before the child’s birth, two of which must have been after the parent’s 14th birthday.
June 6, 2017: Refugees—past and present
More than 11 million people have fled their homes due to the Syrian civil war. Nearly five million of them have left Syria, with 2,992,567 now refugees in Turkey.
Not quite one hundred years ago, Turkey was involved in a refugee crisis that was at the time even larger proportionally than the current influx of Syrians. In 1923, in the Treaty of Lausanne that ended the war between Greece and the newly-established Republic of Turkey, the two countries agreed to a compulsory population exchange that saw 500,000 persons from Greece sent to Turkey and approximately one million from Turkey sent to Greece. The dividing line was religion: Greek Orthodox citizens living in Turkey were forced to move to Greece and Muslim inhabitants of Greece were sent to Turkey. The belief behind the exchange was that both countries would more likely be stable and peaceful if they could avoid the internal divisions caused by differing religions.
Looking back at the population exchange, one must ask: Did it have the desired result? (Contrast homogeneous Turkey, still largely within its 1923 borders, with its former Balkan neighbour Yugoslavia, now atomised into ethnically-defined statelets.) Even if the exchange did work, does the result justify the suffering of those uprooted from their homes? Should population exchanges be considered in other fraught areas of the world, in an effort to avoid the bloodshed of ‘ethnic cleansing’?
Those interested in reading about the Greek-Turkish population exchange may, depending on their proclivities, wish to start with either Louis de Bernières’s historical fiction Birds without Wings or Bruce Clark’s non-fiction Twice a Stranger (see reviews by Hürriyet and the New York Times.)
May 23, 2017: When is two less than one?
In theory, having two citizenships should in most cases be an advantage over having just one. Shorter queues in at least two nations’ airports, getting to vote in two countries’ elections—what’s not to like? However, a case argued last week before the Court of Justice of the European Union (CJEU) has highlighted one potential disadvantage of dual citizenship for British passport holders.
The case involves a Spanish woman, Mrs Perla Nerea Garacia Ormazabal, who moved to the UK as a student, then stayed on to work. In 2009 she naturalized in the UK, becoming a British citizen, whilst retaining her Spanish citizenship. In 2014 she married in the UK a man from Algeria who had overstayed his UK visa after entering in 2010. Shortly after the wedding the husband, Mr Toufik Lounes, applied for a UK residence card on the grounds that he was a family member of an EEA national. The Home Office denied the application, stating that once Mrs Ormazabal became a British citizen she was not entitled to use the free movement provisions of EU law, and if Mr Lounes wished to reside in the UK he would have to fulfil the criteria of UK immigration law, which (one assumes, although this is not stated) he would not.
Mr Lounes appealed the denial to the High Court, which in a decision dated March 8, 2016 referred to the CJEU the question of whether under EU law Mrs Ormazabal, now a UK citizen, could continue to benefit in the UK from free movement rights given to her as a Spanish citizen. The case was argued before the CJEU last week and apparently a preliminary opinion is due by May 30.
May 2, 2017: Strictly for the Birds? Maybe not.
A year ago this blog detailed the wonders on offer with International Dawn Chorus Day. Much in the world has changed since then. Fortunately, International Dawn Chorus Day returns on May 7, 2017, unencumbered by borders and politics.
By way of background and reminder, this annual event celebrates the musical contributions of our winged and feathered friends. Like many wonderful institutions, this one hatched in the United Kingdom, when environmentalist and bird enthusiast Chris Baines wanted to commemorate his own birthday in a special way. Beginning in the early 1980s he invited his friends to join him at 4am at a suitable outdoor space to experience the magical birdsong at the start of day. People flocked! The event grew, and The Wildlife Trusts assumed organisational responsibilities. Now, ’International Dawn Chorus Day’ is, as they say, ‘a thing.’
In recent years, bird lovers have congregated in spots all over the world. National broadcasters such as the BBC and Ireland’s RTE have linked chosen venues, following the dawn chorus as the day breaks across the world’s time zones. The latest list of ‘official’ dawn chorus gatherings can be found on the website www.idcd.info. The current schedule includes walks and breakfasts from England to Scotland, Portugal to Ireland and is still being updated.
You don’t need to be near countryside in order to participate in IDCD, for the organizers are quick to identify urban places that make for good listening. You might check with your local Wildlife Trusts office, Audubon Society or environmental group. Moreover, you don’t need to be part of an official group to pay homage to this occasion. Fueled by enthusiasm and a cup of your favorite caffeine, you can experience cheap trills in your own back garden nest, forest or park. (Luckily, for those unable or unwilling to rise at such an early hour, the natural concerts are recorded and rebroadcast on various sites.)
At the end of a long 12 months of human political cacophony, International Dawn Chorus Day awaits all of us, feathered or not, on May 7.
April 4, 2017: US visa help for entrepreneurs
Unless the Department of Homeland Security changes its mind—and after the roller coaster ride that US immigration matters have offered since January 20, who would bet on that either way?—on July 17, 2017 a final rule will come into effect that will offer some (very) limited help to non-US citizens who want to go to the US to develop their start-up companies.
The DHS’s final rule on this topic was published on January 17, just three days before the change in administration. It sets out a number of criteria that the DHS will use in deciding whether to grant the discretionary relief known as ‘parole’ to certain entrepreneurs who want to enter the US and run their start-up businesses.
- The applicants must own at least 10% of the start-up
- The entity must be less than five years old
- The applicant must have ‘an active and central role in the operations and future growth of the entity’—so no passive investors need apply—and
- The applicant must show that the company has ‘substantial potential for rapid growth and job creation.’
How does the start-up show this ‘substantial potential’? There are three different ways:
- Receipt of investment of at least $250,000 from established US investors who typically do this sort of thing (investing in successful start-up entities) OR
- Receipt of government grants of at least $100,000 OR
- Alternative criteria. If an entity can’t qualify under either of the previous two criteria it can present ‘additional reliable and compelling evidence’ that it would ‘provide a significant public benefit to the United States.’
In exchange for all of this proof an entrepreneur can be granted the permission to stay in the US, and work in his start-up, for up to 30 months. An additional period of 30 months is available upon successful petition. Spouses and children can also accompany the entrepreneur, and the spouses will be eligible for employment authorisation upon application.
This is not a great gift to entrepreneurs. Most who can qualify in any other way will do so, and certainly the L-1, E-2 and O-1 visas offer a more stable and potentially long-term life in the US, with the hope of eventual permanent residence. See our website article, with subparts, Immigration Options for Investors, Entrepreneurs and Business Owners. But if your new US company is a stand-alone entity, with no foreign affiliated company (so no possibility for an L-1), or you’re just starting your business career (so an O-1 won’t work), or you’re a citizen of a country that doesn’t have a qualifying E-2 treaty with the US (so an E-1 or E-2 is out), you may want to consider it. The alien entrepreneur parole may be just the ticket to your becoming the next Sergey Brin, Elon Musk or Peter Thiel and to transforming your great idea into a profitable business.
February 28, 2017: Hernandez v. Mesa: A Mexican Family Seeks Justice in the US Courts
The United States-Mexico border. Allegations of excessive and deadly force against a teenage boy of colour. The constitutional rights of non-citizens and non-residents in the American courts. A divided Supreme Court and a Trump nominee in the wings. These timely issues are the focus of Hernandez v. Mesa, currently before the Supreme Court of the United States.
Sergio Hernandez was only 15 years old when he was shot by a United States Border Patrol agent, Jesus Mesa. While each party has its own version of events, it is undisputed that the teen was on the Mexican side of the border that divides El Paso, Texas from Ciudad Juarez, Mexico when he was fatally wounded by a gun shot by a civilian border patrol officer on the United States side. Specifically, Hernandez and friends were playing in the dry creek culvert that forms the border. From 60 feet away, Hernandez was shot in the back of his head as he was running back to the Mexican side. He died immediately.
Officer Mesa was not prosecuted. The boy’s parents, however, filed suit in the US federal court against Mesa alleging, among other things, that Mesa had violated their son’s constitutional rights under the Fourth and Fifth Amendments to the United States Constitution. The federal district (trial) court dismissed these claims. A three-judge panel of the Fifth Circuit, the responsible appellate court, disagreed with the district court and would have permitted the parents to pursue at least some of their claims. The full Fifth Circuit, however, produced a brief opinion showing a deep division in the court, agreeing only on conclusion that a Mexican citizen on Mexican soil possessed no right to sue under the US Constitution. This paved the way for the Hernandez family to seek redress in the Supreme Court of the United States.
On February 21, 2017, the Supreme Court held oral argument on this case. The Justices have been asked to decide what rights noncitizens have when they are injured or killed outside of the United States. Three main issues are involved: (1) Does the Fourth Amendment’s ban on unjustified excessive force apply in this scenario? (2) Is Officer Mesa immune from suit even if he did violate Sergio’s constitutional rights? Under current precedents this issue turns on whether at the time of the shooting it was ‘clearly established’ that Mesa’s actions were unconstitutional. (3) The Supreme Court further sought input on the application of a long-standing Supreme Court case, Bivens v. Six Unknown Named Agents. In 1971, Bivens held that a plaintiff can bring a private suit in federal court against federal officers for violation of his constitutional rights.
Based on questions they posed at oral argument, the Justices are aware of the potential implications of their ultimate decision. Can a legal remedy be fashioned for the sympathetic family of the slain teenager? Would other noncitizen victims of American police activity abroad—think US drones injuring civilians in a foreign war—be able to utilize such a remedy? If so, what would that mean for the United States court system? Are certain disputes between neighbor nations better resolved through creative diplomacy than litigation? Can that happen when the executive branch pledges a border wall?
The Supreme Court of the United States will render its opinion in Hernandez v. Mesa in the next few months. In the short term, the opinion will define a Mexican family’s access to the American courts for a cross-border killing. Over time, the ruling may well shape constitutional rights and US accountability for its actions outside its boundaries.
The full caption of the case is Jesus C. Hernandez et al v. Jesus Mesa, Jr. (No. 15-118). Briefs as well as a transcript and recording of oral argument can be found on the Supreme Court website: www.supremecourt.gov.
January 24, 2017: Cannabis legal in the US? Not for immigration purposes.
Eight US states, and the District of Columbia, have now legalised the use of cannabis for recreational purposes. Additional states allow it by prescription or otherwise for medical use. One might think that use of cannabis in those US states where it is legal is, therefore, no longer a problem for US immigration law. Unfortunately this is not true.
The difficulty lies in the very nature of the United States’ legal system, where both the central (federal) and the state governments have often overlapping jurisdiction to regulate conduct through the criminal law. (Law students spend an entire semester puzzling through the intricacies of ‘FedJur,’ and the complexity of the system led to the common idiom ‘don’t make a federal case out of it,’ meaning not to blow something out of proportion.)
Possession, sale and use of cannabis are all prohibited by federal law, the Comprehensive Drug Abuse Prevention and Control Act of 1970, as most recently amended on July 22, 2016. ‘Marihuana’ is a Schedule I drug for federal purposes, meaning that it is considered to have a ‘high potential for abuse,’ no ‘currently accepted medical use’ in the United States, and no safe method for use under medical supervision. An uneasy accommodation between the federal government and those states that allow use of cannabis was set out in an August 29, 2013 policy memo to all US Attorneys—that is, the highest-ranking prosecutors in the federal government—in which the Department of Justice directed prosecutors that their limited resources should not be used to prosecute people and businesses buying, selling or using marijuana in accordance with well-enforced state regulatory systems. A 2014 amendment to federal law that sought to enshrine in statute the federal ‘hands-off’ policy, at least concerning cannabis dispensed medically, has had uneven success and must be renewed annually. The opinion of the nominee for Attorney General (head of the Department of Justice) has long been that ‘good people don’t smoke marijuana’ and it remains unclear whether if he is confirmed for the new job he would encourage more vigorous prosecution of marijuana users in those states where such use is legal.
For now, the situation is as follows: A person who has been convicted of violating a law (of any jurisdiction, whether US or foreign) relating to controlled substances (as defined by the US Congress in the Controlled Substances Act) or who admits to having done so, is inadmissible to the US under section 212(a)(2)(A) of the Immigration and Nationality Act (INA). Even if a person has used cannabis only in jurisdictions where it is legal (Colorado? Amsterdam?) the person can still be refused admission to the US or denied a visa as a ‘drug abuser or addict,’ under section 212(a)(1)(A) of the INA. Visitors wanting to partake of legalized cannabis in the United States must first get through a US immigration inspection that is hostile to their plans.
December 6, 2016—Dog blog, part 2
Despite all of the pawsitive, pet-friendly efforts described last week, conscientious pet parents should not make any assumptions about attitude toward their dogs in housing or the work place. Here are some issues to consider before you em-bark on life with pets in the USA:
- In all rental housing, be sure to check the fine and not-so-fine print of the lease or rental agreement. A damage deposit or surcharge may be imposed for pets. There may be restrictions on the size or breed of the pet. You may want to diplomatically inquire about the attitude of neighbours in the event they have a reputation for not sharing your love of a vocal ‘welcome home’ greeting. In addition to the lease and rental agreement, there may be a Home Owners Association (HOA) that establishes additional rules about pet ownership and pet conduct.
- Even if you are buying rather than renting, there may be an HOA for the development or complex. The HOA can adopt and enforce rules about pet ownership.
- Most laws about dogs are established by the local government—town, city or county. Most localities have ordinances or other provisions that deal with what breeds may be permitted, what constitutes a problem ‘dog at large’ or barking violation and how animal welfare is handled. Websites for the city or town are useful as are websites for the local Humane Society.
- Most localities require that a dog be licenced. This is a good thing in that it will help return your dog if it gets lost. It also helps fund animal welfare efforts.
- Check about the ‘leash laws’ where you live and in the surrounding areas. Towns may require all dogs to be on a leash. Others may permit dogs to be off leash if the dog is under ‘voice control.’ Open space areas may establish their own rules. These are usually posted at the entrance or trailhead. Hefty fines can be imposed, so obey these rules.
- Poop happens. No matter where you are, be prepared to ‘pick up where your dog left off’ and dispose of responsibly.
- It is customary in most localities to have pet dogs neutered. Animal shelters typically require that animals, including but not limited to dogs, be neutered before going to their new homes.
- Localities may impose a higher legal obligation for dog ownership. In Boulder, Colorado, for instance, dogs are not considered the ‘property’ of their human companion; rather, the human is obligated to act as a ‘guardian’ for the dog.
- While most ‘dog law’ is local, some states as well as localities have passed laws regarding particular breeds. Pit bulls, for instance, are the subject of much controversy. Before adopting a dog with a ‘bad reputation’—such as a pit bull, Rottweiler or Doberman—double check on the applicable laws to see if they apply to your breed.
- Given the increasing role of dogs in our world, there are also legal specialists available in the United States when your pet parenting intersects with legal issues. ‘Animal Law’ is a recognized division of the American Bar Association (ABA), the largest voluntary association of lawyers in the US. Many tort and personal injury attorneys are also knowledgeable about the rights of pets and their owners as well as the remedies available to those persons injured by a pet. You can consult your local (usually county) Bar Association, your state’s Trial Lawyers Association or the web for attorneys with expertise in animal rights, animal law or dog bite injuries. Likewise, the local Humane Society may be a good resource for where to get legal advice on these matters.
- From a practical standpoint, consider getting pet health insurance, now offered by several companies. Check with your local veterinarian’s office to see what their experience has been with various companies. The insurance premiums increase with the dog’s age and policies vary in what is covered. Again, read the fine print and make sure you are able to handle the expense of routine, emergency and/or ongoing treatment.
- The common law, which of course the United States received from England, had an adage that every dog gets ‘one free bite’—in other words, that a dog owner is not liable for a dog bite if the dog has not shown a prior propensity for biting. This is no longer the case. When obtaining homeowners or rental insurance, check whether it covers injuries caused by pets on your property (including pets just there as visitors).
Without a doubt, you and your furry friends will find a warm welcome and cosy life in the United States. As dog lovers everywhere know, life is better when shared with a dog.
November 29, 2016—Dog blog, part 1
The British are thought to be especially fond of their doggy friends, and those of you who are planning to move to the United States may well wonder what kind of reception you and your canine companions will receive when you land in the States. Other sources detail the applicable regulations, immunizations and transport mechanisms; a good place to start is the US Embassy’s web page on the subject. This article highlights certain practical considerations when settling in America with your furry chum.
Many Americans are as dog crazy as their British counterparts. Even in the throes of the recent recession, Americans continued to spend on their four-legged family members. As the economy improved, so did the overall standard of living for household pets—pets who in the current fraught political climate are needed more than ever for their reassurance and unconditional love.
If you have a choice about where to live in the US—that is, if your place of residence is not determined by a sponsoring employer or (human) family member—you will find plenty of information available online to help you select a place to call home. ‘Top Ten’ lists abound, rating American cities according to every factor from air quality to water sports. If pet parenthood is an important aspect of your life you might want to settle in one of these most dog-friendly cities, as chosen by the Huffington Post:
- San Francisco, California
- Las Vegas, Nevada
- Denver, Colorado (be careful of homemade biscuits in this ‘mile high’ city)
- San Diego, California
- Albuquerque, New Mexico
- Sacramento, California
- Chicago, Illinois (perhaps a lower profile breed is best in the ‘Windy City’)
- Minneapolis, Minnesota
- Tucson, Arizona (watch for cactus spines in tender paws)
- New York City, New York
Similarly, employers are rated based on their dog friendliness, too. Some businesses provide pet health insurance, let dogs accompany their humans to work and forgive the occasional dusting of dog hair on one’s business suit. As rated by Fortune, the top 12 large companies in terms of canine culture include such giants as Genentech, Salesforce and Google. If leaving your dog at home while you’re in the office is not your cup of tea, check out the article and start working on your CV.
November 15, 2016—US immigration policy under President Trump
In the absence of a functioning crystal ball it is impossible to forecast the immigration policy that will be followed by President Trump once he takes office on January 20, 2017. He may not have a clear idea on this topic himself. Certainly many of his campaign statements on the subject were contradictory. Will Muslims be refused entry to the US or only subjected to ‘extreme vetting’? Will legal, permanent immigration be reduced, or are the legal, ‘good’ immigrants precisely the people we want to move to the US? Just how high will the wall along the Mexican border be, and might some of the 1900 or so miles of border be protected by just a fence or the unfriendly terrain?
One thing is clear: There is no need to panic. In spite of the hyperbole that suggests that Donald Trump is another Adolf Hitler, the United States of America is no Weimar Republic. The US has strong institutions and is generally a government of laws, not of men, as John Adams famously formulated it. Most proposals by a US president require approval by Congress, if only to appropriate the money to carry out the president’s plan. Candidate Donald Trump may have spoken about deporting 12 million undocumented people in the US, but President Elect Trump has already reduced that number to ‘two, maybe three’ million in an interview on Sunday. This massive undertaking would require a commensurate increase in the budget of the Immigration and Customs Enforcement (ICE) bureau of the Department of Homeland Security. The need to hire and train staff to carry this out would mean a lag before we could see any increase in deportations—by which point President Trump’s attention may have shifted to some other perceived problem.
The people who have the most to fear from a Trump administration are those young people who registered for the programme ‘Deferred Action for Childhood Arrivals’ (DACA), which was created by an Executive Order from President Obama and could be rescinded by President Trump without Congressional assent. This programme allowed certain undocumented young people who arrived in the US under the age of 16 to apply for and obtain work authorisation and temporary leave to remain. Over 700,000 young people have been approved under DACA—and now their names and addresses are conveniently on file with the US authorities. Collecting these young men and women, and any undocumented individuals at the same address, would be an easy picking of low-hanging fruit for ICE. DACA applicants should be afraid, very afraid—the rest of us, not so much. Yet. Stay tuned.
October 4, 2016—First, let’s review all the lawyers
A lot of people don’t like lawyers. Beyond the usual lawyer jokes—‘What is black and tan and looks good on a lawyer? A Doberman.’—there are people who kill lawyers (usually the person who represented their ex-spouse in a divorce action) and those who merely sue them. For the latter, they typically need another lawyer of course.
However, the advent of internet review sites such as Yelp has given disgruntled former clients a new weapon, the bad review. In California a trial court found that a woman had defamed her former lawyers by posting an inaccurate review, and it ordered Yelp to remove it. This order was upheld by the intermediate court of appeals. Now, the Los Angeles Times reports, the California Supreme Court has accepted the case for review. (See page 7 of the pending cases list.)
Federal law, in the form of the wonderfully named ‘Communications Decency Act,’ grants online publishers immunity from liability for user postings on their websites. This means that the publisher cannot itself be held liable for libellous remarks on its forum. But can a state court order that the online review be taken down? If the current court order stands we may all be seeing far fewer negative reviews online. Would that be an improvement, or a loss of useful and important information?
September 20, 2016—Sunset is coming
Ten days from now four US visa programmes are going to end unless Congress grants them continued life through reauthorisation. The best known of the four is the EB-5 Regional Center Immigrant Investor Program, which reserves up to 3,000 immigrant visas annually for persons who invest in USCIS-approved Regional Centers in the United States.
The Regional Center route to an immigrant visa allows the investor and qualifying family members to receive conditional and then permanent resident (‘green card’) status for a completely passive investment of as little as $500,000 per family. Our website article Immigrant Investor: The ‘Million Dollar Green Card’ contains more general information about the programme. It was first established by Congress in 1992 but on a provisional basis that periodically expires (‘sunsets’), requiring Congressional action. Most recently it was reauthorised in 2015 up until September 30, 2016; September 30 is the end of the US Government’s fiscal year.
With an eye to the upcoming deadline the Department of State recently reminded consular officers that all Regional Center immigrant visas must be issued by the close of business on September 30. After that, any pending applications in that category must be held in abeyance until Congress reauthorises the programme—assuming of course that such reauthorisation is forthcoming. This uncertainty, which has been repeated time after time since 1992, is one of the many reasons your author does not assist clients in applying for an EB-5.
September 13, 2016—Immigration files open to the curious
Buried in the website of the US Citizenship and Immigration Services is a treasure trove of documents about the immigration cases of the famous and infamous.
Homeland Security assigns an ‘A’ number to all aliens who come into contact with it either for a happy reason (such as issuance of a green card) or a less happy one (deportation, refusal of entry or the like). It consists of the letter ‘A’ followed by either eight or nine digits. Every action taken by the immigration services thereafter, and every request by the alien for an immigration benefit, results in an entry in the A file.
Your writer recently came across the ‘A Files of Interest’ feature on the USCIS website, which displays the A files of some famous and infamous people. For example, one can see the redacted immigration files of John Lennon, Lynn Redgrave and Elizabeth Taylor or, on the infamous end of the spectrum, John Demjanjuk, Tamerlan Tsarnaev and Malik Tashfeen.
John Lennon’s A file is immense at 2,624 pages. For the benefit of those with slow internet connections let me just say that the US Government sought to deport Lennon from the US because he had overstayed his period of authorised stay. He then sought lawful permanent residence but was refused because he had been convicted in the UK of possession of cannabis resin. After a ground-breaking legal fight that exposed the US immigration authorities’ unofficial policy of ‘prosecutorial discretion,’ Lennon eventually won permanent residence and thereafter lived in the US. That is until he was murdered there on December 8, 1980.
August 23, 2016—Turkish tensions and dual citizenship
The failed coup in Turkey last month has sent out ripples around the world, perhaps nowhere more obviously than Germany. Approximately 3 million persons of Turkish heritage live there and many of them maintain close ties to the country from which they or their parents came. This is in part due to a conscious German policy, back in the 1950s and 1960s, to encourage Turkish Gastarbeiter, so-called ‘guest workers,’ to see their stay in Germany as being only temporary. Recent changes in Turkish law, to allow Turks living abroad to vote, have given impetus to the expatriate Turkish community to stay in touch.
After the failure of the 15 July attempt Turkish communities in several parts of Germany held rallies in support of either Turkish democracy or the increasingly authoritarian president, Recep Tayyip Erdoğan, depending on one’s point of view. One of the largest was in the city of Cologne, where an estimated 40,000 people gathered.
These demonstrations and general western unease with President Erdoğan, who has declared a state of emergency in Turkey, have led to questions from German politicians as to the loyalty of the German Turks/Turkish Germans. The head of the Christian Social Union, the leading party in Bavaria, has called for dual citizenship to be eliminated. Another leading CSU politician has stated that anyone who is proud of President Erdoğan, thinks he is making Turkey great again, and who goes out onto the streets to support him, should do that in Turkey, not in Cologne. One of the many results of the 15 July coup attempt could well be a reversal of the German decision back in 1999 to increase the availability of German citizenship to those who retain their first nationality.
August 16, 2016—Turning gold (medals) into green (cards)
The past few weeks have found many of us staying up until the wee hours to follow the Olympics and Team GB’s winning ways. Soon the Olympians will return to the UK for a deserved heroes’ welcome. Once the parades are over, what if one or more athletes is interested in moving to the US? Could the British Olympians turn their gold medals into green cards, perhaps through a self-petition as an alien of extraordinary ability—an EB-1-1, in immigration parlance?
Extraordinary athletes such as Olympic gold medal winners could certainly qualify for green cards if they want to continue to compete. However, those who are finished with competition and want to work in the US as coaches are in an awkward position. One of the requirements of the EB-1-1 is that the person must show she is seeking to enter the US to continue her work in the area of extraordinary ability. The problem: Competitive sport and the coaching of that sport are not the same area of expertise, as the Administrative Appeals Office (AAO) has reminded us repeatedly. (Some of the AAO decisions are collected in our article How to Prove You’re an Alien of Extraordinary Ability.)
The AAO’s current rule is that when deciding whether a gifted athlete is an extraordinary ability coach, it will take into account (as part of the ‘totality of the evidence’) the athlete’s own performance history. However, the petitioning athlete must also show that she has acted as a coach of athletes who ‘compete regularly at the national level.’
So Laura and Charlotte, Max and Andy: If you want to live and work in the US, find some gifted juniors and get coaching. Then give us a call.
August 2, 2016—Waiver hope
Visa applicants who are ineligible for a visa, whether because of criminal convictions, previous immigration violations, or any of the other many bases in US law, currently face a gauntlet of difficulties on their way to a waiver and a visa. The first step is to make a visa application, knowing that they will be found ineligible. The second step is to convince the interviewing consular officer (who is employed by the Department of State) to recommend to the Department of Homeland Security’s Admissibility Review Office that a waiver of the ineligibility should be granted. The third step is to wait to hear whether DHS will grant the waiver so as to allow the visa to be issued. Currently the DHS processing time is four to six months. Even if the waiver and visa are forthcoming, the applicant can be discouraged to see that the duration of the waiver, and therefore of the visa, is often as short as one year.
Help may be on the way. The Bureau of Customs and Border Protection, part of DHS, recently announced that beginning in January 2017 as to waivers it grants to non-visa nationals (mainly Canadian citizens) it will issue waivers valid for five years at a time. Once this new policy has a chance to settle in we can hope that DHS will roll out the policy to waivers granted to visa applicants as well. Finally visa-ineligible applicants may be freed from the need to reapply every year, which would save them time, trouble and money. A win-win-win situation, an outcome devoutly to be wished.
July 26, 2016—Plagiarism and politics
Last week’s Republican National Convention brought the concept of plagiarism to the forefront of political discourse. The similarities between Michelle Obama’s speech at the 2008 Democratic Convention and Melania Trump’s speech in Ohio have been discussed at great length. Journalists have compared the actual texts, noting the ‘Venn diagram overlap’ of key passages. A variety of explanations and accusations emerged. A Trump staffer issued a mea culpa to the press and offered her resignation to the Trumps.
Plagiarism in politics has a long and fraught history, but this may be the first time a candidate’s spouse has been accused of it. In the presidential campaign leading up to the 1988 elections then-Senator Joe Biden was taken to task when parts of his campaign speech echoed an address given by former Labour Leader Neil Kinnock. He had to abandon his campaign in the end. In 2011 the German defense minister resigned after he was attacked for having plagiarised parts of his doctoral dissertation. A US senator from Montana abandoned his own re-election campaign in 2014 when his thesis submitted to the US War College was found to have been lifted from unattributed sources.
But what is plagiarism? The definition provided in the Oxford English Dictionary is the ‘action or practice of taking someone else’s work, idea, etc., and passing it off as one’s own; literary theft.’ In spite of the OED’s reference to ‘theft,’ plagiarism is not so much a legal construct, as an ethical or academic one. For example, in the United States there doesn’t seem to be a civil (or criminal, for that matter) action for plagiarism. Of course, the law of intellectual property provides legal actions for violations of a trademark, service mark or copyright. There can be a misappropriation of a likeness or identity. Interestingly, though, the term ‘plagiarism’ isn’t the key word or concept employed in the statutes or jury instructions.
‘Plagiarism’ as a key concept is ubiquitous throughout academic honour codes. Some of these codes provide definitions that focus on the written reiteration of another’s work. Harvard University considers plagiarism to be ‘draw[ing] any idea or any language from someone else without adequately crediting that source in your paper.’ My own undergraduate institution, Pomona College, incorporates into its anti-plagiarism policy the Plagiarism Resource Site’s four different kinds of plagiarism, including the rather artistic-sounding ‘mosaic plagiarism.’ Some institutions even warn against self-plagiarism. Here the University of Edinburgh: ‘You cannot submit the same or partly the same work for more than one assignment, even if the assignments are for different courses, different years of study or even different degrees. Self-plagiarism is considered deceit by the University.’
Melania Trump attended the University of Ljubljana in Slovenia. Although Republican media indicate she obtained a degree in Architecture and Design, she actually dropped out of college after her first year. A number of high-profile cases of plagiarism in Slovenia, one of which forced the resignation of an Education Minister when her master’s thesis was found to have been plagiarised, resulted in tougher guidelines against plagiarism, effective 1 April 2016. The brief press release does not mention whether the guidelines will be applied retroactively against former students.
July 19, 2016—Extradition and the failed Turkish coup
Last weekend’s unsuccessful coup against the Turkish government was barely over before Turkish authorities began calling for the United States to extradite a certain Fethullah Gülen. The Turkish Prime Minister said that a US failure to do so could lead NATO-member Turkey to question its friendship with the Americans. Under what circumstances would the US be required to deliver its resident Fethullah Gülen to Turkish justice?
Mr Gülen and Turkish President Recep Tayyip Erdoğan were political allies but had a spectacular falling out in 2013. Long before Mr Erdoğan came to power in 2003, first as Prime Minister and then from 2014 as President, Mr Gülen fled to the United States to escape political opponents in Turkey, he says. According to Mr Gülen’s website he arrived in the US on March 21, 1999 on a B-2 tourist visa, ostensibly for medical treatment. After two extensions of his B-2 stay he was granted R-1 religious worker status valid through June 19, 2003. After multiple years and a tortuous US immigration history (according to his website in any event) Mr Gülen was finally granted US lawful permanent resident status in 2008, apparently on the grounds that he is an alien of extraordinary ability. An earlier petition for immigrant status as a religious worker was apparently approved but later revoked.
Last Saturday President Erdoğan called on the United States to either arrest Mr Gülen or extradite him to Turkey. Section II, Article 7 of the bilateral extradition treaty between the two countries sets out the required contents of an extradition request, which include a warrant of arrest, a statement of the facts of the case, and evidence which under the law of the United States would justify arrest and committal for trial if the offense had been committed in the US. (Apparently a 1,453 page indictment of Mr Gülen was already issued back in October, before the coup, and an extradition request had been in the works.) Section I, Article 3 of the treaty allows either country to refuse an extradition request if it believes that the offense is of ‘a political character’; the next Article allows the countries to refuse to extradite their own citizens.
Mr Gülen apparently has not taken on US citizenship. Why not? Perhaps he feared losing his Turkish citizenship. Apparently in order to naturalise in a foreign country yet retain their Turkish citizenship, Turks must first obtain permission from the Ministry of the Interior. (Germany has a similar requirement.) Mr Gülen may have feared that such permission would not be forthcoming and for reasons practical or sentimental did not want to risk losing his Turkish citizenship. One hopes that he does not now regret depriving himself of the shelter of a US passport.
Extradition requests need not be made public, but in this case all indications point to the likelihood that there will be plenty of publicity, at least from the Turkish side, about an eventual request. As to whether the request will be granted, stay tuned.
July 12, 2016: Journalism Seeks Justice in a US Court
Marie Colvin was a highly-respected journalist based in Syria. Officially reporting for The Sunday Times of London, she also made herself available to other news outlets. In fact, it may have been her last interviews with the BBC, Channel 4 and CNN’s Anderson Cooper that caused her death at the hands of Syrian intelligence. On February 22, 2012 she and a colleague were struck and killed by Syrian rocket fire at an improvised ‘Media Center’ in the besieged town of Homs.
The story of this tragic death is described in riveting detail in a wrongful death complaint filed last weekend in the US (federal) District Court for the District of Columbia. Legal complaints often are dry, technical documents, but this one is so compelling that it could have been written by Marie Colvin herself. If you have an extra 10 minutes, you should read it.
But first an introductory note: The doctrine of ‘sovereign immunity’ generally protects foreign countries from being sued in the courts of the United States, but there are exceptions. The Foreign Sovereign Immunities Act (FSIA) authorizes wrongful death actions where US citizens are killed by state-sponsored terrorist organizations. Both compensatory and punitive damages are available. Marie Colvin’s sister and other family members have filed a suit under FSIA against the Syrian government, alleging that Ms. Colvin was ‘assassinated’ as part of a conspiracy to silence journalists and crush opposition within the country.
Since it’s unlikely that the Syrian government, long designated by the US as a ‘state sponsor of terrorism,’ would ever pay the Colvin family damages even if the court awarded them, you might ask ‘Why bother suing?’ The answer: The Colvin family and their attorneys see a potential benefit that is more important than money. FSIA provides that if the defendants ‘default’ by not responding to the complaint—which in a garden-variety lawsuit would mean that the defendants would automatically lose the case and be assessed the damages requested in the complaint—the federal court cannot award damages ‘unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.’ This means that the claimant has a right to present her evidence to the federal court and to have a judge decide whether her claim is supported by law and fact. FSIA thereby empowers claimants to force a judicial decision as to whether, for example, the Syrian government is engaging in a campaign of terror against foreign journalists in an attempt to keep the truth of the war from reaching the outside world.
More than four years after her death, Marie Colvin is still a force for truth and accountability.
July 5, 2016: Immigration and President Trump or, Why Deadlock is Good
In the days since the Brexit referendum result our office has heard from nervous people who want to leave Britain and move their lives and businesses to the United States instead. However, they voice one major concern: What happens to US immigration if Donald Trump is elected president on November 8, 2016?
Donald Trump has made headlines for his attacks on immigrants (documented and un-) and racial and religious minorities. Fortunately no matter what Candidate Trump might say, no matter what President Trump might want to do, even the president of the United States does not have the power to flip a switch and change our immigration laws. We saw this recently when the federal courts struck down President Obama’s proposal to extend certain protections and work authorisation to undocumented parents of US citizens.
Altering US immigration law requires the approval not only of the president but, in the first instance, passage of legislation by both houses of Congress. Immigration reform is a goal that has eluded even popular presidents, and even those whose political parties held power in both houses of Congress. In a parliamentary system of government the party that holds a majority of seats in the legislative body can push through its agenda. However, the checks and balances of the US governmental structure and the weakness of party discipline (allowing members of Congress to vote as they like without much fear of the party whip) often serve to prevent the passage of any legislation. This is frustrating when one wants change but can offer protection against too-rapid change. Guess those Founding Fathers knew what they were doing after all.
June 28, 2016: WHAT 3 WORDS or GUDEON.MCFADDEN.BLOG
Perhaps we will never be able to answer the question: Who are we? With the ingenuity of a British startup, though, we are able to respond ever so precisely when asked: Where are we?
What3words is the brainchild of a musician, Chris Sheldrick, and a linguist, Jack Waley-Cohen. Mr. Sheldrick’s frustrations as a band manager trying to get equipment to the right place touched a ‘chord’ with his friend, Mr. Waley-Cohen. There had to be a better system, one in which people could describe and find very specific places. Messrs. Sheldrick and Waley-Cohen knew that GPS, mapquest and Siri don’t always get us exactly where we need to be. Their new system became What3Words, recent recipient of such awards as London Innovator of the Year and Best British Mobile Startup.
Drawing upon the knowledge that most people can remember three words, even if they can’t remember what they had for breakfast, the entrepreneurs devised a geocoding system. This system divides the earth into three trillion squares, each just three meters by three meters. A proprietary algorithm assigns a unique three-word code to each square. The words, alone and in combination, are also reviewed to eliminate any combinations that might be offensive or confusing.
What3Words is accessible to anyone with a smartphone and is currently available in nine languages: English, French, Swedish, Turkish, Spanish, Swahili, German, Portuguese and Russian. Greek, Italian, Arabic and other versions are in the works. The three identifying words are different in each language and will be recognized by the algorithm even if the user puts them in the wrong order.
This is tremendous fun. If you go to the W3W website you can look up your own address as translated into three words. And by going to the map itself, down to the 3 x 3 level, you can prospect for a slightly more pleasant combination. For example, our office at 26/28 Great Portland Street in London could be W3W addressed as secure.look.bake. Or lowest.bigger.shrimp. Or adopt.jokes.agent.
The potential benefits of this system may rival the number of three meter quadrants it created. It can improve locating in dense urban areas as well as in the sparsely populated outreaches. For example, Mongolia has partnered with W3W to develop a postal address network, one that can accommodate the often unnamed streets in its capital city as well as deliver to its large number of nomads. Commercial delivery systems would gain greater efficiency. In this time of global migration, refugees and NGOs would be better able to meet logistical challenges. And you could find your mates at Glastonbury. What’s not to like?
June 21, 2016—For the record
TV audiences in the United States love ‘The Voice’ and ‘American Idol,’ show that offer stardom to talented but undiscovered young adults with compelling back stories. American copyright law, however, doesn’t share this affinity for its vocal artists. At least not yet.
I have no expertise in the field of Intellectual Property. My legal education took place at a time before laptops and iPhones, ‘way back when intellectual property was covered in the class entitled ‘Copyright and Trademark Law.’ People still referred to the radio as ‘the wireless,’ never thinking that the same word would be used, a generation later, for the marvels of Bluetooth and the internet. In other words, do not mistake my musings for legal advice or insight into the complex world of IP. But with this caveat….
A recent piece in The New Yorker by legal writer, Jeffrey Toobin, caught my eye (and ears). As an enthusiastic consumer of recorded music, I was interested in the pending legislation described by Toobin. Back in April 2015 an unlikely, cross-party coalition of members of the US House of Representatives introduced H.R. 1733, the Fair Play Fair Pay Act, which would extend to vocal and instrumental musicians the same royalty rights given to songwriters. What these lawmakers didn’t share in political philosophy was made up in a desire to serve their musical constituents. Hence, a Republican from Nashville worked with Democrats from California and New York (among others) with an aim to divert some of the digital profit stream.
Under current US law songwriters whose music is broadcast on terrestrial radio (normal AM/FM) are entitled to royalties; the singers on the recording are not. By contrast, both performers and songwriters receive royalties when their songs are played on internet services like iTunes, Spotify, Pandora or YouTube. The Fair Play Fair Pay Act would compensate the vocal and instrumental artists whose work is on AM/FM radio. According to the primary sponsor, Congressman Jerrold Nadler of New York, the bill ‘harmonizes the rules for licensing of sound recordings across all platforms and establishes a simple, fundamental principle for the radio business: Fair pay for all artists on all platforms.’
By way of procedural background, when a bill is introduced into the United States House of Representatives, it is assigned to a committee for consideration. In the case of H.R. 1733, it was assigned to the Judiciary Committee which then assigned it to the wonderfully-named Subcommittee on Courts, Intellectual Property and Internet. (What is the common thread, I wonder?) No Congressional hearings have been scheduled on H.R. 1733 and it may be that no hearings are scheduled before the bill dies with this Congress. A pity, for the long list of artists advocating for this bill include Rosanne Cash, T. Bone Burnett, Elvis Costello, Ronnie Spector, Gloria Gaynor, Cassandra Wilson, Martha Reeves, Marshall Crenshaw, Cyndi Lauper, Annie Lennox, Elton John, Duke Fakir of The Four Tops and Lenny Kaye of the Patti Smith Group. Imagine their testimony in the typically boring context of a subcommittee hearing! As T. Bone Burnett stated at a recent press conference designed to stir up support for the bill, ‘Drain the music out of cyberspace and you’ve got an emotional desert. And an economic one, too.’
Law, culture, artists’ rights and technology—they all intersect in the music that is the soundtrack to our lives
June 7, 2016:The International Dawn Chorus or Is European Cooperation for the Birds?
Whatever your thoughts on Brexit or the European Union, few of us would want to withdraw from the transnational avian cooperative effort that is International Dawn Chorus Day.
A dawn chorus is the birdsong start of each day. Whether you find the early morning calls of our feathered friends annoying or inspiring, I suspect you will be cheered and charmed by Dawn Chorus 2016.
On May 1, 2016, the European Broadcast Union (EBU) coordinated the broadcast of the dawn chorus as it made its way west, from Russia to Ireland. The EBU worked with the BBC, Radio Russia, the Dutch National Public Radio, Norway’s NRK and Ireland’s RTE. This effort built upon more localized productions, such as the decades-old Dawn Chorus on Irish radio. The birdsong broadcast was a rolling wave of trills and chirps, linked by ornithologists situated in the fields, marshlands and parks. Before the first creatures uttered a note, the presenters shared a range of stories about these European warblers, the science and the lore. The real show was the birdsong itself, and how it unfolded across the continent based on the earth’s rotation, not EU directive. Each bird and flock added its unique joyful noise to that of its feathered colleagues, just as they have done for thousands of years, prompted by the turn of the planet and the invisible workings of nature.
Fortunately for those of us who did not turn on our radios in the early hours of May 1st, recordings of the 2016 Dawn Chorus are available on the internet—the warble wide web, as it were. The website of the Chorus’s human presenter, RTE’s Derek Mooney, has numerous links to segments of the six-hour broadcast. Let’s hope this collaboration returns in 2017 and that the lessons of the dawn chorus are learnt by the world’s leaders: They should pay attention to their own nests whilst flying above boundaries, harmonise whilst singing their own tune.
May 24, 2016—Deciding not to decide
The Supreme Court of the United States is known for the decisions it renders. Last week it was in the news for the decision it avoided, at least temporarily. Zubik v. Burwell is an important non-decision involving the Affordable Care Act (colloquially, ‘Obamacare’). The issue: Whether religious nonprofit organizations are required to provide employees with birth control coverage as part of their health insurance plans. Zubik combined challenges raised in seven separate lawsuits.
By way of background, the US federal court system has 13 courts of appeals. These appellate courts hear appeals from various ‘lower’ district and specialised courts. One of the ways a case (or issue) makes its way to the Supreme Court is when the individual federal courts of appeals take different positions on questions of federal or constitutional law. At that point, the Supreme Court may decide to resolve the conflict by issuing its own opinion as the country’s highest, final authority. (As Associate Justice Robert Jackson said back in 1953, ‘We are not final because we are infallible, but we are infallible only because we are final.’)
In the Zubik combined cases the Supreme Court followed its usual procedures, and then took an unexpected detour. After briefs and oral argument, the Supreme Court sent the parties written questions to tease out their views in a number of specific scenarios. Armed with their responses, the Supreme Court issued on May 16 a ‘short and strange opinion’ remanding the cases back to the lower appellate courts and suggesting that the parties come up with their own resolution. The unsigned per curiam decision stated:
Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’
Supreme Court observers speculated about the reasons for this non-decision; sending cases back to lower courts without deciding the issue that brought them there is quite unusual. The death of Justice Antonin Scalia on February 13 left the Court with eight members instead of nine, and those eight justices are considered to be evenly divided on many issues. President Obama’s nomination of Judge Merrick Garland as Scalia’s replacement has foundered on the refusal of Republican senators to hold hearings on the nomination. (The senators are hoping that a Republican could be elected president in November and would like to leave the nomination open for him to make.) The Court may want to delay a decision until the next Justice joins the Court or, at least, avoid taking action on these controversial issues during an already bitter election campaign.
The members of the Supreme Court are not particularly elderly by Court standards, with only one Justice in her 80s and five under the age of 70. However, they are starting to look like quickly-aging parents on a long road trip with squabbling, squalling children in the back seat. Maybe the Justices can’t agree on how to make peace or maybe they are just too tired to care. They will let the kids sort it out. Maybe this will work. Maybe not.
May 17, 2016—(Way) off the beaten track
British clients and friends often ask what they should see or do when traveling to the United States, to ensure that they have an ‘authentic’ experience. Of course, the USA offers many diverse destinations: New York City with Central Park, Broadway and the Empire State Building; Florida with alligators, Disney World and Miami Beach; California with beaches, wineries, Hollywood and Yosemite; the Rocky Mountain region with Aspen, Yellowstone and Santa Fe; “the South” with Nashville, New Orleans and the Mississippi River; Las Vegas with casinos, neon and headliners.
For good or for ill, ‘authentic’ American experiences include a vast array of eclectic, quirky places of specialised interest. These gems can be found both in the cities and off the beaten track. No region of America is without its unique collections although it does seem that Texas boasts a disproportionate share of these unusual venues. With the summer holidays on the horizon, I offer a sampling of these wonderfully wacky (or weird) places for your travel planning or amusement. Each cultural centre affords its own perspective of Americana. Where not immediately obvious from the name, further description is provided.
- Barney Smith’s Toilet Seat Art Museum (Alamo Heights, Texas)
- Washington Banana Museum (Auburn, Washington)
- National Mustard Museum (Middleton, Wisconsin)
- Pez Memorabilia Museum (Burlingame, California)
- Hall of Flame Fire Museum (Phoenix, Arizona)
- Grandpa Jerry’s Clown Museum (Arriba, Colorado)
- Trash Museum (Hartford, Connecticut)
- Mütter Museum (Philadelphia, Pennsylvania) (not for the squeamish, displays a large collection of anatomical and pathology specimens, including neck tissue from the neck of John Wilkes Booth)
- UFO Museum and Research Center (Roswell, New Mexico—where else?)
- Titan Missile Museum (underground bunker near Sahuarita, Arizona) (highly recommended; my personal favourite)
- The Mmuseumm (New York City, NY) (gems such as Disney bulletproof children’s backpacks, shoe thrown at President George W. Bush all contained within a freight elevator)
- SPAM Museum (Austin, Minnesota) (this refers to ‘food’ not email or, as characterised on the website: MOMA—the Museum of Meat-Themed Awesomeness)
- Museum of Bad Art (Boston, Massachusetts)
- Chasing Rainbows Museum (Pigeon Forge, Tennessee) (devoted to all the wonders of Dolly Parton)
- National Museum of Funeral History (Houston, Texas)
- Leila’s Hair Museum (Independence, Missouri) (in spite of the name, the Museum contains hair from people other than the eponymous Leila)
- Historical Dental Museum (Philadelphia, Pennsylvania)
- Devil’s Rope Barbed Wire Museum (McLean, Texas)
- Vent Haven Ventriloquist Museum (Fort Mitchell, Kentucky)
- Lee Maxwell’s Washing Machine Museum (Greeley, Colorado)
- Salt and Pepper Shaker Museum (Gatlinburg, Tennessee)
May 10, 2016 – Plague Ships
The BBC is reporting that a British cruise ship, nearly one-third of whose 919 passengers were suffering from the vomiting bug norovirus, docked in the United States after having been denied landing in Bermuda. The Balmoral is only the most recent ship to have arrived on America’s shores with a cargo of desperately ill passengers.
In the 19th century the crossing from Europe to America was notoriously difficult, and the people on board, many of them immigrants, often travelled in cramped conditions which encouraged the spread of disease. Cholera, typically caused by contaminated water, was a particularly common affliction. In November 1853 alone, 28 emigrant ships sailing to New York from Europe were struck with cholera. Newspapers in both the US and UK published lists of afflicted ships, stating their port of origin, length of the crossing, number of passengers and number of fatalities from cholera; some ships were literally decimated by the illness. Before the development of germ theory, it was believed that cholera was transmitted by noxious air emanating from the diseased, and in June 1832 New York decreed that any ship with cholera on board could come no closer than 300 yards to any dock. Over the course of the century, additional legislation was passed to enforce quarantines of immigrant ships.
Because immigrant ships were so often affected by cholera, outbreaks of the disease in America were often blamed on the immigrants themselves. Certainly cholera and other diseases often had a disproportionate impact on immigrant populations, largely due to the fact that immigrants often lived in the cheapest and most overcrowded parts of town with limited access to sanitation. There were those who portrayed cholera as the Christian God’s way of punishing non-believers and blamed non-Christian immigrants for bringing the disease from India. Political cartoons concerning the arrival of cholera in the United States sometimes depict the illness as a skeletal figure wearing non-Western clothes such as robes or a fez.
In 1893, following a particularly savage cholera outbreak, Congress passed the National Quarantine Act, which created a national (as opposed to state-based) quarantine system, and in 1963 the federal government gave control over quarantine to the body now known as the Centers for Disease Control and Prevention (CDC). The CDC now operates twenty quarantine stations across the country.
Cholera is fortunately very rare in the US these days, but it remains on the list of quarantinable diseases along with tuberculosis and SARS, the latter having been added in 2014. Persons suffering from communicable diseases determined by the CDC to be ‘of public health significance’ are still ineligible for visas and for admission to the US.
May 3, 2016: British Advantages in the US
If you have made your way to this blog, there is a good chance that (1) you hold a UK passport and (2) are somewhere in the process of considering a move to the United States. Your considerations may be focused on employment or investment opportunities, tax considerations, family ties or matters of the heart.
In addition to these important factors, let me suggest some other random, quirky advantages to living in the United States. My qualifications to share these subjective opinions include—but are not limited to—being born in the US but living in London for nearly 18 years; specializing in assisting Brits in their efforts to relocate to the United States; having adult children and family on both sides of the pond; and spending time with family and friends in the US throughout the year.
The following Brit-centric advantages are listed in no particular order of importance or relevance, but may brighten your American experience in unexpected ways:
Hats (need not apply): Except for certain, very limited situations, women need not wear hats to social functions. The exceptions may involve certain quasi-religious situations such as being invited to the Kentucky Derby, which by the way is pronounced ‘dur-bee.’ Americans do not understand (but view with amusement) ‘fascinators’ and satellite dish chapeaux. You need not pack your millinery as you head to the US. American women don’t stress over getting a hat to ‘go with’ their dresses or vice versa, nor do they worry about picking up random radio waves when attending social events
Increased Intelligence: As you may have experienced, Americans attribute higher intelligence to those who speak with a British accent. Americans, by and large, do not distinguish among or appreciate regional or class distinctions when they hear a British accent. Stephen Fry told the BBC that a British accent may fool Americans into ‘detecting a brilliance that may not really be there.’ Maybe this will help your toddler gain access to the ‘best’ nursery school or your Lab a doggie play group?
Increased Coolness (in a good way!): Being British also carries a cool factor in America. Your accent (see above) bolsters your cool-quotient and perceived attractiveness. Plus, Americans associate Britain with James Bond, Downton Abbey, royalty, Adele, tweed, Benedict Cumberbatch, the Beatles, James Corden and pubs. Enjoy the popularity boost!
Insider access to key plot developments: Americans also love British television, be it Graham Norton on BBC America or basically any television show on its Public Broadcasting Service, a pale substitute for the BBC. Since BBC iPlayer is not accessible outside the UK, Americans have not figured out that these shows likely have aired first in the UK and thus, the British already know what happened on the last episode of ‘Downton Abbey’ or ‘Sherlock.’ Your colleagues may pay you for your insider information or, alternatively, pay you to not reveal spoilers about the outcome of Poldark’s last crisis. Either way, you win!
Ongoing Access to UK must-haves: We all have comfort products that we fear won’t be available in another country. While I will address this important topic in other blog entries (stay tuned), I hope to allay many of your consumer fears. Thanks to marketing, the internet and increased globalization, you will be able to obtain most of your preferred Boots cosmetics, tomato sauce, biscuits, TV shows and periodicals when you head west over the Atlantic. Even Marmite.
April 26, 2016: Alice in Immigration Land
On Monday, April 18 the Supreme Court of the United States heard oral argument on a case brought by Texas and 25 other US states, challenging the federal government’s policy of designating certain persons as being low priority for deportation, granting them ‘deferred action.’ (A list of the states taking part can be found on page 3 of the Government’s petition for review. To access the transcript of the argument, click here.) A grant of formal deferred action opens up the possibility of employment authorisation granted by the federal government and laws in the various states allow beneficiaries of deferred action to apply for state benefits such as drivers’ licenses.
At times some justices appeared bewildered by the hair-splitting distinctions between ‘legal presence’ and ‘lawful presence.’ The following exchange (pages 27 and 28 of the transcript) will warm with Schadenfreude the heart of many immigration lawyers:
CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present in the United States.
SOLICITOR GENERAL: Right…
CJR: Lawfully present does not mean you’re legally present.
JUSTICE ALITO: But they are—[the deferred action beneficiaries]—may lawfully work in the United States; isn’t that correct?
SOLICITOR GENERAL: That’s right.
JA: And how is it possible to lawfully work in the United States without lawfully being in the United States? … I’m just talking about the English language. I just don’t understand it. How can you be… how can it be lawful to work here but not lawful to be here?
April 19, 2016: Speak to a Swede today
Among other activities, the lawyers at G&M represent clients in matters involving the Embassy of the United States of America here in London. An embassy is of course the official office of an ambassador, a person who represents her country’s government in another country. Having been born in the US from sturdy Swedish stock, your writer has been delighted by news of the latest marketing efforts by the Swedish Tourist Association. These efforts, in effect, have made tourist ‘ambassadors’ of 2500 Swedes!
In a clever campaign, Sweden has pronounced itself ‘The first country in the world with its own phone number. Get connected to a random Swede and talk about anything. Specifically, a number of Swedish citizens have volunteered to answer telephone calls from people anywhere. These personal connections are aimed at promoting Sweden as a tourist destination. Whatever the impact on the tourist industry, this is a charming and creative method to advance ‘brand Sweden’ throughout the world.
Thousands have already dialed Sweden’s phone number in the fortnight since the service opened. (For the curious, the number is +46 771 793 336.) The first communication is from a friendly recorded voice that assures the dialer that he or she will ‘be connected to a random Swede’ shortly—a person who has demonstrated interest in serving as an ‘ambassador’ and downloaded the necessary app. Sure enough, a random Swede answers the call.
Apparently the world’s dialers have queried Swedes about a ‘smorgasbord’ of topics: How do the Swedes pronounce ‘Ikea’? What is the cost of a pint of beer? How dark does it get in the winter? Does Sweden really want refugees? What’s the best thing about Sweden? What Swedish words have been imported into the English language (the random Swede indicated ombudsman and smorgasbord)? Do Swedes eat Swedish meatballs? In a classic two-fer, some callers want to know whether Swedes like the meatballs served by Ikea.
I wonder how many of us would volunteer to be a ‘random’ Brit or Yank?
This is a marketing campaign that makes me smile. If it connects people of different countries on an individual basis, all the better for Sweden—and for the world.
April 5, 2016: Travel and Hospitality in the Supreme Court of the United States
The sudden death on February 13, 2016 of United States Supreme Court Justice Antonin Scalia made news on both sides of the Atlantic. Justice Scalia had a flamboyant personality and creative approach coupled with extreme legal and political conservatism. Even after death he continues to be in the spotlight for a number of reasons.
The US Constitution (Article II, section II) provides that US Supreme Court judges are nominated by the President and confirmed in their posts by the US Senate. The highly-charged political atmosphere in Washington this election year, along with the fact that President Obama has less than a year left in his term, has generated much discussion about whether it is appropriate for a ‘lame duck’ president to put forward a nominee for the vacancy created by Justice Scalia’s death. The President has nominated lower appellate court judge Merrick B. Garland for the position, but Republicans, who hold a majority in the Senate, have vowed not to consider the nomination before the new president is sworn in on January 20, 2017.
But this is not the only interesting story to emerge from Justice Scalia’s passing. The Washington Post and The New York Times looked into the context of Justice Scalia’s death taking place at a resort.
When Supreme Court Justice Antonin Scalia died at a Texas resort last weekend, he was staying in a 1,100-square-foot, $700-a-night room overlooking a lake. He wasn’t paying, though… This trip was one of hundreds taken by the Supreme Court justices in recent years, but its exclusive and private nature—with Scalia and three dozen other unidentified people gathered at a remote resort—has drawn new attention to how much is known about the high court and how its members travel…
According to these news articles, justices must report travel-related reimbursements that total over $375.00 each year. Likewise, they cannot accept anything of value from those who have a case pending in the Supreme Court. However, there is a reporting exemption for ‘food, lodging or entertainment received as a personal hospitality.’
In his most recent financial disclosure report (2014) Justice Scalia reported receiving no gifts, but he did acknowledge having received funding during the year for 23 trips designated as lectures, speeches or the like. He was the Court’s most enthusiastic traveler, having taken between 2004 and 2014 a total of 258 trips paid for by outside organizations. Perhaps another legacy of Justice Scalia will be a review of what ethical codes and requirements should apply to the travels and ‘personal hospitalities’ afforded these, the most powerful of US jurists.
March 29, 2016: Why Easter lasts all year long in Ireland this year (and why we might care)
For those readers who claim a bit of Irish heritage (nearly 40 million Americans do, including President Obama) and for history buffs of every persuasion, 2016 is a special year. Specifically, it has been 100 years since a small group of men and women took to the streets of Dublin and elsewhere in Ireland with the goal of throwing over British rule and establishing an independent Ireland.
The rebellion took place over Easter Week in 1916, with rebels occupying various well-known Dublin venues: the General Post Office, the Royal College of Surgeons, St. Stephen’s Green and Jacob’s Biscuit Factory. The short-lived ‘Easter Rising’ ended when the rebels surrendered. The execution of a number of its leaders in nearby Kilmainham Jail may well have made many more of the Irish sympathetic and supportive of the rebels’ cause and fueled the Irish Civil War. These events ultimately resulted in a treaty that divided Ireland’s 32 counties into two states: the independent Republic of Ireland (26 counties) and Northern Ireland (six counties).
Why mention Irish history at all in this legal blog? (Non)interest declared: Your author cannot claim any Irish blood, rejoices in both US and UK nationality, and doesn’t have a political point to make. But this centenary affords both Ireland and the UK an opportunity to explore their interdependent social, political and historical perspectives. These perspectives may also inform how we view other current developments and movements, such as the debate about immigration prompted by the ongoing US presidential campaign, and move us to consider the historical footprint left by our families and society.
In the 100 years since 1916, much has been written and filmed about this tumultuous period. Raidió Teilifís Éireann [RTE], Ireland’s national broadcaster, is a good place to start a voyage into the many live commemorative events, and listen to interviews and analysis of the Easter Rising. Its website is a rich portal through which to gain a better view of the ordinary and extraordinary lives touched by this uprising. Archival footage includes interviews of rebels and bystanders; extensive film and photos capture the ‘look’ of the times. The website associated with Glasnevin cemetery where many rebels are buried is another great source of information about many of the participants. Moreover, on Good Friday the BBC aired the first of a six episode documentary series entitled Easter Rising – Ar-a-mach na Càisge. Each of these sources offers a view of the many truths and stories of 1916, and the chance to ‘put ourselves into each other’s history.’
March 22, 2016: ‘March Madness’ and the H-1B visa
In the United States, ‘March Madness’ is the men’s Division 1 college basketball championship tournament that takes place this month. But for US immigration lawyers around the world, March Madness is the annual scramble to prepare a year’s worth of H-1B petitions and ready them for filing with the USCIS during the first five business days of April. Why April, and why the scramble?
The H-1B visa is for persons in specialty occupations, defined as being those occupations that require the equivalent of a US bachelor’s degree for entry. Unfortunately for US employers and their would-be employees, the H-1B is one of the few non-immigrant visas that is limited by quota. Every year since 2004 approximately 65,000 new H-1Bs become available for the entire United States and the entire year. An additional 20,000 are available to persons who have earned advanced degrees (master’s degrees or higher) from US institutions. The latter is called the ‘master’s cap’ and the former the ‘regular cap.’ The year, for these purposes, is the US Government’s fiscal year, which begins on October 1. Since an H-1B petition cannot be filed more than six months ahead of when the employment and visa will begin, that means that the first day on which one can file an H-1B petition is April 1. Every year the USCIS reminds us of this fact, in a mid-March announcement.
This year, as in previous years, the USCIS has forecast that it will receive many more petitions on the first day of filing than can be granted visas. Therefore, it will collect all petitions filed during the first five business days—the thought, years ago, was that accepting only petitions filed on April 1 would discriminate against those employers who could not afford to use a private courier company, rather than the US Postal Service—and conduct two lotteries. The first will be among the persons qualifying for the master’s cap. From those petitions, which are filed to a separate address from those in the regular cap, the USCIS will select a number of petitions which it believes will result in 20,000 approvals, filling the quota. The second lottery then takes place with USCIS selecting petitions for adjudication that will result in approximately 65,000 approvals. This second lottery includes all petitions filed against the regular cap as well as the master’s cap petitions that were not chosen in the first lottery.
It can often take until deep into May before all lottery participants find out whether their petition was selected for adjudication. Unsuccessful petitioners receive their petitions back in the post, and they begin the wait for next April.
March 8, 2016: Elections
Those of us who live in the UK can hardly switch on the television, radio, or even check our e-mails without hearing about two upcoming elections: the 23 June referendum on the European Union and the 8 November US elections.
The procedure behind the EU referendum is relatively straightforward. A vote is held on the single question ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ If the vote is in favour of leaving the EU, Parliament would be expected to take the legislative steps required to bring about the UK’s departure, the so-called ‘Brexit.’
The upcoming US elections are much more complex, since they involve not just a single question, but literally thousands of individual races on local, state and federal levels. All 535 seats in the US House of Representatives, the lower house of Congress, are up for decision this year as they are every two years. One-third of the seats in the US Senate, the upper house of Congress, are contested every two-year election cycle since the term of a US Senator is six years. The President is elected for a four-year term, so every second federal election is a Presidential election. (The federal elections held in non-Presidential election years are typically referred to as ‘midterm’ elections.) Of course, the President is elected not by the popular vote, but rather by the Electoral College, a fascinating constitutional construct that warrants further discussion here in future.
US registered voters will also be faced with additional choices to make, depending upon where they live. The voters in 12 states
will be choosing the governor (highest elected official) of their states. There will also be elections for state legislatures, both the upper and lower houses. Nebraska
is the only one of the 50 states to have a unicameral legislature—that is, a single legislative body. All other states mirror the federal system of an upper and lower house.) There will be other choices to make on a typical US ballot—for other state, city and county offices and often for amendments to the state’s constitution. Spare a thought for the poor voters of California, whose state’s constitution
includes a mind-numbing level of detail—motor vehicle tax revenues, anyone?—meaning that hardly an election goes by when the voters are not asked to decide on a number of proposed constitutional amendments.
March 1, 2016: The not-so-magic kingdom
As has been widely reported, in both the general and immigration specialist press, one of the most famous and powerful media companies in the world was recently accused by two former employees of firing hundreds of American workers and replacing them with foreign workers on H-1B visas. On 25 January 2016, Leo Perrero and Dena Moore, both IT workers, filed class-action lawsuits against Walt Disney World and two recruitment/labor suppliers, HCL, Inc. (Perrero) and Cognizant Technology Solutions (Moore), claiming that, adding insult to injury, they were made to train their foreign replacements or be rendered ineligible for bonuses or severance packages. Those foreign replacements were allegedly sponsored by HCL or Cognizant for H-1B visas and then contracted out to Disney.
A review of the complaints in the two cases—no answer has yet been filed by the defendants—reveals a number of interesting details. (Access to federal court filings is available through the Public Access to Court Electronic Records system at https://www.pacer.gov/.) The plaintiffs allege that Disney colluded with both HCL and Cognizant to deprive Americans of employment by replacing them with foreigners on H-1B visas. If true, such actions could breach the undertakings required of H-1B sponsors, on the ‘Labor Condition Applications’ (DOL form 9035), to the effect that hiring foreign workers ‘will not adversely affect the working conditions of U.S. workers similarly employed.’ The complaints also refer to undertakings made on the ‘Application for Alien Employment Certification’ (DOL form 750A and B), but this is an error since labor certifications are not required for H-1B applications. Copies of both forms are attached as exhibits to the complaints.
The lawsuits were filed simultaneously in the US District Court for the Middle District of Florida, Orlando Division (they have sequential court-assigned case numbers) and the same attorney is representing both plaintiffs. Each complaint contains three counts—one for a civil violation of the Racketeer Influenced and Corrupt Organizations Act (‘RICO’); one for a conspiracy under RICO; and one for common law conspiracy. As permitted under RICO, treble damages are sought.
The plaintiffs were two of approximately 250 tech workers fired by Disney at around the same time; Disney claims that more than 100 of those workers were later rehired into other sections of the company. The New York Times reports that at least 30 former Disney workers have filed complaints with the Equal Employment Opportunity Commission, claiming that they were discriminated against on the grounds of citizenship. Another remedy available to persons who are discriminated against in employment because of national origin or citizenship would be to file a complaint with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (‘OSC’). The OSC enforces the anti-discrimination provision of the Immigration and Nationality Act (‘INA’). No mention was made in either complaint of violations of the INA or Title VII, Civil Rights Act of 1964, the latter of which requires a claim to be filed first with the Equal Employment Opportunity Commission.
We will keep our eyes on these two lawsuits, particularly as they attempt to obtain certification as class actions. If class certification were granted the potential liability in the case of a verdict for the plaintiffs would be easily in the tens of millions of dollars, given the potential for trebling under RICO. Stay tuned.