Archive for the ‘ General ’ Category

Migrant child abuse story not a victory or defeat for anyone.

Sunday, January 31st, 2016

In the zero-sum-game political world we live in, a victory for one side of a polarized issue is considered a defeat for the other side. This is true with immigration and particularly true with the influx of families and unaccompanied minors coming to America’s southern border from Central America two summers ago, and still coming to a lesser degree. Americans are polarized between those who want to provide humanitarian aid  to these wretched people and those who see them as a population, disease, crime, and terrorism tsunami invading the country.

So, when a court ordered the government not to detain minors as it was contrary to previous agreements not to arrived at after litigation challenging the detention as contrary to statute, anti-influxers saw this as a defeat for eliminating a disincentive to coming to this country. Conversely, when Immigration and Customs Enforcement picked up influxers who lost their cases and had been ordered removed, pro-influxers saw it as a defeat for their side and cause.

Now there is a new issue to polarize the pro- and anti-influxers – reports that children released from detention were placed into abusive households because of inadequate screening. Anti-influxers see it as a victory for their side: the humanitarian case is sad but America cannot solve everyone’s problems. If our country just enforced the immigration laws and stopped supporting illegal amnesty programs, Central Americans would stay in Central America. Besides, alternatively, when our federal government sets out to do something, it fouls it up. Thanks Obama.

The pro-influxers counter that the stories of abuse are few and far between and we should not punish the children fleeing (the probably) worse abuse in Central America than they are facing here by stopping their coming because of some bad placements. Besides, if the federal government (ICE and HHS) just administered the law properly, there would be far fewer cases of abuse. Thanks Obama.

Fleeing families and children facing torture and death in Central America should not be a political issue. Events unfold as the result of previous events. Some could blame the pro-influxers for the rushed screening of guardians because they pressured the government to release the minors. The pro-influxers had good reason, though. First, it was the law. Second, an important reason for seeking their release is because of the squalid and abusive the children were held.  Had the government been able to detain the influxers in humane conditions with access to beds, heat, medical care, education, and access to legal support, the demand to release the children would have been far less compelling. Pro-influxers pushed for the hasty release of the minors to solve a humanitarian outrage perpetrated by the government. That the children’s hasty release caused other humanitarian outrages for failure to adequately vet the people to whom the children would be released and because some of these children and families have crummy families is not a victory or defeat for either side. Sometimes a sad story is just a sad story. Hopefully, lessons can be learned about the challenges in dealing with a humanitarian crisis. Like after Hurricane Katrina where the government natural disaster relief bureaucracy learned to do better, so too here DHS and HHS will have to learn from these events to do better  because there certainly are not going to be fewer humanitarian disasters spreading to our border in coming years. Posted January 31, 2016.

Ted Cruz’s lying is not going to make his birth problem go away.

Sunday, January 24th, 2016

At the last Republican debate, on January 14, 2016, Ted Cruz said to the Republican front runner Donald Trump, “Listen, I spent my entire life defending the Constitution before the U.S. Supreme court and I’ll tell you I’m not going to be taking legal advice from Donald Trump.”  Also, challenging Mr. Trump’s charge that Mr. Cruz is not a “natural born citizen of the United States,” Mr. Cruz stated:

The legal issue is quite straightforward, but I would note that the birther theories that Donald has been relying on, some of the more extreme ones insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil. Under that theory, not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified, and interestingly enough, Donald J. Trump would be disqualified because Donald’s mother was born in Scotland.

Already recognized as a great prevaricator, as noted here and here and a million other places, looking at these two statements, one must conclude that they are both untrue.

The issue that has led to two lies is whether as a person born in Canada to a United States citizen, like Mr. Cruz, is eligible to be President. According to Article II, Sec. 1, Clause 5 of the Constitution, “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.”

Mr. Trump has challenged whether Mr. Cruz is natural born. (Born in 1970, Mr. Cruz obviously was not a citizen at the time of the adoption of the Constitution, 1789). It is this Constitutional question that Mr. Cruz feels is a non-issue, thus expressing consternation at Mr. Trump’s raising it. However, has Mr. Cruz spent his entire life defending the Constitution? At a strictly literal level, of course not. While suckling at his mother’s breast in Calgary, Alberta, Canada, and until he became a lawyer, he did little Constitution defending. Mr. Cruz graduated Harvard Law School in 1995. Then, he began engaging in protecting the Constitution. He clerked at the Fourth Circuit Court of Appeals and for Chief Justice William Rehnquist in 1995 and 1996. We can assume he spent time of Constitutional issues at these courts, but also on regulatory and statutory issues as well. He then worked in private practice where one can imagine he did Constitutional work plus all kinds of work.  Between 1999 and 2003, Cruz was the director of the Office of Policy Planning at the Federal Trade Commission, an associate deputy attorney general at the United States Department of Justice, and domestic policy adviser to President George W. Bush on the 2000 George W. Bush presidential campaign. One can imagine there was some Constitutional defending going on, but also lost of other stuff. His clearest period of defending the Constitution was 2003-2008 as Solicitor General of Texas.

It is often noted that Mr. Cruz appeared before the Supreme Court nine times. It is worth mention that not all of the cases were Constitutional and of those that were, five involved the death penalty. Here is a brief breakdown of his cases:

Frew v. Hawkins:  This case involved Texas’s failure to abide by an agreement it made with parents to provide  health care services to children to reduce lifelong vulnerability to illness or disease to settle a law suit against Texan officials. The families sued to enforce the agreement. Texas asserted that the federal courts did not have jurisdiction to enforce the agreement. Texas, represented by Mr. Cruz, lost 9-0.

In Dretke v. Haley, Mr. Michael Halley was sentenced to 16 ½ years in prison based on a 3 Strikes program under Texan law. It became apparent that Mr. Haley was not subject to the sentencing enhancement and was thus over-punished for his crime, stealing a calculator. The State of Texas, represented by Mr. Cruz, admitted that he did not fall under the law, but argued that the federal courts had no authority to right the injustice. The Supreme Court remanded the case to the Texas courts to review the sentence under Texas procedures to correct a mistake after appeals have been exhausted. The Supreme Court ordered the remand, 6-3.  Mr. Haley was re-sentenced. Mr. Cruz views the fact that the Supreme Court did not order re-sentencing, but left it to the Texas courts, as a victory.

Medellin v. Dretke  and Medellin v. Texas involved a Mexican citizen convicted of rape and murder who was sentenced to death. After he exhausted his appeals in the Texas courts, he argued that his conviction was invalid because of a treaty the United States signed affording foreigners in American jails the right to contact their consulates. Mr. Medellin was not afforded the right. The Supreme Court held that Mr. Medellin’s conviction could still stand despite the lack of notice. Texas and Mr. Cruz won 6-3.  Mr. Medellin was executed in 2008.
In League of United Latin American Citizens et al. v. Perry, Texas citizens challenged a Texas redistricting map that they alleged disenfranchised them through racially-based gerrymandering. The Supreme Court ruled 5-4 that one district, Congressional District 23, violated the federal Voting Rights Act. The Texas citizens felt they were victorious because a large part of the Texas district map had to be re-drawn. Mr. Cruz and Texas felt victorious because the court did not find the entire map was unconstitutional.

In  Smith v. Texas, a third death penalty case, a challenge was made to a Texas death penalty sentence because Mr. Smith was mentally handicapped. The Supreme Court set aside the sentence and remanded to the Texas courts to reconsider the sentence and to consider Mr. Smith’s low IQ and other mitigating factors. The Supreme Court decided 5-4 to remand. Mr. Smith later negotiated a life sentence.

In Panetti v. Quarterman, a fourth death penalty case, the Supreme Court disallowed a Texas death penalty, 5-4, because Mr. Panetti did not understand why he was being executed. Apparently Texas is still trying to execute him, though Mr. Cruz is no longer involved.

In Kennedy v. Louisiana, where Mr. Cruz represented the State of Texas supporting Louisiana’s position, he argued in this fifth death penalty case that the death penalty is appropriate for raping a child. The court voted 5-4 against Cruz, Louisiana, and Texas, holding that executing someone for raping a child is unconstitutional under the Eighth Amendment prohibition against cruel and unusual punishment.

Finally, in Global-Tech Appliances v. SEB S.A., after his time as Solicitor General and back in private practice, Mr Cruz, while an attorney with Morgan, Lewis & Bockius LLP, won a patent infringement case 8-1. In the case, a Global-Tech Appliances subsidiary was found liable for inducing infringement based on a theory of willful blindness.

Lawyers do not necessarily have to agree personally with the positions they take in representing a client. It is conceivable that a solicitor general must represent his state and argue positions he does not agree with or that he considers weak positions. However, a solicitor general also must use his discretion to pursue justice and not squander resources or a state’s reputation on spurious cases. Mr. Cruz’s commitment to the death penalty, supporting Texas’s failure to implement federal health laws, to uphold improper criminal sentences, and support racially-motivated gerrymandering may not be his personal positions, but her has never voiced his regret at taking the positions he did for Texas.

Not only was Mr. Cruz’s assertion that he spent his life defending the Constitution an exaggeration, his other statement, that the birther argument disqualifies Mr. Trump, is also not true. Mr. Cruz asserts that he is a U.S. citizen because his mother was a United States citizen when he was born. As discussed here, this is partially correct. Under the law applicable to him, Mr. Cruz would be a citizen if his mother was a citizen and she resided in the United States for ten years before he was born, five after the age of 14. He needs to go through this rigmarole because he was not born in the United States. I have not discovered any birther asserting that a person born  in the United States, other than the offspring of some foreign diplomats, is not natural born. The natural born issue only arises for persons not born in the United States. To assert that Mr. Trump is not a U.S. citizen when he was born in the United States is simply a lie to confuse the issue.

Mr. Cruz’s problem is that he is a citizen at birth based on current statutes. But statutes about acquiring citizenship at birth have changed many times over the centuries. The words of the Constitution cannot be defined by current statutes, as that would mean that the Constitution can be amended merely by Congress’s passing laws. We all know from Article 5 of the Constitution that amending the Constitution is much more complicated than that.
Mr. Cruz’s problem is that there is no definition of natural born. Applying statutes from the past do not provide firm conclusions even if that old statutes defined the meaning of the Constitution. Under some past statutes, a mother could not convey citizenship to a child. Like owning property, voting, and a myriad of other things, women were legally invisible until modern times. Mr. Cruz would not have been natural born if he was born in Calgary to an American mother in many periods in the past. In fact, during some periods, if his mother married a foreign citizen, she would have lost her own U.S. citizenship.  This natural born issue could be more serious than we thought as discussed here and here and here and here.  If Mr. Cruz wants to define the Constitution by modern Immigration and Nationality Act statutes, he needs to explain why and how it conforms to his originalist view of the Constitution.  Lying is not going to solve the problem. Posted January 24, 2016.

Is Rafael Edward “Ted” Cruz a U.S. citizen?

Thursday, January 7th, 2016

It’s déjà vu  all over again. Is a first term senator and former adjunct law professor running for President a U.S. citizen? This time the question is about Rafael Edward “Ted” Cruz, born in Calgary, Alberta, Canada, on December 22, 1970. Ted Cruz’s parents, Eleanor Elizabeth Darragh Wilson and Rafael Bienvenido Cruz, lived in Canada when Ted was born. Eleanor was a U.S. citizen. Rafael was not. On yesterday’s news, Mr. Cruz explained that it is settled law that he is a United States citizen because he had a U.S. citizen parent. Well, Adjunct Professor Cruz, we’ll have to give you partial credit.

The Constitution requires that the President be a natural born citizen. “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President….” Article 2, § 1, Clause 5.” What “natural born” means is not entirely clear. As we all know, a person born in the United States is usually a United States citizen.  INA § 301(a). I say “usually” because the offspring of foreign diplomats on the official diplomatic list are not U.S. citizens at birth. Assuming, as most do, that “natural born” includes those born abroad that acquired U.S. citizenship at birth, the remaining question is whether Mr. Cruz acquired U.S. citizenship at birth.

Being born in the United States is not the only way to be born a United States citizen. A child can acquire citizenship from a U.S. citizen parent or parents. If both of a child’s parents are United States citizens when a child is born, a child born in 1970 (like Mr. Cruz), is a citizen if one of the parents resided in the United States before the child was born. INA § 301(c). This does not apply to Mr. Cruz because his father was not a U.S. citizen. For a child born legitimately of one citizen parent and one foreign parent in 1961, the child is a citizen if the citizen parent was physically present in the U.S. or a possession ten years prior to the child’s birth, five of which are after age 14. See, the former INA § 301(a)(7). (It became easier on or after November 14, 1986, requiring five years of physical presence, two after the age of 14.) If Eleanor and Rafael were legally married and Eleanor lived in the United States for ten years before Mr. Cruz was born, then Mr. Cruz is a U.S. citizen.

Just like the other first term senator and adjunct professor who ran for President, Mr. Cruz’s parents were serial monogamists. If any of their prior marriages did not end in a divorce, then Mr. Cruz would be the son of a U.S. citizen born out of wedlock – polygamous marriages do not count as marriages under U.S. immigration law. The rule for transmission of citizenship in the case of a child born out of wedlock to a U.S. citizen mother born in 1970 is that the mother have been physically present in the U.S. or possession continuously for 12 months prior to the child’s birth. INA § 309(c). Having graduated from Rice University – which presumably takes more than a year to do (insert joke hear about Minute Rice University) – before Mr. Cruz was born, Mr. Cruz was a U.S. citizen at birth. I guess we’ll need to see Eleanor’s birth certificate, school records, and Eleanor and Rafael’s marriage certificates and divorce decrees to be totally sure. Posted January 7, 2016.

What if he was a foreigner?

Sunday, January 3rd, 2016

Bernard B. Kerik

In November 2009, Bernard Kerik, former New York City Police Commissioner, former Interior Minister of the Iraqi Coalition Provisional Authority, former Commissioner of the New York City Department of Correction, was convicted of obstructing the administration of internal revenue laws, 26 U.S.C. § 7212(a) and assisting in the preparation of false tax returns, 26 § 7206(2). He was sentenced to 33 months in prison for these crimes. He was also convicted of making a false statement on a loan application, 18 U.S.C. § 1014, and five counts of  making false statements to federal officials, 18 § 1001. For these crimes he was sentenced to a 48-month prison sentence.

The tax return matters related to Kerik’s efforts to take $80,000 in revenue deductions for false charitable contributions  in connection with  speeches made about September 11.

Obstruction, 26 U.S.C. § 7212(a), involves corruptly or by force or threats of force (including any threatening letter or communication) endeavoring to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructing or impeding, or endeavoring to obstruct or impede, the due administration of the tax laws. Kerik could be removable for an aggravated felony crime of violence, INA § 101(a)(43)(F) and the aggravated felony of obstructing justice, INA § 101(a)(43) (S).

Assisting in the preparation of false tax returns, 26 § 7206(2), could be considered a fraud with a loss of more than $10,000, an aggravated felony. INA § 101(a)(43)(M).

False statements on a loan application involve defrauding federal agencies. This is conceivably a fraud with a loss of more than $10,000,  an aggravated felony. INA § 101(a)(43)(M).  The also could be perjury offenses, also aggravated felonies pursuant to INA § 101(a)(43)(S).

Fraud offenses are also crimes of moral turpitude, one or two of which, depending, render one deportable.

The aggravated felonies render Kerik deportable. The moral turpitude crimes render him inadmissible. Waivers may be available for the moral turpitude crimes if Kerik had a means to become a permanent resident again. However, if his obstruction crime was a crime of violence, he would face a nearly insurmountably difficult standard for a waiver. “The Attorney General, in general, will not favorably exercise discretion … except in extraordinary ot favorably exercise discretion … except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.” 8 C.F.R. § 212.7(d).

This would not be Kerik’s first deportation. He was apparently deported from Saudi Arabia in 1984 after working there as a security officer at a hospital in Riyadh. He apparently ruffled feathers by over-zealously enforcing Islamic law at the hospital. Go figure. Posted January 3, 2016.