Since the onset of Donald Trump’s campaign, we’ve been hearing about his plan to build a wall and about his strict stance on immigration issues. Up to this point, we haven’t heard many details regarding these new policies he plans to implement, but we finally got a glimpse in his recent speech out of Phoenix. Although he promises to “Make America Great Again,” can he really follow through with his plans for immigration policies?
Build a Wall
This has been Trump’s priority from the get go. The wall will be built with above-and below-ground sensors, towers, aerial surveillance, and enough manpower to guard the wall, locate tunnels, and keep out cartels. The most interesting part of his plan—to have Mexico pay for 100% of the wall. Not exactly sure how he plans to make this happen.
In fact, after Trump’s speech, Mexican President Enrique Peña Nieto adamantly insisted that Mexico would not pay for the wall and Mexico’s foreign Minister says this point is nonnegotiable. Although Trump denies ever speaking with him about payment of the wall, Peña Nieto maintains he made this point clear to Trump during their recent meeting.
Trump plans to detain illegal immigrants until they can be physically deported back to the country they came from, rather than release them just across the border, but he can’t entirely keep this promise either, as many countries refuse to take back their own citizens. Not only that, but this could result in lengthy and unnecessary detaining periods which presents civil rights issues.
Zero Tolerance for Criminals
The day he takes office, Trump plans to remove the 2 million criminal aliens from the country. Other than issue detainers for illegal immigrants immediately upon arrest and triple the number of deportation officers within the department of Immigration and Customs Enforcement, Trump didn’t give much other detail. He did, however, state he plans to pass what he calls “Kate’s Law,” which would mandate minimum sentences for criminal aliens convicted of illegal re-entry.
Hiring 5,000 more Border Patrol agents is also on the list, but there was no mention of the costs associated with hiring this nearly 25% increase.
Block Funding for Sanctuary Cities
Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars. Withholding federal money for compliance with federal policies isn’t a new concept, as it’s regularly done today so this one could fly.
Cancel Unconstitutional Executive Orders and Enforce All Immigration Laws
In 2012, President Obama granted temporary reprieve from deportation to migrant children. Trump, along with many others, believe these actions were unconstitutional. In 2014, Obama tried to expand this program; Texas and 25 other states challenged the constitutionality of his action. A federal judge stayed the President’s executive order and it remains that way ever since the Supreme Court deadlocked in a 4-4 decision.
Presidents get their powers to issue executive orders only when authority is taken from the constitution, current legislation, or from Congress delegating such power. The law mandates illegal aliens be removed and, according to the federal Judge’s opinion, there isn’t a law in effect that gave the administration the power to issue this order. Supporters say Congress delegated the power to deal with immigration issues but, with an equally divided court, the Supreme Court effectively refused to answer the question.
Regardless, Trump would have the authority to revoke Obama’s executive order.
Only Issue Visas from Countries with Adequate Screening
Trump initially called for banning Muslims from entering the country and later switched to banning Syrian refugees. Now, his stance appears to have softened by claiming only individuals placed through “extreme vetting” will be allowed in, but this could just be a way to mask the discriminatory motives behind his initial harsh stance.
Trump also stated he would create a list of countries from which immigration will be suspended, where he plans to build safe zones in order for refugees to stay in their home region. Once again, he promises others will foot the bill— “we’ll get the money from the gulf states.”
Ensure Countries Take Their Deported People Back
There are several countries that are uncooperative and refuse to take back their citizens. However, the Supreme Court has ruled we cannot permanently detain these illegal aliens indefinitely, so any illegal criminals must be released after their sentence has been served.
Trump did not offer a solution on how he plans to force other countries to take back their citizens.
Cut Off Benefits and Reform Legislation to Benefit American Workers
Trump plans to ensure E-verify, an online system employers can use to check whether applicants are authorized to work in the U.S., is fully utilized. Additionally, no government benefits for illegal immigrants will be issued.
Biometric Entry-Exist Visa Tracking System
This one is actually already law, but it’s never been implemented or used. Trump wants to begin this process in order to track expired visas. This would require building infrastructures at points of entry and exit, new personnel, and a whole slew of other hurdles, which is why it’s never been implemented.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
What’s on your to-do list for summer vacation? Book hotels, buy sunglasses, pack toothbrush…pay taxes? Yes, that’s right! After the recent enactment of H.R. 22, travelers are now required to pay their taxes in order to receive a passport.
H.R. 22 adds section 7345 to the Internal Revenue Code. Section 7345 entitled “Revocation or Denial of Passport in Case of Certain Tax Delinquencies,” allows the State Department to revoke, deny, or limit passports for failure to pay taxes.
There are some limitations to this new law. The law applies only where the Internal Revenue Service (“IRS”) has certified a delinquent tax debt of over $50,000, including penalties and interest. Passports will also be issued for emergency purposes and while a taxpayer is in the process of challenging the IRS decision.
Implications on Domestic Travel
What if your travel plans consist of domestic travel? Passport denial or revocation of a current passport obviously prevents international travel, but may soon deter domestic travel in several states. Congress passed the Real ID Act as a national security measure in the wake of September 11th. The Real ID Act requires new security standards to issue state drivers licenses. States have been slow in implementing the new standards. As a result, several states, including New Hampshire, New York, Louisiana, and Minnesota, may soon require passports as a second form of ID to board domestic flights. In the near future, domestic travelers in these states must make sure that their taxes are paid timely or risk missing their flights.
Closing the “Tax Gap”
The new law may help close the tax gap, or reduce the amount of unpaid taxes. In recent years, the IRS has estimated an average annual tax gap of over $400 billion. With a $590 billion budget deficit projected for the 2016 fiscal year, law makers must find new methods to crack down on those with delinquent tax debts. Section 7345 might encourage speedy payments.
Is the Law Constitutional?
The Supreme Court of the United States has long held that the right to travel domestically is a fundamental right that must not be infringed. On the other hand, a fundamental right to travel internationally has not been established, but US citizens are still at liberty to travel internationally. Accordingly, restrictions on both domestic and international travel must be within the bounds of due process. In other words, a notice and hearing must be provided prior to government enforcement of a travel restriction.
Without a notice and hearing, a passport denial or revocation might be considered an unconstitutional restriction on travel. Under the new law, once the IRS assesses a $50,000 unpaid tax liability, a notice is sent to the delinquent taxpayer. If the taxpayer does not pay the full amount, including interest and penalties, the IRS attaches a tax lien to all property. Once there is lien on the property, the State Department may unilaterally deny or revoke a passport. Even though the taxpayer is given notice of his or her outstanding tax debt, the process is completed prior to a judicial hearing. At first glance, it would appear that the new law does not follow proper due procedures.
Taxpayers may, however, contest IRS assessments of their tax liability. Section 7345 does not apply during the period a taxpayer is disputing his or her tax liability. In other words, the State Department will not deny or revoke a passport during the period the taxpayer is disputing the amount owed. It is likely that this satisfies the hearing requirement for due process, since there is a mechanism available to contest the assessments.
Moreover, courts have generally upheld passport restrictions for certain unpaid debts. For instance, in Eunique v. Powell, the Court of Appeals for the Ninth Circuit upheld a passport denial for failure to make child support payments. As such, it is unlikely that the new law will be held unconstitutional if challenged.
It appears that travelers must now add “pay taxes” to their vacation to do lists.
Authored by Robin Sheehan, LegalMatch Legal Writer and Attorney at Law
Adoption is a popular way to expand a family, but did you know that adults can also be adopted? Adult adoption is the legal process of adopting a person who is over the age of 18 years old and results in the legal parent-child relationship. In the United States, the most common reason to adopt an adult is for inheritance purposes. It is easier to leave property or other financial assets to someone who is legally related to you as opposed to someone who is not.
But one con man used the adult adoption process to defraud unsuspecting immigrants. Sixty-three year old Helaman Hansen from Elk Grove, California was arrested and indicted earlier this year for conspiracy to commit mail and wire fraud, 11 counts of mail fraud, and one count of wire fraud for operating a fraudulent adult-adoption program targeting undocumented aliens. Undocumented immigrants are foreign-born people who don’t have a legal right to be or remain in the United States.
Between October 2012 and January 2016, Hansen and his co-conspirators sold immigrants what he called a “Migration Program.” The program promised immigrants the opportunity to achieve U.S. citizenship by being legally adopted by a U.S. citizen. They got approximately 500 victims to pay more than $500,000 to join the program, and none of his victims obtained U.S. citizenship. If convicted, Hansen faces a maximum penalty of 20 years in prison and a $250,000 fine.
How Do Adult Adoptions Work?
First, it is important to note that most states allow adult adoptions, although some have limitations or simply do not permit such adoptions. For example, Alabama only allows adults over the age of 18 to be adopted if they are permanently disabled or mentally retarded. In Arizona, you have to be under the age of 21 to be adopted. Michigan and Nebraska don’t allow adult adoptions.
Each state has its own legal process for adopting an adult, but generally, adoption is the same legal process whether the individual is a child or an adult. The court in the state of adoption will issue a new birth certificate for the adopted person. At the same time, any existing legal relationship the adopted individual has with biological or custodial parents is severed. The adopted adult has the option of changing his or her last name and the adoption records are typically sealed.
How Does One Immigrate to the U.S.?
It’s not easy to immigrate to the United States. However, there easier ways of legally immigrating to the United States:
One can immigrate to the U.S. and secure a job in the country in order to obtain a green card. This option is typically utilized by skilled professionals. Second, "green card marriages” allow couples to get married so the non-citizen spouse can obtain a green card. The green card lottery is the third most common way to immigrate. With the lottery, a person can get an immigrant visa to come to the U.S.
One can also immigrate to the U.S. through family based immigration, if:
Why Can’t an Undocumented Immigrant Obtain U.S. Citizenship?
The law is cut and dry on the requirements for immigration. Under the law, an adoption must be finalized before the child turns 16 years old. Further, in order to adopt an undocumented immigrant, the child would have had to have lived with you in your legal custody for two years before filing the visa petition.
Based on what we know about the Hansen case, Hansen promised undocumented immigrants the ability to become U.S. citizens. His victims were too old and did not live in the custody of the adoptive parents for two years before filing the visa petition. Hansen also had no intention of making good on his promise to help his victims attain U.S. citizenship.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
Immigration policy hasn’t always been the friendliest to migrants entering the country illegally, especially young children. Activists and all those in favor of a more lenient policy will be happy with the U.S. 9th Circuit Court of Appeals’ recent decision that handed down a ruling confirming migrant children who cross the border accompanied by a parent are afforded the same protections as children who cross without one. The aspect gaining the most attention requires migrant children held in family detention centers be released without unnecessary delay, regardless of whether they crossed the border alone or with a parent.
Why is this important, you ask? Well, in the past, unaccompanied children were the only ones afforded any protection. Situations affecting children accompanied by parents went, for years, largely unnoticed. It wasn’t until members of a nearly two-decade-old class action lawsuit brought the issue to the forefront and requested the court order authorities to enforce the Flores Agreement.
A Little History on the Flores Agreement
Back in the 80’s, a few organizations filed a class action lawsuit on behalf of immigrant children who had been detained by the Immigration and Naturalization Service (INS). The lawsuit basically challenged the procedures regarding detention, as well as the treatment and release of children detained after illegally entering the country. In 1997, the lawsuit eventually ended up settling and, thus, the Flores Settlement Agreement was born. That Agreement required government authorities to:
The Office of Refugee Resettlement (ORR) replaced the INS and now oversees responsibility for the care of these unaccompanied children. Herein lies the crux of the question before the Court of Appeals. Does the Flores Agreement apply to all children—unaccompanied and those that are accompanied by their parents?
Lower court Ruled Yes Based on Contract Law
In July 2015, Judge Dolly Gee of the U.S. District Court for the Central District of California ruled that the government violated the terms of the Agreement. Not only did she find the detention centers to have deplorable conditions, but she ruled the Flores Agreement applied not just to children who cross the border alone, but to children accompanied by parents as well.
The enforcement of the Agreement is based solely in contract law and that’s where the courts get their power to interpret and enforce such an agreement. This means the courts must consider the contract as a whole and give effect to the mutual intention of the parties; following plain language only controls when the contract terms are clear. Judge Gee ruled the plain language of the Agreement encompassed accompanied children.
Here’s an excerpt from the Agreement:
“All minors who are detained in the legal custody of the INS.”
All minors. Looks pretty clear, right? To further back her decision, the Agreement defines a minor as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” Simple contract law tells us that when language is ambiguous, extrinsic evidence of intent is admissible. Judge Gee considered this language as wholly unambiguous and, therefore, even if the government had offered any evidence to a contrary intent, which they didn’t, it wouldn’t have mattered—the language is clear and doesn’t place any restrictions on a child’s travel partner (or lack thereof).
What About the Parents?
The Court of Appeals agreed with Judge Gee’s decision. Not only is the language clear, but, secondly, the Agreement provided special provisions in relation to unaccompanied minors. As Judge Gee reasoned, it wouldn’t make much sense to include extra guidelines specifically for unaccompanied children if the intention was to only applied to unaccompanied minors. Third, the Court of Appeals affirmed that the Agreement included two different definitions of minors that would not be protected—accompanied minors were not one of them.
The unfortunate part of this case is that because the decision rests solely on contract law principles, this means the court had no place to determine issues outside the Agreement. The Flores Agreement pertains strictly to migrant children—parents aren’t protected. Since neither court could address any issues outside the contract of Flores, it raises potential issues.
Where does that leave accompanying parents when the law requires that their children be timely released from detention? The only alternative is to release the children and let their parent(s) be released with them. The government could employ alternative means to detention, but this is definitely an area that will need to be addressed and we’ll likely see the effects of the ruling sooner rather than later.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Competitive video games, often called eSports, are taking the world by storm. In 2014, more people tuned in to watch a video game tournament—the League of Legends championship—than the World Series, NBA Finals, or Stanley Cup. With a worldwide audience of over 134 million people and yearly revenue of over half a billion dollars, eSports is here to stay and only getting bigger.
The U.S. gets one of the biggest slices of the eSports pie, making over $143M per year. The U.S. has also long offered temporary P1 visas to professional athletes, allowing them to come to the country and compete. So maybe it should come as no surprise that, in 2013, the US provided the first P1 visa to a professional League of Legends gamer. This has set the precedent for several other professional gamers to receive P1 visas.
Smashed Hopes: Visas Denied
Super Smash Brothers is an incredible popular video game from Nintendo. The game features classic Nintendo characters—as well as a few special appearances—pitted against each other in combat. The game has seen numerous versions, each with its own competitive scene. The version with perhaps the most persistent competitive scene is Super Smash Brothers Melee.
William Hjelte, known as “Leffen” in the competitive community, is considered a top Super Smash Brothers player. He has been controversial in the scene, considered a bit of a villain for his brusque manner and rude behavior, but is known for high placements at the biggest tournaments and consistently defeating players considered to be the best Smash Brothers Melee has to offer.
In 2015, on his way to a large Smash Brothers tournament in the U.S., Leffen was turned around and deported from the country—his P1 visa had been denied. He was told that he did not qualify for a P1 visa because "Super Smash Bros. Melee is a grassroots game that is not institutionalized, Melee is not considered a legitimate sport, there is no real ranking system other than a few non-legitimate websites." This inability to get a P1 visa kept Leffen out of the biggest tournaments until he managed to finally secure a visa with the help of his sponsors—Red Bull and Team Solo Mid.
This uncertainty in treatment for visas leaves international players in an eSport uncertain of their future. In the last few weeks, however, the Smash Brothers community has taken advantage of Obama’s “We the People” initiative. They’ve launched a petition to the White House, requesting U.S. Citizen and Immigration Services (USCIS) to officially recognize all eSports as actual sports.
The petition was started April 29th and already has about 64,000 of the 100,000 signatures it needs for the petition to be given to the White House for review. There are several potential advantages to eSports being an officially recognized sport. However, the most important one to the Smash Brothers community seems to be consistent P1 visas.
Petitioning for P1s: Will it Work?
A P1 visa is a temporary visa that allows entertainers and athletes to enter the U.S. for a specific event or performance for up to 5 years. Entertainers must apply as part of a group, while athletes can apply as a team or individually. An athlete seeking a P1 visa must first show evidence of having legally contracted with a major U.S. sports league as well as providing a written consultation from labor organizations with expertise relevant to their sport. They must also provide evidence that the athlete meets at least two of the following criteria:
If eSports are indeed sports, many eSports players could at a minimum show honors in their sport, rankings, and provide written statements from experts on their sport. However, even if eSports are sports, this won’t be enough to guarantee high tier players P1 visas. The question may simply shift from whether eSports are sports to which competitive video games are true eSports. There are countless games that are played competitively, arguably any multiplayer video game that has organized tournaments could be considered a legitimate sport.
The issue the USCIS had with Leffen’s P1 application was not whether he was an athlete, their issue was that competitive Smash Brothers Melee was not organized enough to be a legitimate sport. Many of the larger competitive video games, such as League of Legends, have leagues associated with them in much the same way as the NBA represents basketball. The League of Legends competitive scene is governed by regional leagues under the League of Legends Championship Series or LCS.
In order to truly ensure P1 visas to their players, regardless of whether eSports are sports, competitive video games will need to restructure themselves. This will require investment on the part of game developers, just as has been done with League of Legends. As they are, many competitive games are mostly ranked and organized through the fans of that game. Without a true organized league, receiving P1 visas will be difficult.
P1 visas leave a great deal of discretion to the agent of the USCIS that is handling them. Even if the recent petition becomes law and competitive video games organize themselves into leagues, there is a real chance that some agents will look at requests with substantial skepticism. Many P1 visas for eSports players require refiling, which can be done immediately after rejection, or appeal.
The first P1 visas for eSports athletes that were actually granted required a long back-and-forth process. League of Legend’s LCS stated “This was a lengthy process; we had a lot of people fighting for this and it wasn’t something that happened overnight. This was a constant back and forth of ‘show us more proof… is this realistic?’ and that sort of thing. Eventually it got to the point where they were like ‘we have no reason to say no… okay, this is legitimate.”
A Good First Step
The fact that USCIS has provided P1 visas to some eSports players in the past indicates that there are at least some situations where they believe eSports to be legitimate sports and its players athletes.
A classification of all eSports as official sports is a huge step, but it is unlikely to have the effect the petition’s proponents hope it will have. An unorganized video game competition will be unlikely to be treated as an eSport. Just like with Leffen, the efforts of the sponsors, organizers, and game developers will be necessary to structure competitive gaming into true eSports.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law