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Trump Administration Approves of Tougher Visa Checks, Including Social Media Monitoring

With social media becoming a big part of the economy, public discourse, and the average person’s life, there would inevitably be an increased pressure to scrutinize those connections. The Trump administration has approved of social media checks as part of its new immigration vetting procedures. The social media checks will be in the form of questionnaires and will ask for information such as email addresses, travel history, and social media handles from the past five years.

 State Department officials claim that not everyone will be subjected to such checks; officials will only demand information when they believe certain individuals require more “rigorous national security vetting.” Although the Department asserts that these questionnaires are only voluntary for these individuals, any refusal may result in delay of application processing. Many universities and scientists have spoken out against these proposed social media checks, as they may discourage international students from traveling to the United States.

Why Should We Be Concerned?

Aside from whether the White House would need Congressional approval for additional to the current vetting process, there are few constitutional obstacles here. The primary concern would likely be equal protection challenges, as leaving background checks to the discretion of government officials would likely raise concerns about discrimination based on ethnicity (Arabs) and religion (Muslims). These social media checks would probably be on better legal ground if they were required of everyone attempting to enter the country, although such an undertaking would probably put a bigger strain on the State Department.

The second concern would be potential Free Speech “chilling” effects. Although the purported purpose of a social media check would be national security, investigating social media accounts would likely put a damper on free speech. Criticism of the American government or American foreign policy is not the same as support for terrorism, but overzealous immigration officials could interpret social media statements as such.

Proponents of tougher immigration vetting would likely argue that non-citizens do not have the same rights as citizens. However, the Constitution is not just a document that declares the rights of citizens; the Constitution’s primary purpose is to define what the federal government can and cannot do. The restrictions on making laws against free speech and equal protection are restrictions on the government; they apply whether the other party is a citizen or not.

What to Take Away from this Change

The question is not whether the First Amendment applies to immigrants, but whether the national security interests of the government outweighs any potential infringement on free speech or privacy rights.  What kind of information would a social media check reveal about a potential entrée into the country? If the immigrant follows ISIS on Twitter or is Facebook friends with terrorist suspects, which would certainly raise red flags. However, the issue will become to discretion. While it would be easy for immigration officials to flag down potential ties to terrorism from social media, would they flag Facebook “likes” to mosques? Or family relations in countries like Iran or Pakistan? Although a social media check would be fair and neutral based solely on the text, this amount of discretion is ripe for abuse. The White House, and the nation, would be better served if the President’s executive orders contained enough detail so that such discrimination would not be an issue. 

Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law

San Francisco Joins Fight Against Trump's Attempt to Defund Sanctuary Cities

After repeated campaign claims that Obama’s executive order on immigration was an extreme overreach of executive power, it doesn’t come as a surprise Trump has issued an executive order of his own that runs contrary to what Obama was trying to accomplish.  In the wake of several questionable orders that have incited national outrage, San Francisco is fighting back and has filed a lawsuit against Trump in an attempt to block the order that would defund sanctuary cities.

What’s a Sanctuary City?

In a nutshell, a sanctuary city is a jurisdiction that limits local law enforcement cooperation with federal immigration agents.  These safe-haven cities don’t inquire into a person’s immigration status and do not use municipal funds or resources to enforce federal immigration requests. 

Although a sanctuary city cannot stop the federal government from enforcing immigration laws within their jurisdiction, federal officials often do rely on the cooperation from local authorities to enforce these laws.  For example, consider when an illegal immigrant gets arrested, is set to be released, and federal officials request local law enforcement to keep the illegal immigrant detained.  This requires cooperation and it’s something sanctuary cities could refuse to do.  In fact, case law suggests local compliance is entirely involuntary; the federal government cannot force local officials to enforce federal law. 

California, Vermont, Connecticut, and Rhode Island are the only states that have laws limiting local cooperation with federal authorities, but, according to the Immigrant Legal Resource Center, 39 cities, San Francisco being one of them, across the U.S. have policies enforcing limited cooperation.  Trumps executive order claims these sanctuary cities are violating federal law because they “shield aliens from removal from the United States”.  The order says state and local law enforcement agencies can perform the functions of an immigration officer and threatens,

“…jurisdictions that willfully refuse to comply…are not eligible to receive Federal grants…”.

Is the EO Valid?

The 10th Amendment, along with case law, tells us the federal government cannot force non-federal entities to do their dirty work.  Herein lies the major problem with Trump’s executive order because it’s asking, or otherwise coercing, states to do so.

Case law also tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies.  While the U.S. Constitution says the federal government can put conditions on the money they give out, case law tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies.  Conditions can be implemented, but they must meet certain requirements.

• The amount of funding to be taken away must be a “reasonable amount”.  Case law tells us that the federal government can take away a reasonable amount of funding, but not all funding.  For example, taking away 5% cut of federal funding has been found reasonable.

• The funding being threatened to be taken away must be relevant to the condition the government is trying to enforce.  If Trump wants to enforce federal immigration policy, the funding he wants to take away must be limited to enforcing that same policy.  Who would be responsible for enforcing immigration policy?  Local law enforcement officials.  Taking away law enforcement funding would be appropriate, however, taking away all funding from a city would not.  Trump’s executive order states sanctuary cities are “not eligible for federal funding, except as deemed necessary for law enforcement purposes…”  This suggests he would take away all funding except for law enforcement, which is contrary to the rule.
  
  
• Referenced. Federal funding requires legislation, which means funding doesn’t just appear out of thin air; it’s granted through legislation.  If the government wants to put a condition on how and when federal funding is given out, the condition must be specifically referenced in the legislation.  Trump would have to get Congress to pass new legislation.  Considering the GOP holds the majority of Congress, this seems feasible, but the conditions still need to be relevant.   
  
  
• Coerciveness. The threat to take away funding cannot be coercive—simple as that.  The Supreme Court has already ruled once before that taking away all of a state’s federal Medicaid money is coercive, so it seems to reason that the same principles would apply in San Francisco’s lawsuit. 

Supreme Court Nominee Could Change the Game

As you can see, Trump’s executive order has quite a few constitutional hurdles to jump before it can be held valid.  Case law suggests the order as written could prove unconstitutional, but we can assume Trump chose his Supreme Court nominee carefully in the sense that he hopes his nominee will further his own political agenda.  If Neil Gorsuch is confirmed as a Supreme Court Justice, there’s a legitimate fear looming that his vote could sway the bench in Trump’s direction.  

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Should Residency Requirements for Citizenship Be Based On the Sex of the Parent?

Should U.S.- citizen fathers be treated the same as U.S.- citizen mothers? Luis Ramon Morales-Santana was born in the Dominican Republic in 1962 to unmarried parents—a father who was a U.S. citizen and a mother who was not. Although Morales-Santana became a permanent resident of the U.S. in 1975, the issue of citizenship came up when the federal government initiated deportation proceedings against him. 

Asserting he was in fact a U.S. citizen, the government denied Morales-Santana citizenship status on the grounds that his father didn’t meet residency requirements to transfer citizenship. Morales-Santana argued the relevant law was a violation on equal protection grounds and the Supreme Court decided to take this issue head on when they heard oral arguments in early November.

Under the law at the time of his birth, Morales-Santana could only be considered a U.S. citizen if his father had lived in the U.S. for at least 10 years before Morales-Santana’s birth, with at least 5 of those years being after turning 14. Morales-Santana’s father couldn’t meet those requirements because he moved to the Dominican Republic just 20 days shy of meeting that 5-year prong of the law.  Had Morales-Santana’s mother been a U.S. citizen at the time of his birth, he would have automatically been a U.S. citizen despite being born outside the U.S. 

Sound like a double standard? We know the 5^th Amendment affords equal protection from the federal government and the U.S. Court of Appeals for the 2^nd Circuit sided with Morales-Santana and ruled the laws governing citizenship for the children of unmarried parents violated the U.S-citizen father’s constitutional right to be treated the same as a U.S.-citizen mother.

Equal Protection under the 5^th Amendment

The legal requirements can get pretty complex because the specifics of certain immigration laws have changed quite often throughout the years, but Morales-Santana had 2 ways of gaining citizenship (other than naturalization):

• Children born outside the U.S. of parents, one of whom is an alien, and the other a U.S. citizen who, prior to the birth of the child, was physically present in the U.S. for periods totaling not less than 10 years, at least 5 of which were attained after the age of 14, can be citizens so long as the paternity of such child is established and legitimized before the child reaches age 21.
• Children born outside of the U.S. and outside of wedlock, acquire the nationality of the mother, if the mother is a U.S. citizen at the time of birth and has lived in the U.S. for a period of one continuous year (at any time in her life) before the child’s birth.

As you can see, residency requirements are quite different, making it harder for children of U.S.-citizen fathers than children of U.S.-citizen mothers. Morales-Santana couldn’t gain citizenship under the portion of the law that transfers citizenship from a U.S.-citizen mother since his mother wasn’t a citizen and, although Morales-Santana’s father was in fact a U.S. citizen, he didn’t meet the residency requirements of the law.

Despite the fact that Morales-Santana’s father was only 20 days away from meeting the residency requirements, why in the world should a U.S.-citizen father have to meet longer residency requirements than a U.S.-citizen mother?

Federal Government Disagrees

U.S. Attorney General Loretta Lynch argues there’s no equal protection violation because the law is based on the citizenship of the parents rather than the gender. When a child is born to parents of two nationalities, there will inevitably be competing interests. The rationale is that the U.S.-citizen parent needs to have the 10-year residency requirement in order to build a stronger physical connection to the U.S. since the alien parent would introduce a competing national influence.

The remaining section that transfers citizenship to a child born out of wedlock from a U.S.-citizen mother, the government argues, isn’t based on gender either, but rather solely on the legal relationship that an unmarried birth mother has to her child. A father must establish paternity before any legal relationship can exist.  I can see how this would be a valid basis for crafting the law in this manner.  Nevertheless, the application of the law (whether it was inadvertent is to be determined) does make it harder for U.S.-citizen fathers to transfer citizenship to their children born out of the country. 

Even if the intention behind the gender-specific language was based on the fact that unwed mothers have more legal rights to the child than the father, once paternity is established this argument is moot and, at that point, why would the father still have to establish longer residency requirements?

SCOTUS Previously Deadlocked

This isn’t the first time the high court has been faced with this issue. In 2010, the Supreme Court agreed to hear a case on the same issue, but the court deadlocked 4-4, leaving the lower-court decision intact. Although Justice Elena Kagan will participate in the case (she recused herself from the 2010 case), the court is still down a Justice and could potentially end up in another deadlock.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Obama's Executive Orders on Immigration

If you follow immigration policy, you know there’s been a lot of back-and-forth debate about whether or not to deport undocumented residents in the U.S.  You also probably know there’s been quite a bit of controversy surrounding President Barack Obama’s stance on immigration and the executive orders he’s issued during his tenure.

Back in 2014, President Obama announced his plans to implement policy, via executive orders, to protect undocumented immigrants from deportation. The policy is called the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and not only does it offer temporary protections from deportation, but it also authorizes work permits to about 5 million undocumented immigrants, most of which are parents of U.S. citizens. 

The policy is modeled after a previous version, DACA, that offered reprieve to child immigrants, and basically just expanded the qualifying age group.  Herein lies the controversy. Texas, along with 25 other states, challenged the constitutionality of Obama’s action, citing a lack of authority to issue such orders, and the case made it all the way to the Supreme Court.  However, because SCOTUS is currently down a Justice, the court deadlocked on the decision, leaving millions of undocumented immigrants in legal limbo.

What Exactly Is an Executive Order?

They’re legally binding orders given by a president to federal administrative agencies.   Oftentimes, they are used to direct or guide these federal agencies in their execution of laws or policies.  Executive orders can declare national emergencies, impose sanctions on other countries, set federal purchasing policies, and dictate working conditions for federal employees, to name a few. 

Where Does the President Get His Authority?

Executive orders have the same legal effect of a congressionally established law, but they don’t require congressional approval to take effect.  Despite this, a president can only give an executive order if the power is granted via legislative authority, if Congress expressly delegates some form of discretionary power to the president, or if it comes from a power directly granted via the Constitution.  

How Long Do They Last?

Once an executive order is signed by a president, it becomes law. An executive order will stay law unless Congress takes legislative action to limit the law surrounding the executive order or is reversed by presidential authority (whether that be the issuing president or a new president).

Let’s not forget, though, that all laws are subject to judicial review and executive orders are no different. Orders can be challenged in court on the grounds that the order deviates from congressional intent or, in the case of Obama’s DAPA policy on illegal immigrants, lack of authority to issue said orders.  Absent judicial review, Congress has the option to reform the law and, thus, limit what the executive branch can do with respect to that law.

However, Congress is much less likely to challenge executive orders related to national security, foreign policy, and treaties since those are powers expressly granted to the executive branch via the U.S. Constitution.  

So Why the Big Controversy?

Since taking office, President Barack Obama has signed 249 executive orders and received plenty of scrutiny. Many have often criticized President Obama for his constitutional overreach for his use of these executive orders, arguing that he uses them as a way to get around Congress.  

This is precisely where the controversy stems because executive orders essentially allow a president to make laws without the consent of Congress. However, it’s long rooted in our history that Congress has given the President leeway in implementing and administering federal laws and programs, especially when it comes to national security and defense. In fact, supporters of Obama’s policy argue the president’s discretion over immigration is deeply interwoven in our law. 

President Obama has signed far less executive orders than many former presidents. President Franklin D. Roosevelt signed 3,728 executive orders, which even if you take into consideration he served extra terms the numbers still far outreach Obama.  President Woodrow Wilson served the same 2 terms and signed 1,803 executive orders during his tenure.  Still, many argue it’s not the quantity that counts, but rather the content of the orders that are contrary to the intent of Congress that matter.  

What Happens Next?

Congress can certainly take steps to limit future action, but unless another case is brought before SCOTUS, with a full bench of Justices, we won’t know the full breadth of the power the executive branch has when it comes to issuing executive orders.  Until then, the outcome largely depends on which candidate wins the 2016 presidential election.  Trump has repeatedly stated he would repeal Obama’s executive orders regarding immigration policy, while Clinton has vowed to maintain similar policies as Obama.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Why Immigrant Children Have No Right to Appointed Counsel during Deportation Proceedings

Immigration Judge Jack Weil’s statement last March that he has “literally taught 3 or 4 year olds immigration law” sparked a media debate over whether immigrant children should have a right to appointed legal counsel during deportation proceedings.  After the recent decision by the Ninth Circuit in J.E.F.M., v. Lynch, teaching immigration law to toddlers facing deportation might be the only option. The court’s decision left Congress with the task of resolving the issue and immigrant children with no viable remedies.

The Right to Counsel during Deportation Proceedings

Immigrants facing deportation have a right to an attorney, but no right to appointed counsel. In other words, if a person cannot afford an attorney during a deportation hearing, he or she has no right to have one appointed. Immigration reform advocates argue that there should be a right to appointed counsel during deportation hearings, especially for children. Every year, thousands of children appear before immigration courts without legal counsel. It is unlikely that these children receive fair hearings given the complexity of immigration law and language barriers.

The convolutedness of immigration laws makes unrepresented children’s situation even more precarious. In J.E.F.M. v. Lynch, Judge McKeown stated that the complexity of US immigration law is “second only to Internal Revenue Code.” Attorneys usually receive special training before representing children in deportation hearings, but indigent immigrant children - many of whom do not speak English - must navigate this system alone.

There are some procedural safeguards for unrepresented children facing deportation. For instance, judges cannot accept an unrepresented child’s consent to deportation. Nevertheless, these safeguards appear insufficient. Between October 2004 and June 2016, over half of unrepresented immigrant children were deported, while only 10 percent of children with legal representation were deported.

The impact of deportation on a child’s life underscores the need for fair hearings. Many children who cannot afford attorneys have viable deportation defenses, such as asylum claims. It is not uncommon that children appearing before immigration courts fled their country to escape violent situations, and sending them back could be life-threatening. Yet thousands of children take on the deportation process without a lawyer.

J.E.F.M., v. Lynch

In J.E.F.M., v. Lynch, several civil rights organizations filed a class action lawsuit on behalf of thousands of unrepresented immigrant children facing deportation. The complaint alleged that the federal government’s failure to provide appointed counsel for these children violates the Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring “full and fair hearing[s]” before deportation.

The Ninth Circuit ruled that federal courts do not have jurisdiction to decide whether there is a right to appointed legal counsel until all administrative processes have been exhausted. Under the decision, an immigrant child would have to argue his or her right to appointed counsel before an immigration judge and lose their administrative appeals to the Board of Immigration Appeals before bringing the claim in federal court.  This would be a difficult and lengthy process for an English speaking adult and an almost impossible task for a child accomplish alone. Consequently, the decision cut off immigrant children’s ability to seek a judicial review on the issue. 

The Ninth Circuit, however, did appear sympatric and called on Congress to redress the situation. In February 2016, several Democratic legislators introduced the Fair Day in Court Act for Kids. If enacted, the law would provide a right to appointed legal counsel for children during deportation hearings. But, considering the controversial politics behind immigration law, it is unlikely that the situation for immigrant children will be remedied anytime soon.

For now, we can only hope that all immigration judges are gifted teachers.

Authored by Robin Sheehan, LegalMatch Legal Writer