Originally published at: https://boingboing.net/2017/10/03/thanks-obama-3.html
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The imaginary Scalia who functioned off of some sort of principles may have sided against the expansion of executive power, but I really really doubt that would have happened. Much more reliably racist.
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As my spouse has a green card this is yet another idiot move by the USA that moves me closer to saying fuck it and use the profits of selling the house and settling in up north.
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I hear its getting warmer up there and more tolerable to live in.
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Amendment 14, Section 1.
[…] nor deny to any person within its jurisdiction the equal protection of the laws.
any person.
not citizen nor resident, but any person.
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I don’t think the Constitution says citizens enjoy inalienable rights - OTOH - Milo not having free speech rights does give one a frisson.
https://www.forbes.com/sites/danielfisher/2017/01/30/does-the-constitution-protect-non-citizens-judges-say-yes/#71a7458f4f1d_emphasized text__emphasized text_
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Don’t come here. We’re building a wall. Just kidding, you’re welcome of course. But it’s actually still pretty hard to emigrate to Canada. Having said that, some of the more egregious isolationist and racist policies of the Harper government are being turned around so it’s becoming a little easier.
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At issue: whether the Immigration and Nationality Act’s definition of “aggravated felony” is unconstitutionally vague.
Calling it “whether immigrants have constitutional rights” seems a bit histrionic, no? It’s basically about whether a clause can validly include:
The Immigration and Nationality Act defines “aggravated felonies” expansively, including some misdemeanor as well as felony convictions. Part of that definition includes a “residual clause,” 18 U.S.C. §16(b), which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense.”
One might decide that including burglary (on the basis that a burglar might encounter the homeowner and that might lead to a violent confrontation) is going too far, but OTOH not having this clause would lead to e.g. armed bank robbery being okay so long as no one is actually shot.
Win or lose this case does not have any bearing on whether a law could be made that includes deportation as a punishment.
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I’m sure that telling tourist they have no rights will do wonders for that industry - and really help universities with large foreign student populations.
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Rule #1: Know your Boinger.
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“Does group X have constitutional rights” is a pretty messed up question. It seems the narrative that the government can grant rights or ignore them based on who is being discussed has completely and pervasively become the standard view. However, it seems to me that the constitution grants no rights but merely recognizes them as being an inalienable condition which must be protected by placing restrictions on the power of government. Within our Bill of Rights, we see several such restrictions and they are pretty clear. Some provide protections to people while others only provide protections to citizens and make use of those very terms.
Amendments IV-VIII which deal with how the courts may treat people are very clear in that they say persons and people. It’s pretty clear that the government must abide by these restrictions places upon their power.
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And Americans wonder why Canadian tourist visitations are down…
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The problem with what you’re describing is that conservative politicians who pander to the nativists and Know-Nothings will take any inch given by the courts to include a non-violent crime into the category of violent crime and turn it into a mile-long line of deported permanent residents and (eventually) naturalised citizens who would have otherwise served their time and been released back into American society.
The ultimate goal of authoritarians is to ensure that everyone living under the regime has done something that could be considered a criminal act worthy of whatever punishments they wish to mete out. We already see this going on with the immigration process in general (“sir, we see you didn’t list your MySpace account from 2005 on the required list of social media accounts on your application…”).
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I’m not sure how you are possibly coming to that conclusion. The decision of “whether a clause can validly include” is hinged on whether an immigrant is granted the same rights to due process as a citizen.
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The thing about the Constitution is that it doesn’t grant rights, per se, but rather limits the government from taking those rights away. So, in a way, everybody is afforded the protections of the constitution when within the bounds of its jurisdiction.
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I know a few things about this from personal experience … (not a lawyer, though, so standard disclaimer) …
The INA defines generally two types of deportable offenses:
- “Aggravated felony”
- Crime involving moral turpitude (CIMT)
A felony under Federal immigration statutes is defined more broadly than the State definitions so as to spread a larger net and avoid inter-state evasion issues, etc. This includes crimes committed within the first five years of an immigrant’s arrival which can lead to automatic deportation, and span “soft crimes” ranging from fraud (even civil court cases) to omissions on an immigration application.
A CIMT is a crime which offends community standards (which is another broad catchall), and may include such simple things as failing to report an address change to the NVC or USCIS, or committing a misdemeanor that involves the potential for being sentenced to 1 or more years in prison within any local jurisdiction.
This means that even if a sentence is commuted or reduced to community service, if the potential penalty for the crime is at least one year, the immigrant may be taken into custody at the Federal level for deportation hearings. Admission of a crime by an immigrant can also be used as evidence for deportation, although there is specific protocol that HSI and ICE must follow.
These laws already have legal precedent. Furthermore, crimes that violate VAWA (Violence Against Women Act, also including men and immigrants) may be established based upon emotional, financial and psychological abuse of an immigrant, and provide a broad range of refugee or battered-spouse protections.
The larger problem for citizens of the US is when someone has a foreign spouse and decides to emigrate back to the US. In this case, the citizen must sign an affidavit of support with the Federal government attesting that they have not been coerced and freely accept sponsorship for the immigrant for purposes of means-tested Federal benefits (means-testing is exempted from welfare depending upon the program). However, there is 2 year probationary status for marriage, and a legal permanent immigrant may not avail themselves of welfare generally for the first 5 years of their residency in the US.
In the event that the immigrant falls below 150% of the HUD-defined poverty line, the sponsoring citizen may be sued by the immigrant or the Federal government for restitution. This agreement is not dissolved by divorce, bankruptcy, or death (the citizen’s estate would be placed in arrears). Venue doesn’t matter; each state may decide issues of interpretation of Federal law regarding sponsorship.
The issues of establishing an unconstitutional debtor’s prison with what is essentially a private contract between the government and the sponsoring spouse has been hotly and inconsistently contended by judges, with each state establishing differing precedent. These affidavits have been upheld regardless of contract-law arguments against their being voidable and unconscionable.
In situations where domestic abuse occurs, there is no legal recourse for the sponsoring citizen to apply VAWA against the immigrant … only the immigrant against the citizen spouse. Dual citizens may technically be allowed to apply VAWA against a parent, although minors may likely require a guardian ad litem to represent their interests.
TL;DR:
Summation … immigration law sucks for both for the immigrant and the US citizen spouse, and operates on technicalities that in practice apply laws to grey areas of quasi-citizenship. The reason has to do with how immigration law is written into the US Constitution, with the presumption that all immigrants must be considered potential future US citizens.
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Who does?
Well, my understanding is this: The courts have already come to a decision on two key issues:
Can a law prescribe mandatory deportation as a penalty? Yes, it can.
Does the severity of deportation as a sentence impose a strict test on what such laws have to include, including not being too vague lest you violate due process? Yes it does.
The question is whether the definition of ‘a crime of violence’ in particular fails the vagueness bar. This is obviously a serious question, but describing it as determining whether immigrants have constitutional rights? When the courts have already okayed “any crime of moral turpitude” as not vague? That’s histrionic.
As the Scotusblog says:
However, no justice seemed interested in overruling Jordan’s holding that removal provisions are subject to review under due process vagueness standards. Even if the justices were willing to review the constitutionality of Section 16(b), they appeared divided on whether this case is distinguishable from Johnson v. United States and thus whether the statute is void for vagueness.
So the court is likely to rule very narrowly, and if the US government loses they’ll just reword the law a bit, possibly to include burglary explicitly.
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I’d take that further and say everywhere. The restrictions placed on the government do not say “Within the U.S.A.” The way I see it, those restrictions are universal restrictions on our government and they should be.
I totally agree. It should limit state actions, regardless of where they take place, e.g., drone attacks on people abroad without the courtesy of a fair trial.
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