by Ugh
I saw the recent deportation of someone with status under DACA, which made me wonder how immigration law worked when it comes to proving/contesting immigration status. Specifically, who has the burden of proof – the individual or the state – when it comes to whether a person is an "alien." It also made me wonder whether it is Constitutional to deport someone brought to the United States as a child.
On the former issue, here is what appears to be a decent primer on the burden of proof issue. It appears on the question of whether someone is an alien, the US must show by "clear, unequivocal, and convincing evidence" that the person is an alien.* But in practice how does this work? It seems that often the person admits she/he is an alien, which ends the issue. But suppose you claim you're not an alien (or refuse to answer the question) – the government must then prove that you're an alien, which I believe means it must prove you are NOT a US citizen. How does that work? The government can't, I don't think, demand you provide evidence of citizenship and if you don't then use that as proof, can it (as that would mean the government does not have the burden of proof)? Even proving that you are a citizen of another country wouldn't work because you could still be a US citizen. Anyway, if anyone out their knows how this generally works in practice or can send me a link, I would appreciate it.
On the Constitutional issue, the person in the above link was brought to this country when he was 9 years old, he was picked up by ICE and deported without (it seems) access to either an attorney or a judge. Setting aside the rather dark (alleged, I guess) circumstances of his removal by ICE** - how is it Constitutional to do this to someone? That is, someone who entered the US as a child presumably can't have the mens rea to violate the immigration laws, and so is innocent of any such violation and therefore can't be removed, except, I guess being an alien is a "status" that has no mens rea requirement? Maybe there's an 8th Amendment violation there to deport someone to a country where they last lived as a minor? And no opportunity to see a judge or have a lawyer, at least in so called "expedited removal" cases?
That reminds me of the whole "he's a terrorist so he doesn't have any rights" argument dating back to the Bush Administration. But, without a trial, how do you know he's a terrorist? Similarly for immigration status, how can you just deport someone without a hearing on status? Upon further googling, it says here that if you swear under oath to a "border agent" that you have the right to be in the US then you are entitled to a hearing before a judge. So, there is at least some process provided here, but good luck with that and the border agents under President Trump – it's an awful lot of discretion placed in the hands of a border agent.
Anyway, the more I read, the more fncked up and outdated this whole area of law seems. Indeed, it seems perfect for Trump and the Steve Miller/Bannons of the world and their fellow travelers to use as a weapon against people they don't like, whether they are US citizens or not, or here legally or not. Here is a SCOTUS blog post on an immigration case pending before the Court on other immigration issues. It's all rather disturbing and frightening.
*this is higher than "preponderance of the evidence" but lower than "beyond a reasonable doubt" – which is, of course, eminently clear….
**which, AFAICT, anyone who lives here who is not white should be afraid of under Trump.
Being in the country without authorization is a civil violation and not a criminal offense, so the right to an attorney does not apply.
Being in the country without authorization is a civil violation and not a criminal offense, so the right to an attorney does not apply.
When the resources of the state are used to obstruct legal representation, the constitutional position is arguably somewhat moot..
http://www.slate.com/articles/news_and_politics/cover_story/2017/04/ice_detainees_enter_an_unbelievably_cruel_system_designed_to_make_them_disappear.html
When the resources of the state are used to obstruct legal representation, the constitutional position is arguably somewhat moot..
http://www.slate.com/articles/news_and_politics/cover_story/2017/04/ice_detainees_enter_an_unbelievably_cruel_system_designed_to_make_them_disappear.html
Being in the country without authorization is a civil violation and not a criminal offense, so the right to an attorney does not apply.
You know I thought about this and you are correct I believe. But what is so bothersome is that the consequences – depending on the circumstances – are very criminal like. The SCOTUS case is about holding people at immigrant detentions centers – jail, effectively – for months and months at a time (and longer) without any opportunity to be released on bond, while waiting for your case to be heard.
It’s the rare civil case (never?) where you are put in jail until the case begins.
Moreover, while the historic immigration case may be simply sending someone back where they recently arrived from, which isn’t much of a punishment, that is emphatically not the case for those with DACA status. Imagine living here since you were 8 and then being sent back to that country when you’re 30? Or worse being under age 5 when you arrived?
IMHO it’s wanton cruelty and the fact that immigration cases have been historically treated as civil is a thin reed to hang the current system on (not that that’s what you’re doing heckblazer).
It’s really nuts.
Being in the country without authorization is a civil violation and not a criminal offense, so the right to an attorney does not apply.
You know I thought about this and you are correct I believe. But what is so bothersome is that the consequences – depending on the circumstances – are very criminal like. The SCOTUS case is about holding people at immigrant detentions centers – jail, effectively – for months and months at a time (and longer) without any opportunity to be released on bond, while waiting for your case to be heard.
It’s the rare civil case (never?) where you are put in jail until the case begins.
Moreover, while the historic immigration case may be simply sending someone back where they recently arrived from, which isn’t much of a punishment, that is emphatically not the case for those with DACA status. Imagine living here since you were 8 and then being sent back to that country when you’re 30? Or worse being under age 5 when you arrived?
IMHO it’s wanton cruelty and the fact that immigration cases have been historically treated as civil is a thin reed to hang the current system on (not that that’s what you’re doing heckblazer).
It’s really nuts.
Nigel’s Slate link is unspeakably awful. It’s incredible that this is happening in this way, and very depressing to contemplate that it pre-dates Trump, so can’t (somewhat comfortingly) be blamed on him. Jesus wept, is America even fixable*?
*Not claiming that we’re any great shakes ourselves.
Nigel’s Slate link is unspeakably awful. It’s incredible that this is happening in this way, and very depressing to contemplate that it pre-dates Trump, so can’t (somewhat comfortingly) be blamed on him. Jesus wept, is America even fixable*?
*Not claiming that we’re any great shakes ourselves.
Being in the country without authorization is a civil violation and not a criminal offense, so the right to an attorney does not apply.
I’m not so sure. A traffic ticket is the civil violation most of us are most familiar with. And while most people just pay them, you do have a right to a hearing before a judge.
And, if you are going to court and stand before a judge, don’t you have a right to an attorney? Certainly, if that happens, the government will be represented by an ADA, that is they have an attorney. And if you have a hearing before an immigration judge, you can bet that ICE will be represented by an attorney. So it seems like you should have a right to equal representation.
Being in the country without authorization is a civil violation and not a criminal offense, so the right to an attorney does not apply.
I’m not so sure. A traffic ticket is the civil violation most of us are most familiar with. And while most people just pay them, you do have a right to a hearing before a judge.
And, if you are going to court and stand before a judge, don’t you have a right to an attorney? Certainly, if that happens, the government will be represented by an ADA, that is they have an attorney. And if you have a hearing before an immigration judge, you can bet that ICE will be represented by an attorney. So it seems like you should have a right to equal representation.
It’s the rare civil case (never?) where you are put in jail until the case begins.
I’m way out of my element here, not being a lawyer and all, but the revival of, in effect, debtor’s prison seems to at least belong in the same ballpark.
IIRC, this stuff was a factor in Ferguson.
It’s the rare civil case (never?) where you are put in jail until the case begins.
I’m way out of my element here, not being a lawyer and all, but the revival of, in effect, debtor’s prison seems to at least belong in the same ballpark.
IIRC, this stuff was a factor in Ferguson.
doesn’t this meet the classical definition of begging the question?
if you haven’t proved i’m unauthorized, you can’t deny me an attorney because i’m unauthorized.
doesn’t this meet the classical definition of begging the question?
if you haven’t proved i’m unauthorized, you can’t deny me an attorney because i’m unauthorized.
Well denying you an attorney does have the up side that you may not realize that the burden of proof is on the government. Makes winning the case ever so much easier.
Well denying you an attorney does have the up side that you may not realize that the burden of proof is on the government. Makes winning the case ever so much easier.
It’s really nuts.
that about sums it up
It’s really nuts.
that about sums it up
The approach of the modern debtor’s prison, while horrible and bad and should be stopped, is that people are jailed for violating a court order, rather than failure to pay the underlying fine.
Of course, then there are the court orders to pay court fees, which you violate by not paying and then are thrown in prison for, so that’s much more like debtor’s prison.
Maybe some uber wealthy person can go around to these poor neighborhoods and pay everyone’s fines…(it’d be better to stop the practice, of course)
The approach of the modern debtor’s prison, while horrible and bad and should be stopped, is that people are jailed for violating a court order, rather than failure to pay the underlying fine.
Of course, then there are the court orders to pay court fees, which you violate by not paying and then are thrown in prison for, so that’s much more like debtor’s prison.
Maybe some uber wealthy person can go around to these poor neighborhoods and pay everyone’s fines…(it’d be better to stop the practice, of course)
Ugh, I didn’t see your main post until now (reasons complicated). “We” voted for an administration that will punish people for no reason whatsoever.
Donate to ACLU, IRC, or the organization of your choice. Or give us a to-do list.
Ugh, I didn’t see your main post until now (reasons complicated). “We” voted for an administration that will punish people for no reason whatsoever.
Donate to ACLU, IRC, or the organization of your choice. Or give us a to-do list.
Donated to Center for Constitutional Rights and Planned Parenthood (wife did Drs w/o Borders) in December (among others) in prep for this coming disaster. Maybe need to add an immigration lawyer org as well – suggestions?
Donated to Center for Constitutional Rights and Planned Parenthood (wife did Drs w/o Borders) in December (among others) in prep for this coming disaster. Maybe need to add an immigration lawyer org as well – suggestions?
That and I set up a twitter account.
That and I set up a twitter account.
Thank you, Ugh.
Thank you, Ugh.
wj: A traffic ticket is the civil violation most of us are most familiar with. And while most people just pay them, you do have a right to a hearing before a judge.
Here in MA you have the “right” to pay a fee to get a hearing from a judge, but only after the (almost invariably) adverse ruling of the “clerk magistrate” in your first hearing. For which you also have to pay a fee.
A trivial thing compared to what immigrants face, but a stark example of nuttiness IMO.
–TP
wj: A traffic ticket is the civil violation most of us are most familiar with. And while most people just pay them, you do have a right to a hearing before a judge.
Here in MA you have the “right” to pay a fee to get a hearing from a judge, but only after the (almost invariably) adverse ruling of the “clerk magistrate” in your first hearing. For which you also have to pay a fee.
A trivial thing compared to what immigrants face, but a stark example of nuttiness IMO.
–TP
Really?!?!? OK, I believe you. But it definitely sounds crazy.
My experience here in California is that, if I want to contest a ticket, all I have to do is show up in court at the place and time given on the ticket. (Rather than just sending in a check to pay it.) No fee, no need to make prior arrangements, just show up and stand up when called.
I believe that the simple failure to pay constitutes notice of intent to contest. At least my experience was that the officer who wrote the ticket had shown up. He recommended that the judge dismiss the ticket “in the interests of justice”. Which I took to mean he didn’t remember the specifics and so couldn’t testify to any effect. At which point, no cost to me at all (beyond my time, of course).
In short, a very different approach. And, in my innocence, I had just assumed it was the same way everywhere. Learn something new every day.
Really?!?!? OK, I believe you. But it definitely sounds crazy.
My experience here in California is that, if I want to contest a ticket, all I have to do is show up in court at the place and time given on the ticket. (Rather than just sending in a check to pay it.) No fee, no need to make prior arrangements, just show up and stand up when called.
I believe that the simple failure to pay constitutes notice of intent to contest. At least my experience was that the officer who wrote the ticket had shown up. He recommended that the judge dismiss the ticket “in the interests of justice”. Which I took to mean he didn’t remember the specifics and so couldn’t testify to any effect. At which point, no cost to me at all (beyond my time, of course).
In short, a very different approach. And, in my innocence, I had just assumed it was the same way everywhere. Learn something new every day.
That’s because California is run by a bunch of liberal squishes.
That’s because California is run by a bunch of liberal squishes.
I did not pay a fee to contest at the clerk magistrate, in MA. Is that new? Also got two dismissed that way for pretty valid reasons.
I did not pay a fee to contest at the clerk magistrate, in MA. Is that new? Also got two dismissed that way for pretty valid reasons.
Marty, I don’t know how new. Last time I got a ticket was last millennium. Coworkers who had tickets in the last couple of years mentioned it. The current tariff appears to be $25 to contest (magistrate) and $50 to appeal (judge) per the MA court system FAQ.
–TP
Marty, I don’t know how new. Last time I got a ticket was last millennium. Coworkers who had tickets in the last couple of years mentioned it. The current tariff appears to be $25 to contest (magistrate) and $50 to appeal (judge) per the MA court system FAQ.
–TP