Tag Archives: statute

Follow up: Rulings Against Sheriff Arpaio

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles.  (One story here).  This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office.  The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

In Manuel de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS (D. Ariz. Oct. 2, 2013), U.S. District Court Judge Snow granted an injunction and listed reforms in which Arpaio and the Maricopa Sheriff’s Office must comply with.  This list includes, for example:

  • Supervisors shall provide effective supervision necessary to direct and guide Deputies.  Some of these include, for example: Respond to certain arrests; confirm the accuracy and completeness of Deputies’ daily reports;and hold Deputies accountable.
  • Supervisors enforcing Immigration-Related laws will directly supervise law enforcement activities.
  • Appointment of a federal independent monitor;
  • Hiring a Community Liaison Officer who is a sworn Deputy fluent in English and Spanish; and
  • Video recorder in every patrol car to record every traffic stop.

In We are America v. Maricopa County Bd. of Supervisors, No. CIV 06-2816-PHX-RCB (Sept. 27, 2013), U.S. District Court Judge Broomfield enjoined Arizona’s Maricopa Migrant Conspiracy Policy.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

via Courthouse News Service.

Advertisements

Leave a comment

Filed under civil rights, courts, discrimination, federal, immigration, legal decision, state

Follow up on Arizona S.B. 1070

You might remember the very controversial legislation against unauthorized aliens in Arizona.  Arizona Governor Jan Brewer was launched into the spotlight when she signed this bill.  The ruling of the 9th Circuit is important because it points to the exclusive control of the federal government of immigration.

In Valle Del Sol v. Whiting., No. 12-17152 (9th Cir. Oct. 8, 2013), the 9th Circuit Court of Appeals ruled that S.B. 1070 was void because it is vague and incomprehensible to a person of ordinary intelligence; and (2) it is preempted by federal law.

Setting aside the vagueness and incomprehensible nature of the law, the Court explained preemption.  The 9th Circuit focused on three main arguments: (1) federal government’s exclusive control over immigration policy; and (2) how Arizona’s law conflicted with federal’s laws.

The 9th Circuit first commented on why the federal government has this control.

Federal control over immigration policy is integral to the federal government’s ability to manage foreign relations:

“Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.  Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

Then, the Court explained why the federal government has exclusive control over immigration and not the states. The Court stated:

Congress did not, however, grant states the authority to prosecute [section] 1324 violations, but instead vested that power exclusively in the federal authorities.  Thus, “the inference from these enactments is that the role of the states is limited to arrest for violations of federal law.”

(citations omitted).

Lastly, the 9th Circuit pointed to the conflict of laws of Arizona and federal statutes as follows:

  1. First, Arizona’s statute provided “additional and different state penalties.”
  2. Second, Arizona “conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration priorities.”
  3. Third, Arizona “criminaliz[ed] conduct not covered by the federal harboring provision.” Arizona also “criminalizes encouraging or inducing an alien to come to or reside in Arizona.”

 

As a side note, if you are interested in standing and organizational standing, the 9th Circuit Court of Appeals discussed the standard and explained how plaintiffs had standing.

via Courthouse News Service.

1 Comment

Filed under civil rights, courts, federal, immigration, legal decision

EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

  • It is illegal for employers to discriminate against employees or applicants based on their genetic information.
  • Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
  • GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
  • There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

Leave a comment

Filed under civil rights, discrimination, employment, federal, regulations, rules

Non-Citizens and Deportation for Convicted Crimes

Moncrieffe v. Holder, 11-702 (2013) is an interesting Supreme Court decision.

The Immigration and Nationality Act (“INA”), 8 USC 1101, provides that a non-citizen who has been convicted of an aggravated felony may be deported from the US.  As way of background, ordinarily, a non-citizen when facing deportation, may ask for discretionary forms of relief and cancellation of the removal.  The exception is for aggravated felonies.

This case comes because among the crimes that are classified as aggravated felonies are illicit drug trafficking offenses.  The issue the Supreme Court addressed is whether this category includes state criminal statutes that extends to the social sharing of a small amount of marijuana.

In a 7-2 vote, the Supreme Court rejected the government’s position. The court explained that if a state crime of marijuana distribution does not closely match the federal crime of distribution, in a direct comparison of what each covers, it is not an “aggravated felony.”

In this case, the non-citizen came to the US legally in 1984.  In a traffic stop, the police found 1.3 grams of marijuana.  The non-citizen pled guilty to the charge of possession with the intent to distribute.  Under Georgia statute, this violation may be punishable up to 5 years.  Given this, the government alleged this was an aggravated felony.

The Supreme Court rejected this argument because it held the generically defined federal crime is “any federal punishable under the Controlled Substances Act.” 18 USC 924(c)(2).  “[N]ot just any offense ‘under the CSA’.”

The Supreme Court further explained,

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as ‘illicit trafficking in a controlled substance,’ and thus an ‘aggravated felony.’  Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms….

Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, ‘does not fit easily into the ‘every day understanding’ of ‘trafficking,” which ordinarily… means some sort of commercial dealing.’…

Nor is it sensible that a state statute that criminalizes conducted that the CSA treats as a misdemeanor should be designated an ‘aggravated felony.’  We hold that it may not be.

Leave a comment

Filed under Appellate, civil rights, courts, immigration, legal decision, Supreme Court

Computer Use At Work

Employers usually have computer usage policies, which detail that employees can only use computers for work-related purposes.  In other words, employees cannot access social networking websites or other unrelated websites.  In my practice, I have observed employers monitor and track employees’ computer usage.

A new wrinkle to the computer usage scenario has popped into the Circuit courts.  United States v. Nosal, 10-cv-10038 (9th Cir. 2012), examined the issue of criminalization of improper computer usage by an employee.  The issues presented at the court where as follows:

Does an employee who violates such a policy commit a federal crime?  How about someone who violates the terms of service of a social networking website?

In summary, the Ninth Circuit held that under a strict scrutiny read of the Computer Fraud and Abuse Act, 18 USC 1030, Congress did not intend to criminalize computer use exceeding authorized access.  The Ninth Circuit agreed with the district court that “[t]here is simply no way to read [the definition of ‘exceeds authorized access’] to incorporate corporate policies governing the use of information.”  In other words, the CFAA, the anti-hacking statute, is not an expansive misappropriation statute.

Leave a comment

Filed under civil rights, employment