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Syrian Refugees To Arrive in Texas Despite Governor’s Lawsuit

A legal standoff will not stop the ongoing resettlement

Three Syrian refugee families—including a dozen children between the ages of two and 15—will arrive in Dallas and Houston this week, despite Texas’s on-going lawsuit challenging the federal government’s process in resettling Syrian refugees in the state.

The Obama administration said in a court filing on Friday that a family of six Syrian refugees, who were originally scheduled to arrive in Dallas on Dec. 4 , will now arrive Monday, after spending the weekend in New York. A second family of six is also expected to arrive in Houston Monday. A third, eight-member family, as well as a 26-year-old woman whose mother has already been placed in the area, are expected in arrive in Houston on Thursday.

Last week, Texas Attorney General Ken Paxton, with the backing of Governor Greg Abbott, filed a lawsuit requesting an immediate order blocking the arrival of all new Syrian refugeesin the state, in light of “reasonable concerns about the safety and security of the citizenry of the state of Texas.”

Two days later, on Dec. 4, Paxton’s office said it would no longer seek an immediate order blocking the arrival of the refugees, but said it would continue with the lawsuit pressing federal authorities to provide more information on those already slated for resettlement in Texas. Paxton rolled back his initial demand after federal authorities provided state officials with demographic information about the Syrian families arriving today, according to his office.

The shift, however, which came just hours before a federal judge was expected to rule on the case, did not sit well with some Texas conservatives. Abbott’s office remained quiet about the decision, which one Texas official told TIME was “not the governor’s first choice.” Abbott has since said publicly that he opposes accepting any more Syrian refugees on the grounds that the background check process is “inadequate.”

Katherine Wise, a spokeswoman for Paxton, told TIME that the attorney general’s office will continue to pursue a lawsuit against both the federal government and the International Rescue Committee, a non-profit that works to resettle refugees, to determine whether federal authorities are complying with the requirements under the 1980 Refugee Act. The state argues that the law requires federal authorities to regularly consult with, and provide information to, state and local officials in advance of resettling refugees in those localities.

Read Full Article – http://time.com/4138560/texas-syrian-refugees-court-battle/

Don’t Change the Legal Rule on Intent

Congress is achingly close to passing broad, bipartisan legislation that would reform the federal criminal justice system. There is widespread agreement among liberals and conservatives that many parts of the system — particularly federal drug sentencing laws — are overly harsh and fall disproportionately on minorities.

So it is troubling that the whole enterprise may now be in jeopardy because of an unrelated issue: the dispute over whether prosecutors should be required to prove that corporate defendants knowingly violated laws protecting, among other things, the environment and public health and safety.

While most criminal laws require the government to prove “mens rea,” or intent on the part of the defendant, some do not, and the proposed change would apply indiscriminately to all of those. Ignorance of the law is generally not an excuse for breaking it, and it certainly should not be turned into an excuse when the action inflicts serious harm to large numbers of people or to the environment.

Leading the charge to change the standard are the National Association of Criminal Defense Lawyers and Koch Industries, the conglomerate owned by David and Charles Koch, who have also supported the wider criminal-justice reforms.

If the new provision becomes law, corporate actors could avoid prosecution by claiming, as they commonly do now, that they didn’t know what they were doing was illegal. And corporations that now go to great lengths to train employees on their legal responsibilities would have far less incentive to do so.

The proposed provision would require that prosecutors prove that a defendant “knew, or had reason to believe, the conduct was unlawful,” if a “reasonable person” would not have had reason to believe it was unlawful. This confusing standard would create endless litigation as the government and defendants argued over how, exactly, to meet it in each new case.

If anything, it is still too hard for prosecutors to go after corporate bad actors who endanger the health and safety of the public or the environment. And when they do bring charges, they’re generally doing so with good reason. A University of Michigan study examining almost 700 prosecutions brought under federal environmental laws between 2005 and 2010 found that virtually all involved one or more of the following: repeat violations of the law, deceptive or misleading conduct, a refusal to follow regulations at all, or actions that caused significant harm to the environment or to public health.

It is true that many federal laws are sloppily drafted, and some may need to be re-examined and rewritten. But a broad, sloppy fix is not a solution, especially when it is pushed through without meaningful deliberation.

Bipartisan agreement on any major legislative package is a rare and fragile thing these days. Congressional leaders should not allow the proposed “mens rea” provision to scuttle criminal-justice reforms the nation desperately needs.

 

Police used apparently illegal wiretaps to make hundreds of arrests

Brad Heath and Brett Kelman, USA TODAY

RIVERSIDE, Calif. — Prosecutors in the Los Angeles suburb responsible for a huge share of the nation’s wiretaps almost certainly violated federal law when they authorized widespread eavesdropping that police used to make more than 300 arrests and seize millions of dollars in cash and drugs throughout the USA.

The violations could undermine the legality of as many as 738 wiretaps approved in Riverside County, Calif., since the middle of 2013, an investigation by USA TODAY and The Desert Sun, based on interviews and court records, has found. Prosecutors reported that those taps, often conducted by federal drug investigators, intercepted phone calls and text messages by more than 52,000 people.

Federal law bars the government from seeking court approval for a wiretap unless a top prosecutor has personally authorized the request. Congress added that restriction in the 1960s, when the FBI had secretly monitored civil rights leaders, to ensure that such intrusive surveillance would not be conducted lightly.

In Riverside County — a Los Angeles suburb whose  court and prosecutors approved almost one of every five U.S. wiretaps last year — the district attorney  turned the job of reviewing the applications over to lower-level lawyers, interviews and court records show. That practice almost certainly violated the federal wiretapping law and could jeopardize prosecutors’ ability to use the surveillance in court.

“A district attorney is playing with gunpowder if he ignores the potential implications of letting somebody else handle the entire process. That’s potentially catastrophic,” said Clifford Fishman, a Catholic University of America law professor who studies wiretapping.

That also  creates a legal problem for Riverside’s massive wiretapping operation, which had  come under scrutiny from Justice Department lawyers. Last week, USA TODAY and The Desert Sun reported that the U.S. Drug Enforcement Administration had secretly helped turn the county into the nation’s wiretap capital, even though federal prosecutors repeatedly warned that the surveillance orders violated a separate part of the wiretapping law and would not withstand a legal challenge.

Federal drug agents used information from Riverside wiretaps to make arrests as far away as Kentucky and Virginia, sometimes concealing the surveillance from judges and defense lawyers.

Wiretaps in Riverside more than quadrupled under the county’s former district attorney, Paul Zellerbach, who left office in January. Despite a federal court ruling that only the district attorney himself should usually approve wiretaps, Zellerbach said in two interviews over the past month that he could not recall having reviewed or personally authorized any of the county’s wiretap applications and said he was unaware of the details of the requests. Instead, he said, he delegated that job to one of his assistants.

“I didn’t have time to review all of those,” Zellerbach said. “No way.”

Because wiretap applications are secret, it is difficult to gauge how often they were approved by other lawyers. A report based on information Zellerbach’s office submitted to federal court administrators lists an assistant, Jeffrey Van Wagenen, as the person who authorized nearly all of the county’s wiretap applications. Van Wagenen’s signature appears on a sealed wiretap application approved last year by a Riverside County judge and obtained by USA TODAY. Van Wagenen, who left the office last year, said it would be inappropriate for him to comment.

Delegating that job poses a legal problem because federal law — which regulates wiretap applications even in state courts — carefully restricts who must approve a surveillance request. The U.S. Supreme Court ruled in 1974 that those restrictions were serious enough that it threw out wiretap evidence in a drug case because the surveillance had been approved by the wrong senior official at the U.S. Justice Department.

The federal 9th Circuit Court of Appeals reiterated that point in 2013 after federal prosecutors sought to use evidence from a wiretap police obtained from a state court in San Bernardino County, just north of Riverside. The prosecutor who signed off on the wiretap was not the county’s district attorney, Mike Ramos, but one of his deputies. That, the appeals court ruled, wasn’t good enough: Wiretaps had to be signed by the district attorney himself unless he had turned over all of his powers to someone else while he was away from the office.

Read Full Article – http://www.usatoday.com/story/news/2015/11/19/riverside-county-wiretaps-violated-federal-law/76064908/

The Legal Definition Of A Refugee, Which Obama Pays No Attention To

A puzzlement about the debate over accepting 10,000 Syrian refugees next year and more in the future is the lack of discussion of a fundamental point: Does Obama have the legal authority to order their admission to the U.S. as a humanitarian measure?

The answer is “no.”

The dictionary definition of a “refugee” is “a person who flees for refuge or safety, especially to a foreign country, as in time of political upheaval, war, etc.”

This definition underlies most of the media discussions of the Syrian situation, with its emphasis on the humanitarian crisis, which is indeed horrendous. The definition also underlies the President’s uncontested authority to provide humanitarian assistance to refugees outside of the United States if he believes that such assistance will “contribute to the foreign policy interests of the United States.” [22 U.S.C. sec 2601(b)(2)] The U.S. has already spent over $4 billion on Syrian relief under this authority.for this purpose.

However, the meaning of “refugee” in U.S. immigration law is narrower than this dictionary definition.

In immigration law, for purposes of admitting someone to the U.S., the crucial factor is whether a person has a legitimate fear of persecution, not whether a humanitarian crisis exists. By statute [8 U.S.C. Sec.1101(42)], a “refugee” is: “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…”

The statute then stretches this definition to include a person who is within his own country but who has the requisite fear of persecution. But the status of “refugee” can be granted only under “special circumstances” specified by the president. And before determining that special circumstances exist, the president must “consult,” in the form of in-person discussions between cabinet rank officials and members of the House and Senate Judiciary committees concerning all aspects of the situation. No agreement is necessary; just consultation [8 U.S.C. Sec. 1157(e)].

Section 1157 also provides for caps on the number of refugees admitted each year, and for presidential estimates of the likely numbers at the beginning of each year.

Nothing in the stretched definition changes the basic requirement that a refugee be someone who has well-founded fear of persecution.

The current controversy started on September 10, when the administration announced via press briefing a plan to admit 10,000 Syrian refugees next year. The next step was a formal Presidential Determination on refugee levels for FY2016, which projected admission of 85,000 total. The word “Syria” does not appear in the Determination, and the goal of resettling 10,000 Syrians appears only in news reports and briefings, such as a WhiteHouse.gov memo by DHS on How We’re Welcoming Syrian Refugees While Ensuring Our Safety.

Neither the press briefing nor the Presidential Determination nor the DHS memo mentions the statutory criterion of fear of persecution, and it is unclear why 10,000 Syrians will meet the standard. The State Department’s Report to Congress reviewing the section 1157(e) factors and explaining the reasoning behind the estimates does not explain why Syrian refugees meet the criterion.

Read Full Article – http://www.forbes.com/sites/jvdelong/2015/11/19/syria-who-is-a-refugee/

Mississippi Supreme Court rules same-sex divorce legal

Anna Wolfe, The (Jackson, Miss.) Clarion-Ledger

6:15 p.m. EST November 5, 2015

JACKSON, Miss. — The Mississippi Supreme Courton Thursday acknowledged the divorce of a same-sex couple under Obergefell v. Hodges, the U.S. Supreme Court ruling that legalized same-sex marriage.

In the process, two justices made claims that states may not have to follow U.S. Supreme Court rulings when they believe the court is creating policy as opposed to interpreting the law.

Five justices agreed with the ruling, consisting of just four paragraphs, that same-sex divorce is legal and should be recognized. Remaining Justices Jess Dickinson, Leslie King, Josiah Coleman and Jim Kitchens objected.

Dickinson acknowledged in his dissent, signed by Coleman, that the U.S. Supreme Court has ruled in favor of same-sex marriage and state Attorney General Jim Hoodhas informed the court that, following Obergefell v. Hodges, he finds Mississippi’s ban on same-sex marriage unconstitutional. Dickinson, however, goes on to question whether the U.S. Supreme Court exceeded the authority of its court.

“And while it is true that the Supremacy Clause of the United States Constitution obligates state courts to follow the United States Supreme Court’s constitutional interpretations, even when they disagree with those interpretations, there is substantial support from legal scholars that state courts are not required to recognize as legitimate legal authority a Supreme Court decision that is no way a constitutional interpretation, but rather is a legislative act by a judicial body that is — as Chief Justice Roberts put it — a decision that “has no basis in the Constitution or (United States Supreme Court) precedent,” Dickinson writes.

Chief Justice of the United States John Roberts wrote the dissent in Obergefell v. Hodges, which is why Matt Steffey, constitutional law expert and Mississippi College of Law professor, doesn’t believe Roberts’ opinion can be used for a valid argument.

“A dissent is the opinion of the side that lost,” Steffey said.

Steffey said Dickinson is simply saying the U.S. Supreme Court got it wrong. Steffey also said Dickinson’s argument is the same one that the Ku Klux Klan, the White Citizens Council and former Gov. Ross Barnett used to oppose Brown v. Board of Education.

“It’s exactly the same line of argument considered and rejected by our founding fathers,” Steffey said. “I’m talking about the line of thinking where every person gets to decide for themselves what the law means instead of following binding decisions of the court.”

In 2013, a judge in DeSoto County prevented Lauren Beth Czekala-Chatham from divorcing her wife, whom she married in California, because of Mississippi’s same-sex marriage ban.

Chief Justice William Waller and Justices Michael Randolph, Ann Lamar, Randy Pierce and David Chandler wrote an order in favor of Czekala-Chatham, overturning the Desoto County Chancery Court ruling.

Czekala-Chatham said she hopes to soon be divorced from her wife, who now lives in Arkansas.

“I’m happy this battle has been won. But the war on discrimination is still ongoing,” the 53-year-old Hernando resident told The Associated Press on Thursday.

She said searching for a job as a credit analyst has been difficult because potential employers see her involvement in the case.

“This fight has damaged my life in ways I can’t recover from,” she said.

In Dickinson’s dissent, he acknowledges the Chancery Court of DeSoto County’s refusal to grant a divorce to the appellant.

Dickinson attempted to prove his argument that the Supreme Court is able to “exceed its authority,” with what he called an “absurd hypothetical” about Congress taking all guns from gun owners.

“One example of this view, for instance, is that if the Supreme Court concluded that gun violence impedes the flow of interstate commerce, leading it to interpret theCommerce Clause as granting the Congress the power to confiscate all privately owned guns, who would feel bound to follow it? This absurd hypothetical, some believe, debunks any notion that it is impossible for the Supreme Court to exceed its authority. So in the context of today’s case, the question becomes whether it has done so in Obergefell,” Dickinson wrote.