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Human Rights Watch accuses Alabama of violating constitution December 14, 2011

Alabama is systematically violating US and international conventions by depriving undocumented immigrants of equal protection under the law, according to Human Rights Watch.

HB56, the controversial immigration law that came into effect in Alabama in September, has driven a wedge between Latino residents who lack authorisation papers and the courts that are supposed to afford them equal treatment. In a survey of the impact of the legislation, Human Rights Watch found that discrimination was creeping into both criminal and civil law.

Under the legislation, known as the Beason-Hammon Act, section 27 says that “no court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the US”. That provision has already been invoked in at least one lawsuit by defendants accused of defrauding undocumented immigrants over the sale of cars – the defendants argued that they could not be sued because their victims were “illegal residents”.

In that case the judge found in favour of the plaintiffs, but only on the grounds that the fraud happened before HB56 was passed.

The watchdog recorded evidence of several cases of unauthorised immigrants who had wages withheld by employers and felt they were unable to take their grievance to court because of the new provision. One man, Alejandro, sought the advice of a lawyer but was told tha because of the new law he could not use the courts to retrieve the wages.

Human Rights Watch said this sent a clear message to employers that they did not need to fear legal redress from employees they had abused. That, the watchdog has pointed out, is a clear breach both of the US constitution and of international law.

In both the constitution and the international covenant on civil and political rights, all individuals must be treated equally before the law irrespective of their status. The 14th amendment of the US constitution says that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

Other aspects of HB56 have started to disturb the sacrosanct relationship between lawyer and client. Human Rights Watch said it had been told some lawyers were questioning whether they had a duty to inform on their clients should they lack proper papers.

The law prohibits “an officer of a court of this state” – a catch-all phrase that presumably includes lawyers as well as judges and court officers – from doing anything that would restrict the new legislation from being implemented. Human Rights Watch heard a case in which a criminal defence lawyer was confused about whether she was obliged to pass on the unauthorised status of her client. A judge advised that yes, she was obliged.

“Where does this law leave people if they can’t even trust their own lawyer?” said Grace Meng, the survey’s author.

Section 19 of the law denies bail to all undocumented immigrants charged with an offence, no matter how minor in nature. That in itself, the watchdog says, introduces unlawful discrimination into the legal process.

There are signs that the Latino community in Alabama – both documented and undocumented – has sharply reduced its reporting of crime for fear of being harassed by police under the new law even though they were the ones seeking assistance. The number of Latino people presenting themselves at court has plummeted, even to pay parking tickets, with individuals risking far greater punishments later on by allowing their fines to go unpaid.

Alabama’s all-out assault on undocumented Hispanic people has led to widespread criticism and ridicule, particularly after two foreign car executives working for Honda and Mercedes-Benz were apprehended under HB56. In recent days there have been moves to soften some of its provisions.

The courts this week stepped in to prevent undocumented immigrants losing their mobile homes, and the state attorney general Luther Strange has issued guidance saying that the law should not be used to withhold basic amenities from families such as water and electricity.

The Republican governor of Alabama, Robert Bentley, who signed HB56 into law in June, has made assuaging noises to foreign car companies that have been inconvenienced by it.

But so far the impact of the law on the legal system itself has passed largely unnoticed. Human Rights Watch warns that it could have a “serious chilling effect on undocumented immigrants seeking justice in the courts … By enacting this law Alabama has already sent a message to unauthorised immigrants that their right to equal protection of the law will not be respected.”

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Alabama immigration law on mobile homes blocked by judge

A federal judge has temporarily blocked a part of Alabama‘s tough new immigration law that requires residents to show proof of citizenship when registering mobile homes with the state.

US district judge Myron Thompson of the Middle District of Alabama wrote in a 108-page opinion that the law leaves illegal immigrants “between a rock and a hard place.”

Alabama requires owners of mobile homes to register those properties with the state or face three months in jail, but the new immigration law passed by the state legislature in June also bars illegal immigrants from submitting those registrations, Thompson wrote.

“They can neither stay, nor can they go,” the judge said in his ruling.

That is because the state requires a permit to move a mobile home, and an owner must have registration of the vehicle to move it, the judge found.

The ruling comes in response to a lawsuit filed by two unnamed Alabama residents, with assistance from fair housing groups.

Representatives for the Alabama governor and the state attorney general could not be reached for comment.

The judge found the plaintiffs would likely be successful in their case as it moves forward.

“This decision helps put the brakes on an inhumane law that has already forced some families out of their homes,” Justin Cox, an attorney with the American Civil Liberties Union immigrants’ rights project, said in a statement.

Thompson in his opinion found the provision of the Alabama immigration law relating to mobile homes infringes on the federal government’s preeminent jurisdiction over immigration matters. He also found the bill may violate the Fair Housing Act by discriminating against Latinos.

“By focusing on housing, and thereby on the movement of Latinos into and out of the state” the law “falls outside the authority vested in state legislatures,” Thompson wrote.

In a separate legal challenge, a US appeals court last month blocked Alabama from enforcing part of the new law, including a controversial provision that permits the state to require public schools to determine the legal residency of children upon enrollment.

The US Justice Department has also sued Alabama, saying state lawmakers have no constitutional right to set immigration policy.

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Wisconsin faces lawsuit as civil rights groups cry foul over new voting rules

A tough new law in the state of Wisconsin requiring voters to carry a photo ID card before they can cast their vote is being challenged in a federal lawsuit that claims thousands of poor, black and elderly people could be disenfranchised.

The legal action, lodged in the federal court for the eastern district of Wisconsin, opens a new front in the battle over voter registration before next year’s presidential election. Civil rights groups are warning that a wave of legislative restrictions introduced in more than 30 states amounts to a concerted attack on voting rights in America on a level not seen since the days of segregation.

The lawsuit has been brought by the American Civil Liberties Union against Scott Walker, the Republican governor of Wisconsin, and other state officials. It is the only active federal challenge to the imposition of ID laws on voters.

The suit comes as attorney general Eric Holder is scheduled to deliver a speech in Austin, Texas, on voting rights. Holder is expected to announce on Tuesday evening that the Justice Department will more aggressively review new laws in states that civil rights advocates say would discourage minority participation in next year’s elections.

Thirty-four states have tried to introduce photo IDs into the electoral process, ostensibly as a means to counter fraud, with nine introducing restrictions into law. Of those, Wisconsin, which passed its new law in May that will become effective from February next year, is seen as one of the most draconian.

Under its terms, voters who used to be able simply to provide proof of residence to register to vote now have to jump through an intricate series of hoops before they can cast their ballot. Only a limited list of photo identification is accepted, and the law applies both to people voting in person in voting booths and by absentee ballot.

Among the 20 plaintiffs listed in the action are Ruthelle Frank, 84, who has voted in Wisconsin elections since 1948. But she has no form of photo ID acceptable under the new law, and does not have a copy of her birth certificate.

Another plaintiff, Barbara Oden, 57, was trapped in a catch-22. In order to get an eligible photo ID, she was advised that she needed to obtain a social security card as proof of citizenship; but when she turned up at the relevant office she was told she couldn’t have a social security card because she didn’t have a photo ID card.

The lawsuit catalogues a Kafkaesque world in which voters are being made to travel across the state in a search for the correct documentation. Justin Luft, 20, travelled twice to an office to get a driver’s licence – an eligible photo ID under the voter law – only to be told on both occasions that he could not have one because he didn’t have a social security card.

“This law will leave thousands of people discouraged and disenfranchised,” said Jon Sherman, a lawyer with the ACLU’s voting rights project. “What’s so galling about this is that we’ve already had this conversation in the US – we don’t make people run around and pay money in order to cast their ballot.”

The lawsuit argues that the photo ID law is unconstitutional under the 14th amendment, which bans the imposition of burdens on the right to vote, and the 24th amendment, which says that the right must not be removed because someone has failed to pay their taxes.

The complaint says numerous groups are at risk of being disenfranchised, including poor people who may not be able to afford petrol to travel to the driver’s licence office, or the $135 to obtain a US passport. There are more than 12,000 families in Wisconsin who have no income of any sort other than food stamps.

Other potentially vulnerable groups are students, elderly people and the disabled. African Americans are also disproportionately represented among those potentially deprived of the right to vote; the NAACP earlier this month petitioned the UN over what it says is the greatest threat to voter participation in America since the early 20th century.

An early draft of Holder’s Tuesday speech, obtained by the New York Times, urges Americans to “call on our political parties to resist the temptation to suppress certain votes in the hope of attaining electoral success and, instead, achieve success by appealing to more voters.”

States that have tried to impose photo identification requirements argue that it is necessary to combat fraud at the ballot box. But studies have shown that fraud is not as ubiquitous a problem as has been made out.

A Department of Justice study found that of 300m votes cast between 2002 and 2007, there were only 86 cases of confirmed fraud.

“You have to consider the cost of contracting the electorate by hundreds of thousands of people. In order to kill a fly, they are using a nuclear weapon,” Sherman said.

The other states that already have photo ID requirements on the statute books are: Alabama, Georgia, Indiana, Kansas, Mississippi, South Carolina, Tennessee and Texas.

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Supreme Court to look at Arizona immigration law December 13, 2011


December 13, 2011

by legitgov

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Supreme Court to look at Arizona immigration law 12 Dec 2011 The U.S. Supreme Court will hear arguments in the lawsuit challenging the constitutionality of Arizona’s immigration law, Senate Bill 1070. Its ruling could impact immigration laws nationwide and push the immigration debate into the spotlight during the final months of the 2012 presidential race. The high court issued its two-sentence decision to hear the case Monday morning. No court date has been set, but justices will likely hear arguments this spring and release a decision in the summer.

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How terrorist ‘entrapment’ ensnares us all | Karen Greenberg

Two weeks ago, Jose Pimentel was arrested as an alleged terrorist bomb-maker as a result of an NYPD sting. Within hours of the arrest, his attorney raised the prospect of a possible entrapment defense. Last month, when Mansour Arbabsiar was indicted for trying to assassinate the Saudi ambassador to the United States on behalf of Iran, he, too, was the subject of a sting, in this case by the FBI, and he claimed entrapment. These are but the latest iterations of dozens of terrorism cases that have come through the system with varying degrees of “entrapment” claims by the defense at the time of arrest. The Fort Dix case from New Jersey in 2007, and the more recent instances of the sole terrorism suspects in Portland, Washington, DC and Baltimore are among the many cases in which some sort of entrapment was alleged (at least, at the outset).

This is a problem in a counterterrorism world where law enforcement relies on preventive stings as its main strategy. By definition, the strategy precludes a defense. Legally, entrapment is mostly about the suspect’s predisposition because the other element of entrapment, inducement by the government to commit the crime, is usually not disputed. Thus, if the government can show that the defendant was inclined to the crime, then the entrapment-by-inducement defense cannot prevail in court. In a terrorism case, the fact of being willing to commit an act of terrorism is seen as predisposition, no matter how much of a Catch-22 this may be. As a result, lawyers rarely choose to mount the defense.

This explains why, when terrorism cases come to trial, entrapment is rarely part of the legal strategy of the defense. Since 2001, ten defendants have claimed entrapment; none has succeeded in winning an acquittal. Even more telling is the discontinuity between the initial claims of entrapment and the mounting of an entrapment defense at court. In short, if a suspicion of entrapment seems a viable starting-point for a defense, forget it. Find another strategy with which to defend your client.

Perhaps because of this perfect scenario in which the strategy employed denies a defense, there has been very little thought given to making law enforcement accountable for overreaching. The strategy is so temptingly successful: as long as the defense has no workable legal redress, why limit the aggressiveness of the government’s strategy?

And, in fact, this is what has happened. In case after case, the government has gone from being an agency that waits and watches for criminal activity that is terrorist, to becoming an agency that appears comfortable designing and helping implement the crime. The most egregious example thus far was the recent Riverdale Synagogue Case, in which the informant, a Pakistani-American, provided not only the ideas for the target and the weapons, but also took the lead in terms of teaching the main defendant about the ways in which “cause” of jihad might grow out of the defendant’s own strongly antisemitic views. As the judge admitted at sentencing:

“The essence of what occurred here was that a government, understandably zealous to protect its citizens, created acts of terrorism out of the fantasies and the bravado and the bigotry of one man in particular and four men generally, and then made these fantasies come true.”

So, too, the government has not been held to account for the size of the incentives it offers in exchange for agreeing to commit acts of jihad. In the Bronx case, the main defendant, James Cromitie, refused government offers until he lost his income and was offered a staggering $250,000. His co-defendant, David Williams, was offered a liver transplant for his dying brother. Yet another defendant – poor, mentally challenged and hungry – was given food when he came to planning meetings, which tapes show he barely participated in, beyond eating.

Admittedly, the Riverdale case appears to be in a class of its own in terms of government overreach, but these are not the only cases of government preying upon vulnerable individuals. There have certainly been terrorism sting operations in which informants were used in accordance with the spirit of the law – cases in which the FBI was intercepting a crime already in progress, rather than creating it out of whole cloth. The recent Arbabsiar case may turn out to be such an example; the government claims that it became involved in the case after the defendant initiated discussions with the informant about assassinating the Saudi ambassador, and that the defendant himself arranged many details of the planned conspiracy.

Nevertheless, there are too many cases where the government’s involvement in the case traverses into a gray zone of leading, rather than following, the crime. In 2006, an informant enticed a reluctant pizza shop owner who became desperate for funds to save his business to launder funds for the purchase of a missile aimed at American citizens. More recently, the government has seemingly influenced several very young Muslim men – including Antonio Martinez in Baltimore and Mohamed Osman Mohamud in Portland – to turn anger and talk about violence into a willingness to conduct actual acts of violence involving weapons.

There is a world of difference between stings that begin with the defendant’s initial attempts, however minor, to commit a violent crime and ones that seek to see if law enforcement can entice someone to commit a violent crime in the name of jihad – and provide the means and method to do so. More importantly, there is a world of difference between law enforcement that makes us safe from those with the intent and know-how to harm us and those who are groomed to commit a crime – and sometimes even coached in the ideology – by law enforcement agencies.

Aside from questions of justice, this is not a risk-free strategy: once federal agents teach someone how to commit to jihad, build a bomb or surveil a target, they cannot fully control whom that individual may relay these lessons prior to his arrest – or even afterward in a prison environment. The problem with entrapment is not just that it may be unfair to defendants. The danger is that it compromises the public’s understanding of the actual threat; in so doing, it may ultimately compromise public security itself.

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