Immigrants entering the country illegally experience ‘rapid-fire justice’ in the federal courts

Immigration Law

Brian A. Jackson/Shutterstock.com.

Seventy-four immigrants who entered the country illegally pleaded guilty in groups of seven on a recent Monday in a federal courtroom In Tucson, Arizona, where the New York Times observed their cases.

Most of the immigrants experiencing “rapid-fire justice” were sentenced to time served in jail—usually just a few days—and transferred to Immigration and Customs Enforcement, the Times reports. They will stay in detention until they are deported, unless they file an asylum application that is deemed sufficient for a hearing.

The cases of all 74 immigrants were handled within about 90 minutes.

Thousands of new defendants are entering the federal court system as a result of the Trump’s administration’s new zero-tolerance policy. The administration is prosecuting people who cross the border illegally, a misdemeanor that was not a priority for the previous administration.

The Times cites data from Syracuse University’s Transactional Records Access Clearinghouse, or TRAC. It found nearly 60 percent of federal criminal prosecutions in April were for immigration violations.

The multiple-immigrant hearings are known as “Operation Streamline,” a process that began with President George W. Bush and is ramping up under President Donald Trump. The federal court in Tucson has handled 6,519 cases in Operation Streamline hearings so far this year, compared to 10,869 in all of 2017, the Times reports. In the Southern District of Texas, the caseload is double the number two months ago. Operation Streamline will begin in California next month.

Lawyers are given a list of the immigrants on the day of the hearing. The lawyers spend about 20 minutes with each immigrant to explain the charges and the process, before appearing at the hearings.

U.S. Magistrate Judge Bernardo Velasco presided over the Tucson cases. “If the executive branch wants to concentrate on illegal entry, that is what they do,” he told the Times.

“As a nation, we should all be thinking about what we are doing and how effective it is,” he added. “What are we doing as a country?”


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Want to stop separation of immigrant families? ABA plans grassroots effort, while new group forms

Immigration Law

ABA President Hilarie Bass says Congress should pass legislation to stop separation of immigrant families, and she is directing like-minded individuals to an ABA Grassroots Action website that helps them make their voices heard.

Bass is calling for action at the same time a new group has formed to oppose separation. It is called Lawyer Moms of America, and it is planning a Day of Action on June 29, the Daily Kos reports.

Twenty-one Democratic attorneys general are also opposing the policy in a letter to Attorney General Jeff Sessions, the National Law Journal reports. Dozens of former U.S. attorneys also wrote to Sessions opposing the policy.

Bass issued a statement on May 30 that called the forced separation of minor children from their parents “unnecessarily cruel.” In a June 12 letter to the U.S. Justice Department, Bass said the policy violates rights to family integrity and due process.

Now Bass is asking lawyers to contact their senators and representatives to pass a law that bars routine family separations at the border. “ABA staff and volunteers who provide legal services to children in border shelters have witnessed first-hand the traumatic effects of separation on these children and their parents,” she writes.

“We can differ on issues of national immigration policy, but don’t we all agree that it is simply shocking that hundreds of young children are separated from their parents just because their parents brought them across the U.S. border illegally?” Bass adds.

Visitors to the ABA Grassroots Action Center can click on “Take Action Now” to connect with their representatives through email or a phone call. Visitors are taken to a new page with arguments that can be used in support of legislation.

Lawyers can stress the due process implications of using family separation in the fight against illegal immigration, she says.

One example: “No court has ever condoned government action that uses law enforcement as a means to intentionally separate children from their parents. The first court to examine the current policy concluded that, as alleged in a pending complaint, the government’s conduct ‘shocks the conscience’ and violates constitutional rights to family integrity.”

Bass was apparently referring to a June 7 decision by U.S. District Judge Dana Sabraw that refused to dismiss a would-be class action suit that challenges the family separations.

Meanwhile, the new group Lawyer Moms of America hopes to hand-deliver a letter opposing family separations to every member of Congress on its Day of Action later in the month. The group was founded by four lawyers who are also mothers, though members need not be lawyers.


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Is it true? Denying family separation policy is ‘Orwellian stuff,’ newspaper’s fact check says

Immigration Law

Department of Homeland Security Secretary Kirstjen Nielsen/Flickr.

There is no policy of separating children from their parents at the border, according to Department of Homeland Security Secretary Kirstjen Nielsen.

While there are no written regulations that establish a policy of family separations, Nielsen’s claim is “Orwellian stuff,” according to the Washington Post.

The newspaper concludes the spin deserves “four Pinocchios,” the Post’s rating for “whoppers.”

Families are being separated primarily because of the Trump administration’s zero-tolerance policy of prosecuting people entering the country illegally, which is a misdemeanor for a first-time offense, according to the Post and the New York Times. The children aren’t prosecuted, however, they are separated from their parents.

The Immigration and Nationality Act of 1952 makes the first illegal entry into the United States a misdemeanor. Nielsen says the U.S. no longer exempts entire classes of people from prosecution.

The children and parents are initially taken into DHS custody. The parents are transferred to federal criminal custody, and the children are then considered unaccompanied minors. The children are transferred to the Office of Refugee Resettlement, where they spend an average of 51 days at a shelter before being placed with a sponsor.

The zero-tolerance policy is a change from the policy under the Obama administration, which prioritized the deportation of gang members, felons and people who posed a national security threat. Other undocumented immigrants were released and processed through the civil court system, rather than the criminal courts.

Government officials have said they are forced to separate families because of court rulings and laws. The Post and the Times take a look at the legal restrictions. DHS also has information here.

A 2016 federal appeals court decision interpreted a 1997 federal consent decree that required the quick release of immigrant children. The 2016 decision said the consent decree applies to children who enter the country illegally with their parents as well as unaccompanied minors. The decision required release of the children or a transfer to a licensed facility within a presumptively reasonable period, set at 20 days.

“Because most jurisdictions do not offer licensure for family residential centers,” DHS says, “DHS rarely holds family units for longer than 20 days.” But the case doesn’t prevent the government from releasing the parents along with their children after the 20-day period, the Post points out.

The Trafficking Victims Protection Reauthorization Act also governs the treatment of immigrant children from Central America. Those children can’t be quickly returned to their countries. Instead, they must be transferred to the Office of Refugee Resettlement within 72 hours and placed in the least restrictive setting possible.

The Post’s conclusion: “Immigrant families are being separated at the border not because of Democrats and not because some law forces this result, as [President Donald] Trump insists. They’re being separated because the Trump administration, under its zero-tolerance policy, is choosing to prosecute border-crossing adults for any offenses.”


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Judge strikes down Kansas voter ID law and orders Kris Kobach to take additional CLE

Election Law

Kansas Secretary of State Kris Kobach/Mark Reinstein (Shutterstock.com).

A federal judge has struck down Kansas’ voter ID law and ordered Kansas Secretary of State Kris Kobach to take additional continuing legal education classes for “repeated and flagrant violations” of federal rules requiring disclosure of evidence before trial.

U.S. District Judge Julie Robinson of Kansas City, Kansas, ruled Monday that the law infringes on the right to vote under the 14th Amendment’s equal protection clause and violates the National Voter Registration Act. Courthouse News Service, Politico, the Kansas City Star, the Topeka Capital-Journal and the Lawrence Journal-World have coverage.

The law requires proof of citizenship to register to vote. Robinson said there was little evidence that the law remedied a problem. At most, 67 noncitizens had registered or attempted to register to vote in Kansas over the last 19 years, she said.

Kobach had championed the law and represented the secretary of state’s office at trial. Robinson said there were several instances in which Kobach failed to disclose evidence to opponents before trial or failed to supplement disclosure, as required by the Federal Rules of Evidence. Robinson often excluded the undisclosed evidence, yet in at least one instance Kobach tried to introduce the excluded evidence, the opinion said.

Robinson said it’s not clear whether Kobach violated his discovery obligations intentionally or through unfamiliarity with the federal rules. “Defendant chose to represent his own office in this matter, and as such, had a duty to familiarize himself with the governing rules of procedure, and to ensure as the lead attorney on this case that his discovery obligations were satisfied despite his many duties as a busy public servant,” she wrote.

As a result, Robinson said, Kobach must take an additional six hours of continuing legal education pertaining to rules of evidence or procedure, in addition to any state CLE requirements.

Robinson had previously held Kobach in contempt of court for failing to follow court orders regarding voter notices and ordered him to pay attorney fees to cover the cost of the sanctions motion.

The case is Fish v. Kobach. The plaintiffs were represented by the American Civil Liberties Union, the ACLU of Kansas and Dechert.

Dale Ho, director of the ACLU’s Voting Rights Project, issued a statement after the ruling. The Kansas law “was based on a xenophobic lie that noncitizens are engaged in rampant election fraud,” he said. “The court found that there is ‘no credible evidence’ for that falsehood, and correctly ruled that Kobach’s documentary proof-of-citizenship requirement violates federal law and the U.S. Constitution.”

A Kobach spokesperson, Danedri Herbert, told the Capital-Journal that the decision will probably be overturned on appeal.

“Robinson is the first judge in the country to come to the extreme conclusion that requiring a voter to prove his citizenship is unconstitutional,” Herbert said. “Her conclusion is incorrect, and it is inconsistent with precedents of the U.S. Supreme Court.”


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Lawyer is suspended after using ex-client’s information in complaint about ‘angry feminist cabal’

Legal Ethics

Bankrx/Shutterstock.com.

A Pennsylvania lawyer who claimed in a lawsuit that his client had been victimized by “vigilante justice from student activists” had used information provided by one of the activists in a previous representation, according to a joint petition for discipline.

Lawyer Raul Jauregui was suspended for one year based partly on the conflict of interest, report the Legal Intelligencer and the Legal Profession Blog. A joint petition for discipline said Jauregui had “engaged in a textbook conflict of interest.” The suspension was imposed June 11.

According to the joint petition for discipline, Jauregui had helped a student activist at Swarthmore College prepare a class complaint with the Department of Education about the school’s handling of sexual assault complaints. The Education Department complaint cited the case of a woman who was sexually assaulted by a man referred to in the disciplinary petition as “Juan Doe.”

About two years after the student activist fired Jauregui, the lawyer represented Juan Doe in a civil suit claiming there was no sexual assault and Doe was unfairly targeted by “an “angry feminist cabal.” Doe’s suit against Swarthmore claimed that Jauregui’s former client was a common link between “tragic sham-complaints” against Doe and another student.

A federal judge disqualified Jauregui from Doe’s case in February 2017.

Jauregui had wrongly told disciplinary authorities that the federal judge had found no conflict of interest, according to the joint petition for discipline. At the time, the judge had not ruled on the matter.

The petition also said Jauregui had filed frivolous lawsuits and had failed to comply with discovery.

Jauregui had practiced law for 13 years without any previous record of discipline. His lawyer declined to comment when contacted by the Legal Intelligencer.


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Giving Notice of Probate & Trust Administration to Beneficiaries Under New Jersey Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate & Estate Administration Attorney

A colleague recently presented an interesting question. By way of background, a person was named the Trustee of a Revocable Living Trust and the Executor of the decedent’s Last Will and Testament.

The documents were prepared for the decedent when she lived in Virginia many years ago but retired to New Jersey and resided in New Jersey for approximately a year and a half prior to his death. The original Will and Trust documents could not be located and an Order to Show Cause was filed to probate a photocopy of the Last Will with directions to distribute the Estate in accordance with the terms of the trust. Before the hearing date, the original Will and Trust were located and the action was dismissed. The Will has now been submitted for probate in New Jersey.

The question raised is as follows:

  1. While the Notice of Probate must be served upon the decedent’s next-of-kin do the beneficiaries under the Trust also need to be noticed of the probate proceeding?

The reason for the question is because the Trust has individual beneficiaries as well as charitable beneficiaries. Due to the fact that an Order to Show Cause was originally filed and all beneficiaries, both individual and charitable under the Trust, were parties in interest, they were all put on notice along with the Attorney General’s office and given copies of the Will and Trust. So they all have actual notice.

Because nowhere in the statute does it state that notice of the existence of the Trust needs to be given again to the Attorney General’s office the attorney is trying to confirm whether the Attorney General’s office gets involved in reviewing accountings etc. for the charitable beneficiaries of the Trust much like they would if they were specifically named in the Will.

My thought(s) is that the executor is not required, per se, to give a second notice of the trust to the beneficiaries, but if he DOES inform the beneficiaries, then the Statute of Limitations to contest the validity of the Trust is reduced from three years to four months (NJ residents beneficiaries) or 6 months (non-NJ resident beneficiaries). Most attorneys make notice to beneficiaries a regular practice, including the Attorney General when charitable beneficiaries are listed.

To discuss your NJ Estate Administration & Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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