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Archive for the ‘immigration’ Category

I’m one of those people whose life has spanned the transition from the paper era to the digital era. When I went to college, researching any topic required going to the library and using the card catalog and microfiche indexes to locate material. If I wanted government statistics, they were on paper in what was basically 1/4th of the bottom floor of our college library and I had to use a big paper index to find them. Making a copy for later was 5 cents per page. So basically, there was an excuse back then for someone to say something stupid — the information just wasn’t easily available.

But today? If you want to look up tort costs in healthcare, you can look up the total amount spent on medical liability insurance (approximately 0.3% of total healthcare spending), then look up tort limits and healthcare costs by state, and easily see that a) the amount spent defending and paying out on lawsuits is trivial, and b) defensive medicine isn’t really a “thing”, states with strict tort limits don’t have lower healthcare costs on average than those without. Then you can go look for the real causes of high healthcare costs, which isn’t lawsuits. Despite access to every bit of information needed to prove or disprove the assertion “tort costs causes high healthcare costs”, virtually nobody does the few mouse strokes needed to do so.

Instead, we seem to have weaponized ignorance. Ignorant memes that can easily be disproved by a few mouse strokes use social media to sweep the nation within hours of their release by Russian troll factories. Despite the fact that so much information is available, most of the American public seems disinterested in looking it up. And that surprises some people.

But not me. Because I’ve studied American history (hell, I’ve lived half a century of it). Ignorance has always been the preferred state of the average American. Few regardless of the era have cared about education. There’s a *reason* why the atom bomb was built mostly by European immigrants. Even today, close to half of our STEM workforce is foreign-born or the children of immigrants. All that technology has managed to do is allow the ignorant to confirm with each other that their ignorance is truth and anything that doesn’t agree with their ignorant opinions is fake. Science textbooks? Fake. Government statistics? Fake. Scientists? Elitist fakes. By allowing them to confirm with each other that anybody who actually knows anything is a fake, their ignorance is not only confirmed, but weaponized.

The fact that immigrants have contributed much of the intellectual advancement of America in the past century is also why the ignorant are so anti-immigrant. The last thing they want is for people smarter and harder working than they are to render them obsolete. Even if they are.

– Badtux the Ignorance-spottin’ Penguin

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An administrative offense is something like a OHSA violation, where you are violating rules and regulations. When you are cited for an administrative offense and are penalized with a fine or other administrative action, you appear before a hearing officer and argue your case that you should not have to pay the fine or comply with the administrative action. You are never convicted of a crime as part of this, and you never have a criminal record as a result of this.

Immigration removal of those without a valid visa, here in the United States, is an administrative action. Those who have overstayed their visas or entered without a visa appear before an administrative law judge, who then either orders them to be released, or orders them to be administratively removed. These people are not convicted of a crime as part of this administrative action, and do not have a criminal record as a result of this administrative action. Because, as I’ve previously pointed out, if it were charged as a crime, then the Constitution requires a grand jury to indict, requires providing a lawyer, and requires a jury for conviction. Thus ICE deliberately does not charge immigrants slated for deportation with any crime, because that would trigger civil rights protections that they don’t want triggered.

So anyhow: In 2016 the NYPD received 80 “administrative detainer” requests from ICE of prisoners slated for release who they claimed had criminal records. The NYPD investigated those claims, and in those cases where prisoners had a felony record, released the prisoners into ICE custody. This was done as a favor to ICE, which in turn has done favors in the past for the NYPD such as deporting a felon they really don’t want released back to the streets. It is not the job of the NYPD to spend significant resources dealing with administrative actions associated with another agency altogether and they have no obligation under the Constitution or under New York law to do so.

In 2017, however, after Trump unleashed them for an overall war on immigrants, ICE sent a whopping 1,526 detainer requests to the NYPD claiming that immigrants were felons who needed to be deported upon release — or basically one for every single immigrant slated for release. After the first few dozen didn’t pan out as being felons, the NYPD basically started waste-binning these requests. The NYPD investigated the first few, and after a few dozen proved to not have criminal records the NYPD started returning the detainer requests wholesale rubber stamped “Unable to verify criminal record.” Because really, if ICE lies to you a dozen times, why bother validating that they lied to you the other 1,500 times?!

Police officers are not immigration agents. Their job is to maintain public order and arrest people who commit crimes in order to prosecute them as criminals in a court of law. Note that undocumented immigrant are never prosecuted for being undocumented. That would give them rights, such as the right to an attorney and trial by jury. Instead, they are removed from the United States via an administrative action that requires only an administrative hearing with far fewer rights. This administrative action does not result in a criminal record for the immigrant, because it is an administrative action, not a criminal action. Requiring police officers to treat people as criminals who have never been convicted of any crime in the United States and never *will* be convicted of any crime in the United States is un-American and utterly ridiculous, and attempting to use police officers in order to enforce administrative actions rather than to enforce criminal law is a complete and total waste of their resources.

In short, it is not surprising to me that the NYPD started wholesale refusing these detainer requests. Once you want them to be enforcing administrative actions rather than enforcing criminal law, you’re no longer an ally — you’re the enemy. Because their sole reason for existing is to enforce criminal law. End of story. Asking them to do something outside their reason for existing is okay for a few times a year as a favor, but if you’re demanding massive use of their resources that they should be using to chase and prosecute criminals, you are their enemy.

– Badtux the Law Penguin

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According to the U.S. Supreme Court, which, under the Constitution, is charged with judging what the Constitution actually says, states cannot be forced to enforce Federal law, nor forced to pass laws. This is because of the 10th Amendment, which reserves those powers to the states. This is backed up not only by significant historical precedent dating back to the 1840’s Fugitive Slave Act, but by two modern decisions in cases brought by right wing groups: Printz v. United States (1997), which held that the U.S. government could not commandeer sheriffs to enforce provisions of the Brady Gun Control Act, and Independent Business v. Sebelius (2012), which held that the Federal government could not compel states to pass legislation expanding Medicaid.

In short, the United States Government is prohibited by the Constitution and the 10th Amendment specifically from forcing local law enforcement agencies to enforce Federal law. This is not controversial except amongst fascists who want to overthrow the Constitution. And Jeff Sessions. But I repeat myself.

I am talking about Jeff Sessions suing California for exercising its 10th Amendment rights under the Constitution, of course. The 10th Amendment is clear: The Federal Government may neither commandeer local law enforcement to enforce Federal laws as ICE wants to do, nor is the Federal Government allowed to dictate to states what laws they can or cannot pass, as long as those laws do not violate rights guaranteed by the Constitution or assume powers reserved to the Federal government under the Constitution.

So now here comes Sessions, booming that he should be able to force local law enforcement and governments to enforce Federal immigration law, in contravention of the 10th Amendment. I suppose I shouldn’t be surprised that someone from Alabama doesn’t care much for the Constitution, especially that whole 14th and 15th Amendment part (they’re still upset there that Lincoln “stole” their slaves — no, I’m serious, it’s even taught in schools in Alabama) — it’s just weird that he’s going against two right-wing Supreme Court decisions to do it.

But then, I guess IOKIYR.

– Badtux the Baffled Law Penguin

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Turns out there’s *consequences* if you deport the workers that farmers need in order to harvest their crops.

But hey, there’s all these newfound good paying jobs that Donald Trump has created! The Central Valley has an unemployment rate amongst white people that’s hovering close to 10%, so surely all those white racist cracker Trump voters are praising his name and enjoying their new jobs picking crops, right?

Oh wait, they’re not picking crops?

In fact, farmers are *begging* them to come pick crops, are offering big bucks to come pick crops, and can’t get any of them to stay more than four hours after being hired? Because whiny white crackers got out in the fields, sweated for four hours while doing half the work of the Mexicans around them, and then said “f*** this, I’m gonna go cook some more meth” and quit?

Well fuck. That makes no sense. How do you think all those white crackers got into the Central Valley in the first place? They moved there from the Dust Bowl to work the crops! But at some point they quit doing that. I guess all the illegals who had no rights pushed them out. But now that the illegals are getting pushed out by ICE, they’re not willing to go back to work again in the fields no matter how much farmers are willing to pay.

No matter how much.

Racist cracker motherfuckers. We ought to deport’em all back to Oklahoma. Just sayin’.

– Badtux the “White racist people are lazy motherfuckers” Penguin

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R.I.P. Maryam Mirzakhani, first woman to win the Fields Medal in mathematics. She was 40 years old and died as a result of breast cancer.

There are people who would have harassed her on the street for her nation of origin or her (perceived*) sexual orientation, claiming that these somehow are more important than her contributions to the nation. Those people are small minded bigots and should be treated as such. Even if they are the President of the United States of America.

– Badtux the Obituaries Penguin
(*) She was married to a man and had a daughter by him, so she was either straight or bisexual or closeted. Don’t have a clue as to which, and it doesn’t really matter. But none of that matters to bigots anyhow — she set off people’s gaydar, so they would have harassed her as a lesbian regardless, when they weren’t harassing her as an immigrant.

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So, about those “illegal immigrants”…

I have been reading the US Code, 8 U.S. Code Subchapter II – IMMIGRATION, looking for the term “illegal immigrant”. The term appears nowhere in the U.S. Code. Indeed, it appears that the U.S. Code goes out of its way to explain that merely being an unauthorized alien in the United States is *not* a crime.

It looks like the motivation for *not* making being an unauthorized alien a crime is that if it were a crime, then the unauthorized alien would have due process rights under the Constitution (which, remember, applies to *all* persons under the jurisdiction of the United States whether citizen or not — we have at least a half dozen Supreme Court decisions on that one). Due process rights would require a hearing in front of a judge. Since it is not a crime, since the unauthorized alien is merely being “removed” or “repatriated” via an administrative action, ICE can simply drive “criminal aliens” (those with felony convictions) right back over the border without judicial review. The felony conviction itself is enough to trigger the removal, without the need for further judicial review, because there is no additional crime called “being here without a visa” that requires due process. Removal is merely an “administrative action”, not a punishment for a crime. If it were a punishment for a crime, it would require a grand jury indictment and a trial with a judge and jury.

Just correcting terminology. The correct terminology, according to the actual law, is “unauthorized alien” or “deportable alien”. The term “illegal immigrant” occurs nowhere in the immigration code. The term “illegal alien” does occur, but is defined by the law to specifically mean unauthorized aliens who have felony convictions, and is defined as such in only two subsections of the entire lengthy immigration law. These are:

U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part IX › § 1365

and

U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part V › § 1252c

All other references refer to them as “unauthorized aliens” or “deportable aliens”.

Note that various publications of the IRS, ICE, etc. use the terms “illegal alien” or “illegal immigrant”. These, however, do not have the force of law, and their definitions are not the legal definition of an unauthorized or deportable alien. They are fundamentally commentary upon the law, and as commentary, they’re not required to abide by strict legal definitions and can use street vernacular. It is unfortunate that the street vernacular implies that the person is committing a crime by being here when the immigration code is quite clear that there is no crime (if there was a crime, due process would require a trial rather than a simple removal proceeding prior to an administrative action), but so it goes.

– Badtux the Terminology Penguin

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Found: The memo by the Office of Legal Counsel issued to Trump a few hours before his executive order on immigration was released, okaying it for release:

January 29, 2017

This is the best Executive Order ever. Everyone says so. Thanks, Mr. Commander-in-Chief!
— Office of Legal Counsel

P.S. The Muslims won’t like it. Sad.

SNRK!

– Badtux the Snarky Penguin

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