Integrity Legal

Posts Tagged ‘American Constitution’

19th August 2011

It recently came to this blogger’s attention that the Department of Homeland Security (DHS) may be poised to begin placing holds on some deportations. In order to provide further insight it is necessary to quote directly from the website of The Washington Times, WashingtonTimes.com:

The Homeland Security Department said Thursday it will halt deportation proceedings on a case-by-case basis against illegal immigrants who meet certain criteria such as attending school, having family in the military or are primarily responsible for other family members’ care. The move, announced in letters to Congress, won immediate praise from Hispanic activists and Democrats who had chided President Obama for months for the pace of deportations and had argued he had authority to exempt broad swaths of illegal immigrants from deportation…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks above to read this article in detail.

Although this blogger has been reluctant to support blanket amnesty per se, especially for those who have entered the United States illegally; there are often unique and extenuating circumstances which require adjudication in order to equitably administer American immigration law and regulation pursuant to legislative and executive plenary power. It remains to be seen how this policy will be practically implemented.

In news related to the struggle for LGBT Equality, it recently came to this blogger’s attention that the federal delegation from the sovereign State of New York may be more supportive of DOMA repeal since a Congressional Representative from that State was recently noted for comments on this issue. In an effort to provide further insight it is necessary to quote directly from the website Towleroad.com:

After waiting for New York State to legalize gay marriage, Democratic Rep. Bill Owens now says he supports the repeal of the Defense of Marriage Act that prohibits federal recognition of same-sex marriage. “I indicated I would not become a co-sponsor until New York took action,” said Owens, who represents the Empire State’s 23rd Congressional district. “Once they did that, I felt I had an obligation to the citizens in the state to make sure they weren’t adversely impeded by federal law.” Owens continued, “I think that people should have the freedom to make those kinds of decisions…”

The administration of this web log asks readers to click on the hyperlinks above to read this article in detail.

For those who are unaware of the evolving nature of this issue it should be noted that the provisions of the so-called “Defense of Marriage Act” (DOMA) preclude federal recognition of same sex marriage. This federal non-recognition is enforced even where one of the sovereign American States has legalized and/or solemnized the underlying same sex marriage. There are some who would argue that this activity violates the Full Faith and Credit Clause of the United States Constitution while others could argue that such discrimination violates the Equal Protection Clause. In any case, the result in an immigration context is that same sex bi-national couples (even those who have entered into a same sex marriage in a US State) cannot receive the same visa benefits (such as the CR-1 visa, IR-1 visa, or K-1 visa)  as their different-sex counterparts. Some federal legislators, such as New York delegation member Representative Jerrold Nadler, have attempted to remedy this problem through introduction of bills such as the Uniting American Families Act (UAFA: to address the specific issue of discrimination in an immigration context) and the Respect For Marriage Act (RFMA: a proposal which would accord federal “certainty” to State licensed same sex marriages). However, it remains to be seen whether such legislation will ultimately see passage.

In news related to the aforementioned issues it also came to this blogger’s attention that further “mainstream media” attention is being focused upon the case of the same sex bi-national couple who were married in the Commonwealth of Massachusetts, but face the prospect of separation due to the fact that the American government may remove the foreign spouse since their marriage is not recognized pursuant to the provisions of DOMA. In an effort to provide further detail this blogger is compelled to quote directly from the official website of The Washington Post, WashingtonPost.com:

Mr. Makk’s case illustrates the profound injustices meted out by DOMA, which was passed in 1996. The Obama administration this year denounced the Clinton-era law as unconstitutional because it deprives same-sex couples equal protection of the law. In April, Attorney General Eric H. Holder Jr. put on hold the deportation of a British man who has lived in the United States since 1996 but who never obtained a green card or citizenship. The man, Paul Wilson Dorman, has been in a committed same-sex relationship for 15 years and entered into a civil union with his partner, a U.S. citizen, in 2009. Mr. Holder asked an immigration court to determine whether Mr. Dorman should be considered a “spouse” under New Jersey law and thus entitled to stay in the country. Mr. Makk’s deportation should also be put on hold, as should those involving anyone in legally recognized same-sex relationships whose only infraction involves immigration status…

The administration encourages readers to click upon the hyperlinks noted above to read this article in detail as this situation is poignant indeed.

Although this blogger can at times get caught up in the rather academic details of the debate on federal recognition of same sex marriage readers should be aware that this issue has a truly human context since couples like the one noted above could have their personal lives substantially disrupted as a result of federal policy with respect to same sex couples. There is some speculation that this matter may ultimately see resolution in the US Courts, but until such time as a final decision is made on the matter same sex couples and the Greater LGBT community in America are left to hope that their federal legislature will pass legislation akin to the RFMA or the UAFA. Perhaps in the meantime officers in the American immigration system can utilize their statutory authority and plenary powers to provide equitable relief to those who find themselves facing the prospect of being separated from their loved ones due to questionably Constitutional law.

For information pertaining to legal services in Southeast Asia please see: Legal.

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11th June 2011

Something very troubling recently came to this blogger’s attention. This posting must be prefaced with a statement for posterity: the vast majority of American civil servants are upright, honest, and conscientious employees of the American State and Federal governments who try their best to assist and provide valuable services to the American public. Their hard work should not be overlooked especially in this current era of virtually instantaneous communication.

One of America’s strengths stems from her flexibility and versatility in a political, foreign relations, and geopolitical context. In a domestic context this international flexibility is hard won as it generally stems from fierce national political and legal debate. The following is quoted directly from the website MyFoxDetroit.com:

ROMULUS, Mich. (WJBK) – The Mandy family says they were on their way to the happiest place on earth (Disney), but had to go through hell to get there. “I realize they’re trying to keep people safe, but come on, does he look like a terrorist?” said Dr. David Mandy. The family was going through security when two TSA agents singled Drew Mandy out for a special pat down. Drew is severely mentally disabled. He’s 29, but his parents said he has the mental capacity of a two-year-old, which made the experience that followed at metro Detroit’s McNamera Terminal that much harder to deal with. “You have got to be kidding me. I honestly felt that those two agents did not know what they were doing,” Mandy told us. Dr. Mandy claimed they asked Drew to place his feet on the yellow shoe line, something he didn’t understand. They proceeded to pat his pants down, questioning the padding which was his adult diapers. When the agents asked Drew to take his hand and rub the front and back of his pants so they could swab it for explosives, his dad stepped in and tried to explain that Drew was mentally challenged. “They said, ‘Please, sir, we know what we’re doing,’” Mandy said. The TSA agents saw Drew holding a six-inch plastic hammer. “My son carries his ball and his hammer for security. He goes everywhere with (them),” said Mandy. The TSA it seems saw the toy as a weapon. “He took the hammer and he tapped the wall. ‘See, it’s hard. It could be used as a weapon,’” Mandy explained. “So, Drew’s also holding the ball, and I said, ‘Well, how about the ball?’ He (said), ‘Oh, he can keep that.” Dr. Mandy was told he would need to have the toy shipped if he wanted to keep it, a process which caused them to almost miss their plane, so he pitched it. “It just killed me to have to throw it away because he’s been carrying this like for 20 years,” Mandy said…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks above to read more and also view the video of the interview with this man’s father.

The so-called “Transportation Security Administration” (TSA) is, quite simply: a travesty. This story is absolutely heartbreaking.

Continuing, there is a poignant film from Hallmark Hall of Fame entitled: The Boys Next Door. This film is mentioned because the narrative of the film chronicles the lives of a group of mentally challenged men who are simply trying to live their lives like any other Americans inherently endowed with the privileges and/or immunities of American Citizenship. Their fictional trials, tribulations, and treatment at the hands of greater society provides illumination about what freedom means for people of all backgrounds in the United States and across the globe. There is a very salient moment to be taken from this film in the context of these current events. Perhaps it may be best to quote directly from a critical article written by Hal Boedeker, Sentinel Television Critic, on February 4th 1996 and posted on the website of the Orlando Sentinel, OrlandoSentinel.com:

The movie also spells out its good intentions. Jack imagines feeble-minded Lucien telling a state senate panel: ”Civilizations are judged by the way they treat their most helpless of citizens. And if you turn away from me, you extinguish your own light, deny your own warmth.”

The administration of this weblog encourages readers to click upon the relevant hyperlinks noted above to read this article in full and gain further insight. Furthermore, viewing this film may be insightful as well, under the circumstances. For a relevant video clip please click HERE.

The reader needs to recognize that Mr. Mandy, like all Americans, is endowed by his creator with certain inalienable rights and one of those inalienable rights is the right to be free from unreasonable searches and seizures pursuant to the 4th Amendment of the United States Constitution. How is it reasonable, America, to believe that a man in Mr. Mandy’s position should have his 4th Amendment rights stripped without just cause? Was there probable cause to have these rights stripped? Were there exigent circumstances? What security interest was upheld by trampling upon this man’s liberty? More importantly, how can Mr. Mandy’s public servants have the audacity to treat him with such disrespect when, in reality, it is their job to serve and protect HIM!!!! For if not him, then whom? Furthermore, is not Mr. Mandy accorded an unfettered right to travel pursuant to both his State and United States Citizenship? Finally, would it be unreasonable to posit that Mr. Mandy may be entitled to some just compensation for having a treasured item, which apparently had been literally held for twenty years, taken and thrown out pursuant to a questionably lawful search?

This story was acutely difficult to read because the victim of this injustice is the same age as this blogger. There is an old saying: “There but for the grace of God, go I.” Simply put: were factual circumstances different, this could just as easily have been this blogger or any reader in this audience. That stated, I would hope that if I were mentally disabled my civil servants would comport themselves in such a way that facilitated my travel and aided me in my distress (as one can only infer that this incident caused this man considerable distress and consternation since having one’s “pant’s patted down” AKA: being groped, is upsetting for anyone, especially Americans who are used to their government, usually in the form of bonded peace officers; respecting their privacy and right to be free from unwanted searches, seizures, and molestation by American governmental agents).

Whatever excuses or apologies that TSA wishes to extend regarding this incident are irrelevant for they have committed an irrevocable violation of this man’s Constitutional and Human rights, but this issue goes deeper as these are the servants of We The People and therefore it is upon us as Americans to recognize this problem in order to make attempts at redressing it via either election, legislation, or even; perhaps, a possible legal decision.

At the level of the sovereign American States, it would appear as though further efforts are being undertaken to curtail the questionably legal activities of the TSA.To quote directly from the official website of the Examiner, Examiner.com:

The federal Transportation and Security Administration may have thought it had the last word in its battle with the state of Texas over a controversial bill that would make airport pat-downs a criminal offense. The fight, however, is anything but over as the state Senate prepares take up the bill for the second time. The bill, HB 1937, would make it a misdemeanor for TSA personnel to touch “the anus, sexual organ, buttocks, or breast of another person including through the clothing.” The penalties for violating the law would be a $4,000 fine and up to a year in jail…

Readers are asked to click upon the hyperlinks above to find out further details. Frequent readers of this blog may recall that Texas was recently the scene of some tension regarding these issues as the Texas Senate became the recipient of what would appear to have been significant federal pressure operating against similar legislation which was previously submitted. It also appears as if the sovereign State of Texas is not the only State which may be looking at such legislation, to quote directly from the website of STGNews, Stgnews.com:

SALT LAKE CITY – Representative Carl Wimmer (R-Herriman) opened a bill file today that, according to his website post,  “will prohibit TSA pat downs in Utah without reasonable suspicion. Texas needs us to stand with them.” Taking a hint from what Texas has sought to enroll in her laws, this suggests that Transportation Security Administration agents, on site at Utah airports, may become subject to the same criteria that other law enforcement officials must meet before performing a search upon a person…

The administration of this web log highly recommends that readers click upon the above cited hyperlinks to read this story in detail.

As it appears that the sovereign State of Utah is now joining the chorus of those calling for legislation regarding the curtailment of TSA abuses. It remains to be seen whether any such legislation will actually see passage. It seems likely that this is not the last we have heard on this issue.

– Benjamin Walter Hart

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31st May 2011

It recently came to this blogger’s attention that the Republican position regarding same sex marriage in the District of Columbia (Washington D.C.) is being analyzed by both media and political observers. To quote directly from a recent article written by Ben Pershing and posted on the website of the Washington Post, WashingtonPost.com:

[D]espite past efforts, Republicans have not mounted an assault this year on the District’s same-sex marriage law: No bill has been introduced to overturn it, nor has any lawmaker publicly sought support from colleagues for such a measure.

Those unfamiliar with the United States Constitution are wise to take note of the fact that the United States Congress is responsible for administering the American capitol city. The scope of such jurisdiction extends to matters which in the context of a sovereign State could be viewed as intrastate issues. However, as the District of Columbia is substantially different in nature from sovereign States the same legal rules and analysis that applies to States may not apply to the District. To quote further from the aforementioned article:

House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) said he knew of no campaign to repeal the law. “My committee has no intention at this time of overturning gay marriage,” Issa said this month, although he later clarified that he was speaking for himself as chairman and not for individual lawmakers. Rep. Trey Gowdy (R-S.C.), now chairman of the D.C. oversight subcommittee, responded similarly Tuesday. He said that he would support a bill to overturn the same-sex marriage law if one were introduced but that he had no interest in spearheading such an effort. “I was not elected to be D.C. mayor, and I don’t aspire to be,” Gowdy said, echoing a previous comment by him on local issues. The fact that no Republican has introduced a bill this year could be a sign that the majority plans to use a different tactic…

The administration of this weblog strongly encourages readers to click upon the relevant hyperlinks above to view this article in its entirety.

The observations noted above go to the heart of any analysis of the current struggle for the LGBT community to gain at least some modicum of equal protection pursuant to United States law. In a previous posting on this blog it was noted that in order for the LGBT community to hope to see passage of legislation such as the Uniting American Families Act (UAFA), the Respect for Marriage Act, or the Reuniting Families Act broad based bipartisan support may prove crucial. That stated, it would appear that where once there was stiff resistance toward a compassionate or tolerant policy towards the LGBT community, now there are signs of something of a “thaw” on the right especially as States’ Rights issues have been raised regarding the Constitutionality of the current application of the so-called “Defense of Marriage Act” (DOMA).

Currently, sovereign American States such as the Commonwealth of Massachusetts have heeded the call of their Citizenry and taken measures to legalize, solemnize, and/or recognize same sex marriages or marital unions. Notwithstanding this fact, the United States federal government still will not accord federal benefits (including immigration benefits) even to those legally married in a sovereign American jurisdiction.

It is this blogger’s opinion that the issue of same sex marriage in the United States may ultimately be resolved by activity emanating from US Courts, especially if a case on point is heard by the United States Supreme Court. This blogger forms this opinion after contemplating the issues associated with Full Faith and Credit and the Full Faith and Credit Clause of the United States Constitution. Bearing this in mind, the reader is urged to remember that these issues have yet to see full resolution.

Meanwhile, it would appear that activists in the international LGBT community are taking steps to secure further equality in other parts of the world as The Nation newspaper’s print edition in Thailand reports that LGBT activists are seeking political support for the cause of same-sex marriage in the lead up to Thai elections. To quote directly from the Nation’s official website, NationMultimedia.com:

Rights activists for the so-called “third sex” – gays, lesbians and transsexuals – have urged political parties to allow a same-sex marriage law. Natee Teerarojjanapongs, president of the Sexual Diversity Group and the Gay Political Group of Thailand, and transsexual singer known as Jim Sarah (Sujinrat Prachathai) said yesterday they would visit the Democrat and Pheu Thai parties today to submit a letter asking them to issue such a law for the “third gender” if they lead the next government…Their groups will seek commitments from the parties and say they will reward promises of action by campaigning for votes among their supporters…

The administration of this web log strongly encourages readers to click upon the hyperlinks noted above to learn more from this insightful and well written article.

Readers should be aware of the fact that the Kingdom of Thailand is one of the most tolerant jurisdictions on the face of the Earth when it comes to matters pertaining to LGBT issues. As a tourist and recreational destination, Thailand ranks among the top tier of destinations frequented by the LGBT individuals and couples as Thailand boasts a vibrant LGBT community. That stated, under Thai law in its current form same sex marriage is not recognized. Therefore, it is not possible for a same sex couple to register a Thai marriage at, say, an Amphur Office (Civil Registrar Office), in the same manner as a different-sex couple. As noted above, Thai advocates may be taking measures in the near term to change this state of affairs. How this issue will play out in the run up to a Thai election remains to be seen, but it may prove interesting.

In analyzing United States immigration in a Thai context the reader should note that if Thailand began allowing registration of same sex marriage and the United States passed legislation such as the aforementioned UAFA it is conceivable in the future that a same sex bi-national Thai-American couple could register their marriage in Thailand and thereby use that marriage as a basis for seeking American immigration benefits such as a K3 visa, CR1 visa, or an IR1 visa. That stated, such a scenario would require a departure from current law and policy.

For related information please see: US Visa Thailand or K1 Visa Thailand.

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10th May 2011

It recently came to this blogger’s attention that the United States Navy, that indomitable symbol of America’s prowess on the high seas, has taken steps to begin solemnizing marital unions between those of the same gender. To quote directly from the Huffington Post:

WASHINGTON — Navy chaplains will be trained about their ability to perform same-sex civil marriage ceremonies under new guidance that would take effect if the Defense Department moves to recognize openly gay military service. Navy officials said Monday that they updated the training after questions came up about civil ceremonies for gay couples. Military training to apply the new law allowing gays to serve openly began earlier this year, and is expected to be complete by mid-summer.

For those who are unfamiliar with this topic it should be noted that the relatively recent repeal of the so-called “Don’t Ask, Don’t Tell” policy has resulted in the need for measures to integrate members of the LGBT community into the American armed forces. One component of such an integration is that same sex couples be permitted to marry, especially in State jurisdictions which explicitly allow such unions. However, this issue is not exactly “cut and dried,” to quote further from the aforementioned article:

The Navy ceremonies would be allowed at military facilities such as chapel and catering centers, but only in states that already recognize same-sex unions. And, even if a marriage is performed, same-sex partners would not get any health, housing or other benefits that are provided to married couples involving a man and woman.

The administration of this web log strongly encourages readers to click on the hyperlinks noted above to read this story in detail and learn more about these issues.

Clearly, there exists a States’ Rights component to the analysis of same sex marriage especially in light of the fact that 6 sovereign States and the District of Columbia have begun legalizing and solemnizing same sex marital unions within their respective jurisdictions. However, the final sentence of the above quotation should be concerning to same sex bi-national couples and the LGBT community as a whole. Although it is certainly positive that the American Navy is taking steps to begin solemnizing same sex unions while the overall legal stature of such unions is being determined, same sex couples are likely to continue to find themselves the victim of discrimination and double standards within the current American legal system.

Presently, there are cases in the judicial system which address these issues, but they have yet to take legal effect. Meanwhile, legislators such as Representative Jerrold Nadler have supported legislation such as the Respect for Marriage Act and the Uniting American Families Act (UAFA) which would deal with the American government’s current discrimination against the LGBT community. Until such time as federal legislation is passed to repeal the provisions of the so-called “Defense of Marriage Act” (DOMA), or judicial action is taken to overturn this legislation, it would appear likely that same sex couples will continue to be the object of discrimination notwithstanding the fact that such discrimination (regardless of whether it is being carried out under the “color of law”) violates Americans’ natural rights pursuant to ancient notions such as Magna Carta and the specific provisions protecting free association within the language of the U.S. Constitution. Meanwhile, there is a strong argument that the federal government’s current failure to recognize same sex marriages solemnized and/or legalized within the jurisdiction of a sovereign American State violates the 10th Amendment of the Constitution since the provisions thereof reserve certain rights to the American States and People, respectively.  Licensure of marriage in an intrastate context has long been viewed by many Constitutional scholars as an exclusively State prerogative.

For related information please see: LGBT Immigration.

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