Integrity Legal

Posts Tagged ‘TSA Groping’

26th May 2011

It recently came to this blogger’s attention that the US business visas categorized as the B-1 visa and the H-1B visa are making headlines on the World Wide Web. To quote directly from the official website of First Post, FirstPost.com:

Infosys announced on Tuesday that it had received a subpoena from a US District Court demanding documentation of its B1 visa usage, which is  the subject of a criminal investigation by the US Department of Justice (DOJ).

Those reading this web log are strongly encouraged to click upon the hyperlinks above in order to gain more perspective on this developing story. Concurrently, readers are also asked to remember that those accused of an illegal act, whether a natural person or a corporation, are innocent until proven guilty pursuant to America law.

Those unfamiliar with these visa categories should note that the B-1 visa is a non-immigrant visa designed for use by those who intend to remain in the United States for a short period of time for business meetings or training. Such travel documents do not permit the bearer to take up employment within the jurisdiction of the United States. Meanwhile, the H-1B visa is intended for those who wish to  undertake employment in the United States of America. In much the same way that a Thai business visa does not confer the right to work in the Kingdom of Thailand, only a Thai work permit entails such privileges, so too does a B-1 visa exclusively permit the bearer lawful status in the USA upon admission. Therefore, those wishing to work in the USA are generally required to obtain a visa which permits the bearer to work or obtain Employment Authorization. Those who have lawful permanent residence pursuant to entry in the USA on a CR1 Visa or an IR1 Visa are allowed to work in the USA.

The aforementioned article went on to note:

The DOJ’s criminal investigation is not the only legal claim Infosys is facing in relation to B1 visas. As Firstpost has previously reported, an Alabama-based employee named Jack “Jay” Palmer filed a civil lawsuit against the company in February alleging that Infosys used the B1 visa as a way to “creatively” manoeuvre around H-1B visa caps. (Infosys has consistently been the top recipient of H-1B visas in the US.)

Those seeking American immigration benefits should be aware of the fact that the privilege of working in the United States is not always easily obtained. Furthermore, those pondering immigration benefits should note that it is never prudent to be anything but 100% honest with American immigration officials as failure to be candid regarding one’s bona fide immigration intentions could have tremendous adverse ramifications. Consequences for failure to be forthright with immigration authorities could include fines, penalties, incarceration, or a finding of legal inadmissibility. Those found to be legally ineligible for admission to the United States of America may be able to rectify such inadmissibility through use of either an I-601 waiver or an I-212 waiver, depending upon the circumstances of the case.

Meanwhile, it appears that the Department of Homeland Security‘s Transportation Security Administration (TSA) is taking criticism from a federal legislator regarding the methodology surrounding the groping of individuals passing through airports in the USA. To quote directly from the official website of Real Clear Politics, RealClearPolitics.com:

The Hill reports: “I walked through … right behind me there was a grandmother — little old lady, and she was was patted down,” Rep. Paul Broun (R-Georgia) said on C-SPAN’s “Washington Journal.” “Right behind her was a little kid who was patted down. And then right behind him was a guy in Arabian dress who just walked right through. Why are we patting down grandma and kids?”

The administration of this blog strongly encourages readers to click upon the hyperlinks noted above to learn more.

It is certainly a credit to Representative Paul Broun that he is questioning TSA policies regarding groping of prospective passengers as it is this blogger’s personal opinion that such searches violate the provisions of the 4th Amendment of the Constitution of the United States of America. This news comes on the heels of a recent announcement that lawmakers in the sovereign State of Texas have withdrawn a recent bill brought before that State’s legislature to curtail the activities of the TSA. To quote directly from the website of the Texas Tribune, TexasTribune.org:

A threat from the federal government to shut down Texas airports or cancel flights may have killed legislation by Tea Party conservatives in the Texas Capitol to prohibit federal Transportation Security Administration agents from conducting “invasive searches.” “I don’t cave in to heavy handed threats by the federal government,” said an angry Sen. Dan Patrick, R-Houston, the Senate sponsor of the bill, who ultimately withdrew the bill. House Bill 1937, which was passed by the House earlier this month, would make it a misdemeanor offense for a federal security agent to “intentionally, knowingly, or recklessly [touch] the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing, or touching the other person in a manner that would be offensive to a reasonable person.” Two TSA officials visited Patrick at the Capitol earlier today to discuss the legislation. They warned him that the legislation “could close down all the airports in Texas,” he said…

This blogger encourages readers to click on the hyperlinks above to find out more.

Clearly, the issue of TSA “pat downs” is controversial and can raise tempers. This blogger encourages readers to keep abreast of the stories above at it seems likely that the underlying issues will continue to be poignant in the days and weeks ahead. This may be especially true in the context of an upcoming election as issues pertaining to U.S. immigration and the 4th amendment may be of concern to prospective voters.

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3rd March 2011

It recently came to this blogger’s attention through the Huffington Post website that a legislator in the sovereign State of New Hampshire has introduced a bill that could criminalize certain activities of the Transportation Safety Administration (TSA). To quote directly from the story posted on the Huffington Post official website:

A Republican state representative from New Hampshire named George Lambert has co-sponsored a bill that would make it a felony to touch or view someone’s private parts without probable cause.

Lambert was interviewed by MSNBC on Wednesday to discuss the bill, which would apply to TSA pat downs, as well as the agency’s x-ray scanners. The bill would essentially make it a sexual assault to conduct an invasive pat down or look at images of a traveler on one of the TSA’s new high-tech scanners.

Clearly, the TSA’s current policies on so-called “pat downs” (which many argue are unduly invasive and violate Constitutional protections prohibiting unreasonable search and seizure) and scanning are under fire from many different circles. However, the question must be posed: is New Hampshire Constitutionally permitted to enforce criminal sanctions against TSA officers? TSA officers operate under the jurisdiction of the United States Federal government’s Department of Homeland Security. Most currently binding American jurisprudence has found against the notion that State’s may enforce State law against Federal agents or institutions. The most notable case in this vein is probably McCulloch v. Maryland. In the language of the McCulloch decision, the Court found that the State of Maryland did not have the right to levy a tax upon the Bank of the United States. This decision set the stage for the, now rather sophisticated, premise that the States’ power to enforce State law is curtailed when attempting to enforce that law against the Federal government. Through later cases, this notion was expanded upon. This blogger recently found an interesting article on this topic entitled: What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause. This article delves deeply into the issues associated with Federal preemption of State prerogatives in matters pertaining to Federal operations and Federal agents and this blogger highly recommends those interested in this issue click on the link above to read this article.

It would appear from the plain language of the McCulloch decision that the States’ ability to enforce actions against the Federal government are not restricted completely. To quote directly from page 2219 of the What Kind of Immunity? article noted above, the article’s authors, Seth P. Waxman and Trevor W. Morrison, cited a section of the McCulloch decision which is noteworthy:

[N]o principle [of state power] . . . can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested insubordinate governments, as to exempt its own operations from their own influence.

At first blush, the above citation may appear to fully favor the Federal authorities on the issue of whether the sovereign State of New Hampshire has the authority to enforce criminal penalties against TSA officers, but one phrase is critical to an analysis of New Hampshire’s proposed legislation and that phrase is “legitimate operations“. In the McCulloch case, the Bank of the United States was deemed to be a legitimate operation of the Federal government notwithstanding the fact that the Constitution did not expressly permit such an institution because the Court reasoned that the Federal government, through the Necessary and Proper Clause, could establish a bank so as to facilitate the express Federal powers granted under the Taxing and Spending Clause. In short: the Federal government’s ability to tax and spend is considered a “legitimate operation” of the Federal government and if a bank facilitates that operation, then it is operating lawfully.

This analysis begs the question: Is groping Americans’ genitalia (also referred to as “enhanced pat downs”) and capturing nude body scanner images a “legitimate operation” of the Federal government? If not, then the State may have a right to enforce State criminal law against those who engage in such activity. That said, this issue is far from resolved and the State of New Hampshire has yet to actually promulgate this legislation, but clearly the issues noted above make for interesting jurisprudence.

For related information please see: US States.

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