Second Amendment Litigants Hope To Try Their Luck With Amy Coney Barrett

upiphotostwo773864

The Supreme Court has continued to largely evade cases about the Second Amendment since the one-two punch of 2008’s D.C. v. Heller (which declared the amendment protects an individual right to possess commonly used weapons for self-defense in the home) and 2010’s McDonald v. Chicago (which extended that reasoning to state and local laws).

With a more solid majority of jurists on the Court with a record of respect for the Second Amendment now that Amy Coney Barrett has been confirmed, the Second Amendment Foundation (SAF), in collaboration with other plaintiffs and organizations, filed a flurry of November lawsuits attempting to extend the reach of the Second Amendment. Should such a case actually end up getting considered by the Supreme Court, gun rights groups have a better chance of prevailing in the Barrett era, as well as a better chance of being taken up in the first place.

Three of the suits aim at laws in three states restricting people’s ability to carry their guns outside the home, an issue left unresolved by Heller. One, Bennett v. Davisfiled in U.S. District Court for the District of New Jersey, insists that the citizen plaintiffs “have a fundamental, constitutionally guaranteed right to carry loaded, operable handguns on their person and outside their homes, including in their vehicles, places of business, and otherwise in public, for the purpose of self-defense.”

New Jersey law makes it a second-degree felony to carry a gun in public without a carry license. Such licenses are by state law issued at the discretion of police and generally require proof that you have a “justifiable need,” meaning an “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.”

The lawsuit does acknowledge the bad news for arguing that this particular law violates the Second Amendment: Similar arguments were made against New Jersey’s carry permit laws in a case called alternatively Drake v. Filko and Drake v. Jerejian. Those arguments lost in the 3rd U.S. Circuit Court of Appeals, and the Supreme Court in 2014 declined to take up the case.

This June, the Court declined certiorari in another challenge to New Jersey’s permit law, Rogers v. Grewal. In dissenting from the Court’s decision not to take up that case, Justice Clarence Thomas complained, rightly, that the Supreme Court, by largely ignoring chances to refine or extend its Heller analysis, has let various lower courts run roughshod over the Second Amendment by inventing lower standards of scrutiny not set forth by the Court, resulting in various “analyses that are entirely inconsistent with Heller.”

Still, this new suit insists when properly considered, “under the text of the Constitution, our Nation’s history and tradition, and the Supreme Court’s precedents, [New Jersey’s carry permit laws should] be declared unconstitutional and enjoined so that Plaintiffs and law-abiding individuals like them can exercise their constitutional right to bear arms—both inside and outside of their homes.”

Another suit filed last month in U.S. District Court for the Southern District of New York aims a similar challenge at New York’s carry permit laws. The suit, Greco v. City of New York, argues:

Law-abiding citizens have a fundamental right to bear arms—including, specifically, operable modern handguns—for the “core” purpose of self-protection. The only way that a private citizen can exercise this right in New York City is by obtaining a license from the New York City Police Department. To obtain this license, the person must (among other things) meet a highly restrictive “proper cause” standard that requires a showing of special or heightened need. This standard acts to ban all typical and average law-abiding citizens from obtaining licenses as they, by definition, are not able to show special or heightened need. However, all people, not just those with special or heightened needs, have a fundamental right to bear arms by carrying handguns, away from their homes and in public, for the purpose of self-defense.

As with the Jersey case, this suit insists that a rational assessment of the meaning of the Second Amendment as established in Heller should knock down the New York law that makes “the unlicensed possession of a handgun and ammunition away from one’s home or place of business…a class C felony, subject to a mandatory minimum sentence of 3.5 years” with that license only obtainable by presenting a “proper cause” to the police, since “the Defendants have prevented Plaintiff Greco and virtually all other typical or average people from obtaining the license that is needed to exercise the right to bear arms for its core purpose, self-protection, while in the City of New York.”

In a third suit filed in November by SAF, Call v. Jones, Maryland’s carry permit laws are challenged on similar grounds, insisting that “Maryland has made clear that a general desire to carry a handgun for the purpose of self-defense—’the central component’ of the Second Amendment [as per Heller]—is not a sufficiently good reason to exercise the right. Instead, according to Maryland, an ordinary citizen must provide documented evidence of concrete threats or recent assaults to obtain a permit from the state to carry a handgun in public.”

Various federal appeals courts have come to a variety of different decisions on this question of restricting the right to bear arms outside the home, including the 9th Circuit’s decision in 2016’s Peruta v. San Diego that declared concealed carry can be constitutionally prohibited, the 7th Circuit’s 2012 Moore v. Madigan which overturned an Illinois law unduly prohibiting citizens carrying guns outside the home, and the ongoing Young v. Hawaii case in the 9th Circuit, which in an earlier iteration (that many expect to be overturned by the Court en banc) protected open carry as a right not open to quick abridgment under the Second Amendment.

Carry permit laws are not the only ones the SAF hopes might eventually come before a Supreme Court with Barrett on it. Lawsuits in November also challenged California’s regulations that restrict legal gun purchases to a state-produced roster of acceptable weapons (Renna v. Becerra) and Louisiana’s regulations that prevent people ages 18-20 from purchasing guns (Reese v. BATFE).

The Firearms Policy Coalition, which is working with SAF on some of the above lawsuits, has also filed some fresh suits, including Cowey v. Mullen, which challenges Pennsylvania’s coronavirus-related closure of its division that processes gun permit requests.

Adam Kraut, a laywer with the Firearms Policy Coalition, says in a phone interview yesterday that he’s not discouraged by past anti-Second Amendment decisions from federal appeals courts. Kraut is encouraged by Justice Clarence Thomas’ frequent complaints that the lower courts are “treating the Second Amendment as a second-class right, and you shouldn’t do that.”

from Latest – Reason.com https://ift.tt/33wpzjG
via IFTTT

A challenge to hendiadys in the law

There’s a good new article on hendiadys in the Constitution, and it suggests that this hendiadys thing is getting out of hand already. As the title of the article puts it, Hendiadys in the Language of the Law: What Part of “and” Don’t You Understand?. The article is by Elizabeth Fajans and Mary R. Falk, and is published in Legal Communication & Rhetoric.

(What is hendiadys, you ask? A figure of speech in which two terms separated by a conjunction work together as a single unit of meaning. The examples I discuss in “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution range from the colloquial, as in Julia Child’s “good and dry”; to the literary, as in William Shakespeare’s “law and heraldry”; to the legal, as in “necessary and proper.”)

The argument by Fajan and Falks is thoughtful, clear, generous, and not about trivialities but first principles. It is a model critique, and I’m delighted to have seen it. They also discuss synecdoche and metaphor, which they do think have some place in legal interpretation. Perhaps more on that in time, but I will focus in this post on their argument about hendiadys.

The gist of the argument is that hendiadys is a literary figure that emphasizes “doubt, self-deception, multiplicity, complexity, and ambiguity.” Those characteristics make this figure of speech “sit uncomfortably in legal texts or, for that matter, in instructional materials on assembling an IKEA couch.” But it is not merely unlikely that hendiadys appears in legal texts. Fajans and Falk conclude that it should be a priori excluded from the interpretive options:

Beginning our research, we found sparse mention of hendiadys—until Professor Bray’s article was published, eliciting considerable comment and other explorations of hendiadys in law. We soon became convinced that not only was it unlikely that many, if any, binomial expressions in the law are hendiadys, but even if some are, that its use as an interpretive strategy is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is multiplicity and complexity. . . . Our takeaway is therefore simple: some literary devices, like hendiadys, have no proper place in the language of the law or in its interpretation . . . .

Let me mention three points of agreement and three points of disagreement between me and Fajans and Falk.

Agreement 1: Hendiadys is often used in literary contexts as a means of unsettling language and expressing ambiguity. In such contexts, the effect produced by hendiadys can be to make the author’s words and phrases like the shattered pieces of two small whaling boats in Moby Dick: “the odorous cedar chips of the wrecks danced round and round, like the grated nutmeg in a swiftly stirred bowl of punch.”

Agreement 2: plain speech is an aspiration in the law, and in our culture of legal production it would be inappropriate to include such self-conscious literary pyrotechnics in a constitution, statute, or rule.

Agreement 3: in the places where I argue a hendiadic reading is best, a non-hendiadic reading is possible. That is, we could read “cruel and unusual” and “necessary and proper” as each offering distinct requirements, as each expressing a tautology, as each being a hendiadys, and so on.

Disagreement 1: I see no reason to rule out, as a matter of definition, all the non-literary uses of hendiadys. Here is the key move by Fajans and Falk (footnotes omitted):

Because hendiadys requires a seeming mismatch, most literary scholars would exclude from this literary device everyday expressions with clear and settled meanings like “nice and hot”; phrasal collocations or tautologies like “lord and master” or “high and mighty,” in which two words are used simply for emphasis and elevation, and expressions using related terms, like “pen and ink” or “wind and rain.” For conjoined terms to be hendiadys, the element of the unexpected must be present . . . .

Once that move is made, the rest of the argument follows. But the premise is contestable. There is debate about how broadly or narrowly to define this figure of speech (as discussed by Fajans and Falk and by me). And although our figures of speech may seem sharply defined, that is a bit illusory, for they are our ways of demarcating phenomena that are much more overlapping and spectral (in spectral‘s two senses).

Nevertheless, hendiadys pervades oral and colloquial speech (e.g., “tried and true” and many other examples in my article). And I also don’t think we can draw such a sharp line between the literary and the “everyday.” It is especially at the oral, the ritual, the poetic, and the proverbial that the separation of “literary” and “everyday” is most likely to mislead us. Consider the Book of Common Prayer, and its “general confession” (which would have been said by George Washington and John Marshall and others every time they attended church services). In this prayer the worshipper says to God: “We have erred and strayed from thy ways like lost sheep.” “Erred and strayed” is a hendiadys, not quite a tautology, and it can be subjected to the multiplicity and ramifying meanings that are common with this figure in literary texts. But it is also everyday. In fact, twice-a-day: it is part of daily Morning and Evening Prayer. It is because the Founders were steeped in a literary and oral culture in which this figure appeared–”pervasively” would be too strong, but still the point is that it appeared with some frequency and was not marked as only “literary”–I think we should be unsurprised if the Founders would have used the figure instinctively, as a way to get close to what was meant, rather than for conscious artistry.

Disagreement 2: although plain speech is good in a law, it is not as easy as it seems. Fajan and Falk are alert to this, recognizing that the search for “fixed meaning” in legal texts may be “[q]uixotic[].” But I would go further. No matter what the skill or good intentions of the drafters, law will pervasively have an edge (and maybe an interior) of indeterminacy. This is so because, as Aristotle recognized, circumstances arise that are unforeseen by the lawmaker. But it is also so, even on day 1 after the passage of a statute, because of the slipperiness of language itself. (This is one reason I think interpreters should consider pragmatics as well as semantics–see The Mischief Rule–but I digress.) If you think law is going to have a non-trivial amount of indeterminacy, at least law when it is at issue in not-subject-to-Rule-11-sanctions litigation, then we should be alert to how figures of speech can help us to understand or misunderstand, resolve or create, ambiguity.

Disagreement 3: To understand whether a phrase should be read as a hendiadys, we need other interpretive resources, including (for the Constitution) the ratification debates and early practice and judicial interpretation. Fajans and Falk note that they are not offering a rejoinder on those fronts. But I don’t think the question of whether or not to adopt a hendiadic reading can be settled by the text. The text can be interpreted hendiadically and non-hendiadically. So when Fajans and Falk point out that non-hendiadic readings are possible, I agree. But the next step–unless one excludes hendiadys a priori–is to consider which of the readings is most consonant with the modalities and other resources of interpretation in our legal tradition.

If hendiadys were limited to literary texts like Hamlet, Fajans and Falk are right that it would be out of place in statutes and constitutions. But it appears in many kinds and registers and genres of speech. We should not be surprised that it appears in law.

from Latest – Reason.com https://ift.tt/39ttbqJ
via IFTTT

Second Amendment Litigants Hope To Try Their Luck With Amy Coney Barrett

upiphotostwo773864

The Supreme Court has continued to largely evade cases about the Second Amendment since the one-two punch of 2008’s D.C. v. Heller (which declared the amendment protects an individual right to possess commonly used weapons for self-defense in the home) and 2010’s McDonald v. Chicago (which extended that reasoning to state and local laws).

With a more solid majority of jurists on the Court with a record of respect for the Second Amendment now that Amy Coney Barrett has been confirmed, the Second Amendment Foundation (SAF), in collaboration with other plaintiffs and organizations, filed a flurry of November lawsuits attempting to extend the reach of the Second Amendment. Should such a case actually end up getting considered by the Supreme Court, gun rights groups have a better chance of prevailing in the Barrett era, as well as a better chance of being taken up in the first place.

Three of the suits aim at laws in three states restricting people’s ability to carry their guns outside the home, an issue left unresolved by Heller. One, Bennett v. Davisfiled in U.S. District Court for the District of New Jersey, insists that the citizen plaintiffs “have a fundamental, constitutionally guaranteed right to carry loaded, operable handguns on their person and outside their homes, including in their vehicles, places of business, and otherwise in public, for the purpose of self-defense.”

New Jersey law makes it a second-degree felony to carry a gun in public without a carry license. Such licenses are by state law issued at the discretion of police and generally require proof that you have a “justifiable need,” meaning an “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.”

The lawsuit does acknowledge the bad news for arguing that this particular law violates the Second Amendment: Similar arguments were made against New Jersey’s carry permit laws in a case called alternatively Drake v. Filko and Drake v. Jerejian. Those arguments lost in the 3rd U.S. Circuit Court of Appeals, and the Supreme Court in 2014 declined to take up the case.

This June, the Court declined certiorari in another challenge to New Jersey’s permit law, Rogers v. Grewal. In dissenting from the Court’s decision not to take up that case, Justice Clarence Thomas complained, rightly, that the Supreme Court, by largely ignoring chances to refine or extend its Heller analysis, has let various lower courts run roughshod over the Second Amendment by inventing lower standards of scrutiny not set forth by the Court, resulting in various “analyses that are entirely inconsistent with Heller.”

Still, this new suit insists when properly considered, “under the text of the Constitution, our Nation’s history and tradition, and the Supreme Court’s precedents, [New Jersey’s carry permit laws should] be declared unconstitutional and enjoined so that Plaintiffs and law-abiding individuals like them can exercise their constitutional right to bear arms—both inside and outside of their homes.”

Another suit filed last month in U.S. District Court for the Southern District of New York aims a similar challenge at New York’s carry permit laws. The suit, Greco v. City of New York, argues:

Law-abiding citizens have a fundamental right to bear arms—including, specifically, operable modern handguns—for the “core” purpose of self-protection. The only way that a private citizen can exercise this right in New York City is by obtaining a license from the New York City Police Department. To obtain this license, the person must (among other things) meet a highly restrictive “proper cause” standard that requires a showing of special or heightened need. This standard acts to ban all typical and average law-abiding citizens from obtaining licenses as they, by definition, are not able to show special or heightened need. However, all people, not just those with special or heightened needs, have a fundamental right to bear arms by carrying handguns, away from their homes and in public, for the purpose of self-defense.

As with the Jersey case, this suit insists that a rational assessment of the meaning of the Second Amendment as established in Heller should knock down the New York law that makes “the unlicensed possession of a handgun and ammunition away from one’s home or place of business…a class C felony, subject to a mandatory minimum sentence of 3.5 years” with that license only obtainable by presenting a “proper cause” to the police, since “the Defendants have prevented Plaintiff Greco and virtually all other typical or average people from obtaining the license that is needed to exercise the right to bear arms for its core purpose, self-protection, while in the City of New York.”

In a third suit filed in November by SAF, Call v. Jones, Maryland’s carry permit laws are challenged on similar grounds, insisting that “Maryland has made clear that a general desire to carry a handgun for the purpose of self-defense—’the central component’ of the Second Amendment [as per Heller]—is not a sufficiently good reason to exercise the right. Instead, according to Maryland, an ordinary citizen must provide documented evidence of concrete threats or recent assaults to obtain a permit from the state to carry a handgun in public.”

Various federal appeals courts have come to a variety of different decisions on this question of restricting the right to bear arms outside the home, including the 9th Circuit’s decision in 2016’s Peruta v. San Diego that declared concealed carry can be constitutionally prohibited, the 7th Circuit’s 2012 Moore v. Madigan which overturned an Illinois law unduly prohibiting citizens carrying guns outside the home, and the ongoing Young v. Hawaii case in the 9th Circuit, which in an earlier iteration (that many expect to be overturned by the Court en banc) protected open carry as a right not open to quick abridgment under the Second Amendment.

Carry permit laws are not the only ones the SAF hopes might eventually come before a Supreme Court with Barrett on it. Lawsuits in November also challenged California’s regulations that restrict legal gun purchases to a state-produced roster of acceptable weapons (Renna v. Becerra) and Louisiana’s regulations that prevent people ages 18-20 from purchasing guns (Reese v. BATFE).

The Firearms Policy Coalition, which is working with SAF on some of the above lawsuits, has also filed some fresh suits, including Cowey v. Mullen, which challenges Pennsylvania’s coronavirus-related closure of its division that processes gun permit requests.

Adam Kraut, a laywer with the Firearms Policy Coalition, says in a phone interview yesterday that he’s not discouraged by past anti-Second Amendment decisions from federal appeals courts. Kraut is encouraged by Justice Clarence Thomas’ frequent complaints that the lower courts are “treating the Second Amendment as a second-class right, and you shouldn’t do that.”

from Latest – Reason.com https://ift.tt/33wpzjG
via IFTTT

A challenge to hendiadys in the law

There’s a good new article on hendiadys in the Constitution, and it suggests that this hendiadys thing is getting out of hand already. As the title of the article puts it, Hendiadys in the Language of the Law: What Part of “and” Don’t You Understand?. The article is by Elizabeth Fajans and Mary R. Falk, and is published in Legal Communication & Rhetoric.

(What is hendiadys, you ask? A figure of speech in which two terms separated by a conjunction work together as a single unit of meaning. The examples I discuss in “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution range from the colloquial, as in Julia Child’s “good and dry”; to the literary, as in William Shakespeare’s “law and heraldry”; to the legal, as in “necessary and proper.”)

The argument by Fajan and Falks is thoughtful, clear, generous, and not about trivialities but first principles. It is a model critique, and I’m delighted to have seen it. They also discuss synecdoche and metaphor, which they do think have some place in legal interpretation. Perhaps more on that in time, but I will focus in this post on their argument about hendiadys.

The gist of the argument is that hendiadys is a literary figure that emphasizes “doubt, self-deception, multiplicity, complexity, and ambiguity.” Those characteristics make this figure of speech “sit uncomfortably in legal texts or, for that matter, in instructional materials on assembling an IKEA couch.” But it is not merely unlikely that hendiadys appears in legal texts. Fajans and Falk conclude that it should be a priori excluded from the interpretive options:

Beginning our research, we found sparse mention of hendiadys—until Professor Bray’s article was published, eliciting considerable comment and other explorations of hendiadys in law. We soon became convinced that not only was it unlikely that many, if any, binomial expressions in the law are hendiadys, but even if some are, that its use as an interpretive strategy is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is multiplicity and complexity. . . . Our takeaway is therefore simple: some literary devices, like hendiadys, have no proper place in the language of the law or in its interpretation . . . .

Let me mention three points of agreement and three points of disagreement between me and Fajans and Falk.

Agreement 1: Hendiadys is often used in literary contexts as a means of unsettling language and expressing ambiguity. In such contexts, the effect produced by hendiadys can be to make the author’s words and phrases like the shattered pieces of two small whaling boats in Moby Dick: “the odorous cedar chips of the wrecks danced round and round, like the grated nutmeg in a swiftly stirred bowl of punch.”

Agreement 2: plain speech is an aspiration in the law, and in our culture of legal production it would be inappropriate to include such self-conscious literary pyrotechnics in a constitution, statute, or rule.

Agreement 3: in the places where I argue a hendiadic reading is best, a non-hendiadic reading is possible. That is, we could read “cruel and unusual” and “necessary and proper” as each offering distinct requirements, as each expressing a tautology, as each being a hendiadys, and so on.

Disagreement 1: I see no reason to rule out, as a matter of definition, all the non-literary uses of hendiadys. Here is the key move by Fajans and Falk (footnotes omitted):

Because hendiadys requires a seeming mismatch, most literary scholars would exclude from this literary device everyday expressions with clear and settled meanings like “nice and hot”; phrasal collocations or tautologies like “lord and master” or “high and mighty,” in which two words are used simply for emphasis and elevation, and expressions using related terms, like “pen and ink” or “wind and rain.” For conjoined terms to be hendiadys, the element of the unexpected must be present . . . .

Once that move is made, the rest of the argument follows. But the premise is contestable. There is debate about how broadly or narrowly to define this figure of speech (as discussed by Fajans and Falk and by me). And although our figures of speech may seem sharply defined, that is a bit illusory, for they are our ways of demarcating phenomena that are much more overlapping and spectral (in spectral‘s two senses).

Nevertheless, hendiadys pervades oral and colloquial speech (e.g., “tried and true” and many other examples in my article). And I also don’t think we can draw such a sharp line between the literary and the “everyday.” It is especially at the oral, the ritual, the poetic, and the proverbial that the separation of “literary” and “everyday” is most likely to mislead us. Consider the Book of Common Prayer, and its “general confession” (which would have been said by George Washington and John Marshall and others every time they attended church services). In this prayer the worshipper says to God: “We have erred and strayed from thy ways like lost sheep.” “Erred and strayed” is a hendiadys, not quite a tautology, and it can be subjected to the multiplicity and ramifying meanings that are common with this figure in literary texts. But it is also everyday. In fact, twice-a-day: it is part of daily Morning and Evening Prayer. It is because the Founders were steeped in a literary and oral culture in which this figure appeared–”pervasively” would be too strong, but still the point is that it appeared with some frequency and was not marked as only “literary”–I think we should be unsurprised if the Founders would have used the figure instinctively, as a way to get close to what was meant, rather than for conscious artistry.

Disagreement 2: although plain speech is good in a law, it is not as easy as it seems. Fajan and Falk are alert to this, recognizing that the search for “fixed meaning” in legal texts may be “[q]uixotic[].” But I would go further. No matter what the skill or good intentions of the drafters, law will pervasively have an edge (and maybe an interior) of indeterminacy. This is so because, as Aristotle recognized, circumstances arise that are unforeseen by the lawmaker. But it is also so, even on day 1 after the passage of a statute, because of the slipperiness of language itself. (This is one reason I think interpreters should consider pragmatics as well as semantics–see The Mischief Rule–but I digress.) If you think law is going to have a non-trivial amount of indeterminacy, at least law when it is at issue in not-subject-to-Rule-11-sanctions litigation, then we should be alert to how figures of speech can help us to understand or misunderstand, resolve or create, ambiguity.

Disagreement 3: To understand whether a phrase should be read as a hendiadys, we need other interpretive resources, including (for the Constitution) the ratification debates and early practice and judicial interpretation. Fajans and Falk note that they are not offering a rejoinder on those fronts. But I don’t think the question of whether or not to adopt a hendiadic reading can be settled by the text. The text can be interpreted hendiadically and non-hendiadically. So when Fajans and Falk point out that non-hendiadic readings are possible, I agree. But the next step–unless one excludes hendiadys a priori–is to consider which of the readings is most consonant with the modalities and other resources of interpretation in our legal tradition.

If hendiadys were limited to literary texts like Hamlet, Fajans and Falk are right that it would be out of place in statutes and constitutions. But it appears in many kinds and registers and genres of speech. We should not be surprised that it appears in law.

from Latest – Reason.com https://ift.tt/39ttbqJ
via IFTTT

Can Married People on Long-Term Student Visas Get Divorced in the U.S.?

First, some background: Early this year, the Ninth Circuit decided a case called Park v. Barr, involving a woman who had illegally overstayed her visa:

Woul Park, a Korean citizen, married Byung Gug Choi in Korea in 1988. Park came to the United States on a B-2 tourist visa in 2003. Park overstayed her visa and has resided in California ever since. Park and Choi jointly filed a Request for Divorce at the Korean Consulate in California, and the divorce became valid and final under Korean law as of May 12, 2009. Following the divorce, Park married James Yong Park, a United States citizen, in California. Park applied for and received lawful permanent residency based on this putative marriage. Park then applied for naturalization in 2014.

USCIS denied Park’s application for naturalization because it determined that Park’s divorce from Choi was invalid under California law, thus invalidating her marriage to James Yong Park. USCIS found that both Park and Choi were California domiciliaries when their Korean divorce decree was executed. The agency then concluded that Park’s purported 2009 divorce would not have been recognized under California law because California Family Code § 2091 bars the state from recognizing a foreign divorce when both parties are California domiciliaries.

This finding set off a cascade of legal consequences. If Park’s divorce from Choi was invalid under California law, then Park’s marriage to James Yong Park was similarly invalid. Park’s application for permanent residence was dependent on her lawful marriage to a United States citizen. Since Park’s marriage was invalid at its inception, USCIS reasoned, Park could never have been lawfully admitted for permanent residency. And finally, since Park had to show that she had been lawfully admitted as a permanent resident in order to naturalize, see 8 U.S.C. § 1427(a)(1), USCIS denied her application for naturalization….

We [disagree] and hold that Park, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Her divorce and subsequent marriage were therefore valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization.

So Ms. Park won, because federal law preempted state law, and this made her Korean divorce (and thus her later California marriage, which doesn’t require California domicile) valid. But a few months later, a Nevada court applied the same reasoning against a noncitizen lawfully present on a student spouse visa, in Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020):

Ahed Said Senjab and Mohamad Abulhakim Alhulaibi … are citizens of Syria. They married in Saudi Arabia on February 17, 2018. The parties have one minor child, Ryan …, who was born on February 16, 2019.

[Alhulabi] obtained an F-1 [student] Visa and came to the United States to attend graduate school at UNLV in 2018. Mr. Alhuliabi alleged that [Senjab] applied for an F-2 Visa [for spouses and dependent children of F-1 student visa holders] in August, 2018, and that an F-2 Visa was granted to her and the parties’ child at the end of 2019….

The parties and their child arrived in Las Vegas, Nevada, on January 13, 2020. On February 14, 2020, [Senjab] filed an Application for Protective Order …. The court granted the request and extended the protective order until February 14, 2021. The Extended Protective Order [basically gives Senjab custody during the week and Alhulaibi on weekends].

[Senjab] filed a Complaint for Divorce on March 24, 2020. Ms. Senjab seeks a divorce, child custody and support orders, and spousal support….

For this Nevada court to have subject matter jurisdiction to grant a divorce, one of the parties must be a bona fide resident of the state of Nevada [for at least 6 weeks before the suit was brought]…. Residence is synonymous with domicile. Physical presence, together with intent, constitutes bona fide residence for divorce jurisdiction. Aldabe v. Aldabe (Nev. 1968)….

This court finds that pursuant to state law, undocumented immigrants who physically live in Nevada have been able to access Nevada courts to obtain a divorce so long as they have been physically present in Nevada, and so long as they establish a subjective intention to make Nevada their home.

[But t]he Ninth Circuit Court of Appeals, in Park v. Barr, held that federal law has preempted state law. The holding in Park bars nonimmigrants who come to the United States on a visa issued pursuant to Title 8 of the United States Code [such as these parties] from establishing the subjective intent that is required to give this Nevada court subject matter jurisdiction to grant a divorce….

The federal law, prohibiting a nonimmigrant from establishing domicile, continues even if a visa is overstayed. In Park, Woul Park, a nonimmigrant, came  to the  United  States on a B-2 Visa, and stayed in the United States after the lawful status had lapsed. The Ninth Circuit Court of Appeals held that Woul Park was precluded from establishing lawful domicile in California by operation of federal law….

Under federal law, nonimmigrants that come to the United States through F-1 and F-2 visas are required to maintain a residence in their country of citizenship with no intention of abandoning it. [Senjab] and [Alhulabi] were permitted to enter the United States on an express condition not to abandon the foreign residence. Congress has not permitted [Senjab] and Mohamad Abulhakim Alhulaibi to lawfully form a subjective intent to remain in the United States….

[Senjab]’s subjective intent to make Nevada her home is precluded by Congress’ definition of the nonimmigrant classification. This court concludes that Nevada lacks subject matter jurisdiction to grant a divorce….

The case is now on appeal to the Nevada Supreme Court. Immigration law isn’t my area of expertise, so there may be something I’m missing here, but this seems to be practically quite significant.

from Latest – Reason.com https://ift.tt/3mstDZV
via IFTTT

Brickbats: December 2020

brickbats3

The San Diego Police Department has issued 82 citations for “seditious language” since 2013. Because such citations are considered infractions rather than misdemeanors, those cited under the law are not entitled to a jury trial or legal counsel. After an investigation by local media, the department ordered officers not to enforce a century-old city ordinance banning such speech.

Kentucky resident John Pennington faces a fine of up to $569,000 and up to six months in jail after being caught sightseeing in Banff National Park in Alberta, Canada. Canada has closed its borders to U.S. travelers to reduce the spread of the coronavirus. It will allow U.S. residents to drive through Canada to Alaska, but they must take the most direct route.

Officials with California’s East Side Union High School District have placed a teacher on leave after he was seen teaching a virtual math class while not wearing a shirt, a violation of a school dress code he had reminded students about just days earlier.

Police in Miners Rest, Australia, arrested Zoe Buhler for attempting to organize a protest of a lockdown imposed in the state of Victoria, which officials claim is necessary to reduce the spread of coronavirus. She has been charged with incitement.

State and local officials spent $66 million converting Chicago’s McCormick Place convention center into an emergency hospital to treat coronavirus patients. It ended up treating just 38 patients, at a cost of about $1.7 million each.

Many owners of Minneapolis businesses that were damaged and looted in riots following George Floyd’s death say they need to install security shutters to protect their windows. But the city banned such shutters 16 years ago and denied the sole request for an exemption made in that time.

The Chicago Police Department has banned protests, even peaceful ones, on the block where Mayor Lori Lightfoot lives. Residents of the area have complained about the efforts cops are taking to keep protesters out, which include barricades in the street and checking people’s IDs before letting them enter the neighborhood. Cops say city and state laws ban protests in residential neighborhoods, but when a local newspaper asked them to list other instances in which they have blocked such protests, police did not provide any examples.

Aurora, Colorado, police officers ordered at gunpoint a mother and her children out of the SUV the woman was driving, made them lie down on the pavement, and handcuffed them after mistaking her vehicle for a motorcycle reported stolen in another state. Police Chief Vanessa Wilson blamed an error by a license plate scanner.

Thirteen people died after police in Lima, Peru, raided a disco that was open in defiance of restrictions the government says are needed to fight the coronavirus pandemic. The raid set off a stampede for the door, causing people to be trampled or trapped in the tight space and suffocate.

from Latest – Reason.com https://ift.tt/3mxD0re
via IFTTT

Can Married People on Long-Term Student Visas Get Divorced in the U.S.?

First, some background: Early this year, the Ninth Circuit decided a case called Park v. Barr, involving a woman who had illegally overstayed her visa:

Woul Park, a Korean citizen, married Byung Gug Choi in Korea in 1988. Park came to the United States on a B-2 tourist visa in 2003. Park overstayed her visa and has resided in California ever since. Park and Choi jointly filed a Request for Divorce at the Korean Consulate in California, and the divorce became valid and final under Korean law as of May 12, 2009. Following the divorce, Park married James Yong Park, a United States citizen, in California. Park applied for and received lawful permanent residency based on this putative marriage. Park then applied for naturalization in 2014.

USCIS denied Park’s application for naturalization because it determined that Park’s divorce from Choi was invalid under California law, thus invalidating her marriage to James Yong Park. USCIS found that both Park and Choi were California domiciliaries when their Korean divorce decree was executed. The agency then concluded that Park’s purported 2009 divorce would not have been recognized under California law because California Family Code § 2091 bars the state from recognizing a foreign divorce when both parties are California domiciliaries.

This finding set off a cascade of legal consequences. If Park’s divorce from Choi was invalid under California law, then Park’s marriage to James Yong Park was similarly invalid. Park’s application for permanent residence was dependent on her lawful marriage to a United States citizen. Since Park’s marriage was invalid at its inception, USCIS reasoned, Park could never have been lawfully admitted for permanent residency. And finally, since Park had to show that she had been lawfully admitted as a permanent resident in order to naturalize, see 8 U.S.C. § 1427(a)(1), USCIS denied her application for naturalization….

We [disagree] and hold that Park, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Her divorce and subsequent marriage were therefore valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization.

So Ms. Park won, because federal law preempted state law, and this made her Korean divorce (and thus her later California marriage, which doesn’t require California domicile) valid. But a few months later, a Nevada court applied the same reasoning against a noncitizen lawfully present on a student spouse visa, in Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020):

Ahed Said Senjab and Mohamad Abulhakim Alhulaibi … are citizens of Syria. They married in Saudi Arabia on February 17, 2018. The parties have one minor child, Ryan …, who was born on February 16, 2019.

[Alhulabi] obtained an F-1 [student] Visa and came to the United States to attend graduate school at UNLV in 2018. Mr. Alhuliabi alleged that [Senjab] applied for an F-2 Visa [for spouses and dependent children of F-1 student visa holders] in August, 2018, and that an F-2 Visa was granted to her and the parties’ child at the end of 2019….

The parties and their child arrived in Las Vegas, Nevada, on January 13, 2020. On February 14, 2020, [Senjab] filed an Application for Protective Order …. The court granted the request and extended the protective order until February 14, 2021. The Extended Protective Order [basically gives Senjab custody during the week and Alhulaibi on weekends].

[Senjab] filed a Complaint for Divorce on March 24, 2020. Ms. Senjab seeks a divorce, child custody and support orders, and spousal support….

For this Nevada court to have subject matter jurisdiction to grant a divorce, one of the parties must be a bona fide resident of the state of Nevada [for at least 6 weeks before the suit was brought]…. Residence is synonymous with domicile. Physical presence, together with intent, constitutes bona fide residence for divorce jurisdiction. Aldabe v. Aldabe (Nev. 1968)….

This court finds that pursuant to state law, undocumented immigrants who physically live in Nevada have been able to access Nevada courts to obtain a divorce so long as they have been physically present in Nevada, and so long as they establish a subjective intention to make Nevada their home.

[But t]he Ninth Circuit Court of Appeals, in Park v. Barr, held that federal law has preempted state law. The holding in Park bars nonimmigrants who come to the United States on a visa issued pursuant to Title 8 of the United States Code [such as these parties] from establishing the subjective intent that is required to give this Nevada court subject matter jurisdiction to grant a divorce….

The federal law, prohibiting a nonimmigrant from establishing domicile, continues even if a visa is overstayed. In Park, Woul Park, a nonimmigrant, came  to the  United  States on a B-2 Visa, and stayed in the United States after the lawful status had lapsed. The Ninth Circuit Court of Appeals held that Woul Park was precluded from establishing lawful domicile in California by operation of federal law….

Under federal law, nonimmigrants that come to the United States through F-1 and F-2 visas are required to maintain a residence in their country of citizenship with no intention of abandoning it. [Senjab] and [Alhulabi] were permitted to enter the United States on an express condition not to abandon the foreign residence. Congress has not permitted [Senjab] and Mohamad Abulhakim Alhulaibi to lawfully form a subjective intent to remain in the United States….

[Senjab]’s subjective intent to make Nevada her home is precluded by Congress’ definition of the nonimmigrant classification. This court concludes that Nevada lacks subject matter jurisdiction to grant a divorce….

The case is now on appeal to the Nevada Supreme Court. Immigration law isn’t my area of expertise, so there may be something I’m missing here, but this seems to be practically quite significant.

from Latest – Reason.com https://ift.tt/3mstDZV
via IFTTT

Brickbats: December 2020

brickbats3

The San Diego Police Department has issued 82 citations for “seditious language” since 2013. Because such citations are considered infractions rather than misdemeanors, those cited under the law are not entitled to a jury trial or legal counsel. After an investigation by local media, the department ordered officers not to enforce a century-old city ordinance banning such speech.

Kentucky resident John Pennington faces a fine of up to $569,000 and up to six months in jail after being caught sightseeing in Banff National Park in Alberta, Canada. Canada has closed its borders to U.S. travelers to reduce the spread of the coronavirus. It will allow U.S. residents to drive through Canada to Alaska, but they must take the most direct route.

Officials with California’s East Side Union High School District have placed a teacher on leave after he was seen teaching a virtual math class while not wearing a shirt, a violation of a school dress code he had reminded students about just days earlier.

Police in Miners Rest, Australia, arrested Zoe Buhler for attempting to organize a protest of a lockdown imposed in the state of Victoria, which officials claim is necessary to reduce the spread of coronavirus. She has been charged with incitement.

State and local officials spent $66 million converting Chicago’s McCormick Place convention center into an emergency hospital to treat coronavirus patients. It ended up treating just 38 patients, at a cost of about $1.7 million each.

Many owners of Minneapolis businesses that were damaged and looted in riots following George Floyd’s death say they need to install security shutters to protect their windows. But the city banned such shutters 16 years ago and denied the sole request for an exemption made in that time.

The Chicago Police Department has banned protests, even peaceful ones, on the block where Mayor Lori Lightfoot lives. Residents of the area have complained about the efforts cops are taking to keep protesters out, which include barricades in the street and checking people’s IDs before letting them enter the neighborhood. Cops say city and state laws ban protests in residential neighborhoods, but when a local newspaper asked them to list other instances in which they have blocked such protests, police did not provide any examples.

Aurora, Colorado, police officers ordered at gunpoint a mother and her children out of the SUV the woman was driving, made them lie down on the pavement, and handcuffed them after mistaking her vehicle for a motorcycle reported stolen in another state. Police Chief Vanessa Wilson blamed an error by a license plate scanner.

Thirteen people died after police in Lima, Peru, raided a disco that was open in defiance of restrictions the government says are needed to fight the coronavirus pandemic. The raid set off a stampede for the door, causing people to be trampled or trapped in the tight space and suffocate.

from Latest – Reason.com https://ift.tt/3mxD0re
via IFTTT

Implementing my Pledge to Donate Royalty Payments to Charities Benefiting Refugees

Free to Move—Final Cover

Back in January, I pledged to donate 50% of all royalties generated by my book Free to Move: Foot Voting, Migration, and Political Freedom to charities benefiting refugees. Today is Giving Tuesday, and therefore as good a time as any for me to begin to implement my pledge.

As of a few days ago, Oxford University Press indicates that we have sold some 1100 copies of the book, since it went into print in late May (after a delay caused by the Coronavirus crisis). By my admittedly rough calculations, 50% of the royalties for that number of sales amounts to about $1200.

I am therefore donating that amount to HIAS, one of America’s oldest, largest, and most respected refugee-assistance organizations. That choice is partly guided by HIAS’ high status and record of success in the refugee assistance field, and partly by the fact that other donors have promised to double any donations up to $21,000 given to HIAS during Giving Tuesday. Thus, the donation will have twice its “normal” effect.

I have consulted about other potential recipients for donations with leading experts on immigration and refugee policy, and will be giving future donations to some of those organizations, as well. I will announce those donations in due course. I should have additional funds available as more copies of the book are sold, and the publisher gives me more detailed data on how many copies of which type have been purchased (as the royalty amounts are slightly different depending on the format of the book, and we have hardcover, digital, and audio versions). My pledge also covers royalty income from potential foreign-language translations, which I am in the process of exploring.

For those interested, I will note that among the other organizations currently on my radar screen are Freedom For Immigrants and the Florence Project (both of which provide services to immigrants and refugees trapped in our awful immigration detention system), and Second Tree (which provides integration assistance and other services to refugees  from the Syrian Civil War and other recent conflicts in the Mediterranean region).

The Covid-19 pandemic and associated economic crisis have made the plight of refugees even worse than usual. So whether or not you ever read or buy my book, I urge those who have the means to do so to consider contributing to charities assisting refugees. Perhaps my admittedly modest donation can play a role in stimulating efforts by others.

 

 

from Latest – Reason.com https://ift.tt/2VmLsxt
via IFTTT

Implementing my Pledge to Donate Royalty Payments to Charities Benefiting Refugees

Free to Move—Final Cover

Back in January, I pledged to donate 50% of all royalties generated by my book Free to Move: Foot Voting, Migration, and Political Freedom to charities benefiting refugees. Today is Giving Tuesday, and therefore as good a time as any for me to begin to implement my pledge.

As of a few days ago, Oxford University Press indicates that we have sold some 1100 copies of the book, since it went into print in late May (after a delay caused by the Coronavirus crisis). By my admittedly rough calculations, 50% of the royalties for that number of sales amounts to about $1200.

I am therefore donating that amount to HIAS, one of America’s oldest, largest, and most respected refugee-assistance organizations. That choice is partly guided by HIAS’ high status and record of success in the refugee assistance field, and partly by the fact that other donors have promised to double any donations up to $21,000 given to HIAS during Giving Tuesday. Thus, the donation will have twice its “normal” effect.

I have consulted about other potential recipients for donations with leading experts on immigration and refugee policy, and will be giving future donations to some of those organizations, as well. I will announce those donations in due course. I should have additional funds available as more copies of the book are sold, and the publisher gives me more detailed data on how many copies of which type have been purchased (as the royalty amounts are slightly different depending on the format of the book, and we have hardcover, digital, and audio versions). My pledge also covers royalty income from potential foreign-language translations, which I am in the process of exploring.

For those interested, I will note that among the other organizations currently on my radar screen are Freedom For Immigrants and the Florence Project (both of which provide services to immigrants and refugees trapped in our awful immigration detention system), and Second Tree (which provides integration assistance and other services to refugees  from the Syrian Civil War and other recent conflicts in the Mediterranean region).

The Covid-19 pandemic and associated economic crisis have made the plight of refugees even worse than usual. So whether or not you ever read or buy my book, I urge those who have the means to do so to consider contributing to charities assisting refugees. Perhaps my admittedly modest donation can play a role in stimulating efforts by others.

 

 

from Latest – Reason.com https://ift.tt/2VmLsxt
via IFTTT