Undocumented immigrants seeking a green card – the document that signifies lawful resident status – are not guaranteed protection from deportation during that process. And a rash of recent arrests at U.S. Citizenship and Immigration Services (USCIS) offices, where immigrants go for their green card hearing, could be a sign that getting legal resident status has gotten more dangerous.
The path to legal status
For undocumented immigrants already in the United States, obtaining a green card through marriage to a U.S. citizen ranks as the most reliable route to legal status. Although immigration officials recommend that such applicants return to their home country for consular processing, few can afford a lengthy stay abroad that also presents the risk of a three- or ten-year bar against reentry. Therefore, most undocumented immigrants married to a U.S. citizen have felt safer applying for an adjustment of status while remaining within the United States.
During previous administrations, U.S. Immigration and Customs Enforcement (ICE) prioritized the arrest and deportation of criminals. Undocumented immigrants without criminal records who also had U.S. ties were generally overlooked. That changed after President Donald Trump signed an executive order that eliminated ICE enforcement priorities. Now immigration officers are obliged to arrest anyone they come across who has entered the country unlawfully.
Recently, that has begun to include married immigrants who are attending immigration interviews at USCIS offices. After filing the I-130 petition to start the lengthy legalization process, the first step is an immigration interview to verify the legitimacy of the marriage. The penalty for missing an immigration interview is a deportation order. This presents a catch-22 for green card-eligible immigrants, who continue to live at risk of deportation if they don’t pursue legalization: they could be deported if they show up for the interview or if they miss it.
Many of those who have been arrested after their interviews, like Jonatan Palacios, were already under deportation orders, or like Jose “Ivan” Nuñez Martinez, had previously been deported. Many others, like Lilian Calderon, were brought to the United States as children and began the legal immigration process after growing up and starting a family in the United States. Most of those arrested have no criminal record or only a history of traffic infractions.
The number of arrests made during immigration interviews is still a tiny percentage of the interviews conducted. But the trend appears to be growing, and even a small possibility of arrest could deter many green card-eligible immigrants from even trying to legalize their status. While the odds remain statistically in their favor, couples should seek legal assistance before submitting a petition I-130.
It’s easier than ever to hang out a virtual shingle and declare your online enterprise open for business. On the flip side, a host of online businesses cease operations every day for a variety of reasons, good and bad. So, is it as easy to close up shop as it was to open? That depends on several factors, but there are certain matters that every business owner needs to consider when shuttering the online doors.
If your business is a sole proprietorship, ceasing operations is as easy as starting. That’s because there’s no legal distinction between you and the business. Say, for example, you open an online web design service, operating as a sole proprietorship, to provide you with a source of additional income. You’re paid directly by clients as an independent contractor, and you report those earnings on your personal income tax. If you decide to close your online business, all you need to do is stop accepting new assignments – which, of course, means that your additional source of income stops as well.
Things get more complicated if you’ve incorporated your online business. First, you must follow the business formation documents and by-laws. If your business involves more than one person, the other owners and/or officers must agree or vote to dissolve the business. In addition, the business needs to file a final corporate tax return. The IRS offers guidance on the paperwork for businesses that are closing. You must also notify the state in which you incorporated your business. State resources regarding required forms or notices are readily available online, such as those found here for New York or here for California. You’ll may also need to cancel any applicable business licenses and certificates. The Small Business Administration provides a detailed overview of the required steps, as well as a link to business counseling services.
Online sellers’ communities
What if your online business is a shop on eBay or Etsy? Such sellers’ communities have fueled the growth of ecommerce businesses, which are projected to increase 15% annually. eBay and Etsy make it easy to close your online store. Both sites offer detailed instructions for sellers, such as these from eBay, with multiple options for how to cease operations. These range from leaving a store “open” but with no items to sell, to closing your account entirely, with other options in between. For example, Etsy provides a vacation mode that lets you to suspend operations for a designated period, allowing you to accommodate a planned trip, an illness, or an emergency or natural disaster.
Whatever the form of your business, you’ll need to decide how to shut down its web presence: domain name, server services, email accounts, and the like. While these web legacy concerns can affect the shuttering of any business, they are especially important for an online-only store, particularly if you intend to open a similar business or sell the existing business’s domain name to someone else.
Everybody knows the name of Dred Scott, the enslaved man who sued for freedom and lost. Landmark Supreme Court cases often hinge on legal technicalities unrelated to the issue for which they are famous. But the decision in Dred Scott v. Sandford was every bit as racist as it looks on the surface.
Facts of the Case
Dred Scott was born into slavery in Virginia. His owner, a physician named John Emerson, took Scott with him when he received an army posting in the free state of Illinois in 1836. Scott lived as Emerson’s slave in free territories for two years before being returned to the slave state of Missouri. After Emerson’s death, his brother-in-law, John Sanford became responsible for Mrs. Emerson’s finances. In 1846, Scott sued Sanford (misspelled as Sandford in court documents) for wrongful enslavement on behalf of himself, his wife, and their children.
In 1824, Winny v. Whitesides had established Missouri’s judicial criteria for eligibility for freedom. If a slave owner took a slave to free territory and established residence there, the slave would become free. Scott’s case was one of nearly 300 “freedom suits” filed in St. Louis based on the “once free, always free” precedent.
A long legal path
In 1847, Scott lost his freedom suit in the St. Louis County Circuit Court. The loss was based on a technicality, so the judge ordered a new trial, which took place in 1850. This time, Scott’s suit for freedom prevailed. Emerson appealed, and in 1852 the Missouri Supreme Court reversed the trial court’s decision to grant Scott and his family their freedom. However, the original trial judge denied Emerson’s petition to have the Scotts returned to her. After her death, her ownership claim passed to Sanford.
Scott’s attorneys sued Sanford in federal court (the U.S. Circuit Court for Missouri) in 1853. In 1854, the court ruled in favor of Sanford, and Scott appealed to the United States Supreme Court. The Court heard final arguments in late 1856 and prepared to render its decision.
A far-reaching decision
The Supreme Court’s 1857 decision, written by Chief Justice Roger Taney (a former slaveholder), did not merely negate Winny v. Whitesides. The divided court declared unconstitutional the Missouri Compromise, which had sought to defuse the issue of slavery in the country’s western territories. The Court found the Missouri Compromise violated slaveholders’ property rights as guaranteed by the Fifth Amendment, thus placing property rights above human and civil rights. The Court also used citizenship as the criterion for possession of basic rights, and determined that blacks, whether free or enslaved, could not be U.S. citizens. According to Taney, blacks therefore possessed “none of the rights and privileges” provided by the Constitution.
Taney’s argument was not only morally reprehensible, it was legally specious. Linking basic human rights to national citizenship ignored Constitutional clauses that grant specific rights to citizens, as well as the example of women, who held citizenship without full legal rights. Moreover, Taney explicitly rejected the Declaration of Independence’s claim that “all human beings are endowed with inalienable rights” on the basis that slave-holding signatories would be hypocrites if blacks were human beings.
By 1857, everyone with a claim to ownership of the Scott family had joined the abolition movement and the Scotts were freed. For the next decade, the precedent set by their case limited legal opportunities for blacks. However, the Court’s decision, which Taney had hoped would settle the slavery issue, fueled the growing storm over slavery that culminated in the Civil War. In 1865, seven months after the end of the war, the Thirteenth Amendment was ratified, abolishing slavery in the United States. Three years after that, the Fourteenth Amendment established citizenship for all individuals born in the United States.
In response to the February 2018 school shooting in Parkland, Florida that killed 17 people, some retailers have modified their policies on firearms sales. Several, including Dick’s Sporting Goods, Kroger (which owns Fred Meyer), L.L. Bean, and Walmart, raised their minimum age for gun purchases to 21. In the Parkland attack, the 19-year-old gunman used an AR-15 that he had bought legally.
Now both Dick’s and Walmart are being sued by Tyler Watson, a 20-year-old Oregon man who claims the stores engaged in age discrimination by refusing to sell him a rifle. Oregon law allows residents ages 18 years or older to buy shotguns and rifles. Watson’s case and a similar lawsuit filed in Michigan by an 18-year-old raise questions about whether retailers can legally impose higher age limits on firearms purchases than those in state law.
20-year-old Oregonian sues Dick’s, Walmart
In one suit, Watson says he tried to buy a .22-caliber Ruger rifle at Field & Stream, which is owned by Dick’s, in Medford, Oregon on February 24. A separate lawsuit says that on March 3, a Walmart in Grants Pass, Oregon also refused to let him purchase a rifle. Both stores cited their policy not to sell firearms to buyers under 21 years old.
Tyler’s suits seek punitive damages as well as forcing the chains to allow gun sales to 18-, 19- and 20-year-olds.
In a letter to state legislative leaders this week, Oregon’s Bureau of Labor and Industries said that the bureau would accept complaints from residents who feel that they have been discriminated against by retailers’ policies.
Oregon’s law prohibits age discrimination by retailers for those 18 and older, with exceptions for alcohol and marijuana sales. Bureau Commissioner Brad Avakian said that the bureau intends to present a bill to the state Legislature next year to add a similar age restriction for gun sales.
A Walmart spokesman said the retailer plans to defend the new policy, and, if law professor of the Lewis & Clark Law School is right, they seem likely to prevail. Medford’s CBS affiliate quotes Yin as saying, “We recognize there are certain categories where it’s wrong to single people out. Race, gender, religion, national origin, and depending on the state, sexual orientation, but age has never really been one of those.”
The Tax Cuts and Jobs Act has the potential to make a big impact for small businesses, but you’ll need to sharpen your pencil to take advantage of the changes.
The big headline from the bill was the reduction of the corporate tax rate from a maximum of 35 percent to a flat 21 percent. This tax applies to businesses that are structured as C- corporations, which includes almost all major companies and many smaller ones. Much different, and much more complicated, changes apply to small businesses that are structured as “pass-through” business entities.
Deduction on pass-through income
Most small businesses choose to structure themselves as either a limited liability company (LLC), a partnership, a sole proprietorship, or an S- corporation, entities that do not pay the corporate income tax. Instead, the business’s income is “passed through” to the business owners and is subject to individual tax rates, which run as high as 37 percent under the new tax law. This creates a potentially sizeable tax burden when compared to the 21 percent corporate tax rate.
In order to address this disparity in tax rates, the new law provides individuals with a 20 percent deduction against pass-through business income. The new write-off is a “between the lines” deduction, meaning it is neither an exemption lowering adjusted gross income nor a deduction that requires a taxpayer to itemize.
There are income caps on the new 20 percent deduction: it begins to phase out when the taxpayer’s total taxable income reaches $157,500 for single filers or $315,000 for married couples filing jointly. It disappears entirely when taxable income is more than $207,500 and $415,000, respectively.
The type of small business is important, too. Different rules with regards to limits apply to attorneys, healthcare providers, and several other businesses where the core of the enterprise is based on the owner’s services or reputation.
New depreciation rules
The new legislation also alters some of the long-term depreciation rules and attempts to streamline the bonus depreciation sections. Depreciation, however, remains complicated and, as Tony Nitti wrote for Forbes, requires the taxpayer “to layer pieces of new law onto an already exceedingly complicated body of provisions – Sections 168(e), 168(g), 168(k), 280F and 179 to name a few – that interact with one another in ways that are hard to predict and even harder to understand.” A tax attorney can help sort through the confusion.
Disappearing business deductions
While much of the new tax law benefits small businesses, there are some standout negatives, particularly in the area of business deductions. Deductions for entertainment expenses, some employee meals, reimbursement of employee commuting or transit expenses are limited or eliminated entirely. For example, small businesses will only be allowed to deduct 50 percent of the cost of employee meals provided on or near the work site, and the deduction for reimbursing employees’ commuting costs are gone completely.
What happens next
The IRS continues to issue guidance on the new law as their analysis and insight become more refined. Small business owners should keep an eye on the news and, in the meantime, start working with their tax professional on a plan for their 2018 return.
Co-parenting across state lines can be tricky, both practically and legally. As a practical matter, families can experience the stress of lengthy travel for visitation. On the legal front, it can become more difficult to achieve sought-after placement, custody, and visitation arrangements.
For child custody, every state is different
As a fundamental principle, all 50 states are considered sovereign and therefore not subject to the rulings, holdings, and judicial oversight of other states. However, this autonomy can become highly problematic for divorced parents who live in different states, co-parenting as best they can. When such parents need of judicial orders relating to legal custody, visitation, and placement, a law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) determines which state will control the situation – and thus which parent will enjoy a homefield advantage when co-parenting terms are decided.
The UCCJEA was originally implemented to prevent a parent from hopping from court to court until a favorable ruling is rendered. To avoid such “forum shopping,” the law states that a child’s “home state” is the state in which any matters relating to custody and visitation will be decided. Sometimes, figuring out the home state is simple – such as when the child clearly spends the majority of time with one parent over the other. Other times, the home state is not so obvious, necessitating a more complex analysis.
If a child has not clearly spent the most recent six months in one state over the other, a court will look to other factors, including:
Location of the child’s daycare or school
Location of significant family ties
Location of the child’s medical providers, mental health agency, primary care provider, dentist, and the like
Other significant and relevant ties between the child and the particular jurisdiction
Also, the UCCJEA allows a court to take emergency jurisdiction over a child if a welfare and safety issue is apparent – which eliminates the need for any sort of home-state analysis.
What does this mean for interstate parents looking to establish an enforceable custody, placement, or visitation plan? In a nutshell, the parent enjoying home-state status will likely have a much more convenient experience litigating the issues locally, as opposed to the other parent, who will be forced to travel several times to appear in person (or risk facing a default). Further, the home-state parent will be in a much better position to summon witnesses, documents, and testimony from local providers than the parent in the other jurisdiction. Even in the friendliest of family court matters, the out-of-state parent can be at a disadvantage, with the home-state parent enjoying significant leverage in regard to parenting time and legal decision-making.
For interstate co-parents, maintaining the status quo without the need for a court order is obviously the best way to avoid the drawbacks that can stem from the UCCJEA. Parents that need a court order should try to negotiate and agree on as many issues as possible – before the parent with homefield advantage steals the show.
In the wake of the February 14, 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, the debate over gun control in the United States has again reached fever pitch. What’s often missing in that debate, however, is hard data on gun-related deaths.
The Dickey amendment
In 1996, Congress passed a rider to the annual federal spending bill that prohibited the Centers for Disease Control and Prevention (CDC) from spending money on research that may be used to “advocate or promote gun control.” Known as the Dickey amendment, after Jay Dickey, the Arkansas representative who sponsored it, the measure has remained in place ever since.
While the amendment focuses on advocacy and does not explicitly ban research on gun violence, it has had a chilling effect on scientific research in this area. After the passage of the amendment, federal funding dried up and CDC researchers stopped working on the control and prevention of gun-related injuries and deaths.
The Dickey amendment has not halted research on gun violence completely, as private foundations and universities have continued to explore the matter. Nonetheless, public-health organizations have started to push for overturning the amendment, so that the CDC could freely inquire into gun-related deaths as it does for other preventable causes of death.
Opposition to the amendment
Support for reversing the amendment may be growing in the political arena as well. New Health and Human Services Secretary Alex Azar recently said that the amendment doesn’t prevent the agency from conducting such research and that he is in favor of research into gun-related deaths. Meanwhile, the Gun Violence Research Act, a bill sponsored last year by Florida Congresswoman Stephanie Murphy that would repeal the Dickey amendment, has received support from Republican lawmakers for the first time.
And some Democrats have said that reversing the Dickey amendment is under discussion as Democrats and the GOP negotiate a bipartisan bill to strengthen the country’s firearms background-check system. However, Republican support for reversing the amendment does not appear widespread.
Dickey, who died in 2017, said before his death that he regretted the effects of the amendment that bears his name.
When California declared itself a “sanctuary state” in January 2018, it all but invited the Trump administration to retaliate. After all, President Donald Trump has made his disapproval of the sanctuary movement, which seeks to protect undocumented immigrants by limiting local law enforcement’s cooperation with federal immigration agents, abundantly clear. Shortly after taking office, he signed an executive order (currently on hold, having been blocked by federal courts) denying federal funds to cities that refuse to cooperate with federal immigration officials. Having put sanctuary cities on notice, there was no way the administration would allow California’s statewide embrace of the sanctuary movement go unanswered.
Jeff Sessions contentions
And answer it did, when, on March 6, the U.S. Department of Justice (DOJ) sued California over the state’s sanctuary policies. The next day, U.S. Attorney General Jeff Sessions delivered a speech in Sacramento, the California capital, denouncing the state’s actions to protect illegal immigrants from deportation. Sessions stressed the supremacy of federal immigration law over state and local statutes, saying, “There is no nullification. There is no secession. Federal law is ‘the supreme law of the land.’“
As Sessions implied, the DOJ lawsuit relies on the so-called Supremacy Clause of the U.S. Constitution, which asserts that federal laws have precedence over state laws when the two are in conflict. The suit targets three California laws that the DOJ deems as unconstitutional interference in the federal government’s authority to regulate immigration. One bars employers from voluntarily assisting federal immigration agents and mandates that employers warn employees of any upcoming federal immigration raids. The second forbids state and local law enforcement from voluntarily notifying Homeland Security authorities about the release of undocumented immigrants in their custody. The third law gives California the authority to inspect federal facilities where the Immigration and Customs Enforcement (ICE) holds undocumented immigrants in custody.
California holds fast
California governor Jerry Brown and attorney general Xavier Becerra, both named as defendants in the suit, were quick to denounce the DOJ action. Brown called the suit “an act of war” and accused the DOJ of spreading falsehoods, saying, “We’ve never had Washington come to California and sue the state and make up lies.”
The governor and attorney general objected to the DOJ’s characterization of California’s laws as a threat to the safety of federal agents and the general public. In fact, the laws direct state and local law enforcement to cooperate with federal agencies in cases where an undocumented immigrant is subject to an outstanding criminal warrant or has been convicted of one of 800 serious crimes listed in the California Trust Act. Asserting that the California sanctuary laws seek only to protect residents’ civil rights and advance public safety, Becerra said, “California is in the business of public safety, not in the business of deportations.”
And so opens another chapter in the ongoing court battles over U.S. immigration policies.
Most notably missing from the list of protected classes is anyone identifying as LGBT – often referred to as “sexual orientation.” In its 163-page opinion in Zarda v. Altitude Express, the court found that discrimination based on sexual orientation is necessarily subsumed within discrimination based on sex. In other words, one cannot occur without the other – and victims of such discrimination should enjoy the same legal protections as others subjected to such sex-based discrimination as receiving unequal pay, being exposed to sexualized jokes and comments, or enduring sexual harassment.
Zarda v. Altitude Express
The underlying facts of the case involved Donald Zarda, an openly gay skydiving instructor, who assured a female client – with whom he was to skydive in tandem – that he was gay, “and had an ex-husband to prove it.” The purpose of this comment was to assuage any concern the client might have about being strapped to a man for a tandem skydive. However, the client reported the comment to her boyfriend, who reported it to Zarda’s boss, and Zarda was fired shortly thereafter. Zarda’s attorneys argued that had he been a heterosexual male and made a similar jovial comment to a female tandem partner he would not have lost his job, as such comments would have been in keeping with the “straight male macho stereotype” pervasive in his workplace.
The Second Circuit Court relied upon the “persuasive force” of several opinions from other jurisdictions on the issue, as well as a 2015 non-binding decision by the federal Equal Employment Opportunity Commission to include LGBT status as within the coverage of sex discrimination protection. The court found that Congress originally intended that sex should be “completely irrelevant” to employment decisions, and that sexual orientation discrimination “is motivated, at least in part, by sex.”
The court rejected arguments made by amicus briefs supporting the employer, including one filed by the U.S. Department of Justice (DOJ), which asserted that Zarda was not fired for being a man but rather for being gay, and that one’s status as gay has been historically separate from one’s status as male or female. Denouncing this “semantic sleight of hand,” the court concluded that this argument is simply “failing to reference gender directly,” and “does not change the fact that a gay employee is simply a man who is attracted to men.”
The DOJ also contended that “it is not even remotely plausible that in 1964, when [the Civil Rights Act] was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation.” The court rebuffed this argument, holding that “sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils long recognized as violating [the Civil Rights Act], and the statute must prohibit it.”
Depositions of high-profile people are much in the news these days. President Donald Trump, for one, faces the prospect of being deposed by Special Counsel Robert Mueller’s team of FBI interviewers. Meanwhile, attorneys for former NFL star Colin Kaepernick want to depose pizza mogul “Papa John” Schnatter in connection with Kaepernick’s collusion case against the NFL. And it isn’t just big-name politicians or businessmen who get deposed. Depositions happen all the time, in legal disputes large and small, but the process remains unfamiliar to many.
How depositions work
Simply put, a deposition is an out-of-court session where a witness (known as the deponent) gives sworn testimony. Lying during deposition thus constitutes perjury, but untruthful deponents rarely face charges. Instead, their falsehoods often work to the advantage of the opposing side. And in some case, there can be enormous unexpected consequences for a dissembling witness – just ask Bill Clinton, whose lie during a deposition in a sexual harassment lawsuit led to his impeachment.
Testimony given during a deposition is not the same, however, as testimony given at a trial. By its very nature, deposition testimony is hearsay, meaning it can’t just be submitted to the court as proof of underlying facts in the deposition. For example, if a person says, “Jane owes me $20” during a deposition, that sworn statement would not be admissible in court to prove Jane’s $20 debt. (There are some exceptions that allow hearsay testimony to be admitted at trial, but these are beyond the scope of this discussion.)
Depositions constitute a routine part of discovery, the process whereby attorneys gather evidence in a dispute. They allow attorneys to get new information, but, almost as importantly, they enable lawyers to confirm things they think they already know. Occasionally, but not customarily, the witness will receive the deposition questions ahead of time. The witness’s answers are recorded by a court reporter. Sometimes the deposition is videotaped or audio recorded.
Attorneys often run a client through a practice deposition, which gives the prospective witness some peace of mind and helps to identify any gaps in the client’s answers. Depositions aren’t meant to be “gotcha” sessions – few cases are “won” in a deposition – but imprecise, incorrect, or misleading answers can be a setback. Whether taken during a high-profile case or in a lawsuit over a fender bender, depositions are key to gathering data and getting to the facts, and they make up a critical part of our legal system.