7 ms·

My understanding is that right to an attorney is not a thing when it comes to immigration cases (even when the authorities are mistaken as they were here). htt

by muzz 8y ago

My understanding is that right to an attorney is not a thing when it comes to immigration cases (even when the authorities are mistaken as they were here). https://cis.org/Feere/Detained-Immigrants-and-Right-Counsel https://cis.org/Feere/Detained-Immigrants-and-Right-Counsel

JumpCrisscross 8y ago
> right to an attorney is not a thing when it comes to immigration cases Wow, that's scary. Has this been recently challenged?
- olliej 8y ago
  No. Literally any non citizen (or person ice decides is not one) can be held indefinitely without having a lawyer.
  - nerfhammer 8y ago
    AFAICT it's illegal for ICE to incorrectly decide you are not a US citizen. If they made a mistake in their determination then they have violated the law. So citizens don't have a right to a lawyer because immigration law doesn't apply to US citizens. But if ICE is wrong they should get sued to hell and back and this penalty seems horrifying low for 3.5 years of wrongful imprisonment.
    - deleted 8y ago
      [deleted]
    - hedora 8y ago
      If you read to the end, you’ll see the government didn’t let him keep the settlement, since they only give you two years from the date of the arrest to sue, which he couldn’t do, since he was still in custody. I’d expect minimum statutory damages for this sort of thing to be north of $10K / day, paid up front, and garnished from ICE’s payroll budget. However, I don’t make the rules.
      - throwawaylalala 8y ago
        I’d then sue them for illegal detainment for every day illegally detained....
        candiodari 8y ago
        Ok ... that sounds so cool. You would fail. You see, there is a slight problem. The government has legislated that this does not happen. And it doesn't happen. The only thing that can happen is that government employees do something they did not have the legal right to do, by abusing state power (unknown to them). For this they are ... personally liable. Gotta love what happens when you give people the authority to make the rules, don't you ? Such reasonable rules ... So a judge has 2 choices (in most states): Either he ignores you or gives you some token amount without making a big fuss out of it, for some bullshit reason (not for illegally detaining you, but for some bullshit but legal reason like illegally charging you some fee or something). The other choice a judge has is to hold the people who actually did this personally liable ... and assigns real monetary damages. Not on the government, as the government explicitly forbade them from doing this, on the individuals. This will open those individuals to a slam-shut kidnapping case, which if the victim plays it correctly will lead to them receiving prison sentences. They cannot claim they didn't do it, because it's part of another court case's conclusion that they did it, including that it was illegal. So a judge can either almost ignore you, or utterly destroy the lives of some 20 government employees that just did what they were told to do. At this point, you have to understand, those government employees' lives are utterly destroyed: they are very likely to go to jail, they'll have 6 or 7 figures in debt (enough to almost certainly lose all their possessions), garnished wages for a decade at least and can never work for government again (in other words, on top of everything else, they're fired from their job). A reasonable person would say that a judge needs a third option: a way to tell the government that they fucked up lawmaking, assign damages based on that, and that laws need to come with clear details on what to do. That a rule like "no citizen may be arrested" must come with a clear and foolproof way to distinguish citizens from non-citizens to be valid, but judges are explicitly forbidden from doing this (you might even say the very definition of their job is to NEVER do this). Why are the rules like this ? Government, the big exception to employer responsibility ? To save the government a buck. Needless to say, unless there was a daily rape regimen, a judge will not do this. Frankly, even then it's probably not a reasonable thing to do.
  - JumpCrisscross 8y ago
    I’m an American. If ICE detained me so, what would be recommended practice? Let them deport me so I can call a lawyer from wherever I am sent?
    - dingo_bat 8y ago
      Show them your passport. I'm sure that would clear the whole thing up.
      - danShumway 8y ago
        From the article: > Victims include a landscaper snatched in a Home Depot parking lot in Rialto and held for days despite his son’s attempts to show agents the man’s U.S. passport. So, carry your passport on you personally at all times? And hope you never lose your wallet/purse?
        tonyztan 8y ago
        It should be the government's responsibility to ensure you're not a citizen, but until they do this reliabily, you can get a U.S. passport card. It proves citizenship and is credit card sized.
nerfhammer 8y ago
That only applies to actual illegal aliens. If you are a US citizen immigration has no legal right to detain or arrest you. "As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain a U.S. citizen." https://www.newyorker.com/news/daily-comment/when-ice-tries-to-deport-americans-who-defends-them https://www.newyorker.com/news/daily-comment/when-ice-tries-... If my very limited understanding of this is correct, this is a perfect real-life example of a Catch-22: citizens have no right to an attorney if arrested by immigration because immigration cannot legally arrest citizens.
- ComputerGuru 8y ago
  Right. But all they have to do is “have reason” to “doubt” your claim to be an American citizen. Or say you’re not the person you’re claiming to be, who they freely admit is an American citizen. Or claim that your citizenship is invalid because it was obtained via deception (which is now a thing).
  - tonyztan 8y ago
    > "claim that your citizenship is invalid because it was obtained via deception" This cannot be simply asserted by ICE. To revoke naturalized citizenship, the government must initiate denaturalization proceedings in U.S. District Court in front of an Article III judge.
- gizmo686 8y ago
  If my knowledge of history is correct, slaves in the US had to right to sue, unless they were sueing to claim that they were not actually slaves; since, until the court decided the suit, it was possible that they were not actually slaves, and so they had to be given the right to be heard in court.
- DrScump 8y ago
  "ICE cannot assert its civil immigration enforcement authority..." But ICE also has criminal enforcement authority, where applicable.
brisance 8y ago
But surely as an American citizen on US soil his Sixth Amendment rights should apply?
- danShumway 8y ago
  Well... that's the question. It doesn't matter if you're actually a citizen. If the government refuses to admit your citizenship, how do you get them to admit your rights apply? I would love to get more clarification on this as well. It seems to me that if there is doubt about your citizenship, we should lean towards better safe than sorry and just grant you a lawyer, period. The US justice system is (ostensibly, if not always in practice) based on the idea that protecting innocent people is more important than punishing guilty people. If you're being tried to see if you're a citizen, I would prefer we assume you're innocent until proven guilty and grant you a lawyer. Is the reality as bad as people are suggesting? Is there some kind of reasoning behind this?
- ojbyrne 8y ago
  The Bill of Rights isn’t just for citizens, most of it (including the 6th amendment) applies to anyone on American soul.
  - sneak 8y ago
    Legally I have no idea what the government claims applies or does not, but reading the declaration it seems pretty clear that the founders had the still-radical notion that most/all of these fundamental rights apply to all people ("men", in the text, and "[white] men" in practice). There wasn't even such a thing as "American" when it was written. If the US thinks the bill of rights should only apply to citizens of the US, the US is morally bankrupt.

by muzz 8y ago

JumpCrisscross 8y ago

> right to an attorney is not a thing when it comes to immigration cases Wow, that's scary. Has this been recently challenged?

olliej 8y ago
No. Literally any non citizen (or person ice decides is not one) can be held indefinitely without having a lawyer.
- nerfhammer 8y ago
  AFAICT it's illegal for ICE to incorrectly decide you are not a US citizen. If they made a mistake in their determination then they have violated the law. So citizens don't have a right to a lawyer because immigration law doesn't apply to US citizens. But if ICE is wrong they should get sued to hell and back and this penalty seems horrifying low for 3.5 years of wrongful imprisonment.
  - deleted 8y ago
    [deleted]
  - hedora 8y ago
    If you read to the end, you’ll see the government didn’t let him keep the settlement, since they only give you two years from the date of the arrest to sue, which he couldn’t do, since he was still in custody. I’d expect minimum statutory damages for this sort of thing to be north of $10K / day, paid up front, and garnished from ICE’s payroll budget. However, I don’t make the rules.
    - throwawaylalala 8y ago
      I’d then sue them for illegal detainment for every day illegally detained....
      - candiodari 8y ago
        Ok ... that sounds so cool. You would fail. You see, there is a slight problem. The government has legislated that this does not happen. And it doesn't happen. The only thing that can happen is that government employees do something they did not have the legal right to do, by abusing state power (unknown to them). For this they are ... personally liable. Gotta love what happens when you give people the authority to make the rules, don't you ? Such reasonable rules ... So a judge has 2 choices (in most states): Either he ignores you or gives you some token amount without making a big fuss out of it, for some bullshit reason (not for illegally detaining you, but for some bullshit but legal reason like illegally charging you some fee or something). The other choice a judge has is to hold the people who actually did this personally liable ... and assigns real monetary damages. Not on the government, as the government explicitly forbade them from doing this, on the individuals. This will open those individuals to a slam-shut kidnapping case, which if the victim plays it correctly will lead to them receiving prison sentences. They cannot claim they didn't do it, because it's part of another court case's conclusion that they did it, including that it was illegal. So a judge can either almost ignore you, or utterly destroy the lives of some 20 government employees that just did what they were told to do. At this point, you have to understand, those government employees' lives are utterly destroyed: they are very likely to go to jail, they'll have 6 or 7 figures in debt (enough to almost certainly lose all their possessions), garnished wages for a decade at least and can never work for government again (in other words, on top of everything else, they're fired from their job). A reasonable person would say that a judge needs a third option: a way to tell the government that they fucked up lawmaking, assign damages based on that, and that laws need to come with clear details on what to do. That a rule like "no citizen may be arrested" must come with a clear and foolproof way to distinguish citizens from non-citizens to be valid, but judges are explicitly forbidden from doing this (you might even say the very definition of their job is to NEVER do this). Why are the rules like this ? Government, the big exception to employer responsibility ? To save the government a buck. Needless to say, unless there was a daily rape regimen, a judge will not do this. Frankly, even then it's probably not a reasonable thing to do.
- JumpCrisscross 8y ago
  I’m an American. If ICE detained me so, what would be recommended practice? Let them deport me so I can call a lawyer from wherever I am sent?
  - dingo_bat 8y ago
    Show them your passport. I'm sure that would clear the whole thing up.
    - danShumway 8y ago
      From the article: > Victims include a landscaper snatched in a Home Depot parking lot in Rialto and held for days despite his son’s attempts to show agents the man’s U.S. passport. So, carry your passport on you personally at all times? And hope you never lose your wallet/purse?
      - tonyztan 8y ago
        It should be the government's responsibility to ensure you're not a citizen, but until they do this reliabily, you can get a U.S. passport card. It proves citizenship and is credit card sized.

nerfhammer 8y ago

That only applies to actual illegal aliens. If you are a US citizen immigration has no legal right to detain or arrest you. "As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain a U.S. citizen." https://www.newyorker.com/news/daily-comment/when-ice-tries-to-deport-americans-who-defends-them https://www.newyorker.com/news/daily-comment/when-ice-tries-... If my very limited understanding of this is correct, this is a perfect real-life example of a Catch-22: citizens have no right to an attorney if arrested by immigration because immigration cannot legally arrest citizens.

ComputerGuru 8y ago
Right. But all they have to do is “have reason” to “doubt” your claim to be an American citizen. Or say you’re not the person you’re claiming to be, who they freely admit is an American citizen. Or claim that your citizenship is invalid because it was obtained via deception (which is now a thing).
- tonyztan 8y ago
  > "claim that your citizenship is invalid because it was obtained via deception" This cannot be simply asserted by ICE. To revoke naturalized citizenship, the government must initiate denaturalization proceedings in U.S. District Court in front of an Article III judge.
gizmo686 8y ago
If my knowledge of history is correct, slaves in the US had to right to sue, unless they were sueing to claim that they were not actually slaves; since, until the court decided the suit, it was possible that they were not actually slaves, and so they had to be given the right to be heard in court.
DrScump 8y ago
"ICE cannot assert its civil immigration enforcement authority..." But ICE also has criminal enforcement authority, where applicable.

brisance 8y ago

But surely as an American citizen on US soil his Sixth Amendment rights should apply?

danShumway 8y ago
Well... that's the question. It doesn't matter if you're actually a citizen. If the government refuses to admit your citizenship, how do you get them to admit your rights apply? I would love to get more clarification on this as well. It seems to me that if there is doubt about your citizenship, we should lean towards better safe than sorry and just grant you a lawyer, period. The US justice system is (ostensibly, if not always in practice) based on the idea that protecting innocent people is more important than punishing guilty people. If you're being tried to see if you're a citizen, I would prefer we assume you're innocent until proven guilty and grant you a lawyer. Is the reality as bad as people are suggesting? Is there some kind of reasoning behind this?
ojbyrne 8y ago
The Bill of Rights isn’t just for citizens, most of it (including the 6th amendment) applies to anyone on American soul.
- sneak 8y ago
  Legally I have no idea what the government claims applies or does not, but reading the declaration it seems pretty clear that the founders had the still-radical notion that most/all of these fundamental rights apply to all people ("men", in the text, and "[white] men" in practice). There wasn't even such a thing as "American" when it was written. If the US thinks the bill of rights should only apply to citizens of the US, the US is morally bankrupt.