5 ms·

I sympathize with this lady. Not because I don't have my paperwork in order -- God willing, the 100 pages currently sitting at the immigration office will agai

by patio11 12y ago

I sympathize with this lady. Not because I don't have my paperwork in order -- God willing, the 100 pages currently sitting at the immigration office will again meet with their approval -- but because if you hit any snag it is an instant Kafka-esque nightmare. If the IRS accused me of underreporting my income by $200,000 and threatened me with jail time, I'd be stressed, but I'd call my accountant, get some paperwork together, and be assured of vindication. If the most junior employee of the Ministry of Justice has a bad morning and decides I look shifty, he has an instant Ruin My Life button on his computer. The appeals process would take place with me being across an ocean from my family and de-facto homeless. The threshhold for him hitting that button is not even "articulable suspicion." And that is with all the social advantages which come along with being, relative to most immigrants, rich, educated, savvy, and connected. This assumes that the agents you're dealing with are merely zealously applying the law with regards to the facts as they perceive them. This does not describe 100% of the interactions between agents of government and people subject to their administrative authority. Immigrants have a uniquely difficult problem in the failure cases implied in that sentence, because they don't have access to many of the toothy, enshrined-for-generations remedies that citizens have with regards to overreach by agents of the government.

enraged_camel 12y ago
>>Immigrants have a uniquely difficult problem in the failure cases implied in that sentence, because they don't have access to many of the toothy, enshrined-for-generations remedies that citizens have with regards to overreach by agents of the government. I was wondering about this as I read the article. She was technically on US soil (I think), which means most Constitutional protections apply to her regardless of whether she's a citizen. So she must have had the right to remain silent and ask to see a lawyer. edit: I guess we can no longer have polite conversations on HN without getting downvoted.
- dublinben 12y ago
  You're not on US soil until you've passed through customs and security. The international border (airports included) is a limbo zone, where the Constitution doesn't really apply.
  - patio11 12y ago
    Also not true.
    - joshAg 12y ago
      citation requested.
      - patio11 12y ago
        There are many, many, many cites I could pull for this, but might as well grab the a pertinent graph where the Supreme Court considers the question of whether a seizure of contraband specifically authorized by an act of Congress at the border nonetheless violates the Fourth Amendment's prohibition on "unreasonable" search and seizure. After extensive analysis of relevant case law and the history of the United States they conclude: Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself. We reaffirm it now. http://www.law.cornell.edu/supremecourt//text/431/606 http://www.law.cornell.edu/supremecourt//text/431/606 Reasonable people can disagree with the Supreme Court on whether their application of the Constitution is as broad or narrow as it should be in any particular circumstance, but it is fairly clear that they did not write "The Constitution does not apply at the border!"
        joshAg 12y ago
        thanks
- patio11 12y ago
  That conversation goes something like: "Tell me why you are coming to the United States." "I refuse to answer, on the basis of the Constitution." "I find that you have no legitimate purpose to be in the United States. You are accordingly denied entry, and will be briefly detained while we arrange for you to be sent to the last country you were in." "I would like to speak with an attorney. You have to do that when you arrest people." "You are not under arrest. This is not a criminal matter." "My lawyer will disagree." "He is welcome to take it up with the Supreme Court. It didn't work out that well the last three times. 'The power of the state is at it's zenith at the border.' I love that word zenith. Zenith, zenith, zenith. That implies your legal privileges are at their nadir, by the way." "I will call him immediately. I get a call, right?" "That's a convention in US movies, for some reason, but it has never been a legal requirement. Funny thing, movies."
  - JoeAltmaier 12y ago
    All too true. Even though our founding documents say 'all men' have 'inalienable rights', somehow they don't apply to our neighbors. Because they are not men, or not deserving of rights. Always seemed hypocritical to me.
    - sliverstorm 12y ago
      That's a bit of a tangled mess, there. For starters, the unalienable rights are "Life, Liberty and the pursuit of Happiness". Not the right to a lawyer.
      - JoeAltmaier 12y ago
        "Among them are ". Due process is part of it too. The bill of rights should figure in there somewhere as well.
    - tptacek 12y ago
      The Declaration of Independence isn't a binding legal document.
- schoen 12y ago
  The government's position is that the rights that one has in an encounter with law enforcement don't apply in the same way during an admissibility or customs inspection prior to admission to the U.S. For example, they say that one does not have the right to assistance of counsel during these inspections. Jacob Appelbaum tweeted a lot about how he used to get stopped and questioned when entering the U.S.; they apparently never granted his request to have the assistance of a lawyer during these events. One difficulty is that the government's view is that refusal of admission to the U.S. (the border equivalent of deportation) is not in the same conceptual category as a criminal punishment. In fact, in their view it's not a punishment at all, just a core sovereign act of the state. I worked with some lawyers to write a guide about border searches of electronic devices. One question that comes up a lot is whether there's a fifth amendment right to silence during a border inspection (whether about one's possessions generally, or about one's passwords). My recollection is that the lawyers I was working with considered this question somewhat unresolved. A common assumption has been that U.S. citizens and permanent residents will eventually be admitted even if they are uncooperative with an inspection, but they might be detained temporarily and their possessions might be seized in some circumstances. People who don't have either legal status might be refused admission (right then and also in the future!) as a punishment for declining to answer questions, but the government might argue that it's not a punishment at all. Maybe I should emphasize that this is my recollection of what some people thought was likely to happen, and not a legal analysis of caselaw or an individual legal situation.
deleted 12y ago
[deleted]

by patio11 12y ago

enraged_camel 12y ago

>>Immigrants have a uniquely difficult problem in the failure cases implied in that sentence, because they don't have access to many of the toothy, enshrined-for-generations remedies that citizens have with regards to overreach by agents of the government. I was wondering about this as I read the article. She was technically on US soil (I think), which means most Constitutional protections apply to her regardless of whether she's a citizen. So she must have had the right to remain silent and ask to see a lawyer. edit: I guess we can no longer have polite conversations on HN without getting downvoted.

dublinben 12y ago
You're not on US soil until you've passed through customs and security. The international border (airports included) is a limbo zone, where the Constitution doesn't really apply.
- patio11 12y ago
  Also not true.
  - joshAg 12y ago
    citation requested.
    - patio11 12y ago
      There are many, many, many cites I could pull for this, but might as well grab the a pertinent graph where the Supreme Court considers the question of whether a seizure of contraband specifically authorized by an act of Congress at the border nonetheless violates the Fourth Amendment's prohibition on "unreasonable" search and seizure. After extensive analysis of relevant case law and the history of the United States they conclude: Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself. We reaffirm it now. http://www.law.cornell.edu/supremecourt//text/431/606 http://www.law.cornell.edu/supremecourt//text/431/606 Reasonable people can disagree with the Supreme Court on whether their application of the Constitution is as broad or narrow as it should be in any particular circumstance, but it is fairly clear that they did not write "The Constitution does not apply at the border!"
      - joshAg 12y ago
        thanks
patio11 12y ago
That conversation goes something like: "Tell me why you are coming to the United States." "I refuse to answer, on the basis of the Constitution." "I find that you have no legitimate purpose to be in the United States. You are accordingly denied entry, and will be briefly detained while we arrange for you to be sent to the last country you were in." "I would like to speak with an attorney. You have to do that when you arrest people." "You are not under arrest. This is not a criminal matter." "My lawyer will disagree." "He is welcome to take it up with the Supreme Court. It didn't work out that well the last three times. 'The power of the state is at it's zenith at the border.' I love that word zenith. Zenith, zenith, zenith. That implies your legal privileges are at their nadir, by the way." "I will call him immediately. I get a call, right?" "That's a convention in US movies, for some reason, but it has never been a legal requirement. Funny thing, movies."
- JoeAltmaier 12y ago
  All too true. Even though our founding documents say 'all men' have 'inalienable rights', somehow they don't apply to our neighbors. Because they are not men, or not deserving of rights. Always seemed hypocritical to me.
  - sliverstorm 12y ago
    That's a bit of a tangled mess, there. For starters, the unalienable rights are "Life, Liberty and the pursuit of Happiness". Not the right to a lawyer.
    - JoeAltmaier 12y ago
      "Among them are ". Due process is part of it too. The bill of rights should figure in there somewhere as well.
  - tptacek 12y ago
    The Declaration of Independence isn't a binding legal document.
schoen 12y ago
The government's position is that the rights that one has in an encounter with law enforcement don't apply in the same way during an admissibility or customs inspection prior to admission to the U.S. For example, they say that one does not have the right to assistance of counsel during these inspections. Jacob Appelbaum tweeted a lot about how he used to get stopped and questioned when entering the U.S.; they apparently never granted his request to have the assistance of a lawyer during these events. One difficulty is that the government's view is that refusal of admission to the U.S. (the border equivalent of deportation) is not in the same conceptual category as a criminal punishment. In fact, in their view it's not a punishment at all, just a core sovereign act of the state. I worked with some lawyers to write a guide about border searches of electronic devices. One question that comes up a lot is whether there's a fifth amendment right to silence during a border inspection (whether about one's possessions generally, or about one's passwords). My recollection is that the lawyers I was working with considered this question somewhat unresolved. A common assumption has been that U.S. citizens and permanent residents will eventually be admitted even if they are uncooperative with an inspection, but they might be detained temporarily and their possessions might be seized in some circumstances. People who don't have either legal status might be refused admission (right then and also in the future!) as a punishment for declining to answer questions, but the government might argue that it's not a punishment at all. Maybe I should emphasize that this is my recollection of what some people thought was likely to happen, and not a legal analysis of caselaw or an individual legal situation.

deleted 12y ago

[deleted]