But under what pretext would someone in the scenerio you suggest be seeking ‘justice’ in an american court? If he was here illegaly and an Egypt national, what else is the US to do?
I was thinking more about extraordinary renditions where such a cop out excuse would be used by the government and where ‘We didn’t know he would be tortured in in our short stop over in Egypt. They SWORE they wouldn’t!’ is probably not very belieavable.
In the scenerio above, all the government would have to do is show he was here illeagally, period, nothing to do with national security.
Well, not to start crafting bizarre hypotheticals, but perhaps this person produced an excellently forged green card, and the government did not wish to publicly reveal that it was aware of this forger’s existence and activities, because he was under surveillance to see who he was supplying phony green cards to.
So the government wouldn’t want to make a case in open court that they had probable cause to investigate the person’s legal status even after he had produced a green card, because to show that probable cause they’d have to tip their intel.
I’m sure there are holes in that; I’m just trying to offer a framework for the kind of thing that might be…
Back to OP - as mentioned by others, it is very much a move in the right direction, and one has to wonder what took so long. Even if Dubs won’t sign it, it would make a fine “first 100 days” piece for the next Congress/President set.
And, really just the typing together of the three words “Bricker Supports Kennedy”… so THAT was that disturbance in the Force I felt earler today
Yeah, that and my growing admiration for Senator Obama… it’s kinda scary.
But seriously, I’ve never been crazy partisan, despite the many years of accusations here to the contrary. I have positions on issues, and those positions often – but by no means always – align with the GOP. That’s not the same as mindless support of the GOP…
It’s my understanding that the right of the defendant to challenge evidence being used against him openly in court is to prevent abuse of the powers that governments and judges inherit with the job. (I think “ex parte” means something to the effect of off the record, but I don’t know what the other two terms are.)
With the evidence being review by a court appointed dude with the apropriate security clearance, how does the defendant have confidence that he/she can adequately challenge the (classified) evidence used against him/her?
It’s also my understanding that the right to an open trial is necessary so that the public can maintain faith in the legal system.
How does the legislation keep these secret backroom reviews of classified evidence keep the public from worrying about kangeroo trials, and judges or masters that are stooges of a particular administration or politician?
Sorry, but my lack of legal schooling is probably blindingly obvious here…
This isn’t intended to address criminal trials – this applies at a civil trial, when the plaintiff is suing the government for doing something to him like deporting him or spying on him.
Not necessarily true. Under asylum law, if the person has a well founded fear of persecution on his return to Egypt, we don’t have a legal ability to deport him to Egypt if he meets the standards agreed to by the United States under international treaty for asylum.
The “fear of persecution” cannot be generalized; it must be a specific fear and a demonstration of a clear probability of persecution on account of race, religion, nationality, political opinion, or membership in a defined social group. INS v. Stevic, 467 U.S. 407, 104 (1984). It is not applicable to persecution or even torture targeted specifically to an individual. Persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional. Fatin v. INS, 12 F.3d 1233, 1240 (3rd Cir. 1993).
The decision of the immigration officials will be upheld by the courts unless no reasonable fact-finder could fail to find the requisite fear of persecution. Milosevic v. INS, 18 F.3d 366, 370 (7th Cir. 1994).
In Balazoski v. INS, 932 F.2d 638 (7th Cir. 1991), Hasan Balazoski tried to prevent his deportation to Yugoslavia. He was a supporter of Albanian nationalism while he lived in Yugoslavia, and his niece was shot for her participation in anti-government protests. He himself had taken part in protests for Albanian independence, and had been arrested and questioned by Yugoslavian officials regarding his political beliefs. This was held to be insufficient evidence of persecution.
So in order to assume that a person could avoid the return to Egypt that my hypothetical sent him on, he’d have to be possessed of a fair amount of factual backstory beyond that suggested in my hypo.
Well, the original case is probably res judicata, but if it alleged an on-going act or injury, there’s no reason it couldn’t be brought again, I imagine.
Trust me, I know, I have handled asylum matters. My only issue was with the general statement that if someone is in the country illegally, that “we have every legal ability in the world to deport him.” Obviously he has an obligation to show entitlement to asylum. Hence the last part of my comment - “if he meets the standards agreed to by the United States under international treaty for asylum.”
Asylum is tough to get - it is also disturbingly arbitrary. But the right to asylum remains an important legal block on the ability of nations to deport illegal immigrants and wash their hands of the treatment that those individuals will receive in their home country.
What’s certain is their is no consistency - while Balazoski shows a restrictive view of fear of persecution, another 7th Circuit case Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992) shows a much more liberal approach. An Iranian convicted of dealing heroin (from memory here…) converted from Islam to Christianity in prison. The Court found that his claim alone of conversion was sufficient to establish a reasonable fear of persecution if deported to Iran (as required under law). In particular, they refused to consider if his conversion was opportunistic - the fact that he had any outward indicia of conversion would to the Court be sufficient to place him in danger if he returned to Iran.
I can answer the analgous question in a criminal context and explain the Teague rule until your ears bleed. But my experience in civil litigation is effectively zero, so rather than dorking it up I’d hope that someone who knows the answer can step in.
My GUESS is that if the statute was explicitly retroactive, then yes, that would revive the cause of action.
