Wednesday, February 6, 2013

Plead Out, Get Deported: The Right to Effective Council

by Michelle Holland, Editor-in-Chief

The Supreme Court has taken on many groundbreaking cases this term, daring to clarify issues regarding same-sex marriage, immigrant rights, and habeas corpus petitions.[1]  Of particular interest is the case Chaidez v. United States.[2]  This case deals with non-citizen rights following a criminal conviction or guilty plea.[3]  This is of particular importance because once non-citizens are convicted or plead guilty to a crime, they can be deported.[4]  In 2003, Chaidez plead guilty to mail fraud and was subsequently deported.[5]  In 2010, she filed a motion for a writ of coram nobis, asserting that her attorney was ineffective for not alerting her that she would be deported if she plead guilty.[6] 

While her motion was being considered, the court held in Padilla v. Kentucky that council must inform his or her client that a guilty plea can lead to deportation in order to provide effective council.[7]  The district court in turn vacated Chaidez’s conviction holding that Padilla interpreted the rule of an earlier case.[8]  The appellate later court reversed the district court’s ruling and reinstated her conviction, holding that Padilla was a new rule that could not be applied retroactively.[9] 

The Supreme Court’s decision to address the rights of non-citizens residing in the United States is extremely important.  The Department of Homeland Security estimates that approximately 19.7 million non-citizens are living legally in the United States.[10]  This figure includes non-citizens that have been granted asylum from violence and torture in their home countries.[11]  This decision will determine whether the law will force council to give their client the information necessary to truly make an informed decision about their future and will provide non-citizens with the option to weigh the pros and cons of a plea bargain, knowing they could be deported for it.[12]  If the Supreme Court decides to interpret Padilla as an application of a prior rule, it will apply to cases like Chaidez where a non-citizen was not fully aware of her rights and made a decision that sent her back to the country she escaped years ago.[13]  The Supreme Court is obligated to fully pursue justice.[14]  This term we will learn whether the Supreme Court fulfills that obligation by holding that non-citizens have the right to effective council and the right to know the consequences of their decisions.


[1] Lisa Schmidt, Supreme Court 2012-2013 Term Preview, Legal Information Institute, http://www.law.cornell.edu/supct/cert/preview_2012-13 (last visited Feb. 6, 2013).
[2] Id.
[3] Id.
[4] Id.
[5] See Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No. 11-820).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Department of Homeland Security Office of Immigration Statistics, Estimates of the Legal Permanent Resident Population in 2011, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_lpr_pe_2011.pdf.
[11] Id.
[12] Ethan Roman & Dan Youngblut, Chaidez v. United States, Legal Information Institute, http://www.law.cornell.edu/supct/cert/11-820.
[13] Id.
[14] Id.

Tuesday, January 22, 2013

On the 40th Anniversary of Roe v. Wade, The Modern American Looks Forward

by Samantha Aster, Executive Editor

Today marks the 40th anniversary of Roe v. Wade. This historic decision secured the right of choice for American women and mainstreamed the abortion debate for generations. The decision declared a fundamental right for women to decide whether to bear children, subject to constraints in the interest of the protection of maternal life or health, and an interest in potential life. Abortion rights have since been limited, but the main effect of the decision is still in place today. As the basic tenets of the decision have stood firm over time, the debate over a woman’s right to exercise control over her own body continues. Since 1973, states have enacted sweeping legislation to further restrict, and in some cases almost ban, access to abortion related services. Similar measures in Congress have failed, but the effects are still widespread, especially in lower income and poverty stricken areas.

Support for Roe v. Wade is at its highest levels in history; seven in ten people believe that the decision should be upheld.[1] Pro-choice groups are actively recruiting candidates to protect and defend the decision in courts and in the political arena. Emily’s List currently has an all day boot camp focusing on recruiting female candidates to run for office who will defend the legal right to an abortion. Even though public opinion generally supports the right to choice in most circumstances, Republican-controlled state legislatures are continuing to pass legislation that restricts this right. Republican lawmakers in Ohio are planning on reintroducing a bill that would ban abortions as soon as the fetal heartbeat is detected, which usually occurs around six to seven weeks into pregnancy.[2] The Alabama Supreme Court recently declared fetuses to be children under state law, and pro-life activists in the state hope they can now prosecute those who seek abortions for child abuse.[3] The long-fought battle for a woman’s right to choose is far from over, but we can be sure that the effects of Roe will continue to be acknowledged for years to come.


[1] Louise Radnofsky & Ashby Jones, Support Grows for Roe v. Wade, http://online.wsj.com/article/SB10001424127887323301104578255831504582200.html.
[2] Laura Bassett, On Roe v. Wades 40th Anniversary EMILY’s List Recruits Female Candidates to Defend It, http://www.huffingtonpost.com/2013/01/22/roe-v-wade-anniversary_n_2525665.html
[3] Jessica Pieklo, Alabama Supreme Court Declares a Fetus is a Child, http://www.care2.com/causes/alabama-supreme-court-declares-a-fetus-is-a-child.html

Monday, March 28, 2011

Court Allows Paraplegic Mother Visitation Rights

By: Zannie Carlson

March 26, 2011 marked a legal victory for mother, Abbie Dorn, when the Los Angeles County Court temporarily granted Dorn injunctive relief holding that she had children’s visitation rights. Severe complications during the labor of triplets led to Dorn’s permanent disability. As a paraplegic, Dorn’s primary mode of communication is through a series of blinks, which, following divorce, the father of the children deemed psychologically harmful to the triplets. The father chose to raise the children on his own, barring Dorn from visiting. Consequently, Dorn has only seen her children three times since their birth in 2006; it wasn’t until last year that the father even told his now-four year old daughters that they had a mother.

The court tentatively found that although Dorn’s interaction with her children is significantly impaired, the children still have the ability to interact with their mother. The court found that such interaction would in fact be beneficial to their psychological growth. This decision is still early in the case’s development, as a full trial is set for later this year. Nevertheless, Dorn and her parents, who filed suit on behalf of their daughter, are celebrating this temporary holding as a sign of the success to come. The fact that the case may end at the county level may limit its effect but the case, nonetheless, marks a notable achievement in disability rights.

--Zannie Carlson
   TMA Staff Writer

Sunday, March 20, 2011

Do You Have A Receipt For That Rape?

By: Shailee Diwanji

Fancy filing away that receipt for your hush-hush abortion along with your latest business entertainment expenses? The No Taxpayer Funding For Abortion Act might just make it so you have to. This bill, introduced by representatives Dan Lipinski (D-Ill.) and Chris Smith (R-N.J.), has significant support from the GOP (and some Democrats) and is expected to sail through the House of Representatives. Slightly modified from its original version, which only recognized "forcible" rape, the bill now focuses on federal funding for abortions with some flagrantly ill-devised consequences. The bill mandates that federal funds not be used to fund an abortion, unless it was the result of rape or incest, or seriously endangers the life of the mother.

In a marked departure from the GOP's traditional take on tax breaks, which asserts that tax break money belongs to the taxpayer, in this bill, the GOP furthers the idea that tax credits and deductions are federal funds. Enter IRS. Although vague in its description of enforcement measures, the bill could result in creating a new role for IRS agents - the abortion police. The Joint Tax Committee offered various different interpretations of the bill and how it would affect the tax code. The worst of these would be questions on tax forms ("Have you had an abortion? Did you keep your receipt?") or IRS audits, with victims of rape having to relive their ordeals in conversations with IRS agents. The taxpayer, probably a woman, would have to provide proof of the incident and corroborate facts about the abortion, rape, and etcetera. The IRS won't comment on bills, but it's certain IRS agents will not enjoy this new role.

Critics of this bill attack its poor word-choice and want of clarity, and the drafters of this bill have refused to comment on it. Although pro-life groups claim they are interested solely in regulating federal funding for abortions, the bill, if it becomes law, will definitely affect the tax code and the health insurance industry (the bill has an entire section on tax benefits!). Employers may not be able to take tax deductions for health plans offering abortion coverage (the largest tax break for businesses), and the resulting lack of demand for these plans could result in no private insurance coverage for abortions. Despite strong support, the fate of this bill remains to be seen. But as the country tracks the progress of this bill, don't forget, dear taxpayer, to keep your receipt for that abortion.

--Shailee Diwanji
   TMA Staff Writer
   

Sunday, March 13, 2011

Amidst Financial Crisis, Politicians Try to Redirect our Attention to the Usual Scapegoats

By: Zannie Carlson


The March 21 edition of The Nation features an article on Washington’s lackluster efforts in improving the lives of unemployed or soon-to-be laid off Americans: Finding that individuals with college degrees comprise less than half of the unemployment rate, the article observes that “while the overall economy continues to suffer through the worst labor market since the Great Depression, the elite centers of power have recovered.”

The article also finds that D.C. has perversely thrived compared to the rest of the nation, attributing to this phenomenon “the detachment of the current Washington political conversation from the economic realities working-class, middle-class and poor people face.” The insularity of Washingtonians allow politicians to remain dissociated from the issues they ostensibly seek to address. As “the unemployment has barely budged,” Washington, as well as other elite politicians have focused their time on eroding women’s rights.  For example, the House just passed a bill proposing that the federal budget should cut federal funding for Planned Parenthood, a non-profit-run clinic which provides women with affordable reproductive healthcare nationwide.

While one writer worries that “shrouded in the language of fiscal austerity, the GOP’s social agenda intends to . . .forc[e] women back into the domestic sphere,” my concern primarily lies with minority, low-income women. If the politicians were thinking about the policy implications of their legislation, they would likely realize that taking away access to contraception and abortion would raise the birthrate, particularly for poor, minority, or immigrant females, who are more likely to lack the resources to seek alternatives. Feminist blog Jezebel cites some statistics: “almost 20 percent of African-Americans nationwide don't have a usual source of health care, and many rely on Planned Parenthood for routine services that have nothing to do with abortion, itself only three percent of Planned Parenthood's operations. And 23 percent of African-American women are uninsured, compared to 14 percent of non-Hispanic whites.” Assuming that only a few of these women are not driven to get abortions extralegally, then they will have children they cannot afford, and will likely cost the state more than what the state would save by eliminating Planned Parenthood programs. To be fair to Washington, politicians in Oklahoma, Utah, even swinger state Ohio are also jumping on the jeopardizing women’s reproductive rights bandwagon.

If the function of these laws does not actually alleviate financial burdens in the state and federal budgets, why are politicians pushing so hard against women right now? By using financial rhetoric as the basis of these proposed laws, the controversy not only diverts citizens away from the real root problems of the financial crisis, but it also gives us a recycled group to blame. When the economy is in a downturn, politicians rhetorically invert the social hierarchy, so that groups who traditionally occupy the lower rungs of the social hierarchy and are in positions of least power, like racial and ethnic minorities and women, are suddenly placed in the spotlight for all of the wrong reasons. This time, Planned Parenthood threatens the financial stability of the nation, while our military budget this year borders on a mere one trillion dollars. Remind me again, who is really jeopardizing our economy?

- Zannie Carlson
  TMA Staff Writer

Monday, February 28, 2011

Wisconsin Workers’ Woes: Fiscally Sound or Unions Aground?

By: Shailee Diwanji

In 1959, Wisconsin was the first state to pass a comprehensive collective bargaining law for public employees and was the birthplace of the national union representing all non-federal public employees. In a dramatic shift, today, Wisconsin's Assembly passed a bill attempting to curb union rights. Protests, both for and against the bill, have been underway across the country for weeks. But the fight is far from over. Wisconsin's Senate is now in the hot seat, as it gears up to tackle this bill. And with the fourteen "missing" Democratic state senators (they can be found in Illinois in an effort to prevent a quorum from voting on the issue), this could prove to be a real challenge.

The bill creates an interesting dichotomy. It purports to reign in fiscal spending and end the budgetary woes (or at least begin to), but many are concerned that it may foreshadow the demise of unions. The bill terminates collective bargaining for most public employees and requires employees to contribute heavily to their pensions and health care. On the other hand, the bill bars unions from forcing employees to pay dues and does not terminate collective bargaining rights for local police, firefighters, and state troopers. Most significantly, the bill has the potential to save up to $300 million over the next two years.

Although the battle appears to be largely political and based on fiscal policy, it implicates the centuries old battle between the rich and the poor. Unions, according to its ardent advocates, allow the American middle class to bargain for increased wages and benefits, better job security, and guaranteed retirement benefits. These may seem like meager demands when pitted against the inflated bonuses doled out on Wall Street. Without a doubt, the passage of this bill could deteriorate the quality of education and other public services in the state. But budgetary problems are looming large. The result of continued fiscal irresponsibility could be unquestionably devastating. One Ohio state senator pointed to Camden, New Jersey saying, "It's an example of where the union refused to renegotiate, and now that city is suffering a 45 percent reduction in the size of its police force because management had no choice."

This bill has elicited passionate responses on both sides of the issue. As neighboring states move to adopt similar legislation, the people are left with a difficult question. Is this sound fiscal policy, or simply a strategy to widen the rift between the economic classes?

-- Shailee Diwanji
   TMA Staff Writer

Wednesday, February 16, 2011

Terminating the Parental Rights of Undocumented Immigrants

By: Shailee Diwanji

The recent media coverage of the illegal termination of undocumented immigrant Encarnacion Bail Romero's parental rights has, once again, brought the issue of the parental rights of undocumented immigrants to the forefront. While, under law, an individual's immigration status is unrelated to his or her parental rights, we are increasingly witnessing the tenuous connection that does, in fact, exist between the two.  Bail Romero's case exemplifies the numerous injustices and flagrant violations of due process that undocumented immigrant parents may be subjected to.

Bail Romero was picked up by INS in a 2007 raid at the factory at which she was working. She was imprisoned for using a stolen Social Security Number and deportation proceedings were initiated against her. Meanwhile, Ms. Romero’s then six-month-old son, Carlitos, was cared for first by Ms. Romero’s brother, then by her sister, and then by a clergy couple who offered to help. The clergy couple sought to adopt the boy, but when Ms. Romero refused and asked that her son be placed in foster care, the couple introduced the boy to the Mosers. Carlitos, now renamed Carlos, was placed under guardianship of the Mosers, who first petitioned for temporary custody, and a year later, filed for adoption. Since Ms. Romero, who was still in prison, had not sought to visit her son in over a year, a judge approved the adoption. Ms. Romero, who spoke no English, was left with no way to plead her side. Last month, the Missouri Supreme Court ruled that the State had terminated Ms. Romero's parental rights without a fair trial in violation of its own laws, which require a trial in such cases. The court, however, refused to return the child to Ms. Romero, and instead ordered a new trial.

Professor Marcia Zug at the University of South Carolina, School of Law, has researched several such cases and says that this chain of events is far more common than we may think. In fact, children are separated from their undocumented parents by state welfare agencies even before their parents' immigration status is called into question. The reason for such separation is usually "abuse and neglect." "Abuse and neglect," however, can range from violence to the inability to speak English or simply the undocumented status of the parent. The latter cases are usually dismissed on appeal; but in the case of an undocumented immigrant, the opportunity to appeal may only occur after he or she is deported and left without an opportunity to do so.

- Shailee Diwanji
   TMA Staff Writer