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Immigration Limbo – Some Problems with Immigration Courts and Immigration Policy

Dictionary.com defines the word “limbo” as – a place or state of oblivion to which persons or things are regarded as being relegated when cast aside, forgotten, past, or out of date. I move to have l-i-m-b-o stricken from the English language and replaced by i-m-m-i-g-r-a-t-i-o-n c-o-u-r-t.

Notwithstanding personal, politicized opinions about Immigration in the United States today, I think we can all pretty much agree that our advanced legal system is premised on operating, at all times, and with respect to all persons, in a certain Constitutional manner. One very central premise is the right to a “speedy trial”, enshrined by the Sixth Amendment or (alternatively) the right to prompt and fair trial guaranteed by the Due Process clauses of the Fifth and Fourteenth Amendments. Besides, the U.S. Constitution, the Magna Carta is largely believed to have voiced this right, so to did the Virginia Declaration of Rights of 1776.

If the foregoing is true, and we all profess to take the Sixth and or Fifth Amendments seriously, then the question begs, what is going on in our Immigration Courts?!

Reports, on good authority, indicate an absurd degree of backlog where persons subject to removal/deportation wait, on average, some 612 days before a dispositive hearing on their respective cases! There are, at present, some 449,000 total pending cases! Now, if those numbers on their own don’t shock the conscience, it aught to also be considered that immigration detainees too have families, obligations, and (generally) lives but almost 32,000 of those 449,000 cases represent persons languishing in detention, held by Immigration Customs Enforcement (ICE). Yes, your math is correct – that means that the average immigration detainee spends almost 2 years in immigration detention awaiting hearing! The total number of pending and interminably back-logged immigration cases has gone up by about 50,000 each year since 2013. Granted, the time between “commencement” of a case and a final Immigration Court decision varies by state facility. Colorado appears to be the worse state for one to be subject to immigration proceedings in, with an average waiting period of 837 days (more than 2 years). Hawaii, by contrast, “boasts” an average waiting period of about 4 months. Pennsylvania is about half-way down the list, with an average wait time for hearing being slightly more than 1.5 years.

Now, to be fair, application of the Sixth Amendment to an Immigration Court context may be problematic. To my knowledge, there has been no case law suggesting that hearing on one’s immigration status (even deportation proceedings) can be, procedurally, classified as a criminal prosecution. Nevertheless, analogizing between the two in this regard (criminal law and immigration law) makes common sense. Subjection to either process involves the potential for one’s substantial deprivation of physical liberty, developing a “record”, etc. Thus, the underlying rationale for the Sixth Amendment “speedy trial” requirement appears to have same resonance in an immigration court context. Furthermore, subjection to the immigration removal process is quite often the result of earlier criminal processing.

What’s worse, is that there are a multitude of individual cases that blow that 2 year period, out of the water. See the case of one Michael Owino who was held in immigration detention for over 9 years awaiting disposition of his case: http://thinkprogress.org/immigration/2015/03/19/3632845/sylvester-owino-nine-years-in-hell/.

The root causes for this glaring suspension of the Constitution are several: a perennial lack of funding, a severe shortage of judges, apathy, and lack of public awareness of this issue, to name a few. As of May this year, there were only 233 judges and only 58 Immigration Courts in the nation. Despite the Department of Homeland Security’s commitment to hire some 85 more judges by the end of this June, it is questionable whether those additions will make an immediate significant difference. Doubt is underlined by the fact that more than 100 immigration judges are slated for retirement throughout 2015. As a “national issue”, Immigration Law and the problems that plague its system of enforcement (especially detention), is often ignored or not understood by the media and/or general public. On this last point, the public can probably be forgiven, as immigration policy and law continues to be among the least transparent and most obscure areas out there. Additionally, in a post 9/11 world, immigration policy (for better or worse) and public willingness to tackle injustices therein, has generally become anathema. Unofficially, We the People have grown to have little problem assuming that immigration and terrorism are somehow inextricably linked and that, therefore, we should defer to whatever heavy-handed policy the federal government prescribes. The real statistics concerning immigration as a national security issue do not support this assumption. In 2009, an ICE report found that only 11% of detainees had committed any violent crime offense. The TRAC Immigration tool prepared by Syracuse University indicates that, at present, violent criminal offenders and national security threats comprise only slightly more than 5% of the total number of pending Immigration Court cases.

Before we delude ourselves into believing that this problem has no far reaching impact, beyond the lives of immigrant communities, let’s take a look at the expanding bill for the industrial-complex that has arisen to support the ever growing number of detainees. For fiscal year 2014, the White House requested $1.84 billion dollars to operate DHS custody of immigrants – A funding level that amounts to $159.00 spent each day last year, per detainee and well over $5 million dollars a day considering the total number of detainees nationwide. At present, DHS has budgeted for a daily detainee-bed capacity of 34,000 compared to a budgeted capacity of 18,000 back in 2004. What’s worse, private corporations have coopted much of the business of immigration detention, reaping huge benefits in the process. In fiscal year 2013, 244 state and county jails were contracted by the federal government to hold immigration detainees on behalf of ICE. In 2011, nearly half of all immigration detainees were held in privately owned facilities. The private corporations have also aggressively lobbied Congress to enact laws that a) make it easier for ICE to detain immigrants and b) extend the length of detention. The Associated Press has reported that, over the last decade, the three companies having the largest percentage of immigration detention contracts with the federal government, have spent more than $45 million in lobbying for such laws.

Although DHS/ICE have shown some commitment in recent times to re-calibrating their enforcement policies, to “go after” primarily those persons who present risks to national security or are violent felons (a shift emblemized by ICE’s Alternative to Detention Program), the chronic bloat to Immigration Courts has not been alleviated. And as has been discussed, administrative efficiency and cost aside, an appeal to Constitutionalism tends to prove that Immigration in the United States is a fundamentally broken system.

For more on this issue, please visit:

https://immigrationforum.org/blog/themathofimmigrationdetention/

http://trac.syr.edu/phptools/immigration/court_backlog/

http://www.latimes.com/nation/la-na-immigration-court-delay-20150515-story.html

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What to do when you want your name changed?

Changing your name depends on your situation, where you lived over the past 5-years, and how old you are.

Changing ones name includes filing a petition, performing a change of name search, and publishing in a local newspaper and in the local law reporter.

To start, a petition must be filed in the County where they reside, which includes a Change of Name search. However, if you have not lived in the county that you are currently residing for 5-years then you need to perform a Change of Name search in each and every county you have resided in over the past 5-years and provide the proof of the search to the Court.

If, the Petitioner is requesting a Change of Name for their minor children and the minor children are under 12-years-old then no fingerprinting is necessary. If, you or the minor children are 12-years-old or older, then the minor children would need to be fingerprinted by the local Police Department.

All Counties have filing fees for the Change of Name petition. The filing fee will depend on what the county you live in charges for the Change of Name petition. Currently, Montgomery County, Pennsylvania, charges $148.oo dollars for a Change of Name petition, which does not include the cost of publishing.

After, filing the Change of Name petition, you would have to schedule a hearing. When the hearing occurs, depends on the County’s procedures, which usually are scheduled 30-days or 45-days later. The hearing would also go by the Judge assigned schedule, so it may take longer to have the hearing.

The next step the Petitioner would have to do is publish two (2) advertising of the pending Change of Name hearing. One must be published in the local County Law Reporter and one in a newspaper of local circulation in the County where the one who is seeking to change their name lives.

Depending on the local rules of the County where the Petition for Change of Name is filed will depend on how long the advertising must be published. Usually, the advertising must be published for 30-days. All Counties should and will give you time to publish and to get proof of publishing before the day of the hearing.

Once the advertisings are complete, proof of publication will be needed, and must be given to the Judge, in order to prove that the two (2) advertisings were in deed published.

If, the Change of Name Petition involves the biological father and mother then you must mail a copy of the Change of Name Petitioner and Order for Hearing by USPS Regular Mail and Certified Mail Return Receipt Requested. See 54 Pa.C.S.A. § 701

Any question or other legal problems, feel free to come see me at the Prince Law Offices, P.C. Pottstown Office, located at 2081 East High Street, Pottstown, PA 19464. It is always wise to have an Advocate fighting on your side, no matter what the legal issue is.

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Personal Injury 101

A Tort, is a where one deviates from the standard of care, from societies norms. It is an action that causes harm to a person or property. It is not a crime. Torts are civil actions. There are numerous Torts.

Personal Injury cases derive from the absence of acting reasonably, a failure of care, resulting in harm to a person and/or property, which is called Negligence. Negligence is a subset of a Tort.

The most common examples of Personal Injury cases are slip-and-falls, and car accidents.

In order to prevail in Personal Injury cases one must prove all the elements of Negligence.

Negligence consists of: (1) a Duty; (2) Breach of Duty; (3) Causation; and (4) Damages.

For example, one is out grocery shopping and slips and falls on a spill in the produce aisle. In order to prevail on a theory of Negligence, one must prove: that the store had a duty to clean up the spill; the store breached their duty by not cleaning up the spill; the injuries sustained were proximately caused from slipping on the spill; and there were damages from the slip-and-fall.

There are numerous areas to go into but this is just a brief overview.

With the example above, besides many other factors, landowners liability and ones who are in control of land, buildings, structures, etc., on the land, is determined by ones status. Whether one is an invitee, licensee, or trespasser, would trigger what duty the landowner and/or those in control of the land owe. Landowners, and those in control of the land, have a reasonable time cure defects on the land. Also, there is no duty to warn of open and obvious dangers.

With auto accidents, it usual depends on what type of insurance one has.

Under a limited tort option one can only receive economic losses, wage losses, medical expenses, and cannot seek recovery for pain and suffering, unless one pierces the limited tort threshold, regardless of who is at fault.

Under the full tort option, one can seek recover for everything included under limited tort, which also includes pain and suffering.

The majority of Personal Injury cases settle.

It is always wise to have an advocate on your side, so feel free to stop by our Pottstown Office in Montgomery County.

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We Agreed to A Mutual Divorce, But Now My Ex-Spouse Disappeared, What Do I Do?

We both agreed to a Mutual Divorce. Everything was going smoothly, the initial documents were accepted and filed. However, after the 90-day waiting period was up, my soon to be ex-spouse “defendant” disappeared. Defendant no longer will return any divorce documents; my calls; and did not update their address. It has been several months and I would like a divorce, what do I do?

Regarding domestic matters, no matter what one thinks, or is advised by family, friends, or whomever, it is always best to have an advocate on your side.

For starters, all is good, as long as the Divorce Compliant was properly served and documentation of the service was filed with the Court within 30-days. If not, then one may have to jump through some more hoops to get things filed and served.

As with anything regarding Family Law, the best approach is to always be agreeable. The more one fights and disagrees, the more it will cost, even if you are Pro Se.

Having the defendant basically disappear by moving, not updating you, and no longer accepting the divorce documents, nor returning calls is more common than one thinks.   This occurs for many reasons one of which is that the defendant simply does not care anymore, and does not want to be bothered, which is actually good.

As long as both parties lived separate and apart for two (2) years, this could even be while living in the same home, one can still get a no fault divorce, as long as the Divorce Complaint, if it was filed Pro Se includes a count for a Mutual Consent Divorce and Irretrievable breakdown Divorce, if not then one would have amend the complaint and reserve the complaint, which would take further steps to complete service since the defendant is no cooperating anymore and their whereabouts are unknown.

Original service of the Divorce Complaint can be served by: the Sheriff; Process Server; USPS Certified Mail and Regular Mail; or defendant can acceptance service.

Again, as long as both parties have lived separate and apart for two (2) years, one can still get their divorce by filing the necessary documents for an Irretrievable breakdown Divorce.

Once the correct documents are filed and twenty (20) days have gone by with no response from the defendant, by not responding or filing ones claims with the Court they are waiving there rights on those claims, ones divorce should be granted. However, it most be noted, that when the defendant, who is no represented, and does not respond or file anything with the Court, does not object to the divorce, some Judges have been requiring additional steps to grant the divorce.

And those additional steps are usually having the defendant agree to withdraw or stipulate to any, Equitable Distribution issues, or one must file a motion to withdraw any and all additional counts of the Divorce Complaint that do not pertain to the no fault divorce counts for Mutual and Irretrievable breakdown.

After the motion is filed, the defendant would have an additional thirty (30) days to respond. If, the defendant does not respond, then the motion should be granted and the divorce decree issued.

This is just brief blog on some problems with Mutual Divorces.

It is always wise to have an advocate on your side.

Feel free to walk in the Pottstown Office, located in Montgomery County, Pennsylvania.

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One Flew Over the Cuckoo’s Nest…Or is Attempting To Legislate From It

On February 2, 2015 a bill was referred to the Judiciary Committee in the State House of Representatives that should have you worried. House Bill 285 was introduced by Representative W. Thomas (D.) of Philadelphia County.

In his memorandum to House Members dated January 5, 2015, Representative Thomas stated that he planned to re-introduce legislation that would “limit individuals with mental illness from receiving a gun permit and/or purchasing firearms.” The memo briefly mentions that since the 18th Century the right of citizens to own, register and carry firearms has been restricted and that the Gun Control Act of 1968 (GCA) prohibited those who were treated for mental illness or substance abuse.

The memo continues with the National Instant Check System (NICS) Improvement Act and some of the provisions that were made possible. Representative Thomas notes that anyone who has purchased a gun in Pennsylvania is familiar with the mental health question that appears on the state and federal forms, “Have you ever been declared incompetent or involuntarily committed to a mental health institution?” The memo concludes with a final thought that while he believes this question seems reasonable enough, he proposes to add an additional question asking if the individual has ever been treated for any type of mental illness by a licensed professional.

Looking at the text of H.B. 285, it amends § 6109(c) which addresses License to Carry Firearms (LTCF). The proposed amendment is bolded and italicized below.

                I have never been convicted of a crime that prohibits me from possessing or acquiring a firearm under Federal or State law. I am of sound mind [and], have never been committed to a mental institution and have never received mental health treatment on an inpatient or outpatient basis. I hereby certify that the statements contained herein are true and correct to the best of my knowledge and belief. I understand that, if I knowingly make any false statements herein, I am subject to penalties prescribed by law…

It also amends § 6111 which deals with the sale or transfer of firearms. In the pertinent part, it amends the state form that is required for all firearm purchases to read:

“Have you ever received mental health treatment on an inpatient or outpatient basis?”

While the mental health aspect of firearms in the community has been a hot button topic since Virginia Tech and more recently Aurora, Colorado and Sandy Hook, this bill raises a number of alarming questions.

dsm5

What defines mental health treatment? Is it only inclusive of being treated for what would be commonly thought to be serious mental disorders such as schizophrenia and bipolar disorder or does it expand to less stigmatized mental illnesses like obsessive compulsive disorder and anxiety? Where does depression fall in the mix?

A Center for Disease Control and Prevention study from 2011 estimated that 1 in 10 U.S. adults reported depression. Psychcentral.com lists a number of different disorders that are recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM). While it might not be Representatives Thomas’s intent, there are a wide range of mental disorders that an individual could seek help for which would disqualify them from obtaining a LTCF or purchasing a gun in the Commonwealth should this bill pass. Even eating disorders could trigger a prohibition if this were to become law.

More frightening is the chilling effect this could potentially have on individuals who want to seek help for issues they are having in their life. It would require individuals to potentially chose between getting the help they need and maintaining their Article 1 Section 21 right to keep and bear arms. Even more concerning is that if an individual were to get help for a mental illness which clearly shouldn’t be a prohibiting factor and then were to answer no to the proposed question for the Pennsylvania State Record of Sale, the individual would be committing a felony of the third degree under § 6111(g)(4)(ii).

Anyone who is concerned about an individual’s right to keep and bear arms should contact their State Representative and the committee members and tell them to vote against this bill. I’ve included links to find your State Representative and to the Judiciary Committee for your convenience.

Who is my State Representative?

Judiciary Committee

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Perry County Sheriff Nace Does Not Require References on LTCF Applications!

Consistent with a growing number of county sheriffs, Perry County Sheriff Carl Nace is not requiring license to carry firearms (LTCF) applicants to included references on the LTCF application.

I have long contended that requiring references on the application is a violation of the confidentiality provisions of 18 Pa.C.S. 6111(g)(3.1) and (i), as merely calling the reference, even without disclosing that the applicant has applied for an LTCF, is a violation of the statutory protections, as the caller would be disclosing the “name” and “identity” of the individual, as a result of the application. This issue was addressed in our Class Action against the City of Philadelphia, which resulted in the City of Philadelphia agreeing not to require references. More recently, in November, Berks County Sheriff Eric Weaknecht also announced that he was no longer requiring LTCF applicants to submit references.

I would like to thank Sheriff Nace and Sheriff Weaknecht, both of whom are devoted to the protection of the Second Amendment, for taking this action and ensuring compliance with Pennsylvania’s confidentiality provisions.

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Ringing in the New Year ATF Style…

It figures that I’d be sitting at my computer browsing Facebook on New Years Eve and stumble across a post from Thordsen Customs, which stated that they received a determination letter from ATF regarding their custom buffer tube covers and CAA Saddles, which was posted 4 hours before midnight…Happy New Years Eve!

It seems that Thordsen requested some clarification to its design as it had been recently redesigned. The letter was submitted back at the beginning of October and the reply was from the 18th of December, which Thordsen states they received on the 23rd. In fact, Thordsen has published their thoughts on the letter along with the original response from ATF on their website after having taken the time to review it. You can view their thoughts here.

In the determination request letter, Thordsen asked ATF to examine three different samples. They asked if their buffer tube covers with the saddles allowed the AR pistol to retain its classification as a “pistol”, when utilizing their spacers to accommodate people of varying statures and whether the use of a receiver extension (buffer tube) with their cover and a side saddle, for the purpose of providing a stable cheek weld and safer handling, was permissible on a pistol variant that does not require a receiver extension to function.

Letter to ATF from Thordsen Customs

ATF’s Response to Thordsen Customs

Firearms Technology Industry Services Branch (FTISB) begins its response by defining the terms “handgun”, “pistol”, “rifle” and “firearm”. FTISB notes that their focus is to determine whether the items constitute a “firearm” as defined in the Gun Control Act of 1968 (GCA) or the National Firearms Act of 1934 (NFA).

The response notates that a shoulder stock provides a means to support a firearm and easily aim it.

Finding that the submitted samples were designed to enhance a “cheek weld” of an AR type shoulder stock or pistol buffer tube, FTISB correctly determines that none of the items submitted were “firearms” as defined by the GCA.

The letter continues on to state that “FTISB finds that the submitted saddle devices are not designed to support the AR-type pistol in the shoulder of the shooter during firing but, rather, to rest against the shooter’s cheek.” As such, FTISB correctly finds that the attachment of the saddle to an AR type pistol does not change the classification of a pistol to a SBR. FTISB notes “…as long as the saddle device as evaluated and installed to an AR-type pistol, is not designed or redesigned and intended to contact the shoulder and is not used as a shoulder stock, it’s possession and use would not be prohibited.” (Emphasis added).

Thordsen Customs Buffer Tube Cover with Saddle Photo Credit: Haus of Guns

Thordsen Customs Buffer Tube Cover with Saddle
Photo Credit: Haus of Guns

FTISB then explains that [t]he receiver extension/buffer tube on an AR-type pistol serves a legitimate, vital function in the operation of the weapon system; and if utilized as originally designed is not considered to be a shoulder stock. Further, a pistol that has an AR-type buffer tube or similar component assembled to it, which consequently allows for the installation of a saddle/cheek enhancement accessory, is not classified as a SBR; nor unlawful to possess.”

Here is the paragraph everyone is going to want to take a long hard look at. “However, if a pistol assembled with an AR-type buffer tube or similar component; which in turn, redesigns the subject AR-type pistol to be designed or redesigned and consequently intended to be fired from the shoulder; an NFA weapon as defined in 26 U.S.C. § 5845(a)(3); has been made.”

FTISB concludes that the information in the letter is only intended for use by the addressed individual or company with regard to a specific scenario described within the correspondence, which is newly included language not previous found in any FTISB/FTB determination response.

So what happened? Well, it appears very clear that FTISB and ATF as a whole are paying very close attention to what people are doing and how they are utilizing products, including reviewing internet postings, pictures and videos. All of the stabilization/cheek enhancement products on the market have a legitimate purpose and have assumedly been approved by FTISB at some point. But, it appears that some individuals are not looking to purchase these products for their legitimate purpose and use and instead intentionally intend to misuse them from the moment they are purchased.

As was noticeably absent in the letter discussed in my blog post Cinderella and ATF’s Determination: The Fairy Tale of an AR Pistol to SBR through Magic, this letter does mention intent, in fact several times. Let’s revisit the definition of rifle under the GCA and NFA.

A rifle as defined under the GCA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” A rifle as defined by NFA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” So we see that a rifle is the same in the pertinent part under the GCA and NFA.

But what about the term “firearm”? Under NFA a firearm is defined in the pertinent part as “…(3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length…”

taxstamp

So what’s going on? Well, it seems that ATF didn’t appreciate people purchasing various stabilization products/cheek weld enhancements for the purpose of avoiding the payment of the NFA tax (which could constitute tax evasion). This is why the intent aspect, as stated in the definition, is important. If an individual purchases one of these products intending to use it in the manner for which it was made and then misuses it, as ATF previously held in the Bradley letter, he/she has done nothing illegal. There is no law dictating the end use of a product. However, if an individual purchases one of these products to install on their pistol and intends to use it as a faux stock, he/she has very clearly created an illegal SBR.

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