Articles Posted in Immigration

On June 7, 2010, 15-year Mexican boy Sergio Hernandez was playing with friends near the border between the U.S. and Mexico.  They were playing on the culvert of the Rio Grande between El Paso, Texas and from Juarez, Mexico.  Sergio Hernandez and his friends were playing by running up the to the US border, to touch the fence on the US side of the border and then run back to the Mexican side of the border.  U.S. Border Patrol Agent Jesus Mesa detained one of the friends in the U.S. side. Sergio Hernandez ran back to the Mexican side but was shot by the agent who fired two shots at his direction.  According to the attorney for the agent, Sergio Hernandez had been arrested twice before in the US for smuggling, The agent’s version of events is that Sergio Hernandez was throwing rocks at him.

Hernandez’s family sued Jesus Mesa for damages in federal District Court in Texas claiming that the agent was in violation of the U.S. Constitution which prohibit unjustified use of deadly force by law enforcement agents.  The agent moved for dismissal arguing that Sergio Hernandez had no constitutional protection because he was an alien who had no voluntary attachment to the U.S. and who was on the Mexican side when he was shot.  The federal District Court applied a formalist test and decided that the constitutional protection ends at the border and therefore does not protect aliens like Sergio Hernandez.  The Hernandez family appealed to the U.S. Court of Appeals for the Fifth Circuit.  Hearing the case en banc, The Appellate Court held that the agent was entitled to qualified immunity and that the Sergio Hernandez had no claim under the Fourth Amendment because he was a foreign citizen, had no significant voluntary attachment to the U.S. and was on foreign soil when he was killed.

The U.S. Supreme Court has agreed to hear the case and to answer the following three questions:

  1. Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?
  2. May qualified immunity be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident?
  3. Can the claim in this case be properly asserted under Bivens v. Six Unknown Fed. Narcotics Agents, which governs when federal agents may be liable for damages for violating an individual’s constitutional right?.

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Senator Dick Durbin and Congressman Luis V. Gutierrez have taken an extraordinary position in advising against hiring an attorney. This statement is ill advised, irresponsible, and harmful.

Immigration law is extraordinarily complex. With “only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity’.” E. Hull, Without Justice For All 107 (1985); Castro-O’Ryan v. U.S. Dept. of Immigration and Naturalization, 847 F.2d 1307 (9th Cir. 1988). The Ninth Circuit described immigration law as a “labyrinth almost as impenetrable as the Internal Revenue Code.” Escobar-Grijalva v. I.N.S., 206 F.3d 1331, 1334 (9th Cir.2000).

For Senator Durbin and Congressman Gutierrez to state that the childhood arrivals (Dreamers) can file and qualify without an attorney shows that both either do not understand the issues or are misguided in their attempt to protect vulnerable immigration population.

In 2006 Jose Alvarado promised Cesar Gamboa, Ruben Nava, and Mauro Lopez, who were unlawfully in this country, that for $15,000 apiece, he could get them United States citizenship papers. Alvarado promised that he could deliver “authentic citizenship documents” for them through a contact at the US Consulate office in Ciudad Juarez, Mexico. He told them that he had contacts that could influence the immigration authorities to expedite the application process but would need to pay employees in the different departments to obtain the necessary releases. Alvarado stated that he and his brother were obtaining their citizenship documents through the contact and invited Gamboa, Nava, and Lopez to join the group. The latter agreed and began paying in installments to Alvarado. Alvarado issued them receipts for the payments through his business, Marco’s Digital Video and Photography, Inc., to prove that the payments were legitimate. They say that Alvarado used “high-pressure tactics” to get the payments, calling them weekly until they had paid in full.

Once he received the money, however, Alvarado became less communicative. He did not deliver the promised “authentic citizenship documents” but delivered various excuses. In March 2009, he told the group that they were all swindled by the Mexican contact. Alvarado asked the group to contribute additional $200 each to hire a Mexican lawyer to pursue restitution from the swindler in Mexico. These additional payments did not fare any better than the first payments. Soon Alvarado informed the group that the legal challenge was not an option but proposed a new strategy. The new plan was to hire thugs in Mexico to kidnap the swindler and to get their money back. If the swindler would not return the money, the thugs would kill him. However, in October 2009, Alvarado told the group that the kidnapping plan was also on hold.

The thug-and-kidnapping plan having failed, Gamboa, Nava, and Lopez decided to try their luck with the Circuit Court of Cook County. They filed a lawsuit against Alvarado and his business for fraud, unjust enrichment, civil conspiracy, intentional infliction of emotional distress and violation Illinois Consumer Fraud and Deceptive Business Practices Act. The trial court dismissed the complaint, finding that the contract between the plaintiffs and the defendants were illegal and could not be enforced by the court. The plaintiffs appealed. The appellate court reversed.

In a consolidated case that involved six drivers that drove cars that were insured by Founders Insurance or Safeway Insurance, the issue was whether Founders and Safeway should pay for injuries caused by a driver that drove the car without a license. Founders and Safeway argued that they did not have to pay because their policy excluded drivers who do not have a drivers license. Five of the drivers had no license, while the sixth driver had a suspended license.

The Founders insurance policy had several exclusions to its liability coverage. One of the exclusion stated that coverage does not apply “to bodily injury or property damage arising out of the use by any person of a vehicle without a reasonable belief that the person is entitled to do so.” Founders argued that a person without a drivers license or a person with a suspended drivers license cannot have a reasonable belief that they are entitled to use the vehicle.

The Safeway insurance policy had a similar exclusion. The policy excluded any person “operating an automobile without a reasonable belief that he or she is entitled to do so.”

A new law amends Section 625 ILCS 5/3-707 of the Illinois Vehicle Code making it a misdemeanor to injure someone while driving without insurance. Violators could spend up to a year in jail or face a $2,500 fine.

The amendment reads as follows:

625 ILCS 5/3-707

According to Chicago Public Radio, Illinois democrats are pushing Obama for a new comprehensive immigration bill this year. Obama promised this in June and now seven Illinois congressmen are putting pressure on the president to follow through. These seven democrats are trying to lay a path to citizenship for the nation’s 12 million undocumented immigrants.

The Illinois Coalition for Immigrant and Refugee Rights (ICIRR), states that one out of every eight Americans is an immigrant and that nearly one of every seven Illinoisans is an immigrant. In Chicago alone immigrants make up one in five residents. Mexico accounts for 40.9% of all Illinois immigrants while Poland ranks second with 10% of immigrants.

The immigrant population in the U.S. has doubled from 1990 to 2006 while the foreign-born population in Illinois alone is up 86% from 1990 to 2006. Also many recent immigrants are now moving directly to the suburbs rather than into the city of Chicago. Estimates say that 550,000 undocumented immigrants live in Illinois. This number is up 110,000 from the year 2000.

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