The EPA has issued a new rule, which will go into effect in July 2011, requiring new sources of at least 100,000 tons of greenhouse gases per year and all existing plants that have increased emissions of 75,000 tons will have to seek permits.  The permit program is intended to regulate the country’s large emitters, which the EPA estimates account for 70% of the country’s greenhouse gas emissions.   Those in opposition fear that this is only the first step and that in the next few years they will begin lowering the emission requirements until eventually smaller sources, as in smaller businesses will fall under the permit program.  This, the opposition argues, will have huge and negative impact on an already struggling economy.  The EPA and its supporters, however, argue that the regulation of greenhouse gas emissions is a matter of urgency, and this is a well put together regulation aimed directly at doing just that.

Every day, minors are brought over the border to the United States illegally by their parents, who hope to provide their children with better lives than they would be able to in their home countries.  Many of these children successfully make it across, settle down, and for years go undetected.  In the meantime, they go to public schools, learn English, become accustomed to American life and culture, and end up having the same dreams and hopes as any child born in the United States.  This includes the dream of getting a college education.

Any many illegal immigrants do just that.  They work hard, apply, and get accepted to universities across the nation.  However, all the hard work and big dreams could be quickly taken away, for something as minor as a traffic violation.  This is because DHS has a program known as 287(g) that allows local sheriffs to handle federal immigration law enforcement, part of the strict immigration legislation intending to prevent the presence of illegal immigrants in the country.

In order to help minors who have been in the country for years, have gone to school, and have not had any problems with the law, proposed legislation known as the Dream Act is intended to provide illegal students with a path to becoming legal.  Officially called the Development, Relief and Education for Alien Minors Act has met much opposition, however, by those who see illegal immigrants as a burden on society, especially minors whom have benefited from the American public education system.  But, those in supportive of it say it is only right to allow minors, whom often times had no part in the decision making process to enter the country illegally, should not later be punished when they have done everything they can after getting to the country to be worthy citizens and contribute to the country they call home.

Does the plain view doctrine, a 4^th Amendment exception that police officers routinely take advantage of, apply to computer searches?  The 1^st, 4^th, and 7^th Circits have all said yes, however, the 9^th Circuit has said not.

The 4^th Amendment is a Constitutional right against unreasonable searches and seizures, and it is a right that the founding fathers of the United States held to be vital to a structured and free society.  Questions of whether an unfettered search of person’s personal computer violates this right is one that state and federal courts across the nation are grappling with, as the number of computers and the plethora of information stored on them continues to grow.  The problem often arises when investigators know that there is evidence of a crime in the data files of a computer, but don’t know where exactly.  Unfortunately, the only way to find it then involves searching for and opening most, if not all, of the files located on the computer, which may then lead to the discovery of evidence of other crimes.

The plain view doctrine is what allows an officer who is at a location legally, either by virtue of a search warrant or a warrant exception, to not have to ignore criminal evidence that he was not necessarily expecting to find in the first place.  This rule makes logical sense; if an officer has probable cause to enter the home to arrest a robbery suspect, why should he have to pretend the did not see the cocaine on the table?  The catch, however, is that the evidence must be in plain view.  It has to be a chance sighting by an officer who is only doing what he is already legally allowed to be doing.  But, does this logical rule make sense when it comes to computers?  The opening of files is necessary to find the evidence sought, but does this farther than the plain view doctrine was initially designed for?

Until the Supreme Court or Congress speaks on the issue, officers and courts across the nation must make individual decisions.  For now, officers would be best to stop the search as soon as evidence of a new crime is discovered, and get a search warrant to continue looking.

In U.S.A.F. v. Espinosa, the Supreme Court found in favor of a bankrupt man whose student loan interest was erroneously discharged.  The bankruptcy court overseeing the borrower’s original proceedings failed to requite the borrower to show “undue hardship”, which is typically required before student loans ban be discharged.  When the Department of Education later tried to collect the unpaid interest based on this error, the lower courts grabbled with whether or not the issue was appealable, despite U.S.A.F.’s failure to object or timely appeal.  The Supreme Court finally determined once and for all that because it was a final judgment, and judgment are only void if there is a jurisdictional error or it is in violation of due process.  Since the error did not amount to a due process violation since they had notice of error at the time it occurred, thus, it was only a legal error, and is still enforceable and binding.   Score one for the borrowers.

United Student Aid Funds, Inc. v. Espinosa, 2010 WL 1027825.

Aliens with extraordinary talents or abilities in the sciences, arts, education, business, or athletic field can seek entrance into the United States through an O-1 nonimmigrant visa.  Extraordinary ability must be demonstrated by proof that the applicant has sustained national or international acclaim, which can be proven by submitting evidence such as prizes or awards that have been received, acclaimed published materials, or extremely high salary earnings based on employment contracts.  O-1B visas are designated for those involved in the motion picture or television industry, while O-1A visas are designated for all others.  Once a visa is approved, it allows for three years of residence in the United States, as well as family members or staff to accompany the alien.  However, the alien must continue to work in the said field that they have excelled in, or else the purpose of the visa will no longer be satisfied, and the alien must return home.

For more information, click here.

In U.S. v. Comstock, the Supreme Court held that federal officials can indefinitely hold inmates that are considered “sexually dangerous”, even after their prison terms are complete.  In overruling the lower courts decision, the court determined that the statute is a “necessary and proper” exercise of federal authority when Congress enacted the Adam Walsh Child Protection and Safety Act, authorizing civil commitment of sexually dangerous federal inmates.

In order to meet the definition of “sexually dangerous”, there must be clear and convincing evidence that, because of a mental disease or defect, the prisoner, if released, would have serious difficulty refraining from sexually violate conduct or child molestation, and there must be a showing that neither the state in which he was confined, nor the state in which he was tried is willing to accept custody over him.

The main issue in the case what whether the Constitution grants Congress the power to issue civil commitments.  Under the 10^th Amendment, the states are reserved any power that have not been granted to the federal government, either specifically or impliedly.  Implied powers arise when the federal government must take certain actions that are “necessary and proper” to effectuate one of the express powers given.

One of the express powers given to Congress is the power to imprison those convicted of federal crimes, and to establish a system of criminal justice to punish offenders.  The petitioners in Comstock argued, however, that the relevant Act is only applicable after completion of their applicable sentence, and in some cases a finding of sexual violence warranting increased confinement may arise out after a conviction for a crime that was not sexual in nature.  However, the Court determined that the power to confine prisoners in the first place also carried the implied power to take account of other safety issues regarding their release back into society.  It cited, for example, the power of the federal government to maintain custody over a prisoner who has communicated a disease that threatens others.

U.S. v. Comstock, 2010 WL 1946729.

The Supreme Court held in Graham v. Florida, by a 5 to 4 vote, that juveniles who have not committed homicide cannot be denied the change to ever rejoin society by given a life sentence without a reasonable opportunity for obtaining parole.  The Court found that such a sentence would be a violation of the Constitution’s ban on cruel and unusual punishment.

This case goes one step beyond the Court’s 2005 decision banning executions of juveniles for any crime.  These lines of cases have been based on the “evolving standards of decency.”  The Court has noted that juvenile advocates and child psychologists stress that children and adults process thoughts and actions differently and thus must be treated differently under the law.

The majority decision by Justice Kennedy was met with harsh dissents.  Justine Roberts, while agreeing that the sentence in the specific case at hand was unconstitutionally harsh, disagreed with the broader holding, arguing that it should be considered on a case-by-case basis whether a life sentence is proper, because  some crimes are simply so heinous, that even if it does not involve the actual death of a human, they are still worthy of the death penalty, even if the crime is, say, committed by a 17 year old, as opposed to an 18 year old.  Justice Thomas further argued that basing the decision on the “evolving standards of decency” is “entirely the court’s creation” and thus Kennedy’s logic fails.

Commentators speculate that the decision will lead to an influx in litigation regarding juveniles whom have been serving life sentences for non-homicide crimes.  Further, as the Supreme Court has been steadily deciding cases in protection of juveniles, it is questionable how far this protection could be extended.

Florida v. Graham, 560 U.S. ____ (2010).

DHS granted an extension for Temporary Protected Status (TPS) for Hondurans, allowing them  to maintain legal status through January 5, 2012.  Hondurans were originally granted TPS status in 1999, following a devastating Hurricane in 1998, which left thousands dead and millions homeless.  At the time, the Honduran President Flores claimed it destroyed fifty years of progress to the country, because of massive damage to the infrastructure, including the transportation and communication networks.  This year, DHS reviewed the current conditions of the country and determined that Honduras is still not able to adequately handle the return of its nationals.

What does this mean for Hondurans who are currently in the United States?  All Hondurans who currently have the benefit of TPS in the United States will have this benefit expire on July 6, 2010 and thus they must re-register with DHS in order to extend their status.  Re-registration requires filing an I-821 and an I-765.  This includes complying with the biometrics service fee and EAD application fee.  Once this has been complied with, TPS status will be good through January 5, 2012.  However, failure to comply before July 6, 2010 will result is a withdrawal of TPS.  This could result in being subjected to removal from the United States, and thus must be addressed in a timely fashion.

For more information, or assistance with filing your application, please feel free to contact us.  For more information from USCIS, click here.

In Abbott v. Abbott, the Supreme Court was asked to interpret the Hague Convention, specifically the Civil Aspects of International Child Abduction, to determine whether a ne exeat right, i.e the authority to consent before the other parent may take the child to another country, confers a right of custody.

The Abbotts, a British citizen and a US citizen, moved to Chile and ultimately separated.  The Chilean courts granted the mother daily care and control of the child, but also gave the father “direct and regular” visitation rights as well as a ne exeat right.  Ms. Abbott then removed him from Chile without permission, and fled to Texas, where she filed for divorce, requesting a modification of the father’s rights,  thereby attempting to gain full power over the boy’s place of residence.  Mr. Abbott filed a motion in the Texas courts to counterclaim, requesting the Ms. Abbott show cause for why the court should not allow the child to return to Chile with Mr. Abbott.  The lower courts denied Mr. Abbott’s request and found in favor of the wife, holding that the father had no right of custody under the Convention; his ne exeat right is only a veto right over his son’s departure from Chile, not actually custody rights.

The Convention was adopted to combat international abductions effectuated during domestic disputes.  Its primary operating feature is the return remedy, which states that when a child has been wrongfully taken, the country to which he has been taken must order that he be returned to his country of habitual residence.  Wrongful removals are those that violate of right of custody.

The Supreme Court disagreed with the lower courts and found that the father’s ne exeat right is consistent with a right of custody.  If found that implicit in a ne exeat right is the principle that neither parent can unilaterally establish the child’s place of residence.  The Court determined that this right is paramount to the right of care of the child.  Thus, though the “ne exeat right does not fit within the traditional notions of physical custody,” per the definition of the Convention, it fully aligns with the definition of right to custody, and not with the “right of access”, as Ms. Abbott argued.  Right of access, the Court determined, is a much more limited visitation right, and not a right to ultimately decide where the child may reside, as the ne exeat right is.  Thus, the Mr. Abbott had a custody right over the child, and thus the child should be ordered returned to Chile.

Abbott v. Abbott, 560 U.S. ____ (2010).

The Maryland Court of Appeals affirmed the trial court’s award of indefinite alimony for a wife in the amount of $3,000 a month after a 21-year marriage.  The court determined that the wife would not be able to maintain her accustomed lifestyle without alimony and that an unconscionable disparity existed and would continue to exist between the parties without this award.  The court found that there was no chance that the wife would be able to make more money than she currently does, considering her education level and age, and thus, based on her current income, she was unable of becoming self-sustaining.   By comparing the husband’s disposal income to the wife’s, the court found a great disparity, considering the couple’s assets and in light of the wife being the primary caregiver to the couple’s minor child.  In light of the deficit faced by the wife, the trial court looked to the AAML guidelines to determine an appropriate alimony award.  These guidelines provide a formulaic approach to calculating the amount and duration for alimony awards.  The court, however, did not find this to be determinative, and instead used it for informational purposes only to get a general idea of what an appropriate award would be.  By taking into consideration other facts such as the savings that has been demonstrated by the couple during the marriage and the sacrifices the wife made both in raising the children and allowing the husband to further his career.  The appellate court found that there was nothing wrong with this approach to determining an alimony award.  Though the Md. Fam. Law 11-106 statute governing alimony awards does not include some of the factors the court considered in using the AAML guidelines, the court found that the AAML guidelines were reasonable and the approach used in is line with the goals of the Maryland statute.