Just this past week I was invited to speak to a group of reporters during their staff meeting so that they would be better informed on the asylum laws in the United States of America. Obviously this has been at the forefront of the news on immigration for months now due to the unprecedented number of immigrants arriving at the southern border of the U.S. with the intention of applying for asylum in the U.S. The group of reporters asked me what I thought were the things that were being reported incorrectly by the media. I explained to them that one of the things that is missing from all reports by the media is the fact that the vast majority of immigrants arriving at the border will not qualify for asylum under U.S. law. I asked them to visualize the fact that for at least the past three months there were on average about 120,000 immigrants apprehended at the border. Then I asked them to think about the fact that upwards of ninety-eight percent of these immigrants will have their asylum cases denied because their cases will not qualify under asylum law in the U.S. As if that was not enough, the Attorney General of the U.S. just recently reversed the decision of the Board of Immigration Appeals in a case known as Matter of L-E-A (27 I&N Dec. 581 (A.G. 2019)) that effectively forecloses another possibility of some of those immigrants for obtaining asylum in the U.S.
As I explained to the group of reporters, the vast majority of those immigrants will not qualify for asylum because under U.S. asylum law one must show that one has been persecuted on account of race, religion, nationality, political opinion, or membership in a particular social group. 8 U.S.C.A. § 1158(b)(1)(B)(i). As I told them, one can see that the vast majority of the Central American immigrants arriving at the border will not claim persecution based on race, religion, nationality, or political opinion. That leaves only one of the enumerated options in U.S. asylum law: membership in a particular social group. One can see that the first four of what are known as "protected grounds" are straight forward and will not require definition during the course of a case based on one of these grounds. In these cases, the focus is on showing how the immigrant fits into one of those protected grounds and then showing how that was the main reason the immigrant was persecuted in his or her home country. Of course there are other items that the immigrant must show such as the fact that the government is complicit or powerless to stop the persecution, internal relocation in the home country is not feasible, and sufficient acts that amount to past persecution and a presumption of future persecution if the immigrant returns to the home country.
In most of the cases emanating from immigrants from Central America, however, showing that they are being persecuted on account of membership in a particular social group (PSG) is the objective. How does one define and what are the characteristics of the definition of a PSG that would allow an immigrant to obtain asylum under U.S. law has been one of the most prolific source of litigation and opinions by the Board of Immigration Appeal under U.S. asylum law. In fact the myriad of opinions setting what appears to be arbitrary rules to define this particular social groups have left countless immigration practitioners scratching their collective heads in confusion.
The Board of Immigration Appeals (BIA) continued the evolving definition of how to define a PSG under immigration law is a case known as Matter of M-E-V-G in 2014. 26 I&N Dec. 227 (BIA 2014). In this opinion, the BIA seems to arbitrarily arrive at certain conditions that one must meet in order to define a viable PSG in an asylum case. As explained by the BIA, one must show that the PSG must be defined with particularity, and be "set apart, or distinct, from other persons within the society in question". Of course, each of these requirements themselves require their own definitions and those appear to have been set by the BIA in an equally arbitrary fashion.The PSG definition as it relates to membership in clans or similar groups (a family is apparently regarded as similar to a "clan"), has been the subject of repeated opinions by the BIA including Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), and Matter of H-, 21 I&N Dec. 337 (BIA 1996). But also in 2014 in the case Matter of W-G-R-, 26 I&N Dec. 217 (BIA 2014), the BIA arrived at the conclusion that such a kinship group must be a "recognized component in the society in question". Attorney General Barr concludes that clans that meet this requirement are very different than someone's immediate family.
The BIA had conceded that in the case of Matter of L-E-A-, the immediate family constituted a PSG for asylum purposes. But the Attorney General contends that the BIA arrived at this conclusion based on simply a concession by DHS that the group is a PSG rather than a fact-based analysis conducted by the Immigration Judge. In this case, the immigrant claimed that he was persecuted by a criminal gang because he belongs to a PSG defined by the immigrant (or his attorney) as "immediate family of his father". He claimed that the criminal gang targeted this group because he owned a store targeted by a local drug cartel. The BIA, nevertheless, denied the asylum claim of the immigrant because it concluded that even conceding that he belongs to a PSG, he had failed to show membership in this PSG was the central reason he was being targeted by the criminal gang. It concluded that based on the record, the immigrant was being targeted because he had access to the store rather than the fact that he is part of the store owner's family. This assertion by the BIA highlights the difficulty of most asylum cases from Central American immigrants. Even if you clear the difficult hurdle of establishing a viable PSG, the next hurdle of showing that this was the reason of the persecution might doom the case. This hurdle just became even higher by the decision being reversed by Attorney General Barr in the case of Matter of L-E-A-.
With this reversal of this BIA decision, the Attorney General is in effect making what is a very difficult task already even more difficult. This decision also shows the complexity of PSG-based asylum cases. Given that the vast majority of claims of asylum from Central America rely on a PSG, rather than one of the other four protected grounds, this case shows why cases in which the immigrant is represented by an experienced attorney are far more likely to be approved than cases in which the immigrant has no legal representation.
Sunday, August 11, 2019
Tuesday, July 30, 2019
Memoir of another USCIS interview
We sat there in the waiting room discussing how the interview would go and whether the spouse of the applicant would have to participate. This can happen when a Legal Permanent Resident in the United States is asking to become a U.S. citizen after just three years as resident. In that case, becoming a U.S. citizen is contingent upon your marriage to a U.S. citizen. Thus the U.S. citizen spouse may need to participate. Once the Immigration Officer called us into the interview room, she indicated the U.S. citizen spouse could remain in the waiting lobby. The applicant was a Mexican national who was very intelligent and spoke English almost perfectly. The only question after completing the interview was which gender to assign in the Naturalization Certificate. The applicant was born a male but at the point of filing the application for naturalization as a U.S. citizen, he was in the process of transitioning to a woman. There is no legal guidance on this subject just yet so USCIS decided that the gender would have remain "male" until such time as the applicant can produce a legal document, like a court order, that legally changes the gender to "female".
Friday, July 26, 2019
Memoir of an USCIS Immigration Interview
As I sat there in the waiting room explaining to my clients
what to expect of an interview with an USCIS immigration officer, one of them
asked me “have you ever represented a couple like us?” I said that I had not, but the reason is that I had not had the opportunity to do it before. Then I explained
to them that it should be no different than any other married couple. After
we actually finished the interview, my opinion may have changed a little. In
this case, one spouse was an American citizen by virtue of having been born in
Puerto Rico. The other spouse is a citizen of Venezuela who came to the U.S. on
a visitor’s visa several years ago and now is out of status. Even though this
couple claims that they have known each other for about ten years, they have
very little in the way of documentation to prove that their relationship is
real. In cases like this, immigration officers sometimes separate the couple in
order to ask them a serious of questions to each one of them. Then they will
compare how much the answers are consistent for each person. This is what is
known as a Stokes Interview after the name of the case which upheld the
validity of such tactics by immigration officers. This is exactly what happened
in this case. In my experience, immigration officials ask a long series of
questions ranging from where did they meet to what does your spouse eat for breakfast
each morning. They will also ask questions such “what was the last time you
were intimate?” or “when was the last time you had sex?”. In this case, there
were no questions at all about intimacy and I found that to be curious. One
possible reason for this is that USCIS officials may be reluctant to ask such
questions of a same-sex couple. I have never had a couple of opposite sexes
that went through a Stokes interview without intimacy questions. Next week, I
will represent another same-sex couple. Today the couple involved two women.
Next week the couple will involve two men. It will be interesting to see if the
treatment by USCIS officials is any different.
Friday, October 6, 2017
New Dream Act introduced in Congress under the name SUCCEED Act
On September 25, 2017, U.S. Senator Tom Tillis, Republican of North Carolina, introduced in the Senate a bill entitled "Solution for Undocumented Children through Careers, Employment, Education, and Defending our Nation" Act. This bill is to be cited as the SUCCEED Act. SUCCEED ACT, S. 1852, 115th Cong. (2017). The bill aims to bestow Conditional Permanent Resident status to certain alien "long-term residents". The grating of this status would be done through a process known as Cancellation of Removal. Although Cancellation of Removal is a term used for a procedure invoked while in deportation in Immigration Court, this process will not necessarily take place while in deportation in Immigration Court.
The granting of this status will require the alien to show that:
The granting of status under this act is for an initial period of five years. The alien must remain employed, study as a full-time student, or complete military service. If the alien is convicted of a crime that would render him ineligible during the five-year period, the status would be terminated.
If the alien demonstrates continued eligibility, the conditional permanent resident status can be extended for another five years. Towards the end of this ten-year period, the alien can request to remove the conditions on residence and become a legal permanent resident without conditions. As any other legal permanent resident, the aliens then would be eligible to apply for U.S. citizenship after five years as legal permanent resident.
One major disadvantage of the SUCCEED Act as it was introduced is that it removes the right of aliens that were admitted to the U.S. legally but then overstayed their visas from being able to apply legal permanent resident status if they marry a U.S. citizen or have a U.S. citizen son or daughter over 21 years old. The Act specifically states that aliens admitted with visas must waive their right to this process, among others. So while this act may grant status to millions of aliens, it potentially bars the ability to gain residence in the U.S. to millions of family members of U.S. citizens that presently have that right.
The granting of this status will require the alien to show that:
- The alien has been physically present in the U.S. at least since June 15, 2012
- The alien was younger than 16 years of age when he or she initially entered the U.S.
- The alien has no lawful status and was under 31 years of age as of June 15, 2012
- If the alien is 18 years of age or older the alien must show that while in the U.S. he or she earned a high school diploma or GED, or has been admitted to a school of higher education, or has served or enlisted in the U.S. armed forces
- If the alien is 18 years he or she must be attending school
- the alien has been a person of good moral character
- the alien has paid any applicable taxes
- the alien has no serious criminal record
- and the alien has not been ordered deported from the U.S.
The granting of status under this act is for an initial period of five years. The alien must remain employed, study as a full-time student, or complete military service. If the alien is convicted of a crime that would render him ineligible during the five-year period, the status would be terminated.
If the alien demonstrates continued eligibility, the conditional permanent resident status can be extended for another five years. Towards the end of this ten-year period, the alien can request to remove the conditions on residence and become a legal permanent resident without conditions. As any other legal permanent resident, the aliens then would be eligible to apply for U.S. citizenship after five years as legal permanent resident.
One major disadvantage of the SUCCEED Act as it was introduced is that it removes the right of aliens that were admitted to the U.S. legally but then overstayed their visas from being able to apply legal permanent resident status if they marry a U.S. citizen or have a U.S. citizen son or daughter over 21 years old. The Act specifically states that aliens admitted with visas must waive their right to this process, among others. So while this act may grant status to millions of aliens, it potentially bars the ability to gain residence in the U.S. to millions of family members of U.S. citizens that presently have that right.
Tuesday, January 29, 2013
Provisional Unlawful Presence Waiver for US Immediate Relatives
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If you believe that you or your alien relative may qualify for this Provisional Waiver, you should seek the advise of a competent immigration attorney.
As of today, President Obama launched a renewed effort at achieving comprehensive immigration reform. His speech seems to be an effort to stay ahead of the so-called "Gang ofEight", a group of Senators from both parties that a day earlier proposed a framework for a bi-partisan effort at immigration reform. One thing is clear, the momentum is building for comprehensive immigration reform. What this means for immigrants present in the United States is still unclear. Obama said in his speech that it is time to fix the system that he has been trying to patch during his first term in office. Two of those patches that Obama has implemented are Deferred Action for Childhood Arrivals (DACA) and Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives.
A "Provisional Unlawful Presence Waiver" is the new process that Obama has directed the Department of Homeland Security to implement by promulgating amendments to existing regulations.[1] Let's start by looking at how the process worked before the changes and how some eligible aliens can now take advantage of the new process.
First of all, this process is beneficial only for "immediate relatives". These are defined as "children, spouses, and parents of citizens of the United States".[2] In other words, only someone married to a US citizen, a son or daughter of a US citizen under 21 years of age, or parents (over the age of 21) of a US citizen. Note that this does not apply to any relatives of Legal Permanent Residents.
Before the amendment of the rules, immediate relatives of US citizens already in the United States could apply for residence but were forced to use what is known as Consular Processing if they entered the US without a visa.[3] In other words, they could not gain residence while remaining in the US. They were forced to return to their country of origin in order to obtain residence and pursue the process at a US Embassy or Consulate. There are certain exceptions to this such as the 245(i)[4] but application is limited. The problem with this process is that once the alien returns to the country of origin, the alien incurs a bar to returning to the US for a period of either three or ten years depending on how long the alien has been present in the US unlawfully.[5] In most cases, aliens have exceeded the one-year mark and thus incur the ten-year penalty.
The problem with the process as it existed before the Provisional Waiver is that a waiver is not possible unless the alien triggers the penalty. This only happens after the alien decides to leave the US to pursue Consular Processing. So the alien has to go through the process of having an interview at a US consulate scheduled only to find out what he or she already knew. She would need a waiver in order to return. This process is inefficient and can last for a year or more. All of this time the alien has to be separated from his or her family in the US.
In order to alleviate this lengthy separation of families in very harsh conditions and still allow immediate relatives to become legal permanent residents, President Obama ordered the implementation of the so-called Provisional Waiver. This new process will be available on March 4, 2013. The process will allow aliens who are immediate relatives to file for a waiver before they leave the US and thus trigger the bar or penalty of returning to the US. These aliens can pursue the process while still remaining in the US. They will eventually have to leave the US in order to get their visa because this is mandated by law, but the separation is expected to be dramatically reduced. This is because before they leave the US they will have a "provisional approval" of a waiver of the three or ten-year bar to returning. Only certain immediate relatives qualify, however. In order to be eligible for the provisional waiver, the sole issue of inadmissibility is the unlawful presence. What this means is that other issues of inadmissibility to the United States, such as serious crimes, repeat immigration violators, those having committed immigration fraud, and those having unlawfully voted in the US will not be eligible for the provisional waiver.
The requirements to qualify for the Provisional Waiver process are as follows:
1. The alien is present in the US when filing the application
2. Upon departure would only be inadmissible due to unlawful presence in the US
3. The alien is an immediate relative of a US citizen
4. The alien is the beneficiary of an approved I-130 Petition for Alien Relative
5. The alien has paid the fee to start the visa process with the Department of State (consular processing)
6. The alien will depart to obtain the residence at a US consulate
7. The alien meets the requirements to file for waiver based on extreme hardship to the US citizen relative if not allowed to return to the US [6]
Unfortunately, an alien will be ineligible for a Provisional Waiver if he or she has had a consular interview already scheduled for any time before January 3, 2013. If the alien is in removal proceedings (deportation) before an immigration judge, he or she is ineligible for a Provisional Waiver unless the case has been administratively closed. Aliens that have been ordered removed (deported) or have been deported before and have returned without a visa are also ineligible. If the alien is under the age of 17, he or she is ineligible to file for the Provisional Waiver.
If you believe that you are an alien or the US relative of an alien that qualifies for a provisional waiver, you must follow these procedures in order to file a provisional waiver:
1. You must have an I-130 Petition for Alien Relative approved or you must file one and obtain approval
2. Pay the fees to start the Consular Process with the National Visa Center
3. Notify the National Visa Center to that you intend to seek a Provisional Unlawful Presence Waiver
4. File the Form I-601A to obtain the Provisional Unlawful Presence Waiver
Friday, August 31, 2012
The Right Thing to Do
On June 15, 2012, President Obama announced that he had directed Secretary of Homeland Security Janet Napolitano to create a process to grant what is known as "Deferred Action" to certain young undocumented immigrants that were brought here to the United States as children. Right away, opponents have asserted at least two charges against the President. They charge that the President is providing so-called "amnesty" to undocumented immigrants. They also charge that the President is exceeding his authority and usurping power from Congress. Both of these charges are as politically motivated as they are false.
First let's address the charge that President Obama has exceeded his authority in the Executive Branch of our government and has usurped power from the Legislative Branch. A few weeks ago, I was asked by a friend of mine to go to Bartow, a central Florida small town, to cover a couple of traffic hearings on behalf of two of his clients. I do not know much about court procedures in the county court in Bartow nor do I cover traffic hearings in criminal traffic court very often. The first thing I do on these occasions is talk to the local state attorney handling these cases as soon as I get to the court. In this county, there is program known as a pre-trial intervention. If the charge against the defendant is Driving Without a License, a person may be able to escape prosecution provided he or she meets certain criteria. First, it must be their first offense of driving without a license. Second, they must demonstrate that he or she is able to obtain a license within a certain period of time, and third they must pay the civil fine assessed. If the person meets these criteria, the state attorney agrees to drop the charges and forgo prosecution in the case. To be sure, the person allowed to take advantage of this program has broken the law and has been cited for it. But the state will end prosecution and the person's record will not reflect the charge, provided they meet the established criteria. This is what is known as Prosecutorial Discretion.
What is the difference between the process I described above in a local county court and the Deferred Action for Childhood Arrivals (DACA) process announced by President Obama? Not much really. Both programs involve someone breaking the law. Both programs involve establishing certain criteria that the law breakers must meet. In both programs if the law breakers meet the criteria, they are provided a benefit and reprieve from prosecution. In fact in the local program we are foregoing prosecution for a crime done intentionally. The law breakers knew they had no license and they chose to drive knowing it was illegal. Most young people eligible for the DACA broke the law unknowingly because their parents caused them to do it. In any case, both programs involve a law that has been violated. In both programs officials of the executive branch who enforce the law establish a program by which the law breakers are excused from prosecution so long as they meet certain criteria. So if the DACA program is in fact illegal, then it follows that thousands of programs granting prosecutorial discretion every day in thousands of criminal courts across the United States of America have been operating illegally for as long as our great nation has existed.
The second charge is that this program provides "amnesty" to undocumented immigrants. Let us examine that charge the same way a judge would examine the meaning of a statute. First the judge would examine the plain meaning. For the plain meaning of "amnesty" let's look at the dictionary. The American Heritage Dictionary for the English Language defines "amnesty" as "a general pardon granted by a government". The same dictionary in turn defines "general" as "Concerned with, applicable to, or affecting the whole or every member of a class or category". "Pardon" is defined in the legal sense as "Exemption of a convicted person from the penalties of an offense or crime by the power of the executor of the laws". Let's examine then whether the DACA constitutes "amnesty" as defined here.
In order to constitute "amnesty", the DACA would have to apply to just about every member of the class referred to as illegal or undocumented immigrants. If you narrow that class to undocumented young persons it would have to apply to nearly all members of that class. This is clearly not the case. The DACA provides for very strict criteria that have to be met in order to be considered. First, you must be under 31 years of age and over 15 years of age. You must have been physically present in the USA as of June 15, 2007 and for the subsequent five years. You cannot have been convicted or plead guilty or no contest to any felonies or a "significant" misdemeanor at any time. You must prove you entered the USA before the age of 16 and that you have been physically present in the USA since June 15, 2007. You also must show that you are either in a course of study or have earned a diploma or GED. Clearly, the DACA does not apply in general to every member of the young undocumented immigrant class. It applies only to the ones that meet the strict criteria.
In order to qualify as "amnesty" the DACA would also have to provide for a pardon as described above.This would mean that persons who qualify would be exempted from the penalties of the law for being in America in an undocumented status. The DACA does not in fact provide for a pardon. What the program provides is what is known as Deferred Action. Deferred Action is simply what the name suggests. That "action" in your case will be deferred for a period of time. In this case, two years. At the end of the two years, one may be able to apply for an extension of the deferred action. On the other hand, the government reserves the right to prosecute your case. In fact, the government has the right to terminate the grant of deferred action at any time. Even if the two-year DACA has been granted. This is far from a pardon and therefore far from amnesty.
Now aside from these issues there is the question President Obama answered with the phrase "because it is the right thing to do". In fact this is the right thing to do for the young people that qualify and for America. There are many problems in America today. To saddle young people who are here through no fault of their own with the inability to work or pursue higher education lives them in a state of limbo living in the shadows. This is a burden for America and unproductive for our society. Many of these young people are, as President Obama said, American in every way but one. Opponents may say that they should go back to their own country. But for most of the young people in this predicament, this is their country and their culture in every way except one. So let's keep doing the right thing for them and for America.
First let's address the charge that President Obama has exceeded his authority in the Executive Branch of our government and has usurped power from the Legislative Branch. A few weeks ago, I was asked by a friend of mine to go to Bartow, a central Florida small town, to cover a couple of traffic hearings on behalf of two of his clients. I do not know much about court procedures in the county court in Bartow nor do I cover traffic hearings in criminal traffic court very often. The first thing I do on these occasions is talk to the local state attorney handling these cases as soon as I get to the court. In this county, there is program known as a pre-trial intervention. If the charge against the defendant is Driving Without a License, a person may be able to escape prosecution provided he or she meets certain criteria. First, it must be their first offense of driving without a license. Second, they must demonstrate that he or she is able to obtain a license within a certain period of time, and third they must pay the civil fine assessed. If the person meets these criteria, the state attorney agrees to drop the charges and forgo prosecution in the case. To be sure, the person allowed to take advantage of this program has broken the law and has been cited for it. But the state will end prosecution and the person's record will not reflect the charge, provided they meet the established criteria. This is what is known as Prosecutorial Discretion.
What is the difference between the process I described above in a local county court and the Deferred Action for Childhood Arrivals (DACA) process announced by President Obama? Not much really. Both programs involve someone breaking the law. Both programs involve establishing certain criteria that the law breakers must meet. In both programs if the law breakers meet the criteria, they are provided a benefit and reprieve from prosecution. In fact in the local program we are foregoing prosecution for a crime done intentionally. The law breakers knew they had no license and they chose to drive knowing it was illegal. Most young people eligible for the DACA broke the law unknowingly because their parents caused them to do it. In any case, both programs involve a law that has been violated. In both programs officials of the executive branch who enforce the law establish a program by which the law breakers are excused from prosecution so long as they meet certain criteria. So if the DACA program is in fact illegal, then it follows that thousands of programs granting prosecutorial discretion every day in thousands of criminal courts across the United States of America have been operating illegally for as long as our great nation has existed.
The second charge is that this program provides "amnesty" to undocumented immigrants. Let us examine that charge the same way a judge would examine the meaning of a statute. First the judge would examine the plain meaning. For the plain meaning of "amnesty" let's look at the dictionary. The American Heritage Dictionary for the English Language defines "amnesty" as "a general pardon granted by a government". The same dictionary in turn defines "general" as "Concerned with, applicable to, or affecting the whole or every member of a class or category". "Pardon" is defined in the legal sense as "Exemption of a convicted person from the penalties of an offense or crime by the power of the executor of the laws". Let's examine then whether the DACA constitutes "amnesty" as defined here.
In order to constitute "amnesty", the DACA would have to apply to just about every member of the class referred to as illegal or undocumented immigrants. If you narrow that class to undocumented young persons it would have to apply to nearly all members of that class. This is clearly not the case. The DACA provides for very strict criteria that have to be met in order to be considered. First, you must be under 31 years of age and over 15 years of age. You must have been physically present in the USA as of June 15, 2007 and for the subsequent five years. You cannot have been convicted or plead guilty or no contest to any felonies or a "significant" misdemeanor at any time. You must prove you entered the USA before the age of 16 and that you have been physically present in the USA since June 15, 2007. You also must show that you are either in a course of study or have earned a diploma or GED. Clearly, the DACA does not apply in general to every member of the young undocumented immigrant class. It applies only to the ones that meet the strict criteria.
In order to qualify as "amnesty" the DACA would also have to provide for a pardon as described above.This would mean that persons who qualify would be exempted from the penalties of the law for being in America in an undocumented status. The DACA does not in fact provide for a pardon. What the program provides is what is known as Deferred Action. Deferred Action is simply what the name suggests. That "action" in your case will be deferred for a period of time. In this case, two years. At the end of the two years, one may be able to apply for an extension of the deferred action. On the other hand, the government reserves the right to prosecute your case. In fact, the government has the right to terminate the grant of deferred action at any time. Even if the two-year DACA has been granted. This is far from a pardon and therefore far from amnesty.
Now aside from these issues there is the question President Obama answered with the phrase "because it is the right thing to do". In fact this is the right thing to do for the young people that qualify and for America. There are many problems in America today. To saddle young people who are here through no fault of their own with the inability to work or pursue higher education lives them in a state of limbo living in the shadows. This is a burden for America and unproductive for our society. Many of these young people are, as President Obama said, American in every way but one. Opponents may say that they should go back to their own country. But for most of the young people in this predicament, this is their country and their culture in every way except one. So let's keep doing the right thing for them and for America.
Friday, May 18, 2012
Justifiable Use of Force?
It is astounding to me all the amount of fodder a high-profile case can generate. If you are a private citizen you never know when some unfortunate incident could turn you into an unwanted celebrity and make your case national news. Just take the Zimmerman-Martin case. The contents of discovery in the case were released yesterday and next thing you know, there is non-stop news coverage and Facebook is awash with thousands of comments and responses for days to come.
The thing about all the comments and responses, though, is that hardly anyone ever gets to the real issue in the case from a legal standpoint. There is no doubt that George Zimmerman killed Treyvon Martin. He admitted it to the authorities. The issue from a legal standpoint is then was this a justifiable homicide? In other words, did George Zimmerman have the legal right to kill Treyvon Martin.
To put it in more concrete legal terms, was Zimmerman justified in using deadly force in the struggle against Martin? The answer will vary in each of the 50 states of the country so we must look at the applicable law in Florida. The media has no doubt alerted you that the statute in question here in Florida is the so-called "Stand Your Ground" law. But in reality they are misleading you with that label.
The Florida Statute and paragraph in question is titled "Justifiable Use of Force" and it is Title XLVI Chapter 776(3). It reads:
The thing about all the comments and responses, though, is that hardly anyone ever gets to the real issue in the case from a legal standpoint. There is no doubt that George Zimmerman killed Treyvon Martin. He admitted it to the authorities. The issue from a legal standpoint is then was this a justifiable homicide? In other words, did George Zimmerman have the legal right to kill Treyvon Martin.
To put it in more concrete legal terms, was Zimmerman justified in using deadly force in the struggle against Martin? The answer will vary in each of the 50 states of the country so we must look at the applicable law in Florida. The media has no doubt alerted you that the statute in question here in Florida is the so-called "Stand Your Ground" law. But in reality they are misleading you with that label.
The Florida Statute and paragraph in question is titled "Justifiable Use of Force" and it is Title XLVI Chapter 776(3). It reads:
(3) A
person who is not engaged in an unlawful activity and who is attacked
in any other place where he or she has a right to be has no duty to
retreat and has the right to stand his or her ground and meet force with
force, including deadly force if he or she reasonably believes it is
necessary to do so to prevent death or great bodily harm to himself or
herself or another or to prevent the commission of a forcible felony.
In this case, both Zimmerman and Martin had a legal right to be where the incident took place. Neither was presumably engaged in an unlawful activity. As the statute says, there is "no duty to retreat". What this means is that in the face of an attack against you, you do not have to run away if you can safely do so, as it is the case in many states. This Florida provision is what is known as "stand your ground". You can stay and meet force with force as long as it is proportionally equal. In other words, you cannot stab someone if they slap you in the face and claim that you have met force with force.
But the real key to this statute is not the "stand your ground" part, as the media would have you believe. The real key is the part that says "who is attacked". What that means is that you can only respond with force if you are attacked. If you are the first attacker and provoke the confrontation, you cannot take refuge under this statute and the killing cannot be justified. So you see the real issue here is who attacked first? All the evidence released showing bruises, cuts, black eyes, etc. is irrelevant. We know there was a fight. The real issue is who started it. And the physical evidence does nothing to establish that. In fact, all the witness accounts do not help establish that either. All we have is circumstantial evidence, such as the 911 call showing Zimmerman was pursuing Martin, and then there is the claim by Zimmerman that he was attacked first.
In light of this issue, other evidence released is much more important. For example, the fact that Zimmerman was on prescription drugs likely to cause side effects including propensity to do violence, the past injunction against him, the charge of battery on a law enforcement officer. The prosecution is going to have to refute the claim by Zimmerman that he was attacked first. Not an easy task with no relevant physical evidence and no contradictory testimony because your witness is dead.
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