Constitutional Law

In General Public Use: An Unnecessary Test to Determine Whether the Use of Advanced Sensing Technology was a Fourth Amendment Search

TLR BLOG

By Mike Petridis

I.       Introduction

Kyllo v. United States[1] created a rule with an unnecessary test that allows a home, a person’s castle, to be searched without a warrant.  The Kyllo rule states: “[O]btaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ constitutes a search — at least where . . . the technology in question is not in general public use.”[2]  This rule was intended to be forward-looking and anticipate future technology.[3]  However, the “general public use” test is a loophole that can be used by law enforcement officers to conduct warrantless searches of homes in violation of Fourth Amendment principles.

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A Political Gaslight: Attorney General Jeff Sessions and Matter of A-B-

TLR BLOG

By Jessica Senat*

Gregory Anton: You see how it is, Elizabeth.

Elizabeth: I see JUST how it is, sir.[1]

 

Part I: Introduction

In Matter of A-B-,[2] Attorney General Jeff Sessions (hereinafter “A.G. Sessions”) reversed a decision that allowed women fleeing domestic violence to apply for asylum.[3]  A.G. Sessions used a rare authority, the “referral and review mechanism,” to refer the case to himself.[4]  In the opinion, he dismissed domestic and gang violence as a claim that is “unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.”[5]  The governing asylum statute states that an “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant” when seeking asylum protection.[6]  A.G. Sessions did not implement new standards that may bar individuals who suffer gender-based violence from applying for refugee protection; his holding is directed at the Board of Immigration Appeals’ (hereinafter “BIA”) failure to apply precedent law.[7]  It is hard to distinguish this holding from surrounding dicta because the holding is overshadowed by his outdated views on gender-based persecution, over-generalized statements without factual backing, and inflated legal requirements that cause more confusion than clarity.

A.G. Sessions’ decision reflects a harsh reality: adjudicators still struggle to accept gender-based violence as a legitimate basis for persecution under refugee law.  This blog post will first discuss the legislative history of the asylum statute and the concept of gender-based persecution.[8]  The Refugee Convention, which was created as an answer to the refugee crisis after World War II,[9] was the foundation for asylum law in the United States.  It did not speak to gender-based violence as the drafters did not realize it existed.[10]  This  blog post will then discuss the “Particular Social Group” requirement.  Legislative history has shown that asylum law is amorphous.  It is riddled with inconsistent holdings between both administrative and judicial adjudication.[11]  The BIA attempted to provide a standard in determining the PSG requirement in Matter of Acosta, but the decision only fueled more confusion amongst the courts.[12]

Parts IV and V discuss how A.G. Sessions’ opinion arguably gaslights the American public.[13]  He trivializes gender-based persecution and undermines immigration policy by (1) abusing a rarely used procedural tool to refer immigration cases to himself; (2) incorporating over-generalized statements without factual or precedential support; and (3) conflating requirements under the asylum statute.  This blog post proposes administrative and legislative reform: the BIA should establish separate regulatory standards as guidance to determine whether gender-based violence is “acceptable” persecution under the immigration statute.  Furthermore, there should be a push for reforming the self-referral provision to prevent abuse of the authority.

Part II: Legislative History

            The history of refugee law in the United States errs more on the side of exclusivity than inclusivity.[14]  Discriminatory policies were prevalent throughout history.  An example of this is the Emergency Quota Acts of 1921 and 1924.[15]  Congress designed a quota system that limited the number of minorities permitted to enter the United States and made the process easier for Northern and Western Europeans.[16]  Remnants of these discriminatory policies remained under the enactment of the Immigration and Nationality Act (hereinafter “INA”) in 1955 and even after the quota system was eliminated under the amendments to the INA laws.[17]

In 1967, the United States began to take steps to eliminate discriminatory refugee policies.  Today’s immigration and refugee laws are based on the 1951 United Nations Convention Relating to the Status of Refugees or Refugee Convention.[18]  The Refugee Convention was a response to the refugee crisis left in the wake of World War II.  Its defined purpose was to protect any “person who faces serious human rights abuses where a state has failed in its fundamental obligation of protection for reasons of the person’s status or beliefs, resulting in fundamental marginalization and an inability of the person to vindicate his or her rights in his or her home country.”[19]  Under the Convention, an applicant only needed to show that he or she had a “well-founded fear” of persecution.[20]

Congress incorporated the provisions of the Refugee Convention when it signed the United Nations Protocol Relating to the Status of Refugees (the Protocol of 1967).[21]  However, it was not until the Refugee Act of 1980 where the United States removed geographical or ideological biases and expanded the definition of “refugee” to include all persons regardless of ethnicity or nationality.[22]  It also included the new Particular Social Group (hereinafter “PSG”) standard.  Under this standard, an applicant is required to prove that he or she is fleeing persecution on the basis of being a member of a particular social group.[23]

Part III: The Standard

Under 8 U.S.C. § 1158(b)(1)(B)(i),[24] the PSG requirement has been the source of various interpretations since enactment.  Mainly, the ambiguity of the term has caused many contradictions between the circuit courts and the BIA.  In 1987, the BIA sought to provide clarification on the term in Matter of Acosta.[25]  It stated that the “shared characteristic” is found in the fact that it cannot be changed.[26]

In 2008, the BIA established additional requirements for satisfying the PSG standard.[27]  In Matter of S-E-G- and Matter of E-A-G-, the BIA concluded that in order to satisfy the PSG standard, the group must be based on (1) an immutable and shared characteristic; (2) be socially visible; and (3) particularly defined.[28]  The BIA stated that “[t]he essence of the ‘particularity’ requirement . . . is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.”[29]  In Matter of M-E-V-G-,[30] the BIA further defined particularity as having “definable boundaries”; it must be defined specifically and not be “amorphous, overbroad, diffuse or subjective.”[31]  The “social visibility” element is satisfied if the society in question perceives the group as socially distinct.[32]  The PSG standard also requires causation, referred to as “nexus.”[33]  Nexus is established when the applicant shows that “his membership in a particular social group was or will be a central reason for his persecution.”[34]  The BIA stated that the persecutors’ views and motives are important in establishing nexus.[35]

a. Jumping Through Hoops of Fire: The Problem of Circularity with Social Distinction and Particularity Standards 

The BIA claimed to have clarified the PSG elements as separate but necessary.[36] However, BIA’s nitpicking creates a narrow standard for applicants, increases the burden of proof, and confuses the requirements with overlapping definitional terms.  In Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to the Acosta Definition of “A Particular Social Group,” Rachel Gonzalez Settlage noted the difficulty in proving the social distinction and the particularity requirement.[37]  Settlage stated “[p]articularity . . . suggests hard limits and requires specificity of definition. A group cannot be too broad or too diffuse.”[38]  However, if the applicant provides evidence proving that the society in question uses specific parameters to define the social group, rendering them “socially distinct,” these parameters may not satisfy the particularity requirement if the BIA finds that it is too “broad” or “amorphous.”[39]  Although Settlage discusses this difficulty for applicants that are fleeing gang violence,[40] the standards can frustrate applicants from various backgrounds.

b. The Difficulty of Proving Gender-Based Persecution[41]

The phrase “jumping through hoops of fire” is an accurate description of the process applicants must go through in order to establish asylum protections from domestic abuse.[42] Historically, the laws did not address gender-based violence.[43]  The definition of gender-based persecution can be divided into two categories: being persecuted as a woman and being persecuted because of being a woman.[44]  In Gender and the “Membership in A Particular Social Group” Category of the 1951 Refugee Convention, Andrea Binder stated that being persecuted as a woman relates to “forms of persecution that are gender-specific, such as rape, female genital mutilation (FGM), or domestic abuse.”[45]  The concept that women are persecuted because they are women “is often discussed in the context of the ‘membership in a particular group’ category.  The definition of refugee is deficient in addressing the concerns of persecuted women.”[46]

Historically, the Refugee Convention’s “main concern was to address the mass persecutions suffered by the European Jews and other targeted persons based on racial, religious and political grounds.”[47]  According to Binder, traditional definitions of human rights violations focused on abuse from the state instead of social or economic rights.[48]  This led to characterizing a woman’s experience as a “private matter” to be addressed by the government.[49]  Such “gender deficiency”[50] within the refugee law should not be carried over to modern day interpretations of asylum statutes.

Part IV: Modern-Day Gender-Based Persecution

It is not a secret that U.S. asylum laws do not include gender as one of the enumerated bases for persecution.[51] The BIA often conflates the two types of persecution women suffer into one broad category of domestic violence or dismisses them altogether.[52]  The archaic perspectives that places domestic violence as a private matter to be handled within the confines of the home is harmful for those who seek legal recourse in any context.  With this backdrop, Matter of A-R-C-G- is still viewed as a huge step forward for asylum law.  At the time, it signaled that the BIA was finally ready to address the problem of “gender-deficiency” within U.S. immigration laws.

a. Matter of A-R-C-G-

In Matter of A-R-C-G-,[53] respondent, a mother of three minors at the time, had entered the United States from Guatemala in 2005 to flee from her abusive husband.[54]  She filed a timely application for asylum and withholding of removal on behalf of herself and her three children.[55] It was undisputed that respondent was repeatedly abused by her husband.[56]  Respondent contacted the police many times, but the police failed to help her and arrest the husband after he hit her.[57]  She knew that her husband would harm her if she returned to Guatemala.[58]

On appeal, the Department of Homeland Security (hereinafter “DHS”) subsequently conceded that she satisfied the PSG requirement and only requested remand for further factual development.[59]  The BIA held that respondent successfully satisfied the particular social group requirement.[60]  The BIA looked to social factors when determining whether the group had a social distinction within the Guatemalan society:

Such evidence would include whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designated to protect domestic abuse victims, whether those laws are effectively enforced, and other sociopolitical factors.[61]

 

As this blog post suggests, these sociopolitical criteria are necessary not only for determining whether an applicant belongs to a particular social group, but for determining whether a government can actually handle civil domestic violence.  The BIA should use these factors to formulate a test that is subject to the Chevron test of judicial deference, and require courts and administrative judges to evaluate whether the government has the resources to address domestic violence.

b. In the Matter of A-B-

In Matter of A-B-, A.G. Sessions overruled Matter of A-R-C-G-, holding that the case was erroneously decided because it followed concessions made by the DHS as conclusive legal points instead of applicable law.[62]  This, he argued, prevented the BIA from holding that applicants fleeing domestic violence or gender-based violence are not likely to satisfy the requirements for asylum.[63]  Sessions’ opinion failed to provide any clarity for several reasons.

First, he confuses the standard to establish a presumption of future persecution and creates his own standard to establish persecution.[64]  A.G. Sessions states that in order to prove persecution, an applicant must show that (1) there was an intent to target a belief or characteristic; (2) the level of harm was severe; and (3)  the government is unable to control or prevent the harm.[65]  Although the elements are correct, A.G. Sessions mistakenly believes it proves an applicant has suffered persecution.  In actuality, an applicant must satisfy these elements to prove that he or she is in danger of future persecution.[66]

Second, most of his criticism was not backed with supporting evidence or cases.  A.G. Sessions stated that “the opinion has caused confusion because it recognized a new category of particular social groups based on private violence.”[67]  However, A.G. Sessions did not cite to any material or evidence that supports that statement.[68]  Another example demonstrating a lack of authority is his statement that while “there may be exceptional circumstances when victims of private criminal activity could meet these requirements, they must satisfy established standards when seeking asylum.”[69]  There has never been an exceptionality requirement for those who seek protection from domestic abuse.  A.G. Sessions himself does not cite to any precedent law to confirm this.[70]

In addition, A.G. Sessions incorrectly concluded that the PSG requirement failed in Matter of A-R-C-G- because “a particular social group must exist independently of the harm asserted in an application for asylum or statutory withholding of removal.”[71]   The well-founded fear of future persecution is an alternative argument available for applicants who may not be able to establish past persecution; the applicant must prove that he or she is in danger of future persecution.[72]

Part V: Conclusion

It is reasonable to suggest that A.G. Sessions’ opinion serves a broader goal in the form of political gaslighting.  The Trump Administration, Republican Party and the greater American population are familiar with this tactic in politics.[73]  A.G. Sessions’ opinion is an example of how to subtly subvert the greater issues of gender-based violence and the lack of acceptance of gender-based persecution.  He does this by implementing harrowing language that attacks America’s faltering sense of inclusivity under immigration law.  His confusing summation of asylum law requirements undermines the foundational principle of protecting a “person who faces serious human rights abuses” under asylum law.[74]  This only contributes to the growing inaccurate view of immigrants today.

* Jessica Senat, Law Student at Touro College Jacob D. Fuchsberg Law Center, class of 2020. Received a Bachelor of Arts in English Literature from Fordham University at Lincoln Center.

[1] Gaslight (Metro-Goldwyn-Mayer 1944) (a mystery-thriller film about a husband who manipulates his wife into believing that she is going insane).

[2] 27 I. & N. Dec. 316 (A.G. June 11, 2018).

[3] Id. at 317.

[4] The provision states in relevant part “[t]he Board shall refer to the Attorney General for review of its decision all cases that: (i) The Attorney General directs the  Board to refer to him.”  8 C.F.R. § 1003.1(h)(1) (2018).

[5] Matter of A-B-, 27 I. & N. Dec. at 320 (discussing that one must show that the government is unable to address violence or persecution in order to successfully apply for asylum).

[6] 8 U.S.C. § 1158(b)(1)(B)(i) (2018) (“To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”).

[7] Matter of A-B-, 27 I. & N. Dec. at 333.

[8] Andrea Binder, Gender and the “Membership in a Particular Social Group” Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001).

[9] Id. at 169.

[10] Id. at 170.

[11] Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009); Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014), as revised (Jan. 27, 2014) (4th and 7th Circuits holding that being a former gang member is recognized as a particular social group); Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007); Gonzalez v. U.S. Atty. Gen., 820 F.3d 399 (11th Cir. 2016) (the 9th and 11th Circuits holding that former/current gang membership does not constitute a particular social group for the purposes of the Asylum statute).

[12] Matter of Acosta, 19 I. & N. Dec. 211, 211 (BIA March 1, 1985).

[13] Merriam-Webster defines Gaslighting as “manipulative behavior used to confuse people into thinking their reactions are so far off base that they’re crazy.”  Gaslighting, Merriam-Webster, https://www.merriam-webster.com/dictionary/gaslighting (last visited Oct. 26, 2018).

[14] Kathryn M. Bockley, A Historical Overview of Refugee Legislation: The Deception of Foreign Policy in the Land of Promise, 21 N.C. J. Int’l L. & Com. Reg. 253, 259 (1995); Refugee Timeline: Immigration and Naturalization Service Refugee Law and Policy Timeline, 1891-2003, U.S. Citizenship & Immigr. Services, https://www.uscis.gov/history-and-genealogy/our-history/refugee-timeline (last updated Feb. 20, 2018).

[15] Bockley, supra note 14, at 259.

[16] Bockley, supra note 14, at 259 (“The Quota Act set forth percentages of immigrants eligible for admission from both northern and southeastern Europe based on percentages derived from the U.S. Census Bureau.  However, immigration from the western European countries remained unrestricted . . . the Quota Act has been widely criticized for elevating the issues of race, ethnic prejudice and assimilation above any concerns for human suffering or the desperate situation of particular refugees.” (footnote omitted)).

[17] Refugee Timeline, supra note 14 (discussing that the INA got rid of the quota system but still included preferences that favored immigrants from eastern and northern Europe).

[18] Law of Asylum in the United States § 1:2 (2018) (explaining that, in the United States, there are three major forms of protections for refugees: asylum, withholding of removal, and convention against torture).

[19] Id.; see also Bockley, supra note 14, at 253.

[20] Bockley, supra note 14, at 253.

[21] Refugee Timeline, supra note 14.

[22] Refugee Timeline, supra note 14.

[23] Bockley, supra note 14, at 253; also see Melissa J. Hernandez Pimentel, The Invisible Refugee: Examining the Board of Immigration Appeals’ “Social Visibility” Doctrine, 76 Mo. L. Rev. 596 (2010).

[24] 8 U.S.C. § 1158(b)(1)(B)(i) (2018) (“To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”).

[25] Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA March 1, 1985) (holding that the PSG requirement meant “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.  The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership”).

[26] Id.

[27] See Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA July 30, 2008); Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA July 30, 2008) (in both cases, respondents were fleeing gang violence, and the BIA reviewed the eligibility of persons who applied for asylum on the basis of being a member of a gang).

[28] Matter of S-E-G-, 24 I. & N. Dec. at 584; Matter of E-A-G-, 24 I. & N. Dec. at 593.

[29] Matter of S-E-G-, 24 I. & N. Dec. at 584.

[30] 26 I. & N. Dec. 227 (BIA Feb. 7, 2014).

[31] Id. at 240.

[32] Id. at 241.

[33] Id. at 242.

[34] Matter of W-G-R-, 26 I. & N. Dec. 208, 223 (BIA Feb. 7, 2014).

[35] Id. at 223 (“[T]he persecutor’s views play a greater role in determining whether persecution is infliction on account of the victim’s membership in a particular social group.”).

[36] Matter of M-E-V-G-, 26 I. & N. Dec. 227, 241 (BIA Feb. 7, 2014).

[37] Rachel Gonzalez Settlage, Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to the Acosta Definition of “A Particular Social Group”, 30 Geo. Immigr. L.J. 287, 310 (2016).

[38] Id.

[39] Id.; see also Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R, Nat’l Immigrant Just. Ctr., June 2018, https://www.immigrantjustice.org/sites/default/files/PSG%2520Practice%2520Advisory%2520and%2520Appendices-Final-1.22.16.pdf.

[40] Settlage, supra note 37, at 310.

[41] This blog post does not attempt to provide an exclusive definition of gender-based violence.  For the sake of the argument, the focus is to look into how it affects women under U.S. refugee and asylum laws.

[42] Courts often deny the petitioners characterization of the membership group he or she alleges to belong to: Gomez v. I.N.S., 947 F.2d 660 (2d Cir. 1991) (Petitioner appealed decision from BIA that denied asylum protection from guerrilla Salvadorian guerillas who raped and assaulted her. The Second Circuit concluded that Gomez “failed to produce evidence that women who have previously been abused by the guerillas” were a particular social group and that petitioner did not meet her evidentiary burden by submitting evidence of past persecution.); S.E.R.L. v. Attorney Gen. U.S., 894 F.3d 535, 555 (3d Cir. 2018) (holding that appellant failed to meet the social distinct standard because courts did not believe “immediate family members of Honduran women unable to leave a domestic relationship” was a socially distinct group in Honduras); Reyes v. Sessions, No. 17-9550, 2018 U.S. App. LEXIS 26376, at *7 (10th Cir. Sept. 18, 2018) (rejecting Appellant Castillo Reyes’s proposal that she belonged to a “social group of female victims of domestic violence “as is circularly defined by the harm suffered by its members and therefore isn’t a valid particular social group under the INA.”).

[43] Binder, supra note 8, at 169.

[44] Binder, supra note 8.

[45] Binder, supra note 8, at 167-168.

[46] Binder, supra note 8, at 168.

[47] Binder, supra note 8, at 169.

[48] Binder, supra note 8, at 169.

[49] Binder, supra note 8, at 169.

[50] Binder, supra note 8, at 167.

[51] Melanie Randall, Refugee Law and State Accountability for Violence Against Women: A Comparative Analysis of Legal Approaches to Recognizing Asylum Claims Based on Gender Persecution, 25 Harv. Women’s L.J. 281, 294 (2002) ( “U.S. refugee law has yet to grapple adequately with the fact that gender can form the basis of a ‘particular social group,’ and, as a result, some gender claims have been allowed but only through convoluted legal logic, while others have simply been denied.”).

[52] 8 U.S.C. § 1158(b)(1)(B)(i) (2018); see also In re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA June 13, 1996) (though this case was viewed as a breakthrough for addressing gender violence as an actual basis for asylum protection, it did not directly address persecution on account of gender but opted for a more narrow analysis instead).  See Randall, supra note 51, at 295.

[53] 26 I. & N. Dec. 388 (BIA August 26, 2014).

[54] Id. at 389.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 392.

[60] Id. at 393-4.

[61] Id.

[62] Matter of A-B-, 27 I. & N. Dec. 316, 319 (A.G. June 11, 2018).

[63] Id.

[64] Asylum Practice Advisory: Applying for Asylum after Matter of A-B-, Nat’l Immigrant Just. Ctr., June 2018, https://www.immigrantjustice.org/sites/default/files/content-type/resource/documents/2018-06/Matter%20of%20A-B-%20Practice%20Advisory%20-%20Final%20-%206.21.18.pdf.

[65] Matter of A-B-, 27 I. & N. Dec. at 337.

[66] Asylum Practice Advisory, supra note 64.

[67] Matter of A-B-, 27 I. & N. Dec. at 319.

[68] Id.; “The fact that in some cases, Courts have found an A-R-C-G style PSG not viable based on the facts of the case, or that the asylum seeker was not a member of her proposed group, does not mean that A-R-C-G- is not workable, rather that it is a functioning legal tool.”  Asylum Practice Advisory, supra note 64.

[69] Matter of A-B-, 27 I. & N. Dec. at 317.

[70] Asylum Practice Advisory, supra note 64.

[71] Matter of A-B-, 27 I. & N. Dec. at 334-35 (“[I]f a group is defined by the persecution of its members then the definition of the group moots the need to establish actual persecution.”).

[72] Asylum Practice Advisory, supra note 64 (citing Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) (“a group based on the characteristic of having been forcibly recruited as a child soldier includes the harm of forced recruitment as a part of its definition and so would fail as to past persecution if the asylum seeker was arguing he had been persecuted in the form of forced recruitment because of his status as a forcibly recruited child solder.  But if vigilantes were targeting children who had been forced to be soldiers, the claim could prevail because the harm feared (e.g. attacks by vigilantes) is different from the harm that places one in the PSG.”)).

[73] Amanda Carpenter, I’m a Republican. Why is My Party Gaslighting America?, Politico (Jan. 30, 2018), https://www.politico.com/magazine/story/2018/01/30/republican-party-release-the-memo-gaslighting-america-216554; Heidi Li Feldman, What Lawyers Can and Should Do About Mendacity in Politics, 56 Duq. L. Rev. 125 (2017).

[74] Law of Asylum in the United States, supra note 18.

Conditional Spending: Enabling States to Prevent Mass Shootings

TLR BLOG

By Zachary Segal, J.D Candidate, Junior Editor, Touro Law Review

In the wake of the Marjory Stoneham Douglas High School massacre in Parkland, Florida, students[1], State governments,[2] retailers,[3] and even the President[4], are calling on Congress to enact stricter firearm regulation, increased mental health screening, and added security for schools. These calls are a bi-product of the growing frustration that mass shootings, caused by gun violence and unregulated access to firearms by mentally ill individuals, is sweeping the nation by storm.[5] Congress, however, has rebuked these calls arguing the matter should be dealt with locally[6] while others argue mental health, not guns, cause mass shootings.[7]

Considering Congressional efforts, following mass shootings, have been futile and there is disagreement as to the cause—maybe it is time for Congress to pass the torch to the States pursuant to its Article I power to “Lay and collect Taxes … for the common defense and general Welfare of the United States.”[8] This power includes the ability to incentivize States with funds conditioned on their enacting desired laws, regulations, or guidelines; this practice is called conditional spending.[9] Thus, one solution to the national mass-shooting crisis is to entice States with renewed funds for mental health funds conditioned on States passing, for example, “red flag” laws.[10] Last May, Rep. Carbajal (CA) introduced H.R. 2598, which conditions funds for red flag laws on State’s enacting them.[11]

Red flag laws, also known as extreme risk laws, allow a judge to confiscate firearms belonging to an individual who, upon a finding of probable cause, poses an extreme risk to himself or others.[12] In Connecticut, for example, a report is issued to the police regarding an individual who is deemed to pose an imminent risk to himself or others.[13] The police, then, conduct an independent investigation and if there is probable cause, two officers must swear the individual poses an imminent risk.[14] The affidavit is submitted to the local State Attorney who decides whether to request a warrant.[15] If the State Attorney so decides, the warrant request is presented to a Superior Court Judge who determines whether there is in fact probable cause to seize the firearms.[16] If the Judge finds probable cause, the warrant is issued and the police may search for, and seize any firearms or ammunition located at the individual’s residence.[17] Finally, following a fourteen day cooling off period, the State must prove by clear and convincing evidence the individual whose guns were seized presents a continued imminent risk to himself or others.[18] If the State carries its burden, the individual loses the firearms for a year and cannot purchase new ones.[19]

Presently, five states have red flag laws, nineteen had legislation pending prior to Parkland, and five have introduced legislation following the mass shooting in Parkland, Florida.[20] This proposal, like H.R. 2598, in effect, removes the federal government from the equation by placing the impetus on the States to accept, or reject, the funds thereby making States politically accountable to their constituents. Given the recent cuts in FY 2018’s budget for mental health,[21] Congress need not incentivize the States with funding by restricting current funds. Rather, H.R. 2598, or a new bill, should renew mental health funds through the prescribed method detailed below.

The 1987 Supreme Court case, South Dakota v. Dole,[22] articulated four limitations Congress must satisfy before States can accept the conditional funds: (1) the spending must be for the general welfare; (2) the condition must be clear and unambiguous; (3) condition has to be reasonably related to the purpose of the expenditure; and (4) the condition is not barred another constitutional provision.[23] In Dole, the Court held States were eligible to accept extra highway funding because Congress’s condition of raising the drinking age to receive the funds were reasonably related to reducing drunk driving accidents.[24] The harbinger, however, to this conditional spending initiative involved whether it violated the Twenty-first Amendment.[25]

In Dole, the Court held because Congress was conditioning funds to address a dangerous situation—highway accidents caused by differing state drinking ages—it was spending for the general welfare.[26] The Court noted, moreover, it generally defers to Congress regarding its explanation behind why the conditioned funds are for the general welfare.[27]  Here, Congress would be conditioning funds to address a similar dangerous situation—mass shootings caused by easy access to firearms by the mentally ill.[28] The second limitation of Dole, likely will not pose a problem to Congress so long as the Congressional act “clearly and unambiguously” informs States it will receive funds for mental health and school safety conditioned on their enacting red flag laws.[29] The third limitation, too likely will be satisfied because the conditions on federal funds are related to a national concern i.e. ending mass shootings.[30]

The fourth limitation, however, presents the looming question as to whether the suggested conditional spending plan violates another Constitutional provision—the Second Amendment. In Dole, the Court rejected petitioner’s argument that the Twenty-first amendment barred Congress from spending and regulating an activity already prohibited, alcohol.[31] The Court held “the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly.”[32] As a corollary, the Court explained the Tenth Amendment was not being violated because Congress was not offering funds “to induce the States to engage in activities that would themselves be unconstitutional.” In other words, unduly coercive incentives are unconstitutional.

While satisfying this prong may appear troublesome, it is not thanks to District of Columbia v. Heller.[37] Heller declared unconstitutional a D.C. statute prohibiting handgun possession in the home for self-defense.[38]Although Heller declared the Second Amendment creates an individual right to bear arms for self-defense in the home,  it maintained the right is not absolute.[39] Specifically, the Second Amendment does not protect the right of citizens to carry arms for any sort of confrontation or limit “longstanding prohibitions on the possession of firearms by … the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as school and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[40] Two years later, the Court, in McDonald v. City of Chicago[41] held the right protected in Heller is incorporated against the States through the Fourteenth Amendment.[42] In other words, neither the federal government, nor state governments can infringe upon the right to bear arms for self-defense in the home, but can regulate arms consistent with the dicta in Heller.[43]

Red flag laws, despite criticism that they violate the Second Amendment, have been upheld in California,[44] Connecticut,[45]and Indiana[46] courts. The courts uniformly relied on the dicta in Heller in upholding the constitutionality of the State’s red flag law.[47] Moreover, contrary to Republican concerns regarding Due Process,[48] the aforementioned State courts found no Due Process issues with the red flag laws.[49]

Following the mass shooting in Parkland, eighteen states, including the District of Columbia, have introduced red flag laws to address the mass-shooting crisis.[50] Conversely, some States are making access to firearms easier to provide citizens with the chance to defend them against a shooter.[51] While the means adopted by the States may differ, the end is uniform among them—ending massing shootings. Proposals, like increased background checks[52] and arming teachers[53] likely will not address the mutually agreed upon cause of mass shootings, mental health.

However, at least one study on the impact of Connecticut’s red flag law on firearm related suicides, suggests such laws decrease these types of suicides.[54] Moreover, considering in most of the recent mass shootings authorities were warned the shooter might inflict harm on himself or others[55], red flag laws will give law enforcement the opportunity to proactively act on these concerns.[56]

Conditioning mental health funds on State’s enacting red flag laws is both sensible and Constitutional. H.R. 2598 provides Congress with an opportunity to act without imposing its federal power on individual States. Considering H.R. 2598 was proposed prior to Parkland, perhaps Congress should condition renewed mental health funds in conjunction with funds for the red flag laws. Should the States reject the funds, however, Congress still made the effort and the States, not Congress, will be accountable to its citizens. In conclusion, considering Congress is unable, or unwilling, to pass federal legislation, it should enable the States to do so with something more practical than offering “thoughts and prayers.”

 

 

 

 

 

[1] Ryan Grenoble, School Walkouts Go Nationwide As Students Push For Gun Control, Huffington Post, February 21, 2018, https://www.huffingtonpost.com/entry/school-walkout-gun-control-protest_us_5a8d9afae4b00a30a251a02d (last visited Feb 27, 2018).

[2]Katharine Q. Seelye & Jess Bidgood, What Are States Doing About Gun Violence After the Florida Shooting?, New York Times, February 26, 2018, https://www.nytimes.com/2018/02/26/us/gun-control-laws.html (last visited Feb 27, 2018). (“It is not just in Florida where the mass shooting at a high school is prompting lawmakers to take up gun control legislation. The same thing is happening across the country, from Washington to Vermont.”); See also Ella Nilsen, 5 Republican and Democratic governors on what states can do on gun control, Vox, February 26, 2018, https://www.vox.com/policy-and-politics/2018/2/26/17049442/republican-democratic-governors-states-gun-control (last visited Feb 27, 2018).

[3] Julie Creswell & Michael Corkery, Walmart and Dick’s Raise Minimum Age for Gun Buyers to 21, New York Times, February 28, 2018, https://www.nytimes.com/2018/02/28/business/dicks-major-gun-retailer-will-stop-selling-assault-style-rifles.html (last visited Feb 28, 2018). (Walmart announced it would no long sell guns or ammunition to people under twenty-one years old. Dick’s Sporting Goods also raised the age for selling guns or ammunition to 21 as well as discontinuing the sale of assault style rifles.)

[4] Jeremy Diamond & Dan Merica, Trump voices support for certain gun control measures, CNN, February 28, 2018, https://www.cnn.com/2018/02/28/politics/gun-laws-donald-trump-congress/index.html (last visited Feb 28, 2018); Ayesha Rascoe & Roberta Rampton, Trump pushes Congress for broad bill on guns after school shooting, Reuters, February 28, 2018, https://www.reuters.com/article/us-usa-guns-trump/trump-pushes-congress-for-broad-bill-on-guns-after-school-shooting-idUSKCN1GC2M0 (last visited Feb 28, 2018).

[5]  See generally supra note 1-4.

[6] Susan Cornwell & Richard Cowan, U.S. congressional Republicans reject new limits on guns, Reuters, February 27, 2018, https://www.reuters.com/article/us-usa-guns/u-s-congressional-republicans-reject-new-limits-on-guns-idUSKCN1GB0K8 (last visited Feb 28, 2018) (House Speaker Paul Ryan, regarding arming teachers, was that “Local governments, not Congress, should decide whether to arm teachers.”

[7] Kimberly Leonard, Alex Azar says HHS will be ‘laser focused’ on mental health following shooting, Washington Examiner, February 15, 2018, http://www.washingtonexaminer.com/alex-azar-says-hhs-will-be-laser-focused-on-mental-health-following-shooting/article/2649260 (last visited Feb 27, 2018); Jonathan M. Metzl & Kenneth T. MacLeish, Mental Illness, Mass Shootings, and the Politics of American Firearms, 105 American Journal of Public Healthy240–249 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4318286/ (last visited Feb 27, 2018). (““Four assumptions frequently arise in the aftermath of mass shootings in the United States: (1) that mental illness causes gun violence, (2) that psychiatric diagnosis can predict gun crime, (3) that shootings represent the deranged acts of mentally ill loners, and (4) that gun control “won’t prevent” another Newtown (Connecticut school mass shooting).””).

 

[8] U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

[9] See infra note 22.

[10] See Gun Violence Restraining Order Act of 2017, H.R. 2598, 115th Cong. (2017); See also Red Flag Laws: Helping Prevent Mass Shootings, EverytownResearch.org (2018), https://everytownresearch.org/red-flag-laws-helping-prevent-mass-shooting/#foot_note_2 (last visited Feb 28, 2018).

[11] Id.

[12] Id.; See also Cal. Penal Code § 18125; Cal. Penal Code § 18150; Cal. Penal Code § 18175; Conn. Gen. Stat. § 29-38c; Ind. Code § 35-47-14-1; Ind. Code § 35-47-14-2; Ind. Code § 35-47-14-5; Ind. Code § 35-47-14-6; Ind. Code § 35-47-14-8; Oregon S. 719, 79th Leg., Reg. Sess. (Or. 2017)(not yet codified); Wash. Rev. Code § 7.94.030; Wash. Rev. Code § 7.94.040; Wash. Rev. Code § 7.94.050; Wash. Rev. Code § 7.94.080.

[13] Jeffrey W. Swanson, Michael A. Norko, Hsiu-Ju Lin, Kelly Alanis-Hirsch, Linda K. Frisman, Madelon V. Baranoski, Michele M. Easter, Allison G. Robertson, Marvin S. Swartz & Richard J. Bonnie, Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?, 80 Law and Contemporary Problems 179-208, 187 (2017),
https://scholarship.law.duke.edu/lcp/vol80/iss2/8  (last visited Feb 28, 2018);

[14] Id. (citing Conn. Gen. Stat. Ann. § 29-38c) (“The police take the report and must conduct an independent investigation to gather facts that might support a determination of “probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person . . . .”); See also Cal. Penal Code § 18150(b)(1) (same); Ind. Code § 35-47-14-1 (same); Wash. Rev. Code § 7.94.030(3)(a) (same).

[15] Id.

[16] Id. (“In determining whether grounds for the application exist or whether there is probable cause to believe they exist, the judge shall consider: (1) Recent threats or acts of violence by such person directed toward other persons; (2) recent threats or acts of violence by such person directed toward himself or herself; and (3) recent acts of cruelty to animals as provided in subsection (b) of section 53-247 by such person. In evaluating whether such recent threats or acts of violence constitute probable cause to believe that such person poses a risk of imminent personal injury to himself or herself or to others, the judge may consider other factors including, but not limited to (A) the reckless use, display or brandishing of a firearm by such person, (B) a history of the use, attempted use or threatened use of physical force by such person against other persons, (C) prior involuntary confinement of such person in a hospital for persons with psychiatric disabilities, and (D) the illegal use of controlled substances or abuse of alcohol by such person.”); See also Cal. Penal Code § 18155 (same);

[17] Id.; See also Cal. Penal Code § 18160 (21 day cooling off period); Ind. Code § 35-47-14-5 (14 day cooling off period); Wash. Rev. Code § 7.94.050(5) (same).

[18] Id.

[19] Id.; See also Cal. Penal Code § 18175 (firearms are held by court for one year); Ind. Code § 35-47-14-6 (firearms are held by court until court determines individual can resume possession.); Wash. Rev. Code § 7.94.080(1) (firearms are held by court for one year at which point petitioner can request a new hearing).

[20] Jason Hanna & Laura Ly, After the Parkland massacre, more states consider ‘red flag’ gun bills CNN (2018), https://www.cnn.com/2018/03/07/us/gun-extreme-risk-protection-orders/index.html (last visited Mar 7, 2018).

[21]See HHS Office of the Secretary & Office of Budget (OB), FY 2018 Budget in Brief – SAMHSAHHS.gov(2017), https://www.hhs.gov/about/budget/fy2018/budget-in-brief/samhsa/index.html (last visited Mar 7, 2018) ($252,000,000 cut from mental health).

[22] 483 U.S. 203 (1987).

[23] Id. at 207-08.

[24] Id. at 211-12. (“Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power.”)

[25] Id. at 209.

[26] Id. at 208.

[27]  483 U.S. 203, 207 (1987) (“The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of “the general welfare.”).

[28] See supra note 14, at 184 (“Moreover, individuals at high risk of violence commonly have access to firearms at home even if they would not qualify to buy a gun themselves, because they live in households with guns legally purchased by family members or others.”).

[29] Id. at 208 (“Second, we have required that if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously …, enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.”); See also supra note. 10 (H.R. 2598: “In order to receive a grant under section 4, on the date that is 3 years after the date of enactment of this Act, each State shall have in effect legislation that—(1) authorizes a gun violence prevention order and gun violence prevention warrant in accordance with subsection (b); and (2) requires each law enforcement agency of the State to comply with subsection (c).”).

[30] Id. at 208-09 (“Indeed, the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended—safe interstate travel. This goal of the interstate highway system had been frustrated by varying drinking ages among the States. … By enacting § 158, Congress conditioned the receipt of federal funds in a way reasonably calculated to address this particular impediment to a purpose for which the funds are expended.”).

[31] Id. at 209.

[32] Id.

[33] Id. at 210; See U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”); See also Printz v. United States, 521 U.S. 898, 935 (1997) (“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”).

[34] 567 U.S. 519, 581 (2012).

[35] Id. (“[T]he financial “inducement” Congress has chosen is  more than “relatively mild encouragement”—it is a gun to the head.”)

[36] Id.

[37] 554 U.S. 570 (2008).

[38] Id.

[39] Id. at 595.

[40] Id. at 687.

[41] 561 U.S. 742 (2010).

[42] Id. at 790.

[43] Id. at 782 (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  We repeat those assurances here.” (citations omitted)).

 

[44] City of San Diego v. Boggess, 216 Cal. App. 4th 1494, 1497 (2013) (“[B]oth Heller and McDonald identified an expressly nonexclusive list of traditional limitations on the right to bear arms, characterizing them as “presumptively lawful regulatory measures….” Section 8102, which prohibits a person detained under section 5150 from recovering their seized firearms upon proof by the seizing agency that returning the weapon would be likely to result in endangering that person or others, is such a regulatory measure. We reject that in Heller and McDonald the U.S. Supreme Court categorically invalidated such laws, which are designed to keep firearms out of the hands of a dangerous person.”).

[45] Hope v. State, 133 A.3d 519, 524-25 (Conn. App. Ct. 2016) (“Section 29-38c does not implicate the second amendment, as it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes. It restricts for up to one year the rights of only those whom a court has adjudged to pose a risk of imminent physical harm to themselves or others after affording due process protection to challenge the seizure of the firearms. The statute is an example of the longstanding ‘presumptively lawful regulatory measures’ articulated in District of Columbia v. Heller. . . . We thus conclude that § 29-38c does not violate the second amendment.”).

[46] Redington v. State, 992 N.E.2d 823, 846 (Ind. Ct. App. 2013) (“[T]he United States Supreme Court has recently and repeatedly recognized the legitimate governmental purpose of prohibiting the mentally ill from possessing firearms. See McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). The purpose of the Act is to provide a mechanism for the State to seize and retain firearms from persons it deems “dangerous,” which as Section 1 describes above, are persons who, due to mental instability, present risk of personal injury to themselves or others, be it imminent or in the future. Accordingly, and giving deference to the legislative decision, we conclude that the Act is rationally calculated to advance this legitimate governmental interest.”).

[47] Id.; See also supra note 43, 44.

[48] Lindsey McPherson, Democrats Push Bill They Say Could Have Prevented Parkland Shooting, Roll Call, February 16, 2018, https://www.rollcall.com/news/politics/democrats-push-bill-say-prevented-parkland-shooting (last visited Mar 7, 2018).

[49] Hope, 133 A.3d at 524.; Boggess, 216 Cal. App. 4th at 1503; Reddington, 992 N.E.2d at 848.

[50] See generally supra note 10, 12.

[51] See supra note 2 (Kansas introduced legislation to lower the age for concealed carry from 21 to 18 and allowing permits to carry on college campuses; South Dakota passed a law allowing people to carry guns at school and churches.).

[52] See supra note 13, at 183 (citing Jeffrey W. Swanson, Michele M. Easter, Allison G. Robertson, Marvin S. Swartz, Kelly Alanis-Hirsch, Daniel Mosely, Charles Dion & John Petrila, Gun Violence, Mental Illness, and Laws that Prohibit Gun Possession: Evidence from Two Florida Counties, 35 HEALTH AFF. 1067, 1067–75 (2016) (“Similarly, a substantial proportion of those at risk for committing violent crimes with guns do not have a record that would prohibit them from purchasing or possessing firearms.”).

[53] Michael Hansen, There are ways to make schools safer and teachers stronger-but they don’t involve guns Brookings (2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/02/27/there-are-ways-to-make-schools-safer-and-teachers-stronger-but-they-dont-involve-guns/ (last visited Mar 7, 2018).

[54] Supra  note 13, at 208.

[55] Andrew Gumbel, Mass shootings: why do authorities keep missing the warning signs? The Guardian (2018), https://www.theguardian.com/us-news/2018/mar/06/mass-shootings-fbi-law-enforcement-prevention (last visited Mar 7, 2018) (“In almost every case, behaviors were observed and caused concern, whether in the physical world or in cyberspace through emails and social media activity, and in many cases these were reported to law enforcement,” said John Cohen, a former senior counter-terrorism coordinator with the Department of Homeland Security who now conducts training on spotting potential mass killers.”)

[56] See supra note 13, at 185 (“Rather, in order to effectively deter and prevent people like Hicks [Chapel Hill, NC shooter who killed three Muslim students] from using guns in a harmful way, a different kind of law would have been needed: a legal tool to effectively remove guns from a dangerous person who already possesses them, that is, a preemptive, risk-based gun seizure law that would apply to dangerous-but-not-otherwise-gun-prohibited persons.”)

 

Conceptual Separability Conceptualized

TLR BLOG

By Joseph Tromba, J.D. Class of 2018 Touro Law Review Associate Editor

Courts have struggled to devise a test to establish “whether ‘the pictorial, graphic, or sculptural features’ incorporated into the design of a useful article ‘can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the [useful] article’ when those features cannot be removed physically from the useful article.”[1] This doctrine is applied to countless commodities that directly and indirectly impact the day-to-day lives of everybody in society.[2] Further, an establishment of separability, either conceptual or physical, is a precondition to copyrightability for a design of a product.[3]

The distinction between design elements that are protectable and functional elements that are not protectable can be unclear.[4] Generally, the concept of separability is the standard of copyrightability for useful articles’ designs.[5] The types of works that are subject to the separability analysis are broad; courts have implemented the separability doctrine to decide “the copyrightability of the designs of a variety of everyday objects, including furniture, shoes, and objects of entertainment for both children and adults.”[6] There exists “two ways to determine whether a pictorial, graphic, or sculptural work is separable from the utilitarian aspects of an article—physical separability and conceptual separability.”[7]

The Copyright Office outlines “the physical-separability test as follows: ‘Physical separability means that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.’”[8] For example, the Office contemplates a creative decorative ornament of a vehicle,’ which could be removed from the vehicle without demolishing the vehicle or the ornament, a physically separable aspect a vehicle, which can be recognized independently from and is able to exist separately of, the functional aspects of the vehicle.[9] However, the physical separability test is not as effective when the useful article is not three-dimensional since it is difficult to physically remove the useful article from the item it appears on.[10] When features cannot be physically separated from an object, the conceptual separability test is applied.[11]

There have been many different approaches presented for confronting the issue of conceptual separability.[12] Courts have struggled to establish one universal test for whether the design of a useful article and the utilitarian aspects of a useful article can be separated and exist independently of one another.[13] Around ten different tests exist within legal commentary to determine separability.[14] Some of these tests are misguided and got muddled down by focusing on other factors, such as the marketability of the design or useful article.[15] To prevent any further inconsistencies and struggles as to how to approach conceptual separability, the Supreme Court finally adopted a general rule.[16]

In Varsity Brands, Inc. v. Star Athletica, L.L.C., Varsity brought a copyright infringement claim against Star Athletica.[17] Varsity alleged that Star marketed uniforms that were substantially similar to Varsity’s copyrighted designs.[18] The Supreme Court decided, in a 6-2 holding, that an aspect that is included in the design of an article can qualify for copyright protection “only if the feature (a) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work” if the design could be conceived separately from the product in which it is involved.[19] Accordingly, the Court held that Varsity’s designs satisfied the test.[20] Essentially, if the design could be conceived separately from the product in which it is involved then the conceptual separability test is satisfied and the design is copyrightable.[21]

Finally, the test creates a national standard for conceptual separability that differs from physical separability.[22] The test is clear, in that it does not confuse physical separability.[23] It places an emphasis on the specific aesthetic features, which are capable of existing separately as intangible features in relation to the solely utilitarian aspects of the article.[24] This test, in theory, looks as if it will accomplish what the physical separability test cannot do, such as dealing with the intangible aspects of the useful article as actually being intangible aspects, and is a competent rule to exist alongside the physical separability test.[25] This test firmly establishes a basic approach that could be applied widespread, and will hopefully be an effective approach to compliment the physical separability standard.[26] Further, the test addresses the actual purpose of conceptual separability better than the preexisting approaches that existed in legal precedent because this test is clearer and does not get muddled in other factors, such as marketability.[27] This standard is a focused test that allows the courts to tackle the issue of whether the aesthetic element of a product is conceptually separable from the utilitarian aspect.[28]

The Court’s recent conceptual separability holding finally provides a national standard for conceptual separability.[29] Conceptual separability is all around us, and it will only continue to expand as time goes on and new designs and useful articles are created.[30] The concept of conceptual separability was thought to have reached its vanishing point because of various the different approaches and interpretations of the idea.[31] Hopefully, this holding will prove to have finally clarified a dividing line between copyrightable designs and noncopyrightable useful article designs.[32] Since the Court’s opinion was released on March 22, 2017, we will have to wait and see how this new test is executed when separability issues arise.[33] Many believe that the future of a $300 billion industry is going to be determined based on this decision.[34]

[1] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 484 (6th Cir. 2015) (holding that the graphic attributes of a creator’s designs were protectable in accordance with the Copyright Act because the Act protects graphic attributes of designs even if the attributes cannot be physically extracted from the article).

[2] Barton R. Keyes, Alive and Well: The (Still) Ongoing Debate Surrounding Conceptual Separability in American Copyright Law, 69 Ohio St. L.J. 109, 111 (2008).

[3] Id. at 110.

[4] Eliya, Inc. v. Kohl’s Dep’t Stores, No. 06 Civ 195(GEL), 2006 WL 2645196, at *10 (S.D.N.Y. Sept. 13, 2006) (holding that a specific shoe design was not conceptually separable because the design of the parts of the shoe could not exist independently).

[5] Sepehr Shahshahani, The Design of Useful Article Exclusion: A Way Out of the Mess, 57 J. Copyright Soc’y U.S.A. 859, 864 (2010).

[6] Keyes, supra note 2, at 111.

[7] Varsity Brands, Inc., at 481.

[8] Id. at 481-82.

[9] Id. at 482.

[10] Id.

[11] Id. at 483.

[12] Varsity Brands, Inc., at 484.

[13] Id.

[14] Mark Hannemann, Star Athletica v. Varsity Brands: Supreme Court Evaluating Copyrights in Features of Useful Articles, Shearman (Apr. 7, 2017), http://www.shearman.com/en/newsinsights/publications/2016/11/star-athletica-v-varsity-brands-supreme-court.

[15] Galiano v. Harrah’s Operating Co., Inc., 416 F.3d 411, 419 (5th Cir. 2005) (ruling that designs were not eligible for copyright protection absent any showing that the designs were marketable separately of their practical function as uniforms).

[16] Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010-11 (2017).

[17] Varsity Brands, Inc., 799 F.3d at 471-76.

[18] Id.

[19] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[20] Gene Quinn & Steve Brachmann, Copyrights at the Supreme Court: Star Athletica v. Varsity Brands, IPWatchdog, http://www.ipwatchdog.com/2017/03/22/copyrights-supreme-court-star-athletica-v-varsity-brands/id=79767/.

[21] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[27] Hannemann, supra note 14; Galiano, 416 F.3d at 419.

[28] Masquerade Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663, 670 (3d Cir. 1990) (holding that a nose mask is not a “useful article” and cannot be copyrighted).

[29] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[30] Keyes, supra note 2, at 111.

[31] Sally M. Donahue, The Copyrightability of Useful Articles: The Second Circuit’s Resistance to Conceptual Separability, 6 Touro L. Rev. 327, 357 (1990).

[32] Quinn & Brachmann, supra note 20.

[33] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[34] Hannemann, supra note 14.

Constitutional Rights Pushed Aside with a Guilty Plea?

TLR BLOG

By Molly Moloney, J.D. Class of 2018 Touro Law Review Associate Editor

On May 30, 2013, Rodney Class parked outside of the U.S. Botanic Garden in Washington D.C., just 1000 feet from the capitol building.[1] U.S. Capitol Police approached his vehicle, looked in the cab, and saw what they believed to be firearms.[2] This led to a search of Class’s car, where 256 rounds of ammunition were found[3] along with three loaded firearms: a Taurus .44 caliber pistol, a Ruger LC9 9mm pistol, and a Henry Arms .44 caliber rifle.[4] Class was subsequently indicted for violating 40 U.S.C. § 5104(e) (“unlawful possession of a firearm on capitol grounds or buildings”)[5] and 22 D.C. Code § 4504(a) (carrying a pistol [outside home or place of business]”).[6]

After his indictment, Class filed several motions to dismiss, arguing, among other things, that the Second Amendment protected his storage of the weapons found in his car.[7] By October 2014, the District Court denied Class’s motions and concluded that the “government-owned parking lot was the same as a ‘government building’ where all weapons could presumptively be banned” and denied his claim that his Second Amendment rights had been violated.[8]

Less than one month after the denial of his motions, Class accepted a plea offer from the Office of The United States Attorney for the District of Columbia and pled guilty to violating 40 U.S.C. § 5104(e).[9] He signed an agreement stating that by accepting the plea offer he was waiving “certain rights afforded by the Constitution of the United States . . . the right to plead not guilty, and the right to a jury trial.”[10] In addition, Class waived his “right to appeal the sentence in this case . . . except . . . the right to appeal [an] illegal sentence,” and waived “any right to challenge the conviction entered or sentence imposed . . .”[11] Class, under pro se representation, signed the agreement on November 16, 2014, with an acknowledgment by attorney A.J. Kramer, his standby counsel.[12] Nonetheless, Class appealed to the Court of Appeals for the D.C. Circuit.[13]

On appeal, Class argued that 42 U.S.C. § 5104(e) violated his Second Amendment right to bear arms in that it “effectively ban[s] law-abiding citizens from securely storing lawfully owned weapons in their cars parked in a publicly accessible lot.”[14] The government argued in response that his right to raise any constitutional claims were inherently waived when he pleaded guilty.[15] The court ultimately sided with the government and refused to address the merits of Class’s constitutional claims.[16] Despite the holding of the D.C. Circuit, Class filed a petition for writ of certiorari to the Supreme Court on September 30, 2016.[17] The Supreme Court granted the petition for writ of certiorari on February 21, 2017, and is on schedule to address the issue that has created a split in the circuit courts: whether constitutional challenges to a statute of conviction are inherently waived when a criminal defendant pleads guilty.[18]

As it stands, the D.C., First, and Tenth Circuits do not allow constitutional challenges to a criminal statute after a guilty plea, while the Third, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits allow such claims.[19] The Seventh and Eighth Circuits make their determinations on a facial and as-applied basis.[20] This circuit split on whether to permit a constitutional challenge after a guilty plea has arisen, in part, because of two inconsistent Supreme Court decisions: Blackledge v. Perry[21] and Menna v. New York.[22] In Blackledge, the Supreme Court held that “when a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”[23] However, one year later in Menna, the Court held that “[a] guilty plea . . . simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is established.”[24] This ambiguity in Supreme Court decisions has likely contributed to the confusion and split in the circuit courts’ interpretation and application.

In October 2017, the Supreme Court will rule on this challenging issue and determine Rodney Class’s fate in regards to his constitutional claims.[25] Not only will this affect Class, but it will affect the rights of any other criminal defendant who pleads guilty in future litigation. With time and the reasoned judgment of the Supreme Court, nine justices will decide whether criminal defendants will be provided an avenue of relief for constitutional violations after a plea of guilty.

[1] Petition for Writ of Certiorari at 5, Class v. U.S., 2016 WL 5765174 (Sept. 30, 2016) (No. 16-424).

[2] Petition for Writ of Cert., supra, note 1.

[3] John Elwood, Relist Watch, SCOTUSblog (Jan. 27, 2017 3:52 PM), http://www.scotusblog.com/2017/01/relist-watch-97/.

[4] Indictment, U.S. v. Class, 2013 WL 9601401 (Oct. 23, 2014) (No. 1:13-cr-00253-RWR).

[5] 40 U.S.C. § 5104(e) (2002).

[6] 22 D.C. Code § 22-4504(a) (2012).

[7] Petition for Writ of Cert., supra note 1, at 6-8.

[8] Petition for Writ of Cert., supra note 1, at 7-8.

[9] Class Plea Agreement, U.S. v. Class, No.: 1:13-cr-00253-RWR (D.D.C. Oct. 23, 2014) ECF No. 169.

[10] Class Plea Agreement, supra note 9, at 5-6.

[11] Class Plea Agreement, supra note 9, at 6.

[12] Class Plea Agreement, supra note 9, at 10. Stand by counsel is an attorney who is appointed to assist a defendant when he or she decides to proceed pro se. Standby counsel, Black’s Law Dictionary (10th ed. 2014).

[13] Petition for Writ of Cert., supra note 1, at 9.

[14] Petition for Writ of Cert., supra note 1, at 9.

[15] Petition for Writ of Cert., supra note 1, at 10.

[16] Petition for Writ of Cert., supra note 1, at 10.

[17] Petition for Writ of Cert., supra note 1.

[18] Petition for Writ of Cert., supra note 1, at 12-13.

[19] Reply Brief for Petitioner at 1-2, Class v. U.S., 2016 WL 34881 (U.S. Jan. 3, 2017) (No. 16-424).

[20] Brief for Petitioner, supra note 19, at 2.

[21] 417 U.S. 21 (1974)

[22] 43 U.S. 61 (1975).

[23] Blackeldge, 417 U.S. at 29-30.

[24] Menna, 43 U.S. at 62, fn. 2.

[25] Supreme Court of the United States, SCOTUSblog, http://www.scotusblog.com/case-files/cases/class-v-united-states/. (last visited April 4, 2017).

 

Does Constitutional Protection Stretch Over the Border?

TLR BLOG

By Kellie Mahoney, J.D. Class of 2018 Touro Law Review Junior Staff Member

On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican boy, was playing with a group of his friends on the Mexican side of a cement culvert near the Paso del Norte Bridge, which separates Mexico from El Paso, Texas.[1] The boys were playing a common game that was known to both Mexican children and Border Patrol Agents alike, in which the boys would run up to the incline of the culvert, touch the barbed-wire fence separating the two countries, and then run back down the incline.[2] United States Border Patrol Agent Mesa approached the group and detained one of Hernandez’s friends.[3] While the agent was still standing in the United States, he fired at least two shots at Hernandez who had retreated from the scene but remained in Mexico.[4] One of those shots struck Hernandez in the face and killed him.[5] Six months after the boy’s death, his parents filed suit in the United States District Court for the Western District of Texas, alleging that Agent Mesa violated the Fourth and Fifth Amendments of the United States Constitution through the use of deadly force and the failure to use reasonable force when making arrests.[6] Mesa moved to dismiss, claiming that Hernandez lacked constitutional protection because of his alien status and the fact that he was physically in Mexico when he was killed.[7] The district court granted Mesa’s motion and Hernandez’s parents filed an appeal.[8]

The United States Court of Appeals for the Fifth Circuit held that Agent Mesa’s arguments against Hernandez’s Fourth Amendment claims were no longer supported by the Supreme Court.[9] In Boumediene v. Bush,[10] the Supreme Court addressed the standards used in applying Fourth Amendment constitutional principles abroad.[11] In this case, the Court precluded the use of a categorical test such as the one Agent Mesa proffered.[12] Thus, the Fifth Circuit held that

Boumediene and the cases cited therein indicate that [its] inquiry involves the selection application of constitutional limitations abroad, requiring [the court] to balance the potential of such application against countervailing government interests. In other words, [the court’s] inquiry is not whether a constitutional principle can be applied abroad; it is whether it should.[13]

Using this malleable standard, the Fifth Circuit ultimately decided that three “objective factors and practical concerns” were relevant: “(1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right.”[14] Using these factors and concerns, the Fifth Circuit found that Hernandez “lacked sufficient voluntary connections with the United States to invoke the Fourth Amendment.”[15] The Court then discussed Hernandez’s Fifth Amendment claim.

Hernandez’s Fifth Amendment claim stated that Agent Mesa showed a callous disregard for Hernandez’s rights by using excessive deadly force when he was unarmed and presented no threat.[16] After discussing the more flexible standards of the Fifth Amendment’s application extraterritorially, the Fifth Circuit held that “a noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States may invoke the protections provided by the Fifth Amendment.”[17]

Hernandez filed a petition for writ to the Supreme Court on July 23, 2015.[18] The issues presented to the Court are (1) whether a formalist or functionalist analysis governs 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) whether qualified immunity may be granted or denied based on facts unknown to the officer at the time of the incident; and (3) whether the claim, in this case, may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.[19] Oral argument is set to start on February 21, 2017.[20] A final holding by the Supreme Court could give a definitive answer as to whether those who are injured or killed in Mexico by United States Border Patrol agents have standing to sue in the United States.[21] Since 2010, there have been six cases similar to the Hernandez case.[22] Proponents of the families of the victims argue that international law, national law, and basic human rights simply cannot allow for an agent to shoot and kill someone without recourse.[23] Groups on the other side, such as the National Border Patrol Council, are concerned that such recourse would cause agents fear when acting against an aggressor in Mexico.[24] As such, if the Supreme Court definitively grants non-citizens the right to sue U.S. Border Patrol agents, the interactions between those agents and the people of Mexico, and citizens of other countries, will be drastically changed.

[1] Hernandez v. U.S., 757 F.3d 249, 255 (5th Cir. 2014).

[2] Id.

[3] Brittany Davidson, Shoot First, Ask Later: Constitutional Rights at the Border after Boumediene, 64 Am. U. L. Rev. 1547, 1548 (2014-2015).

[4] Hernandez, 757 F.3d at 255.

[5] Id.

[6] Id. The Fourth Amendment states

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fifth Amendment states

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken without just compensation.

U.S. Const. amend. V.

[7] Id.

[8] Hernandez, 757 F.3d at 255-56.

[9] Id. at 260.

[10] Boumediene v. Bush, 553 U.S. 723 (2008).

[11] Id. at 766-67.

[12] Id. at 764.

[13] Hernandez, 757 F.3d at 262.

[14] Id.

[15] Id. at 266.

[16] Id. at 267.

[17] Hernandez, 757 F.3d at 272. The Fifth Circuit differentiates the Fourth Amendment analysis from the Fifth Amendment analysis, concluding that Hernandez’s claim “is not constrained by prior precedent on extraterritoriality, unlike [his] claim under the Fourth Amendment.” Id. at 268. It goes on to discuss the Fifth Amendments application to “any person,” rather than “the people” protected by the Fourth Amendment. Id. The Court also recognizes that the practical concerns that counseled against Fourth Amendment protection, do not carry the same weight as to the Fifth Amendment context (such as the need for surveillance, varying degrees of reasonableness, etc.). Id. at 270.

[18] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[19] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). “Under Bivens a person may sue a federal agent for money damages when the federal agent has allegedly violated that person’s constitutional rights.” Hernandez, 757 F.3d at 272. This is not, however, an automatic entitlement. Id. The Court must first ask “whether any alternative, existing process for protecting the constitutionally recognized interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. (quoting Minneci v. Pollard, __ U.S. __, 132 S.Ct. 617, 621, 181 L.Ed.2d 606 (2012)). If, as in the Hernandez family’s case, there is no other alternative, the Court will move to the second step which requires the Court to “exercise [its] judgment in determining whether ‘any special factors counsel hesitation.’” Id. at 274-75. Here, the Fifth Circuit found no such factors. Id. at 277.

[20] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[21] Rob, O’Dell, Supreme Court to hear Border Patrol Cross-Border Killing Case, The Arizona Republic, Oct. 11, 2016, http://www.azcentral.com/story/news/politics/border-issues/2016/10/11/us-supreme-court-cross-border-killing-mexican-sergio-guereca-border-patrol/85671248/.

[22] Id.

[23] Id.

[24] Id.

Lynch v. Morales-Santana: Equal Protection, Gender Discrimination, and Derivative Citizenship

TLR BLOG

By Brett Potash, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In November 2016, the Supreme Court heard arguments on a case involving an Equal Protection claim.[1] Luis Ramon Morales-Santana’s father was born in Puerto Rico on March 19, 1900, and obtained United States citizenship in 1917.[2] Twenty days before he turned nineteen years old, he left Puerto Rico to take a job working for the South Porto Rico Sugar Company in the Dominican Republic.[3] In 1962, Luis Ramon Morales-Santana was born in the Dominican Republic to his then unmarried American father and Dominican mother.[4] Morales-Santana was statutorily “legitimated” as a citizen by his father when his parents were married in 1970.[5] He was later permitted to enter the United States as a lawful permanent resident in 1975.[6]

After being convicted of “various felonies” in 2000, Morales-Santana was placed in removal proceedings.[7] He claimed that he obtained derivative citizenship through his father and applied for withholding of the removal on that basis, but an immigration judge denied his application.[8] In 2010, he filed a motion to re-open his case.[9] This time, his motion was based on a violation of the Equal Protection Clause and newly obtained evidence relating to his father.[10] Unfortunately, the Board of Immigration Appeals denied Morales-Santana’s claims for derivative citizenship and therefore denied his motion to re-open.[11] Morales-Santana appealed to the United States Court of Appeals for the Second Circuit.[12]

“The law in effect at the time of birth governs whether a child obtained derivative citizenship as of his or her birth.”[13] The statute in effect at the time of Morales-Santana’s birth was the Immigration and Nationality Act of 1952.[14] Under this Act, a child born abroad to an unwed citizen mother and non-citizen father has citizenship at birth if the mother was present in the United States (or one of its “outlying possessions”) for at least one year at any point prior to the birth of the child.[15] Morales-Santana, however, represents a child born abroad to an unwed citizen father and non-citizen mother.[16] For instances such as this, the statute provides that the child have citizenship at birth only if the father was present in the United States (or one of its “outlying possessions”) for periods totaling at least ten years, and at least five of those years being after the father reached the age of fourteen.[17] Morales-Santana’s father did not meet these requirements.[18] Based on this gender discrepancy, Morales-Santana’s principal argument on appeal was that his Fifth Amendment guaranteed rights to Equal Protection had been violated and that unwed fathers should receive the same benefits that unwed mothers receive under the statute.[19]

Attorney General Loretta Lynch argued in the Second Circuit that there are two interests to justify the distinction between mothers and fathers written into the 1952 Act: “ensuring a sufficient connection between citizen children and the United States” and “avoiding statelessness”.[20]

Fortunately for Mr. Morales-Santana, the Second Circuit overruled the Board of Immigration Appeals decision in concluding that “[c]onforming the immigration laws Congress enacted with the Constitution’s guarantee of equal protection . . . Morales-Santana is a citizen as of his birth.”[21] The court stated that “the statute’s gender-based distinction is not substantially related to the goal of ensuring a sufficient connection to the United States.”[22] Attorney General Loretta Lynch responded to this ruling by filing a petition for writ of certiorari, which was subsequently granted on June 28, 2016.[23]

This case brings two issues before the Supreme Court: 1) Whether the Immigration and Nationality Act of 1952’s language to impose a different requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of Equal Protection, and 2) Whether the Second Circuit Court of Appeals erred in conferring United States citizenship on Morales-Santana in the absence of any express statutory authority to do so.[24] Formal arguments took place before the Supreme Court on November 9, 2016, and an official ruling is still pending.[25]

The ruling of this case will have a major impact on foreign-born U.S. citizens both presently, and in the future. While the outcome will obviously affect the citizenship status of Mr. Morales-Santana, it will also affect others seeking derivative citizenship as well. If the Court decides that differences in the mandatory times of physical presence in the United States between genders is unconstitutional, then it may overturn the present-day statute. The present-day statute mandates that for derivative citizenship, a child born out of wedlock’s citizen father must have at least five years of citizenship (two after turning fourteen years old), and if the mother is the citizen, then she still only needs to have just one year of continuous citizenship at any point.[26] The Court may choose to decide that ANY time frame is unconstitutional, not just an equal time frame.

As currently constructed, the Act relevant in Lynch v. Morales-Santana and the present-day statute both suggest that unwed mothers are more responsible parents than unwed fathers. They also suggest that the presence of a marriage at the time of birth exposes a difference in societal expectations regarding parental responsibilities for unwed fathers, but not for unwed mothers.

The Supreme Courts highly anticipated decision should be rendered in early 2017. Its decision will make a powerful statement about how the United States protects the rights of its citizens born abroad, and also how we choose to combat gender discrimination issues.

[1] SCOTUSblog, http://www.scotusblog.com/case-files/cases/lynch-v-morales-santana/ (last visited Jan. 25, 2017).

[2] Morales-Santana v. Lynch, 804 F.3d 520, 524 (2d Cir. 2015).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Morales-Santana, 804 F.3d at 524.

[8] Id.

[9] Id. at 524-25.

[10] Id.

[11] Id. at 525.

[12] See 804 F.3d 520 (2d Cir. 2015).

[13] See Ashton v. Gonzalez, 431 F.3d 95, 97 (2d Cir. 2005).

[14] Morales-Santana, 804 F.3d at 523.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Morales-Santana, 804 F.3d at 523-24.

[20] Id. at 527-28.

[21] The court determined that an intermediate level standard of scrutiny was proper. Morales-Santana, 804 F.3d at 538.

[22] Id. at 535.

[23] SCOTUSblog, http://www.scotusblog.com/case-files/cases/lynch-v-morales-santana/ (last visited Jan. 25, 2017).

[24] Id.

[25] Id.

[26] 8 U.S.C. § 1409 (2012).