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MIJA Prevails in Lawsuit Alleging Racial Profiling of Latinos

Exciting news regarding the proposed class action lawsuit that the Montana Immigrant Justice Alliance (“MIJA”) filed against the Montana Highway Patrol in October 2013, alleging the patrol had engaged in a practice of detaining Latino drivers and passengers for the purpose of checking into their immigration status:

On April 4, 2014, the Montana Department of Justice announced an agreement with plaintiffs to resolve a lawsuit that challenged the manner in which the Montana Highway Patrol (MHP) handled traffic stops involving people suspected of being in the U.S. illegally. The agreement was reached between Attorney General Tim Fox, MHP Colonel Tom Butler, and Attorneys Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. and Brian Miller of Morrison, Sherwood, Wilson & Deola, PLLP, who represented the plaintiffs in this lawsuit.

A final judgment was entered by U.S. District Court Judge Dana L. Christensen, and can be downloaded here.

As Troy Carter of the Bozeman Daily Chronicle reports:

The Montana Department of Justice settled a lawsuit Friday filed against the Montana Highway Patrol alleging troopers routinely racially profiled Latinos and violated federal law by detaining them on minor traffic charges so they could verify their immigration status.

A group of Latinos led by Jose Rios-Diaz and the Montana Immigrant Justice Alliance, a nonprofit in Helena that defends the civil rights of immigrants, filed the case in 2013.

The plaintiffs agreed to the settlement because it stipulates that all troopers will be taught a new policy specifically instructing them to never use race as pretext for detaining a person to verify their immigration status, nor arrest a person solely because the person lacks immigration documentation, according to documents filed Friday in U.S. District Court.

Under the new policy, troopers cannot ask about immigration status based solely on a person’s race, ethnicity or language abilities. Nor can they demand drivers or passengers tell them their immigration status or detain people who choose not to answer.

According to one trooper’s written testimony submitted as evidence in the initial complaint, former MHP Col. Kenton Hicketheir had told him to do exactly that.

“In one instance Hickethier ordered me to arrest suspects I believed might be illegally in the country regardless of whether the facts supported an offense for which a person could be arrested under Montana law,” wrote Trooper Glenn Quinnelll in 2011. “His instructions were to get them to jail one way or another so federal authorities could place detainers on them.”

Hicketheir resigned from the MHP’s top post in 2013 after an investigation into discrimination against subordinates.

Friday’s settlement was signed by U.S. District Judge Dana Christensen. It does not find the MHP guilty of wrongdoing.

MHP’s Col. Tom Butler denied any discrimination in a prepared statement.

“While we believe that we have always done what the law requires, the lawsuit prompted us to enshrine in policy what has already been the practice in the field,” Butler said.

A dash cam video posted on Youtube by Shahid Haque-Hasrath, the plaintiff’s attorney, showed how a MHP trooper turned a speeding ticket stop into a 50-minute immigration check. The man was a U.S. citizen.

“We hope that police departments throughout the state use this policy as an example, and train their officers that they cannot demand that Latinos show them their papers, or detain people just to check their immigration status,” Haque-Hasrath said in a joint statement with the Department of Justice.

The DOJ also agreed to hire an independent police auditor and produce annual reports on MHP’s efforts to prevent racial profiling, and record all trooper contacts with the Department of Homeland Security.

In 2010, Arizona enacted Senate Bill 1070, a bill that required all aliens to carry their government paperwork with them and allowed state law enforcement agencies to inspect it during a lawful stop if there was suspicion that the person was in the country illegally. Critics panned it as a license to racially profile and an institutionalization of racial discrimination. Parts of the law were later struck down by the U.S. Supreme Court.

The Montana Legislature has not given Montana Highway Patrol any similar authority. The settlement comes two months before the plaintiff’s motion for certification as a class action lawsuit was set to be heard by the court. If certified, the plaintiffs could have publicly solicited others to join the case.

Public documents confirm that the Montana Highway Patrol had engaged in a pattern of racial profiling of Latinos in a misguided effort to enforce federal immigration laws. This article by Troy Carter of the Bozeman Daily Chronicle discusses the misconduct in more detail:

Montana Highway Patrol troopers held Latinos stopped for traffic violations based on their appearance and accents, sometimes detaining them for hours, while waiting for federal agents to conduct immigration checks, according to evidence in a recently settled lawsuit.

Despite Montana law banning racial profiling, troopers held Latino drivers and passengers and were instructed to arrest them for traffic offenses until federal agents could take suspected illegal immigrants into custody, according to public documents in the case.

In one internal email, troopers were told to request “translation” services to detain suspected illegals until federal agents could arrive. “FYI … the key is to ask for translation. Then they take over the case after the assist,” a trooper wrote to his colleagues.

Meanwhile, records show that Highway Patrol leadership downplayed racial profiling complaints as troopers continued the practice.

The Chronicle examined hundreds of MHP internal emails and documents, dashboard camera videos and audio recordings obtained from the Helena immigration attorney who sued the patrol, Shahid Haque-Hausrath, after the lawsuit recently ended in a no-fault agreement.

Col. Tom Butler, the Highway Patrol’s top officer, told the Chronicle this week that the agency does not engage in racial profiling and that any specific incidents would be a tiny fraction of the 100,000 stops troopers make every year. The lawsuit ended after MHP agreed to new policies designed to train troopers on racial profiling and protect minority drivers. The plaintiffs included four Latinos and the Montana Immigrant Justice Alliance.

Local resident detained

Jose Rios-Diaz of Belgrade, a Mexican immigrant who became a U.S. citizen in 2009, was the lead plaintiff in the lawsuit. Rios-Diaz, 29, was stopped by a trooper while on his way to work. His Ford Ranger was traveling 83 mph in a 65 mph zone. The trooper became suspicious, records show, because the pickup was insured by Rios-Diaz but registered to his friend.

“I proceeded and asked Mr. Rios-Diaz how long he had lived in the United State and he responded by telling me, ‘About Uhh…10 years…’ With Mr. Rios-Diaz having allegedly been here for nearly a decade, his accent was surprisingly thick,” Trooper Justin Moran wrote in a report to his sergeant.

While waiting to hear back from immigration enforcement authorities, Moran said he lied to Rios-Diaz to keep him calm. He told him the long wait was due to a problem verifying his insurance. After 55 minutes (MHP said it was 47), Rios-Diaz was released with a $40 speeding ticket.

“Although that was not the case and I had already verified the policy was valid, it allowed me to tell him something to calm his nerves, rather than tell him I was waiting for a call from an agency that could potentially show that he should not be in the United States,” Moran wrote to his sergeant.

Rios-Diaz’s attorney said the documents show the trooper admitted he had detained a man with an accent longer than necessary for the sole purpose of verifying his immigration status, a violation of Fourth Amendment protections against unreasonable search and seizure.

Moran called the subsequent complaint a wild accusation. Sgt. Scott Ayers, Moran’s direct supervisor, agreed. In a letter to his superior, Ayers defended Moran’s actions.

“Also of note is that Trooper Moran indicated that ICE had said that Mr. Rios-Diaz is supposed to carry his naturalization papers with him, and if he had done so, much of the confusion could have been avoided,” Ayers wrote in a report, later adding that Rios-Diaz should register the truck in his name to avoid future questions.

But Haque-Hausrath said MHP has attempted to shift the blame from Moran onto Rios-Diaz. He said driving a vehicle registered to another person has nothing to do with citizenship and could not have been the reason the trooper was suspicious. By law, U.S. citizens are not required to carry naturalization papers or a birth certificate.

In an interview with the Chronicle, Rios-Diaz said he was nervous when Moran pulled him over because he had been treated poorly by Mexican and U.S. police officers in the past.

“Every time they pull me over they treat me with a lot of power. At some point I had to decide that I have to fight for my rights. That’s the reason I told him he’s not supposed to ask me,” Rios-Diaz said. “Some policemen that I know are really nice. It’s not every police officer, just a few.”

The review of Rios-Diaz’s detainment went all the way to the top. Former Col. Michael Tooley, in an email to colleagues, said his wife, also a naturalized Latina, had reacted to Rios-Diaz’s story by saying, “’If he’s going to drive like an idiot maybe he should have his @#$together.” Tooley agreed with his wife. “That pretty well sums it up,” he said in the email that thanked Moran for his work.

In response to Rios-Diaz’s complaint, Tooley told Haque-Hausrath, “Mr. Rios-Diaz was stopped for a valid reason, speeding. Trooper Moran became suspicious upon review of the documentation attached to the vehicle and conducted an investigation to ensure there were no other violations of law outside of the initial stop. Once that was completed, he released Mr. Rios-Diaz.”

Tooley, now director of the Montana Department of Transportation, said during his time as the MHP’s colonel he had used a $400,000 grant to install the SmartCOP electronic records system to track officer behavior and traffic stops.

“In Trooper Moran’s case, we took a close look at that, and he had no such pattern of any behavior. Would I have asked the questions he asked? Probably not, but I wasn’t the one who made the traffic stop,” Tooley told the Chronicle on Friday.

In a recent deposition, Moran said it was the totality of the circumstances that led him to ask whether Rios-Diaz was in the country legally. But Rios-Diaz’s attorney contends the circumstances could apply to anyone, such as being nervous and having registration that didn’t match his insurance.

The most concerning part of Tooley’s response was that he said there was “never a doubt” that Moran was correct, Haque-Hausrath said, calling it bizarre that he would run it by his wife, then dismiss the complaint.

Tooley should have used the complaint as an opportunity to tell troopers that they should not go “fishing” for illegal immigrants, the attorney said.

“Instead he supported the misconduct and it continued for years…. I don’t think the troopers want to enforce immigration law per se. They want to do their jobs and look to guidance from their sergeants, captains and the colonel, and what they got was that they were supposed to be doing this,” Haque-Hausrath said.

Evidence from the lawsuit shows Rios-Diaz’s traffic stop wasn’t an isolated case of racial profiling, the attorney said.

According to a 2012 incident report, Sgt. Scott Ayers pulled over a car for speeding near Billings. He held the three Latino men in the vehicle for 1 hour and 40 minutes because the trooper had spotted a navigation unit, food wrappers, air fresheners, cologne and a portable battery pack in the vehicle.

He said their story about a wedding in Seattle was odd and suspected they were drug traffickers in the country illegally. But no contraband was found. He apologized to the men for making them wait while ICE investigated their immigration status, according to his incident report. Ayers reported the men were in the country illegally, but federal agents had no interest in arresting them so he let them go.

In a 2013 incident report, Trooper Lynwood Batemen explained how he stopped a pickup truck on Highway 2 in Garfield County because it did not have a front license plate. After establishing that the driver had a valid California driver’s license, Batemen asked the passenger who “had a very strong Hispanic accent” for identification. After contacting the U.S. Border Patrol, the trooper arrested both men on suspicion of being unlawfully in the country.

Haque-Hausrath does not dispute that some of these Latinos may have been in the country illegally. He does dispute, though, whether the patrol has the authority or training to engage in immigration enforcement.

Authority to enforce?

Montana law bans police forces from engaging in racial profiling, which is defined as the detention, official restraint or other disparate treatment of an individual solely on the basis of his or her racial or ethnic status.

“The Highway Patrol’s scope is limited by Montana Code to specific violations of the law. They are not a generalized state police force. They really are limited to certain types of things that happen on highways and public roadways,” said Haque-Hausrath.

Col. Tom Butler did not disagree. He said that the Highway Patrol’s main mission is enforcing Montana traffic laws, but it also has a long tradition of working with federal agencies when requested.

“But if we encounter drug issues, we work with the DEA. If we encounter someone that we have probable cause or suspect that is in the country illegally, we work with ICE,” Butler said. “There’s no specialized enforcement related towards immigration issues. It’s just if we happen to trip over the top of it.”

Asked how a trooper can trip over an illegal immigrant during a traffic stop, Butler said that it usually happens when someone doesn’t have proper identification papers. Butler said troopers ask for passenger identification to find someone who can drive the vehicle away if the driver is arrested.

“That’s how we start talking to passengers. You need to keep in mind we’re making these stops for violations of the state of Montana traffic laws. In that, obviously identification is part of it. Well when the driver can’t be identified or we can’t confirm that he has a driver’s license, you know towing and impounding a vehicle is a whole other issue and we don’t necessarily like doing that … so we’re always trying to figure out if someone has a driver’s license,” Butler said.

But Haque-Hausrath said there are cases in which the driver has valid ID but passengers, who are only required to tell an officer their name and address, are questioned about their immigration status. He said passengers are subsequently arrested and sometimes transported to county jails where federal agents will retrieve them.

Montana law states that the length of a stop “may not last longer than is necessary to effectuate the purpose of the stop.” According to Haque-Hausrath, stops like Batemen’s should last long enough to issue the warning for the missing front license plate.

He asked if troopers should also begin holding poor people so that they can make sure the people have paid the Internal Revenue Service.

The agency’s name, Montana Highway Patrol, indicates the scope of laws troopers are authorized to enforce, Haque-Hausrath said.

“Immigration is definitely not one of them…. There is a refusal of law enforcement entities to just recognize that. They want to look at it like a criminal violation of the law that they can enforce,” he said.

The U.S. Supreme Court has ruled that state and local law enforcement officers “may perform the functions of an immigration officer” only in “limited circumstances” specified by federal law.

Questionable tactics

In some cases, “immigration detainers” are used to hold Latinos suspected of being illegal, which some courts have decided are unconstitutional.

An immigration detainer is an official request to hold an alien for up to 48 hours after they would be otherwise released so that federal agents may assume custody. Recent federal and district court decisions have found the use of detainers constitutionally questionable.

In 2014, the U.S. Court of Appeals for the Third Circuit found that states and local governments are not required to hold aliens at ICE’s request. Doing so amounted to commandeering state and local resources, a violation of the Tenth Amendment. Combined with 2014 rulings from two other district courts in Oregon and Rhode Island that considered the legality of detainers on Fourth Amendment questions, state and local governments could be vulnerable to lawsuits for complying with an ICE detainer, according to a congressional report.

In 2013, Trooper Barry Kilpela stopped a Chevy Tahoe on Highway 200 between Sidney and Fairview because it had tinted headlights, which are not allowed in Montana. The driver, Rene Valencia, had a valid Arizona driver’s license.

Kilpela immediately questioned two of the passengers about their immigration status. Based on the conversation, the trooper returned to his car and contacted a border patrol agent.

Kilpela described each person’s speech. Two passengers had sub-par English skills, he said. The conversation was recorded by his dash camera.

“There are four in the car,” he said. “Two of them are illegal I would guess,” and he added that the driver and one passenger “just seem a little more American than the other guys.”

He indicated he could arrest the two men before giving the border patrol officer their names. After holding the vehicle for more than 40 minutes, the two men were arrested and taken to the Richland County Jail.

Meanwhile, border patrol faxed the jail an immigration detainer.

Detainers are needed because only the federal government has the authority to determine who may be inside the U.S. In the absence of express authorization of Congress, state and local law enforcement are not allowed to directly enforce immigration law.

In 1996, Congress created a route for state and local agents to take part in enforcing certain immigration laws, including arresting illegal aliens.

Under the Illegal Immigration Reform and Immigrant Responsibility Act, local agencies can sign an agreement to investigate, apprehend and detain illegal aliens after receiving “adequate training” on immigration laws.

During the 2009 Montana legislative session, state Sen. Jim Shockley, R-Victor, proposed legislation to enact an agreement with the Department of Homeland Security. The intent was to give MHP authority to enforce immigration law.

When Shockley’s bill was before the House Judiciary Committee — where it died — Tooley testified that the cost of the agreement had been “very expensive” for the state of Colorado, costing $4.1 million over a two-year period, according to legislative archives.

Tooley questioned the bill’s fiscal note for leaving out the costs of training Montana troopers in other states and the overtime costs associated when those troopers enforced immigration laws. He said the bill’s passage should be contingent on federal funding.

During the hearing, Tooley was asked why Montana’s law enforcement academy couldn’t just train troopers on enforcing immigration law.

“We don’t have the ability to do that here in Montana, and the federal government will not sign an (agreement) unless we agree to go to their training,” Tooley told the committee.

Haque-Hausrath was at the 2009 hearing with Tooley. At the time he had assumed the Montana Highway Patrol was protecting the civil rights of drivers they pulled over. Today, he views Tooley’s statements differently.

“If you’re already doing this stuff, as they were, violating people’s rights without any training, without any knowledge of immigration law, and then you’re being told to enter into this agreement that will cost money, require them to get training, it would change the method they would go about it because they would have to follow specific parameters. It would make their lives harder,” said Haque-Hausrath.

During the lawsuit, Haque-Hausrath requested that the state show evidence that troopers had been given authority to engage in immigration enforcement actions.

“The only thing they ever provided was a mutual aid agreement, which is not even law,” said the lawyer. “It’s a little policy from the MHP’s own manual. It says if another law enforcement agency entity asks you for assistance you can go through a certain set of other policies to help them.”

MHP’s policy manual specifies that troopers may request assistance from a member of another law enforcement agency when it is in the best interests of safety. The policy doesn’t state troopers can contact other agencies when they suspect illegal immigrants.

The policy also states that requests for federal assistance must go through headquarters, not from troopers on the road.

“So they weren’t even following this guidance, even if it somehow could trump state or federal law,” said Haque-Hausrath.

Gov. Steve Bullock, who was the attorney general in charge of MHP during some of the incidents, was asked this week if he had concerns about racial profiling in Montana and if he felt like steps have been taken to prevent it.

“During my time as attorney general, we implemented measures like the SmartCop dispatch and record keeping, cultural sensitivity training … as well as implemented other policy improvements that would help prevent racial profiling in Montana,” Bullock said in an email Friday. “Everyone should be vigilant about racial profiling in our state, that’s how we prevent it.”

Give the Gift of Family

2014-12-12 Gift of Family (Wide)

2014-12-12 Gift of Family (Wide)This season, please help us give an important gift — the gift of family. There are hundreds of Montana children, all across the state, with parents who are undocumented. These parents have lived their lives with the fear of being separated from their children. Soon, we hope those fears will be put to an end, because of new immigration policies that will offer protection to the parents of U.S. citizens.

Soon, parents will be allowed to apply for protection from deportation. But, these applications are expensive, and we are hearing that many Montana families can’t afford it. We expect the fees to be at least $465.00 per application, and in most instances both parents will need to apply.

For the next several months, MIJA will be putting 100% of your donations towards paying the filing fees for members who have cannot afford it. Every dollar that is donated will be used towards paying the filing fees for our members who need it.

We are a registered 501(c)(3) organization, and your donation is tax deductible.

Thank you for your support!

An Ex-Marine Calls to Intimidate an Immigrant Rights Attorney and You Won’t Believe What Happens Next!

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by Shahid Haque-Hausrath.

Just kidding about that headline, I’m not going to hide the ball here. This post is about that time an ex-marine called to intimidate me and then apologized for hurting my feelings.

A few months ago, after getting a lot of press for winning our lawsuit to strike down Montana’s voter-approved anti-immigrant law, I got a call. The caller immediately identified himself as an ex-marine and said something about being armed, then he started ranting. He was clearly trying to intimidate me, so I started recording the call.

Over the first minute or two, the caller went from calling for an armed revolution against “all of us from the Middle East” to calling me a jihadist enemy of the state who wants to ruin his way of life. After I pointed out that I was born here, and am not religious, he eventually apologized for hurting my feelings. Here’s how that went down:

I don’t think I need to belabor the point here about misplaced anger, false assumptions, and the need for critical thinking and civil discourse.

The caller ID showed the caller’s phone number, and through a simple Google search I found out exactly who this was, but that’s not important. I have no intention of saying who it was. The call was out of line, but the guy apologized, and that’s the end of it.

Montana Immigrant Justice Alliance Prevails in Challenge to Anti-Immigrant Law!

Victory Against LR-121On Friday, Judge Jeffrey Sherlock of the First Judicial District Court struck down the vast majority of Montana’s voter-approved law requiring state agencies to determine an applicant’s citizenship or immigration status before granting a wide variety of state services. The decision can be downloaded here. The law would have required denial of unemployment insurance benefits, licenses to practice trades or professions, enrollment in state universities, crime victim services, and infant hearing screenings to those who cannot prove their citizenship or immigration status.

The referendum, which was presented to Montana voters in the November 2012 election, passed with almost 80 percent of the vote. Before the law went into effect, the Montana Immigrant Justice Alliance (“MIJA”) brought a lawsuit challenging its constitutionality.

Shahid Haque-Hausrath, the President of the organization and an immigration attorney with the Border Crossing Law Firm, served as MIJA’s lead attorney in the lawsuit. The Montana Attorney General’s office defended the law, with former Solicitor General Lawrence VanDyke serving as lead counsel on the case.

Judge Sherlock ruled in MIJA’s favor, holding that the mandates upon state agencies to determine immigration status, and deny a wide variety of state services to “illegal aliens,” are preempted by federal law as an impermissible regulation of immigration.

“This law was intended to make the state of Montana an unwelcoming place for immigrants. Striking down this law is a significant victory, and a message that the state has no business trying to regulate federal immigration policy,” Mr. Haque-Hausrath said. “In this ruling, the court has prevented the state from engaging in misguided efforts to enforce federal immigration laws, which the state is neither qualified nor authorized to do.”

This law would have placed added burdens on all Montanans to prove citizenship, but would have especially burdened immigrants.

The only provision of the law that was allowed to stand is one that partially corresponds to federal law, and permits communication between state employees and the federal government regarding a person’s immigration status. “Without the right to deny state services based on a determination that an applicant is unlawfully remaining in the country, this provision should not be significant. Now that state agencies are not required to check into immigration status, they should have nothing to report to the federal government,” Haque-Hausrath said.

Judge Sherlock had previously granted a partial preliminary junction in March 2013, and had denied two separate motions brought by the state to dismiss the lawsuit.

Brian Miller of Morrison, Sherwood, Wilson & Deola, PLLP served as co-counsel in this litigation, providing invaluable litigation support on a pro bono basis.

Copies of the ruling, as well as other materials, can be downloaded here: www.mija.org

MIJA Asks for Summary Judgment in its Lawsuit Against LR-121

LR-121 Cover PhotoIn 2012, the Montana Immigrant Justice Alliance (“MIJA”) filed a lawsuit in Montana’s First Judicial District Court to challenge LR-121, Montana’s anti-immigrant law. In March 2013, after conducting depositions and investigating the issues, we asked Judge Sherlock for summary judgment on grounds that LR-121 is preempted by federal law. Summary judgment is a mechanism to bypass a trial, if there are no genuine issues of fact in dispute, and judgment can be entered as a matter of law. The Montana Attorney General also asked the Judge for judgment in its favor.

We have completed extensive briefing. In all, there were four lengthy briefs submitted:

MIJA’s motion for summary judgment, and exhibits (including deposition transcripts).

The Montana AG’s response, and cross-motion for summary judgment.

MIJA’s reply in support of summary judgment and response to the AG’s motion.

The Montana AG’s final reply in support of their own motion.

Yesterday, we had a hearing before Judge Sherlock on both parties’ motions for summary judgment. The AP wrote a story about the hearing. The hearing went well, and we will await a decision as soon as Judge Sherlock can get to it. We believe we have proven that LR-121 is preempted by federal law.

Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. is representing the Montana Immigrant Justice Alliance (“MIJA”) on a pro bono basis in its lawsuit to challenge Montana’s anti-immigrant law. You can read more about LR-121 and what it does here.

Help prevent deportation of a Missoula domestic violence victim!

VAWA Smaller imageTell DOJ and DHS that the victim of violent assault shouldn’t be deported based on a “tip” from the abuser!

By Shahid Haque-Hausrath, President and Immigration Attorney

My client, who has been living in the U.S. for over 18 years, is facing deportation and separation from her four U.S. citizen children. Working together with the convicted abuser who strangled my client in public and pled guilty to it, the U.S. Department of Justice and Immigration and Customs Enforcement investigated and ultimately arrested my client, not the perpetrator of the crime. Within a span of months, my client went from being the victim of assault, to being charged criminally for “possession or use” of a fake green card, taken into custody for 90 days, having her children taken away from her, and being ordered deported by ICE without judicial oversight. This happened in late 2010. I’ve been fighting ever since to keep her here.

The evidence shows that ICE colluded with the abusive ex-spouse throughout their investigation. They relied on him for the initial “tip”, met with him on multiple occasions afterwards, used him as the “source” for purposes of obtaining a warrant for her arrest, and even advised him ahead of time on the day that they would be arresting my client, so he could assume custody of the children beforehand.

The abusive ex-spouse’s intended purpose in reporting my client was to ensure her removal, so she was unable to pursue further criminal action against him, and so he could assume custody of their children by default. DHS not only ignored the fact that they were playing right into the hands of an abuser’s goals, but also refused to change course once this was directly pointed out. DHS has now given the violent ex-spouse exactly what he wanted — insulation from criminal charges for his misconduct.

The Department of Homeland Security admits that my client was the victim of a long term pattern of violence. Abused spouses of U.S. citizens can apply for relief under the Violence Against Women Act (“VAWA”). They also qualify for “U visas” for cooperating with law enforcement in prosecuting a crime. We have applied for both. So far, DHS has stated its intention to deny both forms of relief. The reason? They have decided to deny her relief as a victim of crime based on conduct that happened because she was a victim of crime.

DHS would deny a U visa or relief under VAWA to the female victim of assault just because she “possessed or used” a false alien registration card — the card being necessary only because her abusive ex-spouse refused to petition for her immigration status despite being married for over five years. Meanwhile, he refused to hold down a job and required her to be the primary provider for their young children.

All of this is directly contrary to the federal government’s stated goals and priorities. The U visa is intended to allow a victim to cooperate with law enforcement in pursuing justice. Congress intended to empower undocumented victims of crime to cooperate with law enforcement, but DHS wrongly prioritized criminal charges against the victim of assault over pursuit of the abuser himself.

Further, DHS allowed an abusive spouse to orchestrate matters so that the victim was no longer able to obtain a conviction against him. VAWA regulations contemplate the fact that an abusive spouse may attempt to have a non-citizen spouse deported, and prohibits ICE from doing precisely what it did in this instance — cooperate with the abuser and deport the victim.

We must send a message to DHS that they got their priorities wrong, and that nothing is to be served by deporting this victim of assault, separating her form her children, and placing them into the custody of the abuser.

Please sign this petition and contact the officials in DHS who can put a stop to this! You should reference Case No. EAC-14-027-50697.

  • ICE Contact: Matt Murphy, Assistant Field Office Director, Click to e-mail
  • USCIS Contact: Laura B. Zuchowski, Acting Center Director, Click to e-mail

 

More information:

Article in the Missoula Independent Newspaper

Article from the Border Crossing Law Firm, P.C. Website

Montana Immigrant Justice Alliance Files Class Action Lawsuit Against Montana Highway Patrol

MHP-2569-630x384On October 7, 2013, the Montana Immigrant Justice Alliance (“MIJA”) and four representative plaintiffs filed a lawsuit in the U.S. District Court for the District of Montana against Colonel Tom Butler, sued in his official capacity as acting Chief Administrator of the Montana Highway Patrol, and Attorney General Tim Fox, sued in his official capacity as head of the Montana Department of Justice.

Click to download the complaint and its supporting exhibits.

The lawsuit alleges that Montana Highway Patrol has a policy and practice of seizing Latino drivers or passengers that a patrol officer may believe to be in the country without authorization for a prolonged period of time, often between forty minutes to two hours. The sole basis for detaining these individuals is to make contact with the Department of Homeland Security (“DHS”) to ascertain their immigration status and determine if an immigration enforcement officer wishes to assume custody of them.

You can watch a video of the stop of the lead plaintiff here:

Shahid Haque-Hausrath is President of MIJA and the lead attorney handling the case. “For years, Montana Highway Patrol officers have been acting like de facto immigration enforcement agents. They have been pulling Latino residents and visitors over for routine traffic infractions, and detaining them without probable cause just to check on their immigration status,” Mr. Haque-Hausrath said.

“This policy is discriminatory because patrol officers are using race and ethnicity as a basis for these arrests, and Latino residents and visitors are being unlawfully harassed. The law is clear that Montana Highway Patrol can only arrest people for crimes, and can’t arrest or detain people just to check if they have valid immigration status.”

As alleged in the complaint, at least two former Montana Highway Patrol Chiefs have endorsed this policy. Colonel Michael Tooley defended the legality of this discriminatory behavior, and Colonel Kenton Hickethier actively instructed patrol officers to use pretextual reasons to arrest people if they think they are in the country illegally.

The lawsuit does not seek money damages, but asks the court to declare that this policy is unconstitutional, to enjoin the Montana Highway Patrol from further constitutional violations, and to put safeguards into place to ensure that this discrimination is stopped.

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Please click here to donate to support the Montana Immigrant Justice Alliance (“MIJA”).

and Click here to read about Shahid Haque-Hausrath’s work with the Border Crossing Law Firm, P.C.

Thank You, Linda Gryczan: How Gay Rights Pioneers Helped Immigrants in Montana

by Shahid Haque-Hausrath, Immigration Attorney with the Border Crossing Law Firm, P.C. and President of the Montana Immigrant Justice Alliance (“MIJA”).

Immigrants who are challenging LR-121, the State of Montana’s new anti-immigrant law, owe a debt of gratitude to the pioneering gay rights advocates who established an important legal precedent that gives marginalized groups legal standing to challenge laws that threaten to deprive them of their rights.

In 1993, Linda Gryczan led a legal challenge to Montana’s “deviate sexual conduct” statute, which criminalized consensual, private, same-gender sex between adults. In bringing this lawsuit against the State of Montana, she and her five colleagues broke new ground — this was well before the 2003 U.S. Supreme Court decision in Lawrence v. Texas reshaped the law regarding private same-sex relationships. (In fact, their case was cited by the U.S. Supreme Court in that decision.)

Under the law Gryczan challenged, sex between two consenting adults was a felony, with a possible 10 year prison term or a $50,000 fine. The discriminatory law was enacted in 1977, and although there were no reported instances of any arrests or prosecutions under the law, the threat of enforcement constantly loomed over the plaintiffs. They were made to feel like criminals and second-class residents of the state they called home.

The State of Montana asked the Judge to dismiss Gryczan’s lawsuit, arguing that these plaintiffs lacked legal standing to bring the constitutional challenge. The state argued that the statute had not yet been enforced against anyone, so there was no immediate threatened injury, and that “the mere apprehension of prosecution or the fact that a person may feel denigrated by the law is not sufficient.”

Essentially, the state was arguing that an unconstitutional law could remain on the books, serving as a constant threat that one could be deprived of their rights at any time, but no one could challenge the law until the state actually enforced it against them. In 1997, the Montana Supreme Court rejected the state’s assertion, finding that Gryczan and her colleagues were directly targeted by the law, and even if it had not yet been used against them, they had standing to challenge it based on the threatened injury.

Nevertheless, this familiar argument by the State of Montana was exactly the same one that members of the Montana Immigrant Justice Alliance (“MIJA”) faced after they brought their legal challenge to Montana’s new anti-immigrant law.

LR-121 was a referendum asking if voters were for or against denying certain state services to illegal aliens. According to the bill’s sponsor, Rep. David Howard (R-Park City), LR-121 was meant as “a deterrent, so that people will not focus on Montana as a place to come, take our jobs, take our benefits, and live here.”

The law ostensibly requires all Montanans to present proof of citizenship or lawful resident status before accessing state services, meaning that for the first time in Montana’s history, the state would be requiring all residents to start showing their papers before they can access basic state services. This is a massive undertaking. However, no effort has been made to uniformly apply this law, leading to the likelihood that only those Montanans who look or sound different will be asked to prove their status. LR-121 would also violate federal law by denying services to lawful permanent residents who illegally entered the country, but later fixed their immigration status and are now residing here legally. And, the law asks state agencies to misuse a federal database to determine immigration status — despite the fact that federal laws prohibit the database from being used this way — and report applicants to the federal government for deportation proceedings.

LR-121 has created fear and anxiety in the immigrant communities in Montana, amongst both documented and undocumented residents. Eleven members of MIJA who would be denied state services under this law came forward and challenged its constitutionality. However, Attorney General Tim Fox’s office filed a motion to dismiss this lawsuit, making the same arguments that Linda Gryczan faced over a 15 years earlier. The state argued that our claims were speculative because no state agency had yet denied anyone state services under this law, and that we had to wait until that happened to challenge the law.

In our response brief, we were able to draw a direct parallel between Gryczan and the immigrants affected by LR-121. Judge Sherlock agreed with us and rejected the state’s attempt to dismiss our lawsuit, finding that Gryczan had directly addressed this issue in her lawsuit many years ago:

In Gryczan, a group of homosexuals brought a constitutional challenge against Montana’s deviant sexual conduct statute. The statute was not being enforced against any of the plaintiffs, and there was no indication there was a credible threat that it would be applied against them. Further, the court record indicated that no one had ever been prosecuted under the statute. The Supreme Court noted that the key fact was that the statute in question was only 24 years old and had recently been amended. In the instant case, it is important to note that LR-121 was passed in November 2012. With the passage of such a recent enactment, one could say it is reasonable to assume that it will be enforced.

Of further note to the Gryczan court was the fact that the plaintiffs were precisely the type of people the statute was designed to affect. Here, exactly the same situation obtains, especially as to the affidavits filed by Plaintiffs of various individuals who illegally entered the United States, but are now lawfully present in this country. The Gryczan court found that the plaintiffs’ reasonable fear of prosecution was enough to grant them standing under these circumstances. Another factor considered by the Gryczan court was that to deny the plaintiffs standing would be to immunize the statute from review.

The court found that “each of the factors mentioned above apply in this case” and denied the State of Montana’s attempt to dismiss our lawsuit.

Linda Gryczan won her lawsuit over 15 years ago, and the “deviate sexual conduct” statute was blocked. However, the Montana Legislature refused to take the obsolete and unenforceable language off the books until this year.

The lasting impact of Gryczan’s lawsuit has been felt not only by the LGBT community, but by all marginalized groups who are targeted by legislation that will deprive them of their rights. Thanks to Linda Gryczan and her co-plaintiffs, it is well-established under Montana law that groups who are targeted by discriminatory legislation can immediately challenge laws that threaten them, and don’t have to allow the laws to sit on the books — creating intentional fear and uncertainty — until the state chooses to enforce them.

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The litigation against LR-121 is being done on a pro bono basis by Brian J. Miller of Morrison, Sherwood, Wilson and Deola PLLP, and Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. We are proud to stand up against LR-121. Please consider sending us a donation to support this lawsuit.

Judge Rejects Motion to Dismiss, Lawsuit Against LR-121 to Continue!

LR-121 Cover Photo

Victory in Motion to Dismiss

Judge Sherlock has rejected the Montana Attorney General’s efforts to dismiss our lawsuit, and has ruled that the Montana Immigrant Justice Alliance (MIJA) has standing to challenge LR-121 on behalf of its members, who have a reasonable fear that the law will be used to wrongly deny them benefits.

Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. is representing the Montana Immigrant Justice Alliance (“MIJA”) in a lawsuit to challenge Montana’s new anti-immigrant law called LR-121. You can read all about the law and what it does here.

Over ten members of MIJA, all of whom were also represented by Shahid Haque-Hausrath in immigration proceedings, came forward to tell the court how they would be impacted by LR-121. Despite protests from the Montana AG’s office, the court held that these MIJA members had reasonable fears that LR-121 could violate their rights, and thus can move forward with their legal challenge.

As reported in the Great Falls Tribune:

A district judge has ruled that a lawsuit aimed at blocking the implementation of a new immigration law can move forward.

The Montana Immigrant Justice Alliance is seeking to overturn LR 121, a voter-approved ballot initiative that requires proof of legal standing for any applicant for state services, employment with a state agency, issuance of a state license or permit, unemployment or disability benefits, enrollment as a student or student aid.

The law applies a definition of “illegal alien,” which attorneys for MIJA argue could unconstitutionally prevent certain legal citizens from receiving services from unemployment benefits to crime-victim assistance.

Lawyers for Attorney General Tim Fox’s office are defending the law in court. The state asked the court to dismiss the case on the grounds that the plaintiffs lack the legal standing to bring the lawsuit because the law had not yet been implemented or used.

District Judge Jeffrey Sherlock on Wednesday denied the state’s motion to dismiss. Sherlock said clients represented by MIJA, the lead plaintiff in the case, have reasonable fear that LR 121 could adversely affect them.

Eight documented immigrants signed affidavits in the case saying they came into the country illegally, but are now legal residents. Lawyers for MIJA said under LR 121 those individuals who are legally allowed to be in the United States could unfairly be denied state benefits or services based on the existing definition of “illegal alien” contained in the voter-approved ballot initiative.

“We view the judge’s decision as an unqualified victory for the plaintiffs,” MIJA attorney Shahid Haque-Hausrath said. “There’s now no further obstacle to determining the constitutionality of LR 121. We’re going to have the right to ask the state how they plan to implement the law, what training they plan to give to their employees who will be charged with making determinations under the law, and how they can possibly implement this law without violating the Montana and United State constitutions.”

The State has yet to explain how they can enforce this law without violating the Montana and U.S. Constitutions, and had sought to avoid answering these questions by simply dismissing the lawsuit. However, now that their argument has been rejected, the State must answer these important questions as we move forward.

You can download a copy of the Judge’s order here.

Judge Grants Partial Preliminary Injunction, Limiting LR-121’s Reach

LR-121 Cover Photo

LR-121 Cover PhotoJudge Jeffrey Sherlock has granted a partial preliminary injunction, issuing “limiting constructions” on the ways that the State of Montana can implement LR-121. You can download the order here. This order is significant because it constitutes the first decision in the State of Montana to address the constitutionality of any state-level enforcement of federal immigration laws.

This order recognizes two important failings in the referendum that was referred to Montana voters by the legislature:

  • The state is barred from relying solely on the federal Systematic Alien Verification for Entitlements (“SAVE”) system to make determinations about a person’s eligibility for benefits. As stated in our Complaint, the SAVE system is simply not meant to be used to make a determination of a person’s legal status in the country, which is precisely what LR-121 calls for. The court held that it “would be inappropriate for the State to merely rely on the SAVE program to make its determination.” Now, if the state wants to utilize the SAVE system, it must do so in conjunction with a lawful method of verifying a person’s citizenship or immigration status. This leaves some unanswered questions about exactly what methods the state will use, but constitutes a shift in the way the state had planned to implement the law.
  • The court has stricken unconstitutional language from the definition of “illegal alien” under the law. As we argued, LR-121 conflicts with federal law by saying that anyone who illegally entered the country is an “illegal alien” and will be denied state services — even if they now have green cards. Last week we filed nine affidavits from immigrants who illegally entered the United States, but do not illegally remain in the United States, and challenged how LR-121 would impact them. The court recognized that this definition conflicts with federal laws, and found “it appropriate that a preliminary injunction be issued to prevent the implementation of the offending language of LR-121.”

The court concluded its order by stating: “There are obvious deficiencies in LR 121 that should be addressed by the legislature. If not, this Court will address them as this case moves forward.”

It is important to note that when issuing this decision, the court did not yet have an opportunity to review or consider the arguments from our recent response to the state’s motion to dismiss.

This preliminary injunction now alters the manner that the state can apply the law while this lawsuit is pending. Meanwhile, the remainder of the litigation continues forward.

You can read the Associated Press coverage here.

As a reminder: This litigation is being done on a pro bono basis by Brian J. Miller of Morrison, Motl and Sherwood, PLLP, and Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. (also President of MIJA).

We are proud to stand up against LR-121. This litigation is costly and time-consuming, and we need your help. Please consider sending us a donation to support this lawsuit.