The U.S. government often tries to deport U.S. citizens.  This is a harsh and inescapable fact, and it is also a difficult one for many people to believe.  However, it almost happened right here in the State of Montana.  Thankfully, the Border Crossing Law Firm, P.C. stepped in to prove our client’s citizenship and terminate the deportation proceedings against her.  The Immigration Judge just issued a decision ordering that the deportation process be stopped because we established U.S. citizenship.

Our client was unaware of her U.S. citizenship until Shahid Haque-Hausrath, who represented her in Immigration Court, looked into her family history and discovered that she had automatically become a U.S. citizen at birth.  She was married to a U.S. citizen, and obtained a two-year conditional green card through this marriage.  However, when the marriage began to falter, U.S. Citizenship and Immigration Services (“USCIS”) terminated her status and put her into deportation or “removal” proceedings.  Not only was USCIS wrong to try and take away her green card, but we were able to show that she never needed one in the first place, because she is a U.S. citizen.

The client’s father was a native-born U.S. citizen who enlisted in the United States Army when he was only 18 years old, and later re-enlisted in the army only a few weeks after the attack on Pearl Harbor.  He served honorably and received several accommodations and citations during his service.  He was stationed in England when he met our client’s mother, got married, and had a child — our client.

Under our immigration laws, a child who is born abroad to one U.S. citizen parent may automatically become a U.S. citizen at birth if certain conditions are met.  The laws regarding transmission of citizenship have changed many times over the years.  To determine acquisition of U.S. citizenship at birth, one looks to the law in place when the person was born.  In this case, to transfer citizenship, our client’s father had to have had 10 years of residence in the U.S., at least five of which were after he reached the age of 12.

Military records established these facts very clearly, but the Department of Homeland Security (“DHS”) nevertheless fought us every step of the way.  Since November, we traded six legal briefs arguing the facts and legal issues.  Today, we received the Immigration Judge’s decision agreeing with virtually all of our arguments, finding that we proved citizenship, and terminating removal proceedings.

This case highlights one of the reasons that we filed a lawsuit to challenge LR-121, Montana’s “proof of citizenship” referendum.  There are many other Montanans like our client who are U.S. citizens but don’t have documentation to prove it.  Under LR-121, they could be wrongly denied state services that they are entitled to, and the law doesn’t provide any way that they can appeal the denial of these services.

Our client is overjoyed with the news. After over a year of anxiety while facing deportation, she can finally rest easy. And, of course, she can fully enjoy all the rights and privileges of being a U.S. citizen.

The Border Crossing Law Firm, P.C. is proud to be representing the Montana Immigrant Justice Alliance (“MIJA”) in its legal challenge of LR-121.  We are cross-posting MIJA’s website about this lawsuit:

On December 7, 2012, the Montana Immigrant Justice Alliance (“MIJA”) filed a lawsuit in Montana’s First Judicial District Court to challenge and enjoin implementation of LR-121, along with our co-Plaintiffs MEA-MFT and Alisha Blair (a U.S. citizen who would likely be wrongly denied services under the law). The case has been assigned to the Honorable Judge Jeffrey M. Sherlock in Helena, Montana. You can download a copy of the complaint here, and read our initial legal brief here. Our complaint sets forth five separate counts asserting the violation of the right to privacy, violation of due process, violation of the equal protection clause, and preemption by federal law.

We are challenging the constitutionality of LR-121 because it violates the rights of lawful Montana residents, not just undocumented aliens. We are seeking a temporary restraining order and preliminary injunction to prevent the law from being put into effect while this litigation is pending. Unless it is enjoined, the law is scheduled to be implemented on January 1, 2012.

This website explains what LR-121 is, why we filed a lawsuit to challenge the law, and how the law impacts all Montanans. Watch this page for updates as this litigation develops.

Members of the press: Please download our press release, summarizing the essential points of this lawsuit.

LR-121 was placed on the ballot by the 2011 Montana Legislature, and voters approved the referendum on November 6, 2012. However, the full implications of this referendum may not have been apparent to Montana voters when they cast they ballot. Voters were simply asked if they were FOR or AGAINST denying certain state services to illegal aliens. However, the ballot language did not adequately express the new burdens that all Montanans, including U.S. citizens, will have to face before accessing state services.

LR-121 imposes a sweeping new regulatory scheme that will affect the constitutional rights of almost all Montanans who apply for or use state services. The law now requires all Montanans to present documents to prove their citizenship or immigration status before accessing state services.  The burden is now on the average Montanan to prove that they are here legally, or else they will be denied state services.  The new law also subjects applicants to being screened through a federal database to confirm immigration status, and gives state agencies unrestricted authority to report applicants to the federal government if information cannot be confirmed.

How Will This Law Impact the Average Montanan?

For the first time in Montana’s history, the state will be requiring citizens to start carrying certain papers and presenting them before they can access basic state services. To be clear, the law imposes a mandate that all applicants for services to be screened for citizenship or legal immigration status, which includes every Montana resident. This imposes a restriction on the fundamental right to pursue life’s basic necessities as provided in Article II, Section 3 of the Montana Constitution.

The services that will now be conditioned on proof of citizenship include employment with a state agency, attendance a public university, ability to obtain student financial assistance, ability to obtain a license or permit to practice a trade or profession, eligibility for unemployment insurance, services for victims of crime, vocational rehabilitation, and certain services for the physically disabled.

Not All Montanans Have Proof of Their Citizenship

Not all Montanans have readily-available proof of their U.S. citizenship — in fact, studies show that nationally, about 7% of the population don’t have these documents. There are typically only two ways to prove you are a citizen: by providing a birth certificate or a U.S. passport. For many reasons, there are Montanans who don’t have copies of their birth certificates, and who have never gotten passports. Under this law, Montanans are losing privacy protections — state agencies are going to ask for your identity documents for basic services and deny you services if you can’t provide them.

In addition, due to the complexities of federal immigration law and the facts and circumstances of an individual’s life, a person can be a lawful U.S. citizen, and a resident of Montana, but lack documentary proof of their citizenship. Plaintiff Alisha Blair is a U.S. citizen who may be wrongly denied services under this law. Ms. Blair is a 22 year-old who grew up in Sunburst, Montana who automatically acquired U.S. citizenship at birth. She was born in Canada and has been residing in Montana since she was one year old. Her U.S. citizenship was transmitted to her at birth through her U.S. citizen father by operation of federal law, but she has never had any documents to prove her citizenship.

Our complaint includes an affidavit from Ms. Blair and another individual with a similar situation. The plight of a 65-year-old teacher from Fairfield, Montana provides another example of the type of person who will be caught in this system. There are many more lawful Montana citizens like these individuals who will be wrongly denied services under this law. By treating lawful Montana residents differently, without any legitimate reason, the law violates the equal protection clause of the Montana Constitution.

Ineffective Screening Through Federal Databases

If you don’t have documents to prove your citizenship of lawful resident status, the referendum suggests that state agencies can screen you through the Systematic Alien Verification for Entitlements (“SAVE”) system, a federal database that charges between $.50 and $2.00 for each search in the system. However, there is a significant limitation with this system: The SAVE program does not contain any information on native-born U.S. citizens, or most individuals who entered the country without inspection. SAVE can only verify information contained in immigrations records. Therefore, it only includes information on individuals who have applied for or received certain immigration benefits through interaction with relevant agencies within the U.S. government.

There is no federal database that is available to the State of Montana for benefit eligibility determinations that would provide a comprehensive listing of all U.S. citizens.

This means that in some ways, native-born U.S. citizens may have a harder time proving their status than a lawfully residing immigrant, because if you don’t have the documents in hand, there is no alternate way to verify your U.S. citizenship. Before implementing this law, state agencies must be called upon to explain how they can implement this law without violating the rights of U.S. citizens.

Under LR-121, lawful Montana citizens who don’t have proof of citizenship may be wrongly denied services that they are entitled to as taxpayers. To make matters worse, there are no due process protections outlined in the law, so there is no clear way to challenge a state agency’s decision if you are wrongly denied services.

LR-121 is preempted by federal law because it utilizes its own classification of non-citizens that conflicts with federal law. Section 6(b) of the Act defines an “illegal alien” as “an individual who is not a citizen of the United States and who has unlawfully entered or remains unlawfully in the United States.”  The term “illegal alien” is not defined in the Immigration and Nationality Act (“INA”) or other federal laws regulating immigration, and the definition in this law conflicts with federal laws because there are numerous categories of noncitizens who illegally entered the United States, but do not illegally remain in the United States.

This is not a mere technicality, as this definition alone makes the law unconstitutional under the Supremacy Clause of the U.S. Constitution.  The State of Alabama recently passed its own state law regulating immigration, and one provision was recently enjoined for the same reason, where it tried to create a separate classification of non-citizens who are entitled to different rights and privileges.

Conservatives and Progressives Alike Should Be Concerned About This Law

Whether you are a conservative or a progressive — Democrat or a Republican — LR-121 is bad policy for the State of Montana. Montana is one of the states with the least numbers of immigrants in the whole country. The violation of our privacy rights, delays or wrongful denial of services, and extra cost to the state are simply not justified by the stated goal of denying services to undocumented immigrants.

According to the Montana Budget and Policy Center, the cost to the State of Montana of implementing this law will be far higher than any savings from denying services to undocumented immigrants.  In a time when the Montana Legislature is seeking to cut services to increase the budget surplus, this burdensome new regulatory scheme is counterintuitive.

Who is Representing the Plaintiffs in this Lawsuit?

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 Executive Director of MIJA).

Contact Us and Donate to Help

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

In addition, if you are a U.S. citizen or lawful resident who does not have proof of your citizenship, or are concerned about how this law will impact you, please contact us.

An employer had previously sponsored the foreign spouse for an employment-based green card.  However, the employer’s attorneys were handling all of the details, and she was not kept in the loop on the status of that case.  This employment petition was ultimately denied, and she was referred to Immigration Court proceedings.  However, the Immigration Court notices were sent to the employer’s attorneys — not to her.  No one informed her about the court hearing, and she had no idea any hearing had been scheduled.

Therefore, when a hearing was scheduled and she failed to attend, she was ordered deported in her absence.  Earlier this week, we wrote about a different case in which a client was wrongly ordered deported when he did not receive notice of a hearing.  In that post, we explained how Immigration Court notices are sent by simple first class mail with no delivery confirmation or tracking, and therefore people in removal proceedings quite often do not receive proper notice.

When we learned about her order of deportation, we investigated and discovered what had occurred.  Then, we quickly filed a motion with the Immigration Court to prove that she never received notice, and that her failure to appear in court should be excused.  The court ultimately granted this motion, preventing her from being immediately deported.

However, at this point we needed to resolve her Immigration Court proceedings before they could process her application for a green card.  The Immigration Court process is slow moving, but last year we were successful in getting the deportation proceedings against our client terminated.

Today, we finally had an interview and the marriage visa petition was approved!  Within a matter of weeks, the green card will arrive in the mail, and this couple can finally put this ordeal behind them.  While the process did not work out quite as they planned, we were finally able to bring their story to a happy ending.

When an immigrant is placed into deportation (or “removal”) proceedings, they get notices sent to their last known address telling them when to appear in Immigration Court.  Prior to 1996, these notices had to be sent by certified mail to ensure delivery.  If an immigrant failed to show up at the hearing, the Immigration Court could verify that the mail was received, and then the person was ordered deported in their absence.  In legalese, this is called an “in absentia” order of removal.

However, around 1996 the Republican controlled Congress passed a number of immigration “reforms” to toughen our immigration laws.  One of these changes was an amendment to authorize the use of regular first class mail to fulfill the requirements for service by mail.  Ever since then, important court notices have been simply sent by regular mail, with no delivery confirmation or return receipt.

Over the years, many clients have come to the Border Crossing Law Firm because they missed a hearing and have been ordered removed without their knowledge.  Since there is no way to track if the mail was ever delivered, we must request a copy of the court file and try to determine what happened.  Often, the court has used an incorrect address.  Sometimes, the court will send the notices to an attorney who no longer works on the case, and the notice will never get to the client.  Other times, you cannot find any obvious mistake, but you know that the person simply never got the notice.

When a person has been ordered removed, they can be arrested and deported immediately, without any additional right to see an Immigration Judge.  This is why it is important to immediately file a motion to reopen proceedings due to failure to receive notice.  The filing of this motion to reopen “shall stay the removal of the alien pending disposition of the motion by the immigration judge.”  See 8 U.S.C. § 1229a(b)(5)(C)(ii).  However, it is not always easy to prove that you didn’t receive notice, especially because it takes time to investigate the issue — time you don’t have when there is a threat of immediate deportation.

For one client who came into the country on a work visa and later married a U.S. citizen, it came as a huge surprise when Immigration and Customs Enforcement (“ICE”) officers came to his home to deport him.  He had been put in removal proceedings, but since he originally entered legally and was married to a U.S. citizen, he was entitled to apply for a green card.  He had already gone to one hearing and was awaiting his next court date, which can often take many months.  He had no idea that a hearing had already occurred, and he had been ordered deported after he failed to attend.

In front of his wife and kids, he was arrested and put into custody while arrangements were made to drop him off on the Mexican border.  His family contacted me and I immediately filed a motion to reopen.  Unfortunately, the Immigration Court denied our motion, stating that we had not proved that he failed to receive notice.

We appealed this decision to the Board of Immigration Appeals (“BIA”), and we recently received their decision:  They disagreed with the Immigration Judge, and found that the motion to reopen should have been granted, because our client had proven he did not receive notice of his hearing!

You can read a redacted version of the BIA decision by clicking here.  As stated in their decision:

We presume that a properly addressed notice sent via regular mail is received by the addressee.  However,in the matter before us, it appears that the hearing notice was not “properly addressed,” as the address the respondent provided to the Department of Homeland Security (“DHS”) was not accurately noted. Specifically, the respondent contends that at the time he was detained and placed in removal proceedings by the DHS, he was residing with his United States citizen spouse and United States citizen children at Mill Street, Sheridan, Montana.  The record reflects that the printed address for the respondent . . . at first lists the address for the respondent as Mail Street, Sheridan, Montana, which appears to have been inked out and changed to Mall Street, Sheridan, Montana.  . . .  All hearing notices were sent to the respondent at the incorrect Mall Street, Sheridan, Montana, address.

. . .

Under the particular circumstances o f this case, we agree with the respondent that the motion to reopen should have been granted. Applying the Ninth Circuit’s totality of the circumstances approach to the matter before us, and upon further consideration o f the unresolved issues relating to the proper service of the hearing notice to the respondent; the affidavits of the respondent’s United States citizen spouse and other family members; issues related to the care and welfare of their minor United States citizen children; the respondent’s motivation to appear for the hearing in light of the respondent’s apparent prima facie eligibility for relief from removal, we find that a rescission of the in absentia order entered in this case is warranted.

(Edited for confidentiality and readability.)

Now that the immediate threat of deportation is gone, our client and his family are relieved.  We have a long road of paperwork and court hearings ahead of us, but we are now on a path that will fairly certainly lead to permanent residency (i.e. a “green card”).

Our immigration laws must be fair and must reflect reality.  It goes without saying that not all mail that is sent is necessarily received — indeed, this is why services like delivery confirmation and tracking were created.  As Judge Posner of the Seventh Circuit Court of Appeals once succinctly stated, “[m]ost letters are delivered, but some aren’t.”  See Joshi v. Ashcroft, 389 F.3d 732, 735-36 (7th Cir. 2004).  There are many lives that have been needlessly torn apart simply because a court notice was not delivered properly.  Thankfully, this particular client was spared from these difficult consequences.

History of the Referendum

Unlike most referendums that are brought by the public and require signature gathering to be placed on the ballot, LR-121 was actually a legislative referral.  The Montana Legislature passed HB 638, a bill brought by Rep. David Howard (R) to place this issue on the ballot as a referendum.  Therefore, by operation of law, the referendum will now be brought before Montana voters in the general election.

Rep. David Howard, the proponent of this referendum, had unsuccessfully carried 3 bills in the 2009 session and 6 other bills in the 2011 session to attempt to bring the state into the business of enforcing federal immigration laws.  We have discussed many of these bills on this blog.  All of these other bills were defeated, but his legislative referendum managed to pass both the House and Senate.  The votes were almost completely along party lines, with Democrats voting against the referendum and Republicans voting in support.  Two notable exceptions were Sen. Joe Balyeat (R) and Rep. Liz Bangerter (R) — both of whom split with their party to oppose the referendum.

The Language of LR-121 to Appear on the Ballot

The Montana Secretary of State has certified the following language to appear on the ballot:

AN ACT DENYING CERTAIN STATE-FUNDED SERVICES TO ILLEGAL ALIENS; ESTABLISHING PROCEDURES FOR DETERMINING A PERSON’S CITIZENSHIP STATUS; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE.

LR-121 prohibits providing state services to people who are not U.S. citizens and who have unlawfully entered or unlawfully remained in the United States. Under LR-121, every individual seeking a state service, such as applying for any state licenses, state employment, unemployment or disability benefits, or aid for university students, must provide evidence of U.S. citizenship or lawful alien status, and/or have their status verified through federal databases. State agencies must notify the U.S. Department of Homeland Security of noncitizens who have unlawfully entered or remained in the U.S. and who have applied for state services.

The costs associated with verifying U.S. citizenship or lawful alien status will vary by agency and cannot be precisely determined. However, on-going costs may include: hiring and training state personnel to use various federal databases; software, hardware and search charges; and information assessment and management costs.

[] FOR denying certain state services to illegal aliens.

[] AGAINST denying certain state services to illegal aliens.

In layman’s terms, this bill would insert the federal government between almost every agency in this state and the services they provide to Montana residents.  As discussed below, this bill is part of a misguided effort to use state resources to enforce federal immigration laws, and will be costly and damaging to the state.

As you can see, this referendum includes the term “illegal alien” in some sections.  Please refer to this resource for why the term “illegal alien” is offensive and inaccurate.

What State Services Will Be Denied to Unauthorized Immigrants?

The bill would require employees of the State of Montana to serve as federal immigration agents, attempt to determine the immigration status of applicants for services, and deny these services to undocumented immigrants.  They will be required to use a costly “pay-per-use” federal database to perform these checks.  These are the services that are to be denied:

Employment with a state agency. This referendum will require all state agencies to check immigration status and deny employment to anyone who cannot prove U.S. citizenship or authorized status.  There are already federal laws requiring that all applicants for employment complete an Employment Verification Form before starting work.  Most of you are probably familiar with the process — you present certain forms of ID to prove eligibility to work, and then you sign a form.  The federal government has not imposed any additional requirements or mandated the use of their federal system to verify work authorization.  Nevertheless, this referendum seeks to voluntary commit the state to using a costly and time-consuming federal database to screen employees.

Ability to attend any public university in the state. There is no federal law that prohibits undocumented immigrants from attending college.  Most states allow undocumented students to attend college, although they may be required to pay tuition as non-residents of the state.  Under Montana’s current laws, “[t]he university system is open to all people, subject to such uniform regulations as the regents deem proper.”  This referendum would change this and require all students to prove their citizenship or immigration status, and be denied admission if they cannot do so.  Somewhat redundantly, the referendum would also cut off an undocumented student’s ability to get student financial assistance.  Worse, it would require the state to turn any undocumented students over to the federal immigration authorities!

Ability to get a state license or permit to practice any trade or profession. For the first time, this referendum would require state agencies that issue licenses or permits to screen applicants for immigration status.  The requirement would apply to all licenses and permits provided in Title 37, which includes over 75 different professions from barbers to massage therapists and real estate brokers.  One can only imagine the number of applicants that state employees will now be required to screen.  Since current procedures do not require any such screening, this will likely require some significant changes in the licensing and permitting process.

Ability to get unemployment insurance benefits. The referendum would specifically prohibit undocumented aliens from receiving unemployment insurance benefits as provided under law.

Assistance with vocational rehabilitation. Montana law provides for some assistance to help “a person with a disability to enable the person to the extent possible to become independent and productive or employable.”  The referendum would strip undocumented immigrants with such disabilities from getting any rehabilitation.

Services for victims of crime. Under Montana law, there is a Crime Victim Compensation fund to ”help innocent crime victims with crime-related medical expenses.”  This includes “lost wages and medical and funeral expenses incurred as the result of personal injury crimes. These crimes include homicide, rape, domestic violence, stalking, assault, child sexual and physical abuse, and drunk driving.”  The referendum would prevent victims of crime who are undocumented immigrants from getting help.

Services for the physically disabled. The referendum oddly seeks to eliminate access to two types of services for physically disabled individuals.  The referendum states that it will deny “services for the physically disabled, as provided in Title 53, chapter 19, parts 3 and 4.”  These are the parts relating to “a program to make specialized telecommunications equipment and services available to persons with disabilities” and “newborn hearing screenings.”  It is troubling that the referendum would deny access to necessary equipment for people with disabilities, and it is quite disturbing that it seeks to deny a simple hearing test to newborns.  It goes without saying that most newborns in Montana are likely U.S. citizens by virtue of being born in this country.

Ability to get a grant. Finally, the referendum seeks to limit the ability to get any kind of grant as provided in Title 90 of the Code.

It should be noted that LR 121 appears to be drafted to deliberately create the impression that its scope is even broader than it actually is.  At certain points, the language of the legislative referendum appears sweeping, seemingly reaching to all state services provided to undocumented aliens.  Public perception of a law often shapes its implementation, and the broad language of the referendum will have lasting effects beyond the specific areas outlined above.

How Will the State Verify the Legal Status of Applicants for Services?

This referendum would require the State of Montana to check a costly federal database before granting services to Montana residents.  Montanans have spent years fighting this level of federal intrusion into our day-to-day activities, as evidenced by the vocal opposition to federal REAL ID laws.  However, this referendum would insert a federal government database into almost every agency of the State of Montana — and require us to pay for its use!

The federal database that would be used is the Systematic Alien Verification for Entitlements (“SAVE”) system.  The SAVE system is not free. The federal government charges between $.50 and $2.00 for each search in the system.  The minimum cost is $.50.  When you consider the numbers of applicants for state services, this could quickly add up to millions of dollars.  State agencies will also waste time and resources training employees on how to use this system, and checking it before allowing access to a wide variety of state services.

The SAVE system is not a fully computerized system that provides immediate results.  In actuality, this system often fails to ascertain immigration status at the “initial verification” stage, and a secondary or third inspection is required.

A report from U.S. Citizenship and Immigration Services (“USCIS”) states that 6% of its checks are not resolved immediately and require secondary or third inspection.  USCIS estimates that secondary inspection can take up to 3-5 working days to complete.  In actuality, applicants have complained of delays of over 15 days.

Agencies may be required to process paperwork in the third inspection stage, including a G-845S Document Verification Request.  At this stage, the agency has to make copies of all of the applicant’s immigration papers, fill out a form, and send it to USCIS.  Then, the agency must wait 10-20 working days or longer for a response.

The SAVE System is Similar to REAL ID

Requiring that our state agencies use federal systems to verify access to benefits has an impact on our state sovereignty.  The mandatory use of the SAVE system was a major part of the federal REAL ID law that Governor Schweitzer and the Montana legislature resoundingly rejected in 2007.

It is important for Montanans to realize that this referendum imposes even more sweeping and burdensome requirements than REAL ID.

We Don’t Need this Law in Montana

Montana is one of the states with the least numbers of immigrants in the whole country.  Montanans must consider if enforcing federal immigration laws are worth the delays in service and extra cost to the state.

During the 2009 and 2011 legislative sessions, the proponents of anti-immigrant legislation estimated that there are no more than 4,000 undocumented immigrants in Montana.  One can safely assume that far fewer are actually accessing state services.  It would cost the State of Montana far more to implement this law than we are “losing” by providing services to undocumented immigrants.

Fiscal Impact of LR-121

It should be noted that state agencies were asked to complete some fiscal statements, which were woefully inadequate and not well-reasoned.  The true impact of LR-121 will reach far beyond the limited analysis in these agency reports.  You can find a copy of those agency fiscal reports here.

Who is Currently Working to Oppose the Referendum?

For the past six years, an ad hoc coalition of organizations and individuals has worked to defeat over 25 anti-immigrant proposals at the past three legislative sessions.  This coalition has included the Border Crossing Law Firm, P.C., Montana Human Rights Network, the Gallatin Valley Human Rights Taskforce, the Montana Coalition Against Domestic and Sexual Violence, the Teamsters, SEIU Healthcare 775 NW, members of the faith community, individual activists, concerned members of the community, and immigration attorneys.   Without specific funding, the coalition has operated on in-kind contributions of staff time, printing, etc. from organizations as well as volunteer hours and resources from individuals.

Many members of this coalition have come back together in an effort to raise resources and run a campaign to educate Montana voters and defeat LR-121.  Please contact me if you can provide any help to defeat LR-121.

This article will be updated with more information as it develops.

At the a debate last week moderated by Marnee Banks of KXLH, I submitted a question of the candidates:  ”What do you believe is the proper role of the state law enforcement in dealing with federal immigration laws?”  (The question does not appear to have been included in the video that was posted online.)  Pam Bucy stated very clearly that the Montana Highway Patrol has no role whatsoever in enforcing federal immigration laws.  Presently, there are no laws permitting the Montana Highway Patrol or any other state or local law enforcement officers to enforce federal immigration laws, but it is still happening on a routine basis.  I have had occasion to review many instances in which law enforcement officers have asked individuals about their immigration status and held them without legal cause while they call Immigration and Customs Enforcement (“ICE”) or check federal databases to determine their immigration status.  Naturally, this practices often results in racial profiling.  I took Pam Bucy’s comments to be a strong rejection of that precedent.

Nevertheless, without a voting record to rely upon, it becomes more important to consider any other information that may reflect upon the relevant issues.  To that end, I will recount a professional interaction with Pam Bucy that may shed light on her interpretation of the Montana Constitution, the privacy protections provided under state law, and the role of the state in sharing information with the federal government.  As discussed below, I believe this interaction with Pam Bucy raises some concerns.

In the course of a federal lawsuit I was defending, I came across documents revealing that the State of Montana Unemployment Insurance Division had been illegally disclosing confidential personal information for years.  Almost every businesses in Montana must file Quarterly Wage Reports with the State, containing employees’ names, social security numbers, and salary information.  From at least 2005 to 2007 — and likely continuing long after these dates — officers with Immigration and Customs Enforcement (“ICE”) would contact the Unemployment Insurance Division and ask for copies of the Quarterly Wage Reports for businesses that were “under investigation.”  ICE is an agency within the Department of Homeland Security, and is charged with enforcing federal immigration laws.

The Unemployment Insurance Division routinely violated Montana’s Constitution and statutes by providing non-redacted copies of all of the requested Unemployment Insurance reports, without any warrant or legal basis for doing so.  In other words, they would disclose confidential information on every single employee, including their names, social security numbers, and wages, without demanding a warrant or even limiting the disclosure to specific individuals who were allegedly under investigation.

This allowed ICE to engage in a “fishing expedition” and secretly investigate every employee of a business, without any individual suspicion about each particular employee’s immigration status.  ICE agents could use the names and social security numbers they received from the Unemployment Insurance Division to attempt to ascertain the immigration status of every single employee.  ICE agents used a flawed database to crosscheck their social security numbers, and in some cases they incorrectly transcribed employees’ information.  Therefore, some authorized workers who had done nothing wrong were falsely believed to have invalid social security numbers, and were improperly detained while this was sorted out.

On June 28, 2010, I brought this information to the attention of Pam Bucy, then serving as Chief Legal Counsel for the Montana Department of Labor and Industry.  As I stated in my letter:

The warrantless disclosure of the names, social security numbers, and salaries contained in these Unemployment Insurance Reports is strictly prohibited under Montana’s Constitution and statutes.  The Montana Constitution includes a fundamental “Right to Privacy” provision, which provides that:  “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”  Mont. Const., Art. II, § 10.  In addition, the Montana legislature has made its intent clear that the names, social security numbers, and salary information contained in the state’s mandatory Unemployment Insurance reports shall be kept private and confidential.

The relevant statute provides:

“Information obtained from any individual under this chapter must, except to the individual claimant to the extent necessary for the proper presentation of a claim, be held confidential and may not be published or be open to public inspection, except to public employees in the performance of their public duties, in any manner revealing the individual’s or employing unit’s identity, but any claimant or the claimant’s legal representative at a hearing before the board or appeal tribunal must be supplied with information from the records to the extent necessary for the proper presentation of the claim.”   MONT. CODE ANN. § 39-51-603(3).

Therefore, by statute, the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a “public employee” must inspect the information in the performance of “public duties.”  Regardless of what the Unemployment Insurance Division believed when transmitting Unemployment Insurance reports to ICE, employees of the federal government are not “public employees” as contemplated by statute.

The term “public employee” refers to employees of the State of Montana, not employees of the federal government.  The relevant statute provides:

“’Public employee’ means:  (a) any temporary or permanent employee of the state;  (b) any temporary or permanent employee of a local government;  (c) a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority; and  (d) a person under contract to the state.”  MONT. CODE ANN. § 2-2-102(7).

Federal employees are not incorporated into this definition and are not “public employees” under Montana law.  Therefore, it is clear that the Unemployment Insurance Division could not legally transmit Unemployment Insurance reports to ICE without a warrant.  The federal government obtained no such warrant.  The complete and un-redacted reports were simply offered in response to written correspondence.

It is especially troubling that the Unemployment Insurance Division released un-redacted copies of these Unemployment Insurance reports without limiting the scope of its disclosure to any specific individuals who were under investigation.  The Montana Supreme Court has held that all individuals retain a privacy interest in personal information such as their social security numbers.  Jefferson County v. Mont. Std., 318 Mont. 173, 180 (Mont. 2003) (even a public official involved in criminal activity, and therefore triggering the public’s right to know in ways not at issue in this case, “does retain a privacy interest in other types of personal information not relevant to her status as a public official, such as her social security number and driver’s license number”); see also Havre Daily News, LLC v. City of Havre, 333 Mont. 331, 341 (Mont. 2006) (acknowledging “that an individual has a protected privacy interest in her social security number and driver’s license number”).

Under Montana law, “[f]ew things are more inherently private” than an individual’s social security number.  State v. Jones, No. DC 03-12, 2003 Mont. Dist. LEXIS 2304 (Mont. Dist. Ct. Nov. 20, 2003).  Accordingly, under the Montana Constitution, the federal government was required to get a warrant before obtaining any records from the State of Montana that disclosed social security numbers.  By voluntarily disclosing private information without any warrant or legal authority, the Unemployment Insurance Division violated the privacy rights of dozens of employees of Melaque Butte, LLC.

Montana statutes also provide that “personal information” such as social security numbers cannot be disclosed by any state agency. MONT. CODE ANN. § 2-6-501(4)(a); 2-6-502.

I concluded my letter by noting that:

The Unemployment Insurance Division is required by law to implement procedures to prevent precisely this type of privacy violation.  Statute provides that:

In order to prevent the misuse of personal and other sensitive information collected by the department in the administration of the unemployment insurance laws, the department shall adopt rules providing for confidentiality of unemployment insurance information, including the circumstances and conditions under which information may be disclosed to appropriate persons and government agencies.  MONT. CODE ANN. § 39-51-603(4).

The same requirement exists in MONT. CODE ANN. § 2-6-502.  A review of the Administrative Rules of Montana reveals no such rulemaking.

On July 22, 2010, I received a response from Pam Bucy.  She argued that “the Unemployment Insurance (UI) program is a cooperative federal-state effort” and claimed that there is an exception written into federal law that would allow Unemployment Wage Reports to be sent to any agency of the federal government without a warrant.  She stated:

20 C.F.R. § 603.4 is the federal rule that requires protection of confidential UI information.  20 C.F.R. § 603.5 enumerates limited exceptions to the confidentiality requirement. Among them is an exception for public officials in performance of their official duties. “Public official” is defined in 20 C.F.R. § 603.2(d) as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law . . .”  Under the preceding authorities, the Department can transmit information to a federal executive agency for performance of their official duties without a warrant.

Of course, there was an obvious and substantial problem with Pam Bucy’s interpretation of the law.  On September 27, 2010, I responded to Pam Bucy’s incorrect assertions:

While I understand and appreciate the fact that you were not personally involved in the decisions made by the Department of Labor and Industry (“DOLI”) in this case, I believe your justification for their actions are not legally supportable.  Contrary to your assertions, federal laws only trump the privacy protections outlined under Montana law if authorities have a court order or subpoena.  Otherwise, federal laws do not in any way curtail the strict confidentiality provisions of MONT. CODE ANN. § 39-51-603(3).

In your letter, you state that the “public official” exception contained in 20 C.F.R. § 603.5(e) allows DOLI to share confidential unemployment insurance information with federal agencies without a warrant.  However, the exceptions upon which you rely for this argument are not supported by the plain language of the regulations themselves.  The law states in pertinent part as follows:

“Disclosure of confidential UC information is permissible under the exceptions in paragraphs (a) through (g) of this section only if authorized by State law and if such disclosure does not interfere with the efficient administration of the State UC law. Disclosure of confidential UC information is permissible under the exceptions in paragraphs (h) and (i) of this section without such restrictions.”  20 C.F.R. § 603.5.

The “public official” exception you rely upon is in paragraph (f) of this regulation, and is therefore applicable only if the disclosure is authorized by Montana law. You have not cited to any statute or constitutional provision that allows state agencies in Montana to turn confidential unemployment insurance information over to federal agencies without a warrant.

Under the plain language of MONT. CODE ANN. § 39-51-603(3), the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a Montana “public official” must inspect the information in the performance of “public duties.”  Nowhere in Montana law does it state that information can be provided to federal “public officials” without a warrant.  In fact, the disclosure of such information is in direct violation of the Montana Constitution itself.

The only exceptions in 20 C.F.R. § 603 that actually trump state law are in paragraphs (h) and (i). The exception in paragraph (h) allows the disclosure of confidential information with a court order or by subpoena.  A court order was neither sought nor obtained in this case.  The exception in paragraph (i) pertains to disclosure for program oversight and audit purposes. Neither of these exceptions applies when a federal agency, such as Immigration and Customs Enforcement (“ICE”), makes a general request for information without a court order or warrant.  Accordingly, I am forced to conclude that you have not provided any authority demonstrating that such a disclosure is legal under state or federal law.

On October 15, 2010, I received another response from Pam Bucy.  In this letter, she noted that she had created new rules to address precisely this situation:

Thank you for your further comments and questions regarding the Department’s policies and procedures on disclosure of personal identifying information. Though I don’t agree with all of your legal conclusions, your argument is certainly noted. First, I wish to assure you and your client that the Department of Labor and Industry is no longer releasing any information to ICE or any other federal or state agencies with which we don’t have information sharing agreements. Though ICE agents have sought information recently, that request has been denied. ICE has been informed that no further information will be provided until the applicable rules have been finalized and that any future release of information will be done pursuant to those rules.

Pam Bucy attached a copy of the new rules, and they were ultimately enacted into law on April 15, 2011.  Initially, I viewed the new rules as protecting release of confidential information without a warrant or valid subpoena.  However, the rules that were enacted contain a very important difference from the version that was provided to me.  As I reviewed the law on the books, I discovered that it contained exceptions so broad that they would effectively destroy any privacy protections that were created.

The new rules provide for three relevant exceptions to confidentiality:

The department shall bar the disclosure of personally identifying information, except as disclosure is permitted by the informed consent of the identified individual(s) or is required under federal or state law to a public official for use in the performance of official duties or pursuant to a valid subpoena or interagency cooperative agreement.

The first problem with the new rule is that it expands the definition of a “public official” to allow for the release of confidential information to federal officers.  Previously, the law stated that only state employees were public officials.  However, the new regulations changed the definition to include:  ”an official, agency, or public entity within the executive branch of federal, state, or local government with responsibility for administering or enforcing the law.”

There is also a critical difference between the version of the law that was enacted and the version that was sent to me.  In statutory interpretation, whole meanings of the law can depend upon single words.  In this case, the change amounts to the deletion of the word “or,” but this minor change could have significant consequences.  The version that was provided to me stated that:

The department shall bar the disclosure of personally identifying information, except as disclosure is . . . required under federal or state law to a public official for use in the performance of official duties pursuant to a valid subpoena or interagency cooperative agreement.

In legalese, this version would have only allowed public officials to obtain information only pursuant to a valid subpoena.  But in the version that was enacted, there is an “or” placed in front of the clause stating “pursuant to a valid subpoena.”  In statutory interpretation, this would allow release of confidential information to a public officer even without a valid subpoena.  This is a critical difference, and one that violates Montana’s Constitution and statutes.  I have confirmed that this is not just a typo on the Administrative Rules of Montana website — it also appears in the print version.  If this is simply an error, then I hope it will be quickly corrected in print and online.

[Update:  I have confirmed that the change is not an error; although the draft rule provided to me required a "public official" to obtain a subpoena, the change was made sometime between October 2010 and February 2012.  The notice of rule making included the omission.  I have done a compare and merge of the two versions, and this was the only substantive change in the two versions.]

The second major problem with the new law is that it would allow the release of confidential information through an “interagency cooperative agreement.”  The new rules do not provide any clarification on the requirements to enter into such an agreement, stating simply:

“[I]nteragency cooperative agreement” means a written data-sharing agreement between the department and a public official.

On October 15, 2010, I wrote seeking clarification about how the Department of Labor and Industry would go about ensuring confidentiality of information released pursuant to an “interagency cooperative agreement.”  I never received any response.

The Montana Constitution and statutes protect the release of confidential Unemployment Insurance information, so it is not clear how or why a simple written agreement can trump these privacy protections.

On January 16, 2012, Pam Bucy informed me in a conversation that Immigration and Customs Enforcement (“ICE”) officers have not entered into an ”interagency cooperative agreement” to obtain confidential Unemployment Insurance information.  However, she also stated that she was somewhat surprised that they never took this step.  To me, this revealed that she never truly intended to prevent the conduct I went to her to address.

I believe that the manner in which Pam Bucy handled this situation calls into question her interpretation of the privacy protections of the Montana Constitution, and her willingness to share confidential information with the federal government.  These are issues that are important to those who oppose state-level enforcement of immigration laws, but are also important to Montana in many other respects.  For instance, this may be of interest to those who are advocating for Montana’s medical marijuana laws.

In summary, I believe that Pam Bucy took conduct that was a very clear violation of the law, wrote new rules to seemingly prohibit the illegal conduct, but also created significant loopholes that would purport to legalize this very same conduct.

In the end, I view this as actually making our confidentiality protections worse — not better.  In the interest of bureaucratic administration, I believe Pam Bucy has set aside important privacy considerations under Montana law.  As Attorney General, Pam Bucy would often be called upon to deal with conflicts between state and federal laws, and I believe that Montanans expect our Attorney General to enforce our laws and privacy protections despite warrantless requests from the federal government.  To the extent that Pam Bucy’s conduct reflects the manner in which she will handle such issues as Attorney General of the State of Montana, I have serious concerns.

I will continue to monitor what ”interagency cooperative agreements” the Unemployment Insurance division enters into to release confidential information to the federal government, and determine if legal action needs to be taken to challenge the administrative rules that Pam Bucy helped create.

If you are an employee or business owner who has concerns about your private information being secretly released to the federal government without a warrant, I encourage you to complain to the Governor’s office.

This research revealed some interesting surprises.

Since 2005, several bills have been sponsored to involve the State of Montana in enforcement of federal immigration laws.  In reviewing a legislator’s voting record on immigration bills, it is important to note that prior to 2007, there were few or no lobbying groups or non-profit entities that were working to lobby or educate on the issue of immigration in Montana.  In 2007, federal immigration reform became a hotly discussed issue, leading to more state-level bills and greater public debate.  At the same time, groups like the Montana Human Rights Network began to lobby on the issue of immigration for the first time.  The record reveals the value that this increased participation has produced.  While major Democratic party leadership voted inconsistently on immigration issues prior to 2007, there was a nearly uniform party stance with regard to these bills in the 2009 and 2011 legislatures — with Democrats opposing state involvement in federal immigration laws, and Republicans in support.

2001 and 2003 Sessions

No relevant immigration-related bills were discovered during the 2001 and 2003 legislative sessions, when Jesse Laslovich served in the House.

2005 Session

This was Jesse Laslovich’s first session in the Senate.  During this session, Jesse Laslovich sponsored SB 149, with the short title:  ”State service contracts to be performed by citizen, legal alien, or visa holder.”  The bill would have amended an existing statute to require that state service contracts include language stating that “only citizens of the United States, legal resident aliens, or individuals with a valid visa will perform the services under the contract or any subcontract under the contract.”

The bill did not use the term “illegal alien” and did not seek to impose and civil or criminal penalties.

The bill included a clause stating that its new terms do not apply ”if the department determines that there is no responsible vendor meeting the requirements,” if “the cost of complying . . . would create an economic hardship for the state” or if it “would not be in the best interests of the state.”

The minutes from the hearing reveal the reasons that Jesse Laslovich brought the bill:

SEN. LASLOVICH stated that he was bringing the bill forward as the result of a request from a constituent. His constituent asked him what he could do to help prevent the outsourcing of jobs from Montana. He went on to say that he had contacted a friend from the Michigan Legislature who informed him about a bill that Michigan had tried to put through, and this bill was modeled after that bill. SEN. LASLOVICH explained that what the bill would do is prevent state agencies from entering into contracts for the purchase of services with persons, companies or agencies not citizens of the United States.  He informed the Committee that the Department of Administration stood in opposition to this bill because of what they felt would be unintended consequences.

Don Judge, who is running for House District 82 and also faces a primary this June, came out in support of the bill.  He spoke on behalf of Teamsters Local 190, saying “that they understood there could be some concerns regarding this legislation, however, his organization stood in support of the bill.”

The bill ultimately passed the Senate and was transmitted to the House, where it was tabled in committee.  This is the only bill that Jesse Laslovich has sponsored in his legislative career that directly dealt with the issue of immigration.

During the same session, HB 304 was sponsored by Diane Rice (R) to prevent a “person commonly known as an illegal alien” from operating a motor vehicle in the state or getting a driver’s license.  This bill passed the House and was transmitted to the Senate.

Montana progressives may be surprised by some of the bill’s supporters, including Robyn Driscoll (D), Kevin Furey (D), Gail Gutsche (D), Carol Juneau (D), Christine Kaufmann (D), and Dave Wanzenried (D).  Mary Caferro (D) was only one of six who voted against the bill on seceond reading.  I was unable to determine if there was some strategy behind the decision to vote for this bill, but on its face this would be viewed as an “incorrect” vote to avoid state involvement in enforcement of federal immigration laws.

The bill passed the House and was transmitted to the Senate, where it was tabled in the Senate Judiciary committee on which Jesse Laslovich served.

When groups like the Montana Human Rights Network began to work on immigration issues in 2007, and were able to lobby and provide greater education on the issues, these prominent Democrats would vote dramatically differently in later sessions.

It should be noted that another law restricting driver’s licenses based on immigration status actually passed that year instead of HB 304. Another bill, HB 385, imposed the language that was in our laws until just recently, restricting a license to any person “who does not submit proof satisfactory to the department that the applicant’s presence in the United States is authorized under federal law.”  This bill passed the House, and also passed the Senate in a 48-0 vote, with Jesse Laslovich joining in the unanimous decision.

2007 Session

In the 2007 session, when Jesse Laslovich was serving as chair of the Senate Judiciary Committee, there were several anti-immigrant bills sponsored by Jim Shockley.  One of them was SB 260, which would make it a felony for an “illegal alien” to register to vote.  This bill died on second reading in the Senate, with Jesse Laslovich voting to kill the bill.

Another bill was SB 389, which would allow state or local police officers to detain and question people about their federal immigration status.  The bill was tabled in the Senate Judiciary Committee, with Jesse Laslovich voting against allowing it to move to second reading.  Therefore, the bill died in standing committee.

Jim Shockley also sponsored SB 258, which would deny state licenses and license renewal to “illegal aliens.”  The bill passed out of the Senate Business, Labor, and Economic Affairs (which Jesse Laslovich was not a member of).  The bill passed second reading, with Jesse Laslovich voting against the bill.  He voted against the bill on third reading as well, but the bill was transmitted to the House.  The House amended the bill and returned it to the Senate, where Jesse Laslovich again voted against it.  The bill finally died in the Senate on a close 25-25 vote.

My research only revealed one bill during the 2007 session in which Jesse Laslovich voted in favor of imposing restrictions or penalties based on federal immigration status.

SB 346 would have “prohibited certain contracts with illegal aliens.”  In its original language, the bill used the offensive and inaccurate term “illegal alien” throughout the text.  However, this term was stricken and amended to read “unauthorized alien,” which is a defined term within the Immigration and Nationality Act.  As amended, the bill would have prohibited the state from entering into a public contract or subcontract with any person who knowingly employs or contracts with an unauthorized alien, prohibited an unauthorized alien from contracting with the state, and provided criminal penalties (as a misdemeanor) for any unauthorized alien who violated the law.

After being amended, the bill passed Executive Action in the Senate Judiciary Committee by a vote of 11 to 1.  Carol Juneau (D) was the sole ‘No’ vote.  The committee members who voted for the bill were Jesse Laslovich; Lynda Moss (D);  Gary Perry (R); Aubyn Curtiss (R); Larry Jent (D); Dan McGee (R); Jerry O’Neil (R); Gerald Pease (D); Jim Shockley (R); Dave Wanzenried (D); and Carol Williams (D).

The bill ultimately passed the Senate 33-17.  Jesse Laslovich voted to pass the bill.  Other notable votes in favor included:  Steve Gallus (D), Kim Gillan (D), and Larry Jent (D).  Notable votes against the bill included:  Joe Balyeat (R), Carol Juneau (D), and Christine Kaufmann (D).  Also notable is the fact that Lynda Moss (D), Dave Wanzenried (D), and Carol Williams (D) changed their votes to ‘No’ after previously voting to pass it out of committee.

SB 346 died in the House, and was not enacted into law.  While there were some other immigration-related bills in the 2007 session, my research did not reveal any others where Jesse Laslovich had occasion to vote on them.

2009 Session

I have written about the 2009 legislative session in some detail on this blog.  This was the first session in which I actively lobbied in support of immigrant rights, and it was also the most contentious session to date on the issue of state immigration enforcement.  There were 11 relevant anti-immigrant bills that were sponsored during this session by David Howard (R), Gary MacLaren (R), Edward Butcher (R), Gary Perry (R), and Jim Shockley (R).  A description and summary of most of the bills can be found here.

Many of these bills originated in the House and were tabled or defeated before being transmitted to the Senate.  Therefore, Jesse Laslovich only had occasion to vote on a few of these bills.  On all but one of the bills that he was presented with, he made a “correct” vote against state-level enforcement of federal immigration laws.

SB 379 would have made it a misdemeanor or felony to transport, move, conceal, harbor, or shield any alien that you know to be undocumented.  It would also have made it a misdemeanor or felony to encourage an undocumented alien to enter or remain in the state without status.  The bill would also have provided for forfeiture of property belonging to anyone convicted of any of those offenses.  Jesse Laslovich voted against the bill at every vote, but it still passed the Senate.  It was transmitted to the House, where it was tabled in committee.

SB 380 would have required the county treasurer’s office to investigate immigration status and deny motor vehicle registration to undocumented immigrants.  The bill would have resulted in less accurate motor vehicle registrations.  Rather than throwing their hands in the air and going home, undocumented immigrants would simply register in other people’s names or not register at all.  Jesse Laslovich’s Senate Judiciary committee tabled the bill.

SB 381 would have required the state to enter into a costly Memorandum of Understanding so that the Highway Patrol could be deputized to act as Immigration and Customs Enforcement (“ICE”) agents and enforce immigration laws.  This was sponsored by Shockley and passed the Senate Judiciary committee.  Jesse Laslovich voted against the bill at every vote, but it still passed and was transmitted to the House.  It was ultimately tabled in the House Judiciary Committee.

SB 382 would have required the state to expend significant time and resources “cooperating with” the federal government in immigration investigations, and would have prohibited any law that would conflict with obligations to “cooperate with” the federal government.  Once again, Jesse Laslovich voted against the bill at every vote, but it still passed and was transmitted to the House.  It was ultimately tabled in the House Judiciary Committee.

SB 377 would have prevented an employer from being able to deduct any wages or salary paid to an unauthorized alien.  Our fear was that the law would make employers less likely to hire “foreign” looking employees – even those who are authorized for employment – because the potential sanction is so severe.  We also had concerns about how it could be implemented, as the Montana Department of Revenue has no existing method of determining this information.  The bill ultimately passed the Senate on a 32-17 vote, with Jesse Laslovich voting in support of the bill.  However, the bill was ultimately tabled in the House.

Conclusion

The value of having a lengthy voting record is the ability to analyze these votes and potentially extrapolate future outcomes.

Jesse Laslovich voted on three relevant bills in 2005, four relevant bills in 2007, and five relevant bills in 2009 — for  total of 12 bills relating to state-level enforcement of immigration laws.

There were a total of four votes that I would characterize as “incorrect” votes, including one bill that he sponsored.  However, as noted above, the bill he sponsored in 2005 did not attempt to create any enforcement mechanism or penalties.  Therefore, it is not in quite the same category as the later bills sponsored by Jim Shockley and others.

In the 2007 session, Jesse Laslovich was a swing vote that killed SB 258, which would deny state licenses and license renewal to “illegal aliens.”  This was a 25-25 vote.

In the 2009 session, which was Jesse Laslovich’s last session in the Senate, he played an important role on the Senate Judiciary Committee as several of Jim Shockley’s anti-immigrant bills were debated.  In each instance that a bill passed out of that committee, it was on a 7-5 vote with Jesse Laslovich opposing.

As the same objective data can have multiple interpretations, this information is provided for your own review and consideration.  This is the first post in a series about the 2012 election, and a subsequent post is planned to focus on Jesse Laslovich’s opponent, Pam Bucy.

If you have any questions or concerns about this data, please do not hesitate to contact me.

On several occasions, I have dealt with similar issues.  On one occasion, the government sought to deport a client of mine despite the fact that he had obtained citizenship through his parents.  I recall that during the last legislative session, some lawmakers proposed harsh penalties on anyone who could not prove citizenship or lawful residency.  At the time, I had attempted to explain that immigration status can be extremely difficult to determine — and is outside of the expertise of local police.  This provides a perfect example.

Despite being told that she is not a citizen, she may very well have acquired citizenship through her parents when they naturalized.  It comes down to a complex set of laws and requirements.  As I state in the article:

Unfortunately, it’s a situation that is not that uncommon.

Shahid Haque-Hausrath is a Helena attorney whose firm, Border Crossing Law, specializes in immigration and naturalization. Haque-Hausrath said that it’s surprisingly common for people who have lived in the U.S. their whole lives to discover that their citizenship status is unsettled.

“Immigration laws are very complex,” he said. “I’ve dealt with several people of Canadian decent where one of their parents was an American citizen and one of their parents Canadian, and they always assumed they were U.S. citizens because they had grown up here. But there are specific conditions that need to be met to become a U.S. citizen — even when one of their parents was born in the U.S.”

Davis’ situation is made even more tangled by the amount of time that has elapsed since she entered the country.

“Since 1934, the laws regulating naturalization and immigration have changed five times, and each individual’s case is determined to some extent by the laws that were in place at the time they entered the country,” Haque-Hausrath said. “What the basic law would say regarding Mrs. Davis’ case is that she would have had to fulfill a series of conditions before she hit the age of 18 in order to get citizenship through her parents.”

Haque-Hausrath said that in addition to her parents becoming U.S. citizens, Davis would have had to receive “permanent resident” status prior to her 18th birthday. If, as a child, her parents registered her as a permanent resident, then her citizenship was assured. But if they failed to do that, then Davis’ path to citizenship would have become much more tortuous. She would have been required to leave the country, apply for and receive permanent resident status abroad, then re-enter the U.S., at which time she would immediately have become a U.S. citizen.

“If she was here as a child on some form of visitor’s visa and never left the country and came back in to establish a permanent residence, then she would never have acquired citizenship,” Haque-Hausrath said. “If those conditions were never fulfilled before she hit age 18, they might argue that she lost her window of opportunity and therefore never became a citizen. What really matters is, was she a permanent resident on the day and time that her parents were naturalized? It all hinges on her being a permanent resident.”

While not irrelevant, the fact that Davis has lived her whole life in the U.S., is married to a U.S. citizen and has long-established ties to the community in which she lives is subsidiary to the status she was assigned at the time she was a child.

“The way that the rules are written, there is no discretion to sympathize with her situation or age and just allow her to become a U.S. citizen,” Haque-Hausrath said. “If she doesn’t meet these specific requirements, they would deny her the U.S. citizenship despite any humanitarian factors that they should take into account. It’s a very rigid set of rules.”

So much of this Gordian knot of laws and regulation comes down to one, credit-card-sized document Davis was issued at age 4. One side lists her name, her age and her country of origin. The other side shows a 4-year-old Anke d’Hane, white bow in her hair, and an authorization from the Department of Immigration and Naturalization to admit her into the U.S. legally.

Haque-Hausrath could not immediately identify the document from a photograph, but he did say it was a strong likelihood that the card was Davis’ original permanent resident status card.

If that is the case, than all Davis should need to establish her U.S. citizenship is that card, her birth certificate and a copy of her father’s naturalization certification — all of which she currently has in her possession. If that card is merely a visitor’s visa, then the whole story changes.

Haque-Hausrath said that even in a worst-case scenario, it is unlikely that Davis would be deported. However, she could be required to obtain her permanent resident status, and would likely have to wait for up to five years before being eligible for citizenship. She also would lose her right to collect Medicare benefits or vote over that same period of time.

“If she wasn’t a permanent resident and hasn’t been all these years, then all her years of working they would consider to be illegal employment,” Haque-Hausrath said.

If there is one lesson to be taken from this story, it is that we should be a bit more careful when referring to someone as an “illegal alien” or other pejorative terms.  Immigration laws are complex, and this complexity is belied by such rudimentary and offense terms.  Indeed, if you use these terms, you might be referring to people like Ms. Davis.

Last October, I became involved in an effort to draw attention to serious abuses committed by Bruce Norum, who was the most senior official in Montana working for Immigration and Customs Enforcement (“ICE”).  At that time, Bruce Norum was the Supervisory Detention and Deportation Officer for the state. In that capacity, he made final decisions regarding who should be detained, whether or not an immigrant should be released pending court hearings, what bond amount should be set, and other important determinations regarding immigrants under ICE scrutiny.

On September 28, 2011, during working hours and from his ICE e-mail account, Mr. Norum forwarded an e-mail to another ICE agent and myself, recommending it as a “good read.”  The e-mail plainly advocated racial profiling of Muslims, and asked for a form of loyalty test to be administered before a Muslim should be afforded basic due process.

Some statements from the e-mail included:

I’ve been trying to say this since 911, but you worry me. I wish you didn’t. I wish when I walked down the streets of this country that I love, that your color and culture still blended with the beautiful human landscape we enjoy in this country. But you don’t blend in anymore.

. . .

It is not MY responsibility to determine which of you embraces our great country, with ALL of its religions, with ALL of its different citizens, with all of its faults. It is time for every Arab/Muslim in this country to determine it for me.

I want to know, I DEMAND to know and I have a right to know, whether or not you love America …. Do you pledge allegiance to its flag? Do you proudly display it in front of your house, or on your car?  Do you pray in your many daily prayers that Allah will bless this nation; that He will protect it and let it prosper? Or do you pray that Allah with destroy it in one of your Jihads?  Are you thankful for the freedom that this nation affords? A freedom that was paid for by the blood of hundreds of thousands of patriots who gave their lives for this country? Are you willing to preserve this freedom by also paying the ultimate sacrifice? Do you love America? ? If this is your commitment, then I need YOU to start letting ME know about it.

. . .

I want to see Arab-Muslims waving the AMERICAN flag in the streets. I want to hear you chanting ‘Allah Bless America’.. I want to see young Arab/Muslim men enlisting in the military. I want to see a commitment of money, time and emotion to the victims of this butchering and to this nation as a whole.

The FBI has a list of over 400 people they want to talk to regarding the WTC attack. Many of these people live and socialize right now in Muslim communities. You know them.

You know where they are. Hand them over to us, NOW!

. . .

We will NEVER allow the attacks of September 11, or any others for that matter, to take away that which is so precious to us — our rights under the greatest constitution in the world. I want to know where every Arab Muslim in this country stands and I think it is my right and the right of every true citizen of this country to DEMAND it.

It was shocking and appalling to receive this message from Mr. Norum for many reasons.

I am a Pakistani-American who was raised in a Muslim household.  Mr. Norum was well aware of my race and ethnicity, as we had met in person many times in an official capacity.  As I practice solely immigration law, I routinely represent immigrants (including Muslims) facing the threat of deportation in Mr. Norum’s jurisdiction.  By sending this message to me, it appeared that Mr. Norum may have been trying to question my loyalty to the United States, and use his position of authority to intimidate me.

Furthermore, the fact that Mr. Norum would forward this e-mail from his government account, during work hours, seriously called into question all decisions he has made in his official capacity.  The views he advocated run directly contrary to the Constitution he was sworn to uphold.  Indeed, the e-mail even implies that Muslims cannot be “true citizens” of the United States.

I immediately filed complaints with the civil rights and professional oversight divisions of the Department of Homeland Security (“DHS”).  I also contacted reporter John S. Adams regarding this matter, and a story was printed in the Great Falls Tribune on October 9, 2011.  You can find the full story here.

Around the same time, I was contacted by Mr. Norum’s direct supervisor, who is based out of Salt Lake City, Utah.  He informed me that he was taking the incident extremely seriously, and was taking immediate action.  Mr. Norum was quickly suspended from duties, pending an investigation.  I was grateful for the prompt attention that was given to this matter.

You can find a follow-up story from the Great Falls Tribune, containing more details, by clicking here.

Since then, I spoke with investigators from ICE “internal affairs” and I understand that their investigation finally concluded at the end of November 2011.  At this time, I am not aware of the results of the investigation.

After Mr. Norum was relieved of duties, he was replaced.  I have had very positive dealings with his replacement, as well as other Department of Homeland Security officials in Montana.  Thus far, I am pleased that I have not experienced any harassment or retaliation as a result of this matter.

Based on his clearly  bigoted views, I do not believe that Mr. Norum has any credibility to serve within the Department of Homeland Security, and certainly not in a supervisory role.  It is my sincere hope that Mr. Norum is permanently relieved of duties.  One thing is certain — if he returns to work, he will be met with fierce opposition.

I will keep you posted as more information comes to light.

No, I’m not kidding.  A press release that was issued today states:

“It is important to protect veterans and members of our armed forces from unnecessary prosecution and give them a viable path to comply with federal law,” said Chris W. Cox, executive director of NRA’s Institute for Legislative Action. “Those who fought to preserve our freedom should not be penalized for their desire to lawfully own firearms from the battlefield.”

The press release also says:

“It is critical that we give our veterans another 90-day amnesty period to comply with the law without fear of penalty,” Tester and McCain wrote.  “If an amnesty is not provided, we will be further convinced that legislation is necessary in order for our veterans to register their lawfully obtained firearms.”

These statements are rich with irony because when talking about the DREAM Act or the need for immigration reform, Tester has stated repeatedly stated that he opposes any amnesty or path to comply with federal law.

To keep things straight:  Tester supports “amnesty” so veterans can keep fully automatic weapons such as machine-guns, but no “viable path” to citizenship for undocumented kids who came here when they were children and want to serve our country in the military.

Do those sound like your values?

In Montana, home to two of the senators who voted against the DREAM Act, advocates are mobilizing against Sen. Tester to pressure him into changing his immigration stances.

“What we’d really like is to change his mind, but we know that it’s going to take a lot for that to happen,” Montana immigration attorney Shahid Haque-Hausrath told HuffPost on Thursday. “One of our major goals is for Tester to get the message that it’s not going to be politically expedient for him to be raising immigration as a campaign issue.”

Tester is up for reelection in 2012 against Republican Rep. Danny Rehberg, putting activists in the odd position of fighting against a Democrat who assumes he will get their support. Although they do not want Rehberg to be elected, they see it as important to send a message to Tester, Haque-Hausrath said.

In addition to voting against the DREAM Act, Tester also voted to take away funding from the Department of Justice to block it from challenging Arizona’s contested immigration enforcement law.

“Rehberg’s positions are certainly no better than Tester’s,” Haque-Hausrath said. “But they’re also no worse.”

I have previously discussed Senator Jon Tester’s problematic immigration positions in two posts on this blog (here and here).  It is also important to note that not all Montana Democrats share Tester’s views on immigration.  Governor Brian Schweitzer has an incredibly enlightened view of immigration, and for two sessions in a row, Democrats in the Montana Legislature have taken caucus positions against anti-immigrant legislation.  Democrats just need to take action to get our U.S. Senators back on the right track.

Sen. Jon Tester supports anti-immigrant policies and impedes immigration reform.

Jon Tester (D-MT) is facing a tough run for re-election to the U.S. Senate, but he just keeps giving progressives more reasons not to vote for him. His track record on immigration issues has been abysmal, as I’ve written about before. Make no mistake about it — Tester is probably the worst Democrat in the Senate on the issue of immigration, and he is one of the most vocal. The way he talks about the issue, you would think Montana wasn’t one of the states with the least number of immigrants in the whole country.

Despite outrage over his despicable vote against the DREAM Act, Tester hasn’t decided to leave immigration policy to states that actually have a dog in the fight. You won’t see him bragging about his DREAM Act vote, mind you — after all, Daily Kos famously called him an “asshole” for that reprehensible vote, and he doesn’t want to rekindle the ire of the netroots crowd. However, he has continued to make his anti-immigrant positions a core part of his campaign, jumping at every opportunity to link immigration to national security concerns. For instance, when a college in California was found to be enrolling foreign students without proper accreditation, Tester quickly issued a press release noting that “several of the terrorists who attacked the U.S. on September 11, 2001, had entered the country using student visas.”

Recently, Jon Tester put up two web pages on the issue of immigration that are so ignorant you would think Tester locked anti-immigrant zealots Mark Krikorian and John Tanton in a room with a bottle of whiskey and posted whatever they came up with.

In fact, these two immigration pages are so wrong-headed that they require some analysis and interpretation to fully make sense of them. One web page outlines his unsophisticated view of the immigration issue in four paragraphs. His other page lists his immigration “accomplishments.” (By accomplishments, Tester seems to mean ways he has screwed immigrants and wasted federal money.) I’ll review both of the pages together.

Jon’s position on immigration is simple: people who wish to immigrate to the United States must follow the rules, and we must enforce them. That’s why Jon opposes amnesty for illegal immigrants.

During his first year as Senator, Jon helped put a stop to a bill that would have granted amnesty to illegal immigrants living in the United States.

Jon voted in 2007 to defeat the Immigration Reform Bill, telling his colleagues, “We don’t need hundreds of pages of expensive new laws when we can’t even enforce the ones we’ve already got on the books.”

Where do we start? Polls have consistently shown that the people think our immigration system is broken and want some form of immigration reform. The last time our immigration laws were substantively changed was in 1996, and almost everyone agrees that those changes were ineffective — in fact, they created more problems than they solved. People are frustrated by the federal government’s failure to act, and don’t believe that “enforcement only” solutions are going to work. As a result of the federal government’s inertia, states like Arizona, Utah, and Georgia have begun to enact their own immigration policies, which raise significant constitutional concerns including due process violations and racial profiling. While I strongly oppose state level enforcement of immigration laws, and I believe that these state laws are misguided, it is difficult to fault the states for at least trying to take action when the federal government will not.

Yet, Jon Tester considers it an “accomplishment” that he has ignored the will of the public and done absolutely nothing to fix our immigration system. In fact, he is proud that he helped derail immigration reform in 2007, and has continued to sabotage efforts to reform our immigration laws. It’s nice that he sets the bar so low for himself, but the rest of the country is expecting a little more.

Tester refuses to acknowledge that our system needs to be fixed, stating “we don’t need hundreds of pages of expensive new laws when we can’t even enforce the ones we’ve already got on the books.” The problem, of course, is that our system is broken and we need to reform our laws in order to more effectively enforce them. Current immigration reform proposals aim to increase enforcement on the border and interior of the country, but recognize that in order to curb undocumented immigration we also need to fix some of our laws that are creating the problems in the first place. For instance, our laws include huge gaps in coverage, where many family members have no reasonable opportunity to immigrate legally to the United States. Among other things, reform proposals would open new paths to family-based immigration that were causing needless undocumented immigration.

Tester remains willfully obtuse in his opposition to so-called “amnesty” for immigrants who lack lawful status. “Amnesty” means a general pardon for an offense against the state, but Tester uses the term “amnesty” to refer to any changes in the law that would create a path to legalization — even if the path is strenuous and imposes a strict set of requirements. He even used the term amnesty to refer to the DREAM Act, which would have created a seven (or more) year path towards citizenship for men and women who serve our country in the military or go to college. There is no “amnesty” on the table, and there hasn’t been for years. Instead, what is being proposed is a way for immigrants who are already here to earn their way back into lawful status by paying fines, back taxes (if they haven’t already been paying like most immigrants), and potentially even community service. After all, even Newt Gingrich understands that it is not realistic to deport all of the 11 million people who are here without status.

Finally, comprehensive immigration reform won’t be expensive, as Tester states, but will actually increase wages for all workers and improve our economy. Time and again, it has been proven that spending money on border security alone, without any other changes to our laws, is untenable and ineffective. Nevertheless, Tester has chosen to advocate these “enforcement only” solutions.

Instead [of immigration reform], Jon has focused his energy on boosting security along America’s borders, particularly our northern border with Canada. From his seat on the influential Appropriations Committee, Jon has secured investments to combat the flow of illegal drugs into the United States, as well as critical investments upgrading Ports of Entry along the Canadian border.

That same year, Jon introduced and passed into law a measure requiring the Homeland Security Department to report on weaknesses along the northern border and develop a plan for improving northern border security.

So let me get this straight: Instead of working for immigration reform to help the entire country, Tester is pushing for huge government expenditures to protect us from Canada? It is foolish to tout Canadian border security as an alternative to comprehensive immigration reform, because it is clear that the risks from an unmonitored northern border have almost nothing to do with the larger immigration problems our country is facing.

Jon Tester, apparently patrolling the northern border for Canadian intruders.

While the GAO issued a report stating that Department of Homeland Security needs to work better with other agencies and partners along the northern border, the GAO didn’t endorse Tester’s crusade to spare no expense to “secure” the border. Indeed, the GAO previously pushed back on claims about insecurity on the northern border.

Nevertheless, Tester is so eager to appear strong on immigration enforcement that he managed to get an appropriation for military grade radars on the Canadian border. He also wants to expand the use of unmanned drones (and they are already being used in some areas). Those radars and drones would have come in handy last year, when I helped a Canadian kid who got lost and accidentally drove his ATV across the border.

As George Ochenski put it: “For most Montanans, the border with Canada has never been and likely will never be seen as a threat. After all, the U.S. and Canada share the longest border on the continent, and it has been our ally in world wars as well as regional conflicts. It’s also our largest trading partner and our closest, largest and most secure source of oil. Treating Canada as some variant of Pakistan’s border is, in a word, insulting to both Montanans and our Canadian friends.”

Jon was the only Senate Democrat to put his name on legislation pumping new resources into border protection for new technology and new border patrol officers. Jon cosponsored the measure after securing a pledge that a certain percentage of those new resources would be spent along the northern border.

Here’s a tip for Tester’s staffers: When you’re the only Democrat to put your name on a piece of legislation, its probably nothing to brag about. The bill that Tester is referring to is actually a corollary to one that was introduced by his opponent, Rep. Denny Rehberg (R-MT). Jon Tester partnered up with Lindsay Graham (R-S.C.) and John McCain (R-AZ), among other Republicans, to co-sponsor a $3 million amendment. This bill also funded construction of the fence along the Mexican border — a project that has been abandoned and condemned as a tremendous failure and waste of billions in taxpayer dollars.

And from his seat on the influential Appropriations Committee, Jon has secured investments to combat the flow of illegal drugs into the United States, as well as critical investments upgrading Ports of Entry along the Canadian border.

One of Tester’s “critical upgrades” was a $15 million dollar renovation to the border station in Whitetail, MT, which was reported to get about five crossings a day and no commercial traffic. After facing criticism for needless spending, Tester and Max Baucus reduced the appropriation to only $8.5 million. Meanwhile, Canadian officials closed the road leading to this border station, rendering the whole project useless. This embarrassing episode didn’t make Tester’s list of accomplishments.

Of course, even though he votes against any legislation that isn’t directed purely towards deporting immigrants, Tester wouldn’t want you to get the impression that he is against immigration:

Jon knows that legal immigrants, like his grandparents, helped build America into what it is today. But he also believes that no one is above the law.

In public statements and constituent letters, Tester is constantly stating that his grandparents “waited in line” and followed the rules, implying that new immigrants should be expected to follow the same process. However, it appears that Tester’s ancestors entered the country in 1916 — before our current immigration system even existed. At that time, our immigration policy was comparable to an “open border” policy. Years later, quotas were enacted to limit immigration and more stringent criteria for entry were developed. It was not until 1965 that the current Immigration and Nationality Act was enacted, with its very limited methods for gaining permanent residence in the U.S.

There is no question that Jon Tester’s ancestors faced a dramatically different immigration system than those who are immigrating today. Tester and other enforcement advocates often evoke the image of a “line” that immigrants must simply wait in. However, the truth is that for most immigrants, there is no “line.” Tester’s own grandparents may not have been able to enter the country under our current immigration scheme.

Jon Tester seems intent on mimicking Rehberg in many ways, including sharing his anti-immigrant views.

Jon Tester’s vocal anti-immigrant positions have placed Montana progressives in a difficult position. Contrary to the attacks of those who want to silence any opposition to Tester’s bad policies, none of us are excited about the prospect of his opponent, Dennis Rehberg, being elected to the Senate. Indeed, Rehberg’s stance on immigration is no better than Tester’s. However, Tester’s ignorant views on immigration are also making it impossible for us to lend him our vote.

Tester’s positions on immigration are not gaining him support with Republicans, but they are causing a split among Democrats. The best thing for Jon Tester to do is distance himself from the issue of immigration, because each time he opens his mouth, he brings many progressives closer to sending a difficult message: The progressive movement cannot tolerate a Democrat who has an anti-immigrant agenda, regardless of the consequences.

Client with Shahid Haque-Hausrath, celebrating their victory.

Today, the Border Crossing Law Firm celebrates an important victory on behalf of our client and his two developmentally-disabled children.

Over twenty years ago, our client came to the United States from Guatemala. He was only 20 years old when he first arrived without inspection in the country. He has two children who were born in this country and are U.S. Citizens. His older son requires special care due to developmental delays. When our client’s younger son was also born with severe developmental disabilities, the mother abandoned the family. Our client obtained legal custody of the children and has been working tirelessly to care for them.

Our client’s younger son is terminally ill, and requires 24/7 care and attention. He was born with cerebral palsy, is blind, has lung and heart damage, and is prone to seizures. Due to his brain damage, he has limited movement and will never be able to walk. For over a year, our client has been his son’s sole caretaker, and has only been able to leave the house for a few hours a week to buy groceries and supplies. Apart from these brief hours outside of the house, he provides his sons with constant love, care, and medical attention.

After being placed into removal proceedings, our client faced deportation to Guatemala. He was faced with an impossible decision: Would he take his children with him to Guatemala, where they would be unable to get the care they need? Or, would he go to Guatemala alone, splitting the family apart and leaving his children as wards of the state?

Shahid Haque-Hausrath represented our client at his removal hearing. We are pleased to announce that our client was granted cancellation of removal, which means that he is now permitted to live in the U.S. as a legal permanent resident. This is an extraordinary remedy that is only available to individuals who demonstrate that their deportation will cause exceptional and extremely unusual hardship to U.S. citizen dependents.

Within weeks, our client will receive his “green card” in the mail. Now that his immigration status is resolved, our client can concentrate on providing loving care for his children.

A humorous, and fake, letter from Amazon to the Plaintiffs.

Class action lawsuits are an important vehicle to ensure that large groups of people, each of whom have a small claim for damages, are nevertheless able to get justice when they are harmed.  However, the recent federal class action lawsuit against Greg Mortenson and the Central Asia Institute (“CAI”) is premature and unproductive.  Rather than redirecting funds to benefit young Afghani and Pakistani schoolchildren, this lawsuit will only serve to benefit attorneys, who will make millions of dollars at their expense.

Montana Attorney General Steve Bullock has opened an investigation into CAI to look into some of these allegations. The investigation and any potential litigation should be left to the Attorney General, who is better suited to pursue any punishment and mandate changes in their practices.

Alleged Fraud Committed by Mortenson

Mortenson and CAI have recently come under fire for alleged falsehoods in Mortenson’s books, “Three Cups of Tea” and “Stones into Schools.”  These allegations are outlined in detail in Jon Krakauer’s book “Three Cups of Deceit.”  I have carefully read this material.  Below, I have outlined the essential allegations that Krakauer makes against Mortenson.  However, none of these allegations are referenced with specificity in the Plaintiffs’ lawsuit.

Many of the criticisms against Mortenson and CAI appear to be substantiated, although other allegations are based on second hand sources that cannot be verified with any greater accuracy than Mortenson’s claims.  Mortenson has responded to some of these allegations in an interview, admitting mistakes in some instances, and denying others.

The following is a fairly comprehensive account of the allegations against Mortenson:

• Mortenson is alleged to have lied, embellished, and exaggerated facts in his two books, so that his stories would be more effective fundraising tools to accomplish his mission of building schools in the mountains of Pakistan and Afghanistan.  Here are the specific allegations, with some of my comments in italics:
  • Krakauer says that some of the details of Mortenson’s “creation myth” are false.  Mortenson’s story begins as follows:  In 1993, he fails to climb K2 – a goal that he embarked upon after his sister died.  On his journey home, he gets lost and winds up in Korphe, a small village.  He is touched by the hospitality he experiences and is devastated by their lack of a school.  He promises to build a school.  Krakauer states that after Mortenson failed to climb K2, he wound up in a different village, Khane, where he promises to build a school.  It was not until a year later that he went to Korphe, and decided to build a school there instead.  He then embellished his story so that Korphe was originally the intended site of the school.  While the published version of the story may not be completely true, it is difficult to see how this amounts to fraud, or how this would be a material falsehood.
  • In Mortenson’s book, he recounts a harrowing incident from 1996 in which he was kidnapped by the Taliban, but ultimately released eight days later when the Taliban became aware of his plans to build schools in the region.  According to Krakauer, this whole story is false, and Mortenson spent these days under the hospitality and protection of some friends.  If Mortenson has lied about this, then that reflects very badly on his character.  However, the evidence presented by Krakauer is not conclusive, and is based on hearsay.
  • In one chapter of his first book, Mortenson claims that his salary in 2002 was $28,000, when Krakauer claims that his salary was actually over $75,000.
  • Mortenson is alleged to have exaggerated the extent to which his schools were built in fundamentalist regions where the Taliban operated.  Krakauer claims that Mortenson used this imagery as a fundraising tool, as he claimed that his schools were keeping children out of Taliban hands.
  • Krakauer claims that Mortenson lied about meeting the King of Afghanistan on a plane in 2003.  The King himself is dead, but Krakauer contacted his grandson, who denied that the meeting took place.  The allegation of the King’s grandson cannot be taken as conclusive proof that Mortenson was lying.  After all, a meeting could have occurred without his knowledge.
  • Krakauer claims that Mortenson and CAI developed certain projects specifically to create a narrative around Mortenson’s second book.  He states that Mortenson took creative liberties in creating drama about a dying Kyrgyz leader who wanted to see a school built before his death.  Mortenson’s story involved a touching meeting with the leader.  Someone later spoke to the dying leader, and he couldn’t remember Mortenson. However, he was able to produce one of Mortenson’s business cards, proving that Mortenson did, in fact, meet with him.  Some do not believe that this leader considered the school to be of utmost importance, as portrayed in the book.
• Mortenson is alleged to have wantonly disregarded corporate formalities by refusing to maintain receipts, document expenses, and conform to IRS guidelines.  He is alleged to have stonewalled the board to prevent them from exercising proper oversight.  Many board members and financial officers of the organization are reported to have quit because they could not do their job effectively.
• Mortenson is alleged to be habitually late, and Krakauer takes offense that this trait is presented in the book “as if it were an endearing quirk.”
• Mortenson is alleged to have used CAI funds for personal expenses, including:
  • From 2007-2010, Mortenson travelled extensively at CAI’s expense to promote his book.  Krakauer says that Mortenson speaks at many events pro bono, but collects fees for others.  He is alleged to have kept his speaking fees, instead of giving them to CAI.  He is also alleged to have kept his reimbursements of travel expenses, even though he didn’t pay them out of pocket.  Krakauer explicitly admits, however, that CAI benefited greatly from these book tours and the publicity generated by Mortenson.  He states that from 2006 to 2010, CAI’s total revenue increased from $1.6 million to $20 million.
  • Mortenson is alleged to have used CAI funds to buy his books for distribution at events, and to keep the sales figures high on the NY Times bestseller lists.  Krakauer states that he was surprised to learn that CAI doesn’t receive any of the proceeds from the sale of the books.  Mortenson wrote the book personally, and never stated that CAI would get proceeds or royalties.  This doesn’t seem surprising to me, or fraudulent.  As far as distributing the books at events, I think the books are good fundraising tools, and while the practice might need to be evaluated, it hardly seems fraudulent.
• Krakauer reports that CAI’s administrative expenses exceed 50% of its annual budget.  In 2009, an audited report shows “just under $4 million” went to building and operating schools, while CAI spent $4.6 million on outreach, education, lectures, and book tours.
• Mortenson is alleged to have badly managed the schools he has built, and that some of them are now “ghost schools” that are not occupied.  Mortenson is criticized for not ensuring that schools are filled with qualified teachers and continue to operate after being built.  However, Krakauer does acknowledge the difficulties of operating in these remote regions of Pakistan and Afghanistan.
• Krakauer states that “a significant number of CAI schools exist only on paper.”  The allegation that Mortenson and CAI lied about building schools is a very significant allegation to most donors.  However, this particular allegation is especially undeveloped by Krakauer.  He only provides one example:  On an undisclosed date, CAI’s website said that there are 8 schools in the Konar province of Afghanistan.  In an interview on an undisclosed date, Mortenson claimed that there were 11 schools there.  At that unknown time, Krakauer says there were only 3-4 schools.  The book lacks any additional evidence about other allegedly non-existent schools.

To succeed in their lawsuit, the Plaintiffs will need to establish that the misrepresentations cited above are not only true, but that they constitute fraud that they relied upon to their detriment when donating to CAI or purchasing the books.  The Plaintiffs will also need to explain why other accomplishments by Mortenson and CAI were not sufficient to justify their investments.  This may be difficult, considering that many important facts are not disputed by Krakauer:

• Krakauer admits as fact that by the end of 2000, when the organization was still young, Mortenson had built more than 20 schools.
• He says that Mortenson “has been a tireless advocate for girls’ education.”
• He commends Mortenson, saying:  ”He’s established dozens of schools in Afghanistan and Pakistan that have benefited tens of thousands of children, a significant percentage of them girls.”

To the extent that some of Krakauer’s allegations turn out to be true, Mortenson’s readers and donors may choose to reevaluate his reputation as a humanitarian hero.  Mortenson may have violated the tax code, and CAI may be subject to penalties.  However, this class action lawsuit is not a productive means of addressing any wrongdoing by Mortenson and CAI.

High Cost of Litigation

The stated goal of this lawsuit is to ensure that CAI funds are spent on school building (such as building materials, teacher salaries, and scholarships). However, by the time this litigation is resolved, CAI will have spent significant sums of money on its legal defense.  I believe that CAI will be forced to spend at least $15,000 to $20,000 every week on this lawsuit (and this estimate is on the low side).  Lawsuits of this nature continue for years, racking up millions of dollars for the attorneys.  If a settlement is ultimately reached, it will include attorneys fees for the Plaintiffs’ lawyers as well.

At the end of the day, attorneys may siphon away as much money as was allegedly misused by Mortenson and CAI.

Class action lawsuits require extensive legal work on both sides.  Between motions to dismiss, discovery (and disputes about what materials have to be disclosed), copycat lawsuits, and issues about class certification, the billable hours will pile up exponentially.  To provide an idea of what we will be seeing in this case, I will describe some of the next stages in the process.

Within the month, we will see a motion to dismiss this lawsuit for failure to state a claim that warrants relief.  In a motion to dismiss, the court has to assume that all of the Plaintiffs’ allegations are true.  Nevertheless, the court will look the elements of the alleged offenses and see if the Plaintiffs have stated a claim for relief.  I believe that much of the complaint will be dismissed, but some of it may survive.  The following are some of the issues that I believe will be litigated.

Failure to Plead Fraud with Specificity

Most claims in federal court only need to be pled generally, in order to put the defendant on notice of the charges.  However, when one is alleging fraud, the alleged misrepresentations or omissions must be pled specifically.  In this complaint, the Plaintiffs repeatedly say that they were defrauded by false statements in the books and statements made by the defendants, but they don’t provide a single concrete example.  The courts typically don’t require a high degree of specificity, but this complaint is very sparse on details.  Its not hard to see why — the full factual details are yet to be determined.  However, if Plaintiffs cannot point to specific false statements, perhaps this lawsuit is premature.

Bottom line:  It is possible that the allegations of fraud in this complaint are simply too vague to put the defendants on notice of exactly what is being alleged.

RICO Claim

The Plaintiffs’ lawsuit includes an extremely clumsy claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”).  RICO law is complex and often misunderstood, as was clearly the case here.  However, it is appealing to plaintiff’s attorneys because it allows for treble damages (i.e. three times the plaintiff’s actual damages) and recovery of attorney’s fees.  Although I won’t address each and every way in which the Plaintiffs have failed to state a claim under RICO, I will explain many of the fatal flaws.

It is important to note that  a RICO plaintiff may only recover economic damages relating to injury to its business or property; personal injuries are not compensated under RICO.  This limits recovery to specific business or property interests have been affected.  In this case, it appears that damages would be limited to the cost of the books that were purchased ($12 in this case), and the specific donations that were made (not stated in the complaint).

On a fundamental level, the complaint fails to state a proper RICO claim because it doesn’t articulate a RICO “enterprise.”  RICO is designed to protect legitimate business enterprises from being infiltrated to commit racketeering activity.  A person or entity violates RICO by willfully or knowingly committing racketeering activity through a pattern involving a separate “enterprise.”  The defendants and the “enterprise” cannot be one and the same — the plaintiff must show that the defendant used its control over a separate enterprise to commit a pattern of racketeering.  One does not violate RICO by operating one’s own affairs through a pattern of racketeering (this can be fraud or any number of other offenses, just not RICO).  Therefore, a RICO plaintiff must prove that the alleged enterprise is an entity or group that is distinct from each defendant.

In this case, the Plaintiffs allege that “Mortenson, an individual, and CAI, a corporation, acted as an enterprise which affected interstate commerce.”  Mortenson and CAI are being alleged to be both the defendants and the RICO enterprise.  This is a clear violation of the person/enterprise distinction, and defeats the claim.  This isn’t a defect that can be fixed by amending the complaint.  Even if the “enterprise” was defined as CAI, and Mortenson was the “person” who was operating the enterprise to commit racketeering, they would need to drop CAI from the complaint in order to state a claim.  Of course, the Plaintiffs don’t want to drop CAI from the lawsuit because they provide a bigger “target” for damages than Mortenson individually.

The complaint may also fail what is known as the pattern/enterprise distinction, i.e. that a RICO plaintiff must prove that the members of an association-in-fact enterprise are joined for some common purpose apart from the alleged commission of racketeering.  The enterprise cannot be simply a group that has assembled to commit racketeering — there must be an organization with a structure and goals that are separate from the racketeering activities.  Of course, we all know that CAI has done more than simply defraud people; it has also built schools.  However, the way the complaint is written, it seems to allege that the whole purpose of this “enterprise” was to commit fraud, which would not be what RICO was designed to address.

There are many more problems with the RICO claim that will surely be addressed in a motion to dismiss.

Class Certification

The Plaintiffs’ attorneys were not satisfied to pursue a class action solely on behalf of people who donated to CAI; they also wanted to pursue the much larger group of people who bought the books.  In doing so, they made the class of plaintiffs much larger, and made the lawsuit potentially more lucrative.  However, they also created huge hurdles in getting the class certified.

The basic requirement for certifying a class action is that there must be common questions of law or fact for every member of the class.  This is referred to as “commonality” of the class.  Those who donated directly to CAI stand on different footing than those who simply purchased the books.  By including two different types of class members, with very different legal and factual issues, I believe that they have destroyed the commonality of the class.

The claims of the representative parties must also be typical of the class.  Plaintiffs Michele Reinhart and Jean Price both attended speaking events held by Mortenson and CAI, and relied on statements they heard.  They will have to prove that typical members of their class also did so.  This seems unlikely, as most people read the book or donated without having attended any speaking events.  This exposes a major problem in the lawsuit, which is that different members of the class may have relied on different representations of fact, and been impacted in different ways.

With regard to the RICO claim, plaintiffs in RICO actions have had mixed results in attempting to have their RICO claims certified for class treatment.  In order to be certified, the alleged injuries generally must have been caused by a common set of misrepresentations (usually written) as opposed to a variety of disparate misrepresentations (often oral).  In addition, class certification will not occur if there are any intervening facts that bear upon the alleged injuries sustained by some of the plaintiffs, and thus require an individual examination of the facts.

Bottom line:  This will be a difficult class to certify, because individual examination of the facts will be necessary, and this will make the class unmanageable and inappropriate for class treatment.  Surely, not everyone who read the books or donated to CAI specifically relied on alleged misrepresentations and was defrauded.  Many read the book without specific expectations as to its accuracy, and may not feel that the sale of the book was a fraud.  To determine who is a member of the class, one would need to individually interview each class member and determine what statements, if any, they relied upon to their detriment.

Copycat Lawsuits

Class action lawyers aren’t the most original people in the world.  It is very common for class action layers to see a potentially lucrative complaint and then simply re-file it in their own jurisdiction.  Some of them literally involve slapping a new caption on the lawsuit (with their own representative plaintiffs) and then filing it under their own names.  These “copycat” lawsuits are legally permitted, and require defendants to contend with ongoing litigation in multiple districts — at great expense.

I would be surprised if there were no duplicate lawsuits filed.  (If there wasn’t, it would be an indication that class action litigators don’t believe this is an actionable case.)  Depending on how many copycat lawsuits are filed, the defendant can contend with them in two ways.  First, they can file motions to transfer venue to a district where other suits are already pending, in an effort to consolidate them.  However, this is a more difficult task than it sounds, as every representative Plaintiff has reasons for keeping the case in their own jurisdiction.  There is also a federal panel on Multidistrict Litigation that is tasked with handling situations like this.  Of course, this process takes many months to resolve.

There Has to Be a Better Way

Regardless of whether Mortenson and CAI lied about certain events in the books, or spent too much money on “outreach and development” as opposed to actually building schools, I think we can all agree that the solution should involve building more schools — not redirecting more funds away from schools and towards attorneys pockets.  While action may need to be taken against Mortenson or CAI if they have committed any wrongdoing, this lawsuit is simply not an effective or productive means of resolving the issue.

It has been reported that only 41 percent of CAI’s expenses were put towards building schools.  Surely, this number could be higher. But, next year, we will only see this number decrease because of the millions of dollars in legal fees that will be spent defending this flawed lawsuit.  Government regulators have many tools at their disposal to more effectively resolve any issues with CAI’s practices.

The lawsuit’s stated goal is to dislodge funds from CAI and create a constructive trust, and ultimately funnel the money into “an appropriate third-party institution to be selected by the Court” to build schools for Afghani and Pakistani children.  Of course, the lawsuit is silent as to the fact that private attorneys will also be dislodging funds that would be better spent on the Afghani and Pakistani school children they were intended for.  Perhaps members of the Plaintiffs’ purported class have something to say about their donations being used to pay lawyers instead of build schools.

The term “anchor babies” is one of the most offensive and pejorative terms being thrown around when talking about immigrants. It is based on the false belief that when an immigrant has a baby in the United States, that prevents the child’s parents from being removed and gives them some form of immigration status.  That is not true.  In actuality, a child can only confer immigration status to his or her parent when the child reaches age 21.  Every years, tens of thousands of parents of U.S. citizen are deported — amounting to over 100,000 deportations over the last ten years.

Of course, the term is not intended to be accurate.  It is designed to dehumanize these young children, by stereotyping and casting a false motivation on their birth. Rather than recognizing that immigrants have families for the same reasons as the rest of us, this term is meant to differentiate immigrants, so that we can justify treating them as less than human, and less deserving of the same rights are privileges as the rest of us.

Dehumanizing language like this is dangerous.  Historically, we have seen this kind of language referring to children the “disfavored” groups of the era.  These included Irish, German, Chinese, Eastern European, and, most prominently, African-Americans.  Rather than merely having children, members of these groups were said to be “breeding” or “multiplying.”  The term “anchor babies” is just another example of language meant to dehumanize children of immigrants and infringe upon their reproductive freedoms.

People who use the term “anchor baby” would actually be referring to me.  I am the child of two immigrants.  Over 30 years ago, my parents came to the U.S. from Pakistan. My father was a doctor, and he came here to work in an underserved community with a shortage of medical professionals.  When I was born, my parents weren’t citizens yet.

My parents certainly didn’t have me in order to stay here in the country.  They became citizens on their own several years later.  But that’s the problem with using a term like “anchor baby” to sweepingly refer to children of non-citizens.  It is clear stereotyping and assigns a cynical motive behind one of our most fundamental human rights — the right to raise a family.

I just had my first son.  If you don’t know why the term is so offensive, try imagining how you would feel if someone referred to your own child in that way. I know how angry I would be if I ever heard that term used about my son.  I’d imagine you would feel the same way.

Click here to listen to the Yellowstone Public Radio segment on HB 392. The Billings Gazette published an article on this bill.  Newstation KXLH has also published an article as well as a video segment on this bill.

Gov. Brian Schweitzer was quick to point out that this bill is unconstitutional, and that he will veto the bill if necessary.  I applaud the Governor for speaking out strongly against this un-American bill.  We have previously written about Gov. Schweitzer’s personal understanding of our immigration system, and the need to treat immigrants fairly.

The 14th Amendment of the U.S. Constitution clearly controls both state and federal citizenship laws, and Montana state legislators have no power or authority to change our country’s constitution.  The interpretation of the 14th Amendment included in this bill is invented out of whole cloth.  Long ago, the U.S. Supreme Court held that anyone born in the U.S. is a citizen, regardless of their lineage.

In order to do what this bill tries to accomplish, one would have to amend the U.S. Constitution.  Last time I checked, they couldn’t do that in a committee of the Montana legislature.  If the committee passes this bill, and the rest of the legislature shares in its delusion and enacts this law, lawsuits will be immediately filed. The law will be enjoined and then invalidated. They will have accomplished nothing, because this bill attempts to do what the state simply cannot.

What the legislature is deciding is not implementation of this law, which is impossible, but whether it wants to take our state down a path that generations of Montanans will look back on with shame.

What this bill would attempt to do is strip people like me of their citizenship.  Both of my parents are from Pakistan.  They grew up in a small village in the mountains of northern Pakistan.  The village had extremely limited resources and only the best and brightest students were able to study past high school.  My Dad was one of only a few students from his village who was able to graduate and attend college.  He studied medicine and became a doctor.  In 1974, he got a visa to enter the United States to practice medicine in an underserved community that had a serious need for doctors.

A few years later, I was born.  I acquired citizenship at birth, and became a U.S. citizen before both of my parents.  However, they both naturalized a few years later.  If this bill had applied to me when I was born, it could have stripped me of my citizenship, because my parents were Pakistani citizens at that time, and under Pakistani law I would have been considered a Pakistani citizen.  That could have made me a “foreign national” as far as this bill was concerned.

Thankfully, the law has never and will never work as this bill contemplates.  Everyone born in the U.S. is a citizen, and that includes the children of immigrants.  I just had my first son two months ago.  As a new father, and in my line of work as an immigration attorney, I can’t tell you how often I am thankful that my parents came to the U.S. and that I was born here.

The bill tries to state that Montana citizenship does not “confer any right, privilege, immunity, or benefit under law” (as stated on lines 26-27, page 1).  This language is a crude attempt to assert that it doesn’t violate the privileges and immunities clause of the U.S. constitution.  Well, I value my citizenship dearly.  Citizenship is one of the most important rights and privileges that one has.

James Knox and the Republican legislators should ask themselves if they think Montanans will take kindly to this.  I know I won’t stand for my citizenship being tinkered with by this state legislature.

If the Montana Legislature passes this bill, it will be flagrantly violating the U.S. constitution in a manner not seen since the days of Brown v. Board of Education.  I anticipate that the response will be as swift.

The State of Montana already administers the written exam in English, Spanish, Chinese, and Russian. The state already has the computer system to do this, and it costs us nothing to continue to use that system. There is a reason why we require drivers to take a test and be licensed: To make our streets safer. Whether the test is given in Spanish, Russian, or Chinese, it’s the same test. It ensures that the driver understands how to obey the rules of the road.

As far as I know, the driving test itself is only conducted in English. Therefore, a driver would still have to demonstrate his or her capacity to follow the rules in English. If they can’t, I would assume they would fail the driving test. There is simply no reason to restrict the test to English only. You would only be creating the risk that non-English speaking drivers would drive without a license.

In addition to being deeply misguided, this bill is also a non-issue. I believe that very few non-English speakers are taking the test in their native language.

It should be noted that this is not about ensuring that drivers are legally authorized to be here in the country. That is already a requirement for a license. This is targeting lawful residents who simply want to drive. Only a handful of states have passed a law like this. We don’t need to be one of them.

Let’s concentrate on what matters to the people of the State of Montana and set aside divisive bills like this, which are only distractions from what we elected our representatives to do.

I have now compiled a video of our opposition testimony.

The following are my arguments against the bill:

Mr. Chairman and members of the committee:

• I oppose this bill, because it would create a perverse incentive for employers to hire undocumented workers.
  • Current law states that claims must be paid to “aliens and minors, whether lawfully or unlawfully employed.”  MCA § 39-71-118(a).  To ensure the safety of the workplace, the law was designed to ensure that all workers were covered by worker’s compensation.
  • Eliminating worker’s compensation to “unauthorized aliens” will do nothing to deter employers from hiring unauthorized workers.  Instead, it would actually create an incentive for unscrupulous employers to hire such workers, because they won’t have to worry about worker’s compensation claims being made against them.
  • This would decrease workplace safety for all employees. If the employer pays less attention to workplace safety for unauthorized aliens who cannot recover benefits, this would impact the safety of other authorized employees as well.
  • Imagine a construction company that works in dangerous conditions.  If that business has experienced several injuries and its worker’s compensation premiums have gone up, it might have an incentive to knowingly hire unauthorized workers who can’t make worker’s compensation claims.
  • This bill has the potential to create a class of “disposable” workers who are sent to work in dangerous conditions without fear for their safety.
• This bill would harm employers as well as workers.
  • Worker’s compensation claims are considered an “exclusive remedy,” meaning that an injured worker cannot sue in court for personal injury.  They have no choice but to go through the worker’s compensation system.
  • If aliens are excluded from this scheme, they will have no choice but to sue employers in court for personal injury.  This would result in costly litigation.
• The Department has no expertise in immigration law, and is not qualified to determine whether an employee is an “unauthorized alien.”
  • There is no law stating that the Department of Homeland Security has to check into requests by the state to confirm lawful status.  How will insurance companies make their determinations that someone is unauthorized?  They are not qualified to make such determinations.
• The language of this bill also creates significant ambiguity as to which aliens are covered by worker’s compensation.  It seems to indicate that many aliens who are lawfully present with work authorization actually won’t be covered.
• There is simply no need for this bill.
  • When an employer hires an employee, federal law requires the employer to verify employment authorization.  If an employer hires an unauthorized alien, that alien is their responsibility just like any other worker.  The employer should pay any compensation for injuries that occurred on their watch!

Regardless of the motivations behind this bill, it would only succeed in making the workplace less safe for all Montana workers.  I urge legislators to vote against this dangerous bill.

If you agree, please click here to write to your Senators and Representatives to let them know.