Repatriation Flight

What Is a Repatriation Flight?

Legal AssistantAdministrative Law, International Law

At the onset of the coronavirus pandemic, the majority of international flights were suspended. Nonetheless, some airlines were offering sporadic international services known as repatriation flights. At the time, tens of thousands of American citizens stranded in 100+ countries were brought home.

What is a repatriation flight, and how do they work? Here’s everything you need to know.

What Is Repatriation

The term’s broad definition is the process of returning an individual (forcibly or otherwise) or an item or asset of symbolic significance to their place of citizenship or origin, respectively. The US Repatriation Program was created to assist US citizens and their dependents in foreign countries in need of repatriation.

Repatriation flights are special flights organized by the Bureau of Consular Affairs – an agency within the US Department of State – for American citizens who cannot catch a flight home due to prevailing circumstances that may lead to the cessation of international commercial flights.

Repatriation flights are organized as a last resort. This means that a US citizen abroad must first check for any available flights on the existing airline schedules. If there are, they’ll need to book a flight on them to get home. If there aren’t, the government may organize special charter flights to bring them home.

It’s important to mention that repatriation flights are only available to US citizens or individuals with permanent residency status in the form of point-to-point flights. Upon arrival to the country, individuals will have to make arrangements for transportation to their respective homes.

For instance, suppose you have been repatriated from Mexico, and the chartered flight touches down in Dallas, TX. If you live in New Orleans, you will need to get a different flight from Dallas to New Orleans to get to your hometown.

How to Find a Repatriation Flight

US citizens and permanent residents must sign up for the Smart Traveler Enrolment Program (STEP). That way, you can receive up-to-date information from the US Embassy about these flights. It’s also a good idea to follow the Department of State and consular offices on social media to receive real-time notifications.

Repatriation flights tend to fill up fast. Keeping track of their schedule is an entirely different process compared to regular routes. The State Department charters aircraft from the major US carriers like American, United, and Delta. Other airlines generally add repatriation flights based on the demand at the time.

The flight reservation process may vary depending on the number of Americans that need to fly home, as well as the country they’re in. In most cases, they’re required to complete an online registration form available on the State Department’s website to reserve a seat on one of the limited repatriation flights. Higher priority is usually accorded to vulnerable individuals.

Once approved, passengers are notified via email and have a set duration to respond if they wish to travel.

Cost of Repatriation Flights

Cost of Repatriation Flights
Source: Unsplash

The cost of a repatriation flight varies depending on the chartered airline and the country the individual is in. One thing is for sure, though – these flights aren’t exactly cheap. Costs may run upwards of $1,500-$2,500 per passenger, especially for long-haul flights.

The 2020 chartered flights organized to repatriate US citizens stuck in India at the height of the coronavirus pandemic cost approximately $2,500 per person.

Why are repatriation flights so expensive, you might ask?

For starters, the inbound flight will likely be ferrying very few (if any) passengers. As a result, the cost of the round-trip journey is passed to the repatriated passengers, even though they’re flying one way. The onboard crew’s staff wages and the airline’s landing rights may also be higher than usual if the airports and borders are officially closed. All these are factored into the cost of each ticket.

In many cases, a passenger may not know how much the flight will cost until they’re about to board. If you’re eager to get back home, and the flight price doesn’t factor into your decision, repatriation loans from the State Department are available for just that purpose. You may have to sign an agreement beforehand. Once you arrive safely in the US, the government will put your passport on hold until you’ve fully repaid the loan.

Repatriation Examples

The most recognized form of repatriation was what took place in 2020 in the throes of the pandemic. Tens of thousands of Americans were stranded abroad with no way of getting home. Many governments worldwide closed their borders and canceled all international flights. Repatriation became the only means to get home.

Other types of repatriation include:

Medical Repatriation

If a foreign national visiting the country on a visa falls ill, their insurance policy may not apply in the United States, especially if their country of origin provides universal health coverage.

In such cases, hospitals are faced with one of three options:

  • Offer the patient emergency care as detailed by the provisions of the Emergency Medical Treatment and Active Labor Act (EMTALA)
  • Offer medical treatment at a reduced rate or provide charity care
  • Medical repatriation of the patient to their home country where they can get medical care under their insurance policy

Repatriation of Remains

Medical evacuation and repatriation insurance policies are designed to fill in the gaps left by healthcare plans that offer limited benefits. They offer four core benefits to US citizens abroad, as well as foreign nationals in the US.

  • Travel assistance services: For lost travel documents, translation, prescription replacement, and more.
  • Emergency medical evacuation: For evacuation to the closest qualified medical facility, not necessarily to a hospital in your home country.
  • Emergency reunion: To transport a friend or family member to be by your side while you receive medical care.
  • Repatriation of remains: To cover the costs of flying your body to your home country in case of your demise abroad.

Art/Cultural Repatriation

This refers to the return of works of art or cultural artifacts to their country of origin. More often than not, art or cultural repatriation usually applies to ancient art. In other instances, it may also refer to returning stolen material to its rightful owner(s) or heir(s).

The Bottom Line

The government, through the State Department, organizes repatriation flights during times of international crisis. It often applies to military personnel, expatriates, migrants, international officials, and diplomatic envoys. More recently, it applied to all US citizens stranded abroad when international borders shut down during the COVID-19 outbreak.

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Sad evicted tenant moving home boxing belongings sitting on the floor in the night

Is the Federal Moratorium on Evictions Legal?

Legal AssistantAdministrative Law, Real Estate Law, Resources

The federal government and several counties, cities, and states across the country have taken protective measures to protect citizens against the devastating impact of the COVID-19 pandemic. Some of these include barring late rent fees, prohibiting the shut off of utilities due to nonpayment, and placing moratoriums on eviction for rent nonpayment.

A recent Supreme Court ruling might change all that.

Can I be evicted during COVID? Here’s everything you need to know about the federal eviction moratorium and its legality.

The Federal Moratorium on Evictions

As millions of Americans across the country continue reeling from the effects of the pandemic amid repeated shutdowns and re-openings, the federal government instituted an eviction moratorium which had been in place since March 2020. It made it illegal for landlords to evict their tenants for rent nonpayment, giving them much-needed relief and peace of mind knowing they would have a roof over their heads until they got back on their feet.

The first eviction moratorium was issued as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Once this relief period expired on January 1, 2021, the Centers for Disease Control and Prevention (CDC) stepped in with its own eviction protection order, which has been extended several times in the past year. First, it was extended to January 31 and then to March 31.

When Congress passed the American Rescue bill in early March, it did not include an extension on the federal eviction protection order. It did provide additional funding worth $21.55 billion to go toward emergency rent relief programs. On May 29, 2021, the CDC eviction moratorium was extended through June 30, 2021.

When Does the Eviction Moratorium End

On June 24, the CDC issued a statement saying that it would give one final moratorium extension up to July 31, 2021. However, due to intense lobbying by Congressional Democrats, the CDC yielded to pressure and issued yet another extension, slated to expire on October 3. The new extension applied to all counties across the country, particularly those with high reported levels of COVID-19 infections.

An August 26 Supreme Court ruling on eviction moratorium overturned the latest CDC order. According to the court’s majority opinion, the CDC had overstepped its statutory mandate with regard to the powers granted to it by the decades’ old Public Health Service Act of 1944. The Court expressed that the statute allows the CDC to implement measures such as pest extermination and fumigation, and not the “sweeping authority” it purports.

The opinion further stated that if the federal moratorium on evictions is to continue, Congress has to expressly authorize it. The Supreme Court deemed the moratorium unlawful and would not support further extensions without new legislation’s congressional approval.

The CDC defended its position stating that the 1944 statute gives them the authority to issue eviction protection orders. Further, the agency stated that people who are unable to fulfill their rent obligations shouldn’t be forced to move to congested homeless shelters or crowd in with friends and relatives.

The CDC asserted that evictions would lead to a spike in new COVID-19 infections. The 1944 law gives it “unqualified power” to take any measures it deems necessary to curb the spread of infectious diseases.

Irrespective of the agency’s perspective on the issue, the fact of the matter is – the August 26 Supreme Court ruling effectively renders the latest CDC eviction protection order null and void. This means you can be evicted during COVID if your state has no other eviction moratorium in place.

State Eviction Moratoriums

State Eviction Moratoriums
Source: Pexels

Following the controversial court ruling, several states and localities have instituted their own moratoriums to give tenants an added layer of eviction protection. For instance:

  • California has extended the state eviction moratorium to September 30, 2021. It has also set aside funds to offer rent assistance to tenants.
  • New York has extended the state eviction moratorium to January 15, 2022. All qualifying tenants are also exempt from the various pre-eviction stages they would ordinarily have to go through.
  • Oregon has passed a new law that provides as follows: That, if a tenant is unable to meet their rent obligations for the month of July or August, they cannot be evicted by their landlord for 60 days, on condition that they provide evidence that they have filed an application for rental assistance.
  • Washington has instituted an “eviction moratorium bridge” that allows tenants to transition to a state-implemented eviction resolution program. A landlord cannot evict a tenant who resides in a location with an operational resolution program.

Additionally, some judges have vowed to slow-walk cases and increase their reliance on eviction diversion programs, given the looming potential of a large number of renters being put out on the street.

Other Federal Protections for Tenants

Mortgage buyers Freddie Mac and Fannie Mae, both of which are backed by the Federal Housing Finance Agency (FHFA), have issued a notice to multifamily property landlords, barring them from evicting tenants. The directive is effective until September 30, 2021.

The Emergency Rental Assistance (ERA) Program also gives tenants additional relief beyond the eviction moratoriums. Two separate programs were established.

  • ERA1 provides $25 billion worth of funding under the Consolidated Appropriations Act. The law was enacted in December 2020.
  • ERA2 provides $21.55 billion worth of funding under the American Rescue Plan Act. The law was enacted in March 2021.

The funds are disbursed directly to US states, territories, and local governments. ERA1 is also available to (where applicable) Tribally Designated Housing Entities, including Indian tribes and the Department of Hawaiian Home Lands. The entities that receive the funds can distribute them to eligible households through newly-formed or existing rental assistance programs.

Tenants can use the ERA funds for up to 12 months to pay overdue rent and utility payments that accrued from the beginning of the pandemic or for future bills.

To qualify for rental assistance, applicants should meet the following criteria:

  • The household income should be less than 80% of the median income in the area
  • One member of the household should be at risk of experiencing housing insecurity or becoming homeless
  • One member of the household should have experienced financial hardship directly or indirectly due to the pandemic or should qualify for unemployment insurance benefits

For more information on the current status of evictions in your local area, visit your state governor’s or judicial system’s website.

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Difference Between an Embassy and a Consulate

What’s the Difference Between an Embassy and a Consulate?

Legal AssistantInternational Law, Resources

Let’s say you and your friend are on holiday in Cancún. Your friend ends up making a slightly ill-advised decision and ends up becoming a “guest of the state.” You’ve tried your best to explain to the local police officers that your friend was not aware they were breaking the law when they committed the offense.

The friendly officers sympathize with you but explain there’s nothing more you can do for your friend. The law is the law; ignorance is not a defense. Your friend has to go through due process. They do, however, let you know that you can call your embassy for assistance.

There’s only one problem. The US Embassy is in Mexico City – a 2-hour flight from Cancún. There’s a US consulate agency nearby, but you’re not entirely sure they can help your friend. Consulate vs embassy – what’s the difference? Here’s everything you need to know.

What Is an Embassy

An embassy is a permanent diplomatic mission located in the capital city of a foreign country. For instance, the United States Embassy in Thailand is located in Bangkok. The US Embassy in Canada is situated in Ottawa, Ontario. The embassy in Mexico is located in the country’s capital Mexico City. Every country has, at most, one embassy.

Generally, if one country recognizes another as being a sovereign state, it establishes an embassy at the nation’s capital to preserve foreign relations between the two countries.

What Is the Purpose of an Embassy

What do embassies do? An embassy’s primary function is to offer assistance to US nationals traveling to or living in the host country. It is responsible for handling high-level diplomatic issues like negotiations and ensuring that the rights of its citizens are preserved.

Foreign Service Officers who work in the embassy are also responsible for interviewing citizens in the host country who wish to travel to the United States for tourism, education, or business purposes.

Embassy staff members interact with government representatives in the host country and non-governmental organizations, educational institutions, local businesses, and the media. They collaborate on shared interests, help shape policies, and increase local awareness and understanding of the United States.

Additionally, embassy staff personnel continuously monitor the economic and political climate in the host country and report back to the State Department, particularly on issues that may affect the United States. They may also work with the host country to train military and law enforcement personnel to improve security.

US embassies also work with US-based businesses to help them identify new markets and partners for growth. They also sponsor cultural, professional, and educational exchanges to promote and strengthen external ties between the US and foreign religious, political, and civil society figures, foreign scientists, academics, and students. They also work to introduce established and emerging leaders to the United States.

While US citizens work in US embassies abroad, the majority of the staff comes from the host country. These employees play a critical role in the embassy’s success since they are well-versed in the local culture and are well-connected to civil society leaders and government officials.

embassy seal on the stone wall
Source: Shutterstock

What Does an Ambassador Do?

An ambassador is the highest-ranking representative of the President in a foreign nation. They act as the chief spokesperson and diplomat for their home country. In the US, ambassadors to foreign nations receive their respective appointments from the President. They then have to be confirmed by the Senate before they can take up their diplomatic roles.

To be an effective ambassador, the appointed individuals need to be respected representatives of the US, resilient negotiators, and excellent managers. Some countries have 20+ federal agencies, all working in concert with embassy staff. They coordinate the activities of the staff and the Foreign Service Officers serving under them and those of the US agency representatives stationed in the host country.

Is There a US Embassy in Every Country

The United States has the second-highest number of diplomatic missions in the world after China. It has embassies in 166 out of the 193 United Nations (UN) member countries and representative offices in non-member countries, Taiwan and Kosovo. It also maintains an embassy to the Holy See in nearby Rome.

The Holy See is the Catholic Church’s central governing body and operates from Vatican City – a sovereign independent territory with the Pope as its head.

The US has an embassy in every country it recognizes as sovereign. While the country generally enjoys strong diplomatic ties to several foreign nations worldwide, there are four countries with which it does not work – North Korea, Syria, Iran, and Bhutan.

The country has never established formal relations with Bhutan and severed diplomatic ties with Syria shortly after the war broke out in 2012. Nonetheless, the United States can maintain varying degrees of informal contact with these countries via the nearby embassies in neighboring states.

Taiwan and Kosovo

Not many countries have an official diplomatic mission in Taiwan, mainly due to the uncertainty surrounding the country’s political status with regard to its relationship with the People’s Republic of China. As a result, the US, the UK, and several other countries don’t recognize Taiwan as a sovereign state since China claims it.

The US and the UK have unofficial representative offices in the country’s capital Taipei to provide assistance to foreign citizens, handle matters involving passports and visas, and maintain economic and cultural ties between the two countries. The American Institute and the British Trade Cultural Office are the two private entities representing US and UK interests in Taiwan.

As far as Kosovo goes, only 115 countries recognize it as sovereign, 23 of which have established embassies in the nation’s capital, Pristina. The United States is one of them, despite the fact that the country (Kosovo) is yet to achieve full member status at the UN.

Commonwealth Member Countries

Countries belonging to the Commonwealth of Nations, which consist primarily of former British colonies, don’t exchange ambassadors with other sovereign states. Instead, they have a High Commission.

In short, an embassy is a diplomatic mission sent to a non-Commonwealth country. A High Commission is a diplomatic mission sent to a Commonwealth member country.

Is US Embassy US Soil?

The short answer is no. This is one of the most common misconceptions about US embassies in other countries. Despite being physically located in a foreign nation, a US embassy does not constitute sovereign US territory.

Articles 22-25 of the Vienna Convention on Diplomatic Relations contain guidelines on how embassies work and how ambassadors and ambassadorial facilities should be treated. It also contains articles stating that an embassy is immune from disturbance, damage, or intrusion by the host country.

Nowhere in the text does it mention that the land on which an embassy is situated becomes the country’s sovereign territory. For instance, while the United States owns the property on which its embassy in Mexico is located, the land in question is still technically Mexican land.

This is further supported by a 1983 Ninth Circuit Court of Appeals ruling in McKeel v. The Islamic Republic of Iran. The court determined that the American Embassy located in the Iranian capital of Tehran was still a territory of Iran. Section 16 of the ruling reads, in part, that US embassies on foreign land remain the territory of the receiving countries. They are, therefore, not subject to US jurisdiction.

While foreign missions abroad enjoy special privileges and protections under international law, the land on which they are built is not the “soil” or territory of the country residing there.

Who Has Prosecutorial Jurisdiction Over a Crime Committed in an Embassy

handcuffs with key
Source: Unsplash

Suppose someone committed a murder in the US Embassy in China. Who would have prosecutorial jurisdiction?

From a legal standpoint, the host country has jurisdiction and would be able to prosecute the crime. However, the provisions of the Vienna Convention provide immunity against “disturbance, damage, or intrusion” by the host country. This means that the embassy can technically refuse to grant entry to the local law enforcement officers, and it would not be illegal per se. It ultimately depends on the circumstances surrounding the crime.

If a top-ranking diplomatic officer committed the crime, they would enjoy full diplomatic immunity. This means they can’t be arrested, prosecuted, or forced to testify in a court of law. Full diplomatic immunity extends to their families and deputies.

Lower-ranking officials only have functional immunity, meaning they’re immune against crimes committed within the scope of their employment. If an embassy official was involved in criminal activity, say in a bar over the weekend, they can be arrested and prosecuted by the host country.

That being said, diplomatic immunity does have its limits. If a diplomat commits a crime in the host nation, the host nation can declare them a persona non grata and send them back to their home country. The home country can also decide to prosecute them for their crime and try them at a local court. In an egregious case, the diplomat’s home country may decide to waive the offending individual’s immunity to face prosecution in the host country.

If a local citizen of the host country committed the crime, they would be arrested, charged, and prosecuted in the local courts.

Committing a Crime in a Foreign Country – Can the US Embassy Help

Under international law, if a US citizen commits a crime in a foreign country, the foreign government is obligated to inform the US embassy of the arrest upon the request of the US national. The United States has also signed treaties with some countries requiring local authorities to notify the embassy of the arrest, whether or not the request is made.

Nonetheless, since the foreign country has prosecutorial jurisdiction, the embassy can only offer limited assistance to an arrested US national. A consular officer can visit the person in jail, provide them with a list of criminal attorneys, and ensure they aren’t mistreated at the hand of authorities. The officer may also get in touch with family or friends of the US citizen to let them know of the arrest if requested to do so.

If someone commits a crime overseas and then flies home, extradition treaties may allow the person to be extradited to the foreign country to face criminal prosecution. For extradition to occur, the offense has to be a crime in both countries.

What Is a Consulate

A consulate is essentially a compact version of an embassy. It is usually located outside a country’s capital, mainly in cities with a high tourist population. You can think of them as the “branch” offices of an embassy.

For instance, the US embassy in Germany is located in the country’s capital of Berlin. There are also US consulates stationed in cities like Munich, Hamburg, and Frankfurt. Mexico has consulates in Tijuana, Puerto Vallarta, Nuevo Laredo, Nogales, Monterrey, Hermosillo, Hermosillo and Merida.

What Is a Consulate General

A consulate general (also known as consul) is the chief diplomat in a consulate. They are in charge of consular districts and also oversee subordinate consular agencies within the host country.

What Does a Consulate Do

A consulate carries out similar official functions and provides the same services as an embassy. They follow the ambassador’s lead in engaging civil society, local governments, and other organizations to fulfill the Mission’s agenda. They take care of minor diplomatic issues including, taking care of expatriates, tourists, and migrants, supporting trade relationships, and issuing visas.

Consulates also provide critical services to resident US nationals or visiting American citizens in the host country, including birth registration and passport issuance. They work with local, foreign, and federal law enforcement agencies to curtail cross-border crime. They coordinate with the embassy to conduct exchanges, education, information, and commercial programs to identify new markets and partners for US companies to work with.

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Afghan Allies Protection Act

What Is the Afghan Allies Protection Act?

Legal AssistantInternational Law

In July 2021, President Biden upheld the government’s decision to withdraw American troops from Afghanistan, citing that it was now time to end US involvement in Afghan affairs. He further stated that the chances of a Taliban takeover were minimal since the Afghan military was now better-equipped, better-trained, and more competent as far as war affairs go.

A week after the US withdrawal began, the Taliban launched a series of attacks across the country. Afghan forces fled or surrendered without putting up much of a fight. They were outmatched.

On August 15, 2021, the insurgents poured into the country’s capital Kabul, effectively sealing their control, 20 years after US forces ousted them. Thousands of people have lost their lives in the conflict, with millions of others displaced. Congress enacted the Afghan Allies Protection Act of 2021 in response to the insurgents-induced crisis in Afghanistan.

What is it, and what does it mean for Afghan nationals? Here’s everything you need to know.

The Invasion of Afghanistan – How It All Began

Following the 9/11 terrorist attacks on Washington and New York, where more than 3,000 people lost their lives, al-Qaeda, an Islamist militant group with Osama Bin Laden at its helm, claimed responsibility for the attack. Bin Laden, who was in Afghanistan at the time, was under Taliban protection. The insurgent group had total control over the country since 1996.

The US government demanded that they hand him over to answer for his crimes, but the Taliban refused. As a result, US troops moved in quickly and ousted the Taliban. The US government promised to restore democracy and eradicate the terrorist threat. Unfortunately, the militants slipped through the cracks, escaping capture by American troops.

NATO allies joined forces with the US in the Afghanistan war, and with their backing, a new Afghan government took over in 2004. This, however, did not stop the deadly Taliban attacks witnessed in several parts of the country.

In 2009, President Obama launched a “troop surge” to subdue the Taliban, although this initiative was short-lived.

Afghanistan Withdrawal

2014 turned out to be the bloodiest year since the Afghan War began in 2001. NATO terminated its combat mission and began to withdraw its international forces. This left the country’s security in the hands of the Afghan military. The void left behind by NATO gave momentum to the Taliban. The insurgents spread to several parts of the country and continued to seize more territory.

The US government initiated peace talks with the Taliban to find a viable long-term solution to the never-ending conflict in the region. The Afghan government took a backseat in the negotiations, and a withdrawal agreement was reached in February 2020. Nonetheless, this US-led deal did not halt the insurgent attacks. Instead, the Taliban simply decided to switch their focus, targeting civilians and Afghan security forces and carrying out targeted assassinations.

The National Defense Authorization Act

The National Defense Authorization Act of 2017, or NDAA 2017, was enacted a short while after Congress overrode President Trump’s veto, blocking US military funding, to reduce the total number of troops in Afghanistan.

The Pentagon began collaborating with the National Security Council to come up with the most effective and efficient means of withdrawing US forces from Afghanistan in a manner that protects the safety and wellbeing of US personnel. At the time of its enactment, there were between 2,500 and 3,500 troops in the war-torn country.

The Afghan Allies Protection Act of 2009

Afghan Allies Protection Act of 2009
Source: Unsplash

In 2009, Congress enacted the Afghan Allies Protection Act. The legislation was designed to expand the earlier Special Immigrant Visa program, allowing 1,500 visas every year for Afghan nationals. Any individual who provided “valuable and faithful” service to the American government and allied forces would benefit from the Afghan Special Immigrant Visa.

The visa would also be given to anyone facing imminent threat from insurgent forces as a result of being a US government employee.

To qualify for an Afghan SIV, the applicant:

  1. Should be an Afghan national
  2. Should have been employed by the US government, the Afghan government, or allied forces for at least two years between October 2001 and December 2020 (this requirement was subsequently reduced to one year in the AAPA of 2021)
  3. Should have provided “valuable and faithful” service
  4. Needs to be experiencing an imminent or ongoing threat as a result of their employment history
  5. Should qualify for admission into the United States under the provisions of the Immigration and Nationality Act
  6. Should not pose a national security threat to the US

Unfortunately, the program was marred with incessant delays and faced intense criticism since Afghan SIV applicants had to wait 2-3 years on average for their applications to be processed. Congress intervened in 2013 by amending the Act, requiring the government to “improve efficiency.” The changes to the law required that background checks and all relevant screening procedures should take no longer than nine months from the date of the applicant’s submission.

The Afghan Allies Protection Act of 2021

Also known as the Shaheen-Ernst Bill, the Afghan Allies Protection Act of 2021 builds on the existing legislation. It increases the number of authorized visas by 8,000 and changes the duration of the employment criteria from two years to one year. It provides special immigration status for specific survivors of applicants who ended up getting killed while awaiting the approval of their SIV.

Some of the other changes brought by the 2021 amendment include removing the “sensitive and trusted” requirement for Resolute Support and International Security Assistance Force employment. It also postpones the mandatory medical exams until the applicant and their next of kin have safely touched down in the US.

The Bottom Line

The US withdrew from Afghanistan without putting in place the necessary infrastructure required to accommodate all Afghan nationals who urgently need refugee status. From a legal standpoint, the government has several options to explore to expand its capacity to protect Afghans in danger. It will, however, need to move fast as the situation in Afghanistan continues to worsen.

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doctor with a stethoscope on shoulder holding syringe and COVID-19 vaccine

Can Your Employer Require a COVID Vaccine?

Legal AssistantAdministrative Law, Business Law, Civil Rights, Constitutional Law, Employment Law, Regulatory Law

The coronavirus pandemic has had an undeniable impact on almost every facet of life, both in the country and around the globe. The good news is – things are changing for the better, with the COVID-19 vaccine promising to restore some semblance of normalcy in everyday life.

As great as that prospect may be, many people are still skeptical about the long-term effects the vaccine may have on their health and wellbeing. As a result, not everyone is eager to jump on the bandwagon.

The real question is – Can your employer require a COVID vaccine before you return to the workplace? Can they terminate you if you don’t get the shot? Here’s what you need to know.

Will the COVID Vaccine Be Mandatory

The answer to this isn’t as straightforward as you might expect; however, the matter does have prior precedent.

At the turn of the 20th century, smallpox killed nearly 300 million people. Three out of ten people who contracted smallpox died as a result of the virus.

In Cambridge, MA, a smallpox panic forced the closure of schools, libraries, and churches in scenes that would have resembled lockdowns imposed by COVID-19 nearly 120 years later. This spurred public health officials in the city and its neighbors to introduce a mandatory vaccination against smallpox. In fact, a five-dollar fine was imposed on citizens who refused to be vaccinated. The move was challenged at the state’s Supreme Court in the 1905 case, Jacobson v. Massachusetts.

Jacobson v. Massachusetts

In the 1905 Supreme Court ruling, the Court ruled that mandatory vaccination in the state did not violate the first amendment.

While acknowledging the personal freedom of U.S citizens, Judge Justice John Marshall Harlan said in an opinion at the time that “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Based on prior precedent, it is possible for local, state, and other applicable laws to mandate vaccination. Compulsory jabs cannot, therefore, be ruled out entirely, but it has never been challenged at the federal level.

New COVID-19 Mandate

On September 9, 2021, President Biden made an announcement for sweeping new federal vaccine mandates, leveraging federal regulatory agencies and powers to enforce the new requirements.

Here are three of the most controversial mandates included in the recent announcement that address vaccinating the unvaccinated:

1. OSHA: Large employers (100+ employees) mandate

The new COVID mandate requires that all businesses with more than 100 employees must require their workers to be inoculated or face weekly COVID-19 testing before coming to work — reflecting measures already in place in New York and California.

These measures will be enforced through regulatory powers via the Department of Labor’s Occupational Safety and Health Administration (OSHA) who will issue an Emergency Temporary Standard (ETS) to implement this requirement. Under the ETS, these large employers will be required to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.

2. CMS: Healthcare facilities mandate

Also included in the newest mandate is that all health facilities that accept Medicare or Medicaid funding will be required to vaccinate their workforces, enforced by the Centers for Medicare & Medicaid Services (CMS).

This includes, but is not limited to: hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action applies to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. 

3. Executive Order: Mandatory vaccination for all federal workers

On September 9th, the president signed an executive order requiring all federal employees to get vaccinated against the coronavirus — without an alternative option to be regularly tested instead — in an effort to create a model he hopes state governments and private companies will adopt.

This new executive order dovetails off of Executive Order 13991 (Protecting the Federal Workforce and Requiring Mask-Wearing), issued on January 20, 2021 and will be enforced by the Safer Federal Workforce Task Force, established by E.O. 13991.

Will the vaccine be mandatory for small companies?

Workplace Vaccinations for COVID-19 Mandatory

According to the updated guidelines released by the US Equal Employment Opportunity Commission (EEOC), companies can make it mandatory for employees to get vaccinated. The federal agency, whose role is to enforce workplace discrimination laws, gave the green light for employers to legally require or incentivize employees to get the shot.

The only condition was that they (the employers) provide “reasonable accommodations” for exempt employees. This should be done in line with the provisions of Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and other relevant federal laws.

The EEOC further stated that the requirements and incentives set out by employers cannot be “coercive.” However, the agency did not delve into detail to provide examples of what an illegal offer would look like.

So, bottom line, enforcing a vaccination requirement is up to the discretion of the employer; however, employers must adhere to all applicable laws.

Accommodating People With Disabilities

If you refuse to get vaccinated, your employer needs to evaluate the level of risk posed by your objection, particularly if they have made it a compulsory condition for you to continue working for them. Under the provisions of the anti discrimination law, an employer’s workplace policy can include a requirement that an employee working within the premises should not directly compromise the health or safety of other individuals within the workplace.

If the vaccination requirement appears to screen out a worker with a disability, the burden of proof rests with the employer. They have to show that the unvaccinated employee poses a “direct threat” resulting in a substantial risk of harm to their own health and safety, as well as that of the people they work with – despite making reasonable accommodations.

The guidance offered by the EEOC provides four factors that companies can use to evaluate the existence of a direct threat:

  1. What is the duration of the risk?
  2. What is the nature of the potential harm, and how severe is it?
  3. What is the probability of the potential harm occurring?
  4. Is the potential harm imminent?

Based on the answers to the above questions, if an employer finds that an unvaccinated employee poses a direct threat to the workplace environment, the company is required to make reasonable accommodations. This may involve allowing the worker to operate remotely or take a leave of absence.

Additionally, while looking at the viable options for “reasonable accommodations,” employers and employees alike also need to evaluate:

  • The job functions of the employee
  • The importance of the employee’s vaccination to the company operations
  • The availability of an alternative job for the employee that would make their vaccination less critical

Religious Accommodation

This falls under the provisions of Title VII of the Civil Rights Act and requires an employer to provide reasonable accommodations to workers who hold certain religious beliefs, practices, or observances unless doing so would cause “undue hardship” on the business. The courts define “undue hardship” as accommodations that impose a higher-than-sustainable financial burden on the employer.

If you cannot get vaccinated due to a religious belief you hold, and there is no reasonable accommodation your employer can make for you, it is within their right to exclude you from physically entering the workplace.

Keep in mind that this doesn’t mean they can automatically terminate you. Your employer would need to establish whether your rights apply under local, state, or federal anti-discrimination laws or Equal Employment Opportunity laws.

Terminations for Not Getting Vaccinated

Some companies have terminated workers that refuse to get the COVID-19 vaccine. While this action may not necessarily be illegal, a company would have to demonstrate that:

  1. It did attempt to make a reasonable accommodation to the worker; and
  2. The accommodation resulted in an undue hardship on the business

It’s important to state that a “reasonable accommodation” can include requiring the employee to wear a face mask at all times, working remotely, submitting to mandatory COVID testing as and when required by the employer, and maintaining a social distance from others at all times.

Will COVID Vaccine Be Mandatory for International Travel

COVID-19 vaccination and testing requirements vary based on the destination country you’re going to. Some countries are closed to travelers jetting in from the US, while others require proof of vaccination before they can be granted entry. Other countries like the UK only require proof of a negative COVID-19 test taken no more than 72 hours before departure.

While the CDC recommends that individuals leaving the US be fully vaccinated beforehand, it is currently not a mandatory requirement for international travel. It all depends on the rules and regulations of the destination country.

The Bottom Line

Can your employer require a COVID vaccine? The short answer is – yes, if you are not exempt based on the provisions of Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and any other relevant federal, state, and local anti discrimination laws, or Equal Employment Opportunity laws.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

enter the USA asylum

Who Can Seek Asylum in the United States?

Legal AssistantAdministrative Law, Immigration Law, International Law

Asylum is a legal protection afforded to individuals who’ve fled their home country, where they’ve undergone persecution, or have a legitimate fear of getting persecuted if they were to return in the future. It gives them a chance to start a new life in a foreign country.

The process of seeking asylum in the US is not as easy as you might think. You need to understand the legal requirements involved and potentially prepare extensive documentation to prove that you meet those requirements. Here’s what you need to know.

Types of Asylum

An individual seeking asylum in the US must be physically present at a port of entry to the US or already be within the US borders at the time of application. There are generally two paths you can use to apply for asylum.

Affirmative Asylum

This path allows a foreign national, who doesn’t have any ongoing removal proceedings against them, to proactively lodge an asylum application to the government through the Department of Homeland Security’s – US Citizenship and Immigration Services (USCIS) division.

Once a USCIS officer reviews the application, they may either grant it or deny it if they find that the individual has no valid reason(s) for seeking asylum in the US. If the officer rejects the application, the applicant will have to go through removal proceedings, meaning the US government issued orders to deport them from the country.

Defensive Asylum

To fight a deportation decision made by the government, an applicant would have to present their case before an immigration judge at the Department of Justice’s Executive Office for Immigration Review (EOIR). The judge will hear the case and determine whether the applicant has a valid reason to remain under the legal protection of the United States.

This process is referred to as “defensive asylum” since it involves asylum seekers defending themselves against deportation from the US.

Asylum laws are complex. If you choose to file an application, ensure you seek assistance from an experienced immigration attorney to give you the best possible outcome, particularly if returning to your home country poses a genuine threat to your safety and well-being.

Other Possible Defenses Against Removal

If the judge dismisses your defensive asylum application, you can use two other defenses to fight your removal.

Withholding of Removal

Asylum seekers who don’t qualify for asylum may be eligible for Withholding of Removal. This immigration status may not allow you to get a green card, but it will grant you the legal documentation you need to live and work lawfully in the United States.

To get Withholding of Removal, you will need to prove to the court that the possibility of suffering future persecution on the grounds of your political opinion, social group, religion, nationality, or race, is more likely than not. Keep in mind that the standard of proof required for Withholding of Removal is much higher than asylum.

Convention Against Torture

If you fear that returning to your home country may result in torture, you may qualify for relief under the provisions of the Convention Against Torture (CAT). To be eligible for CAT protection, you would need to demonstrate that the possibility of getting tortured by your home government, or with its “acquiescence,” is more likely than not.

The term “acquiescence” means that the government in your country of origin is aware of the torture being inflicted on you but doesn’t intervene to stop it from happening.

Valid Reasons for Seeking Asylum in the US

A blue folder with the label Asylum applications

The standard asylum definition uses the term “persecution.” It is legal protection offered by a nation to an individual who has fled their home country because of a very legitimate fear of persecution. Not everyone qualifies for asylum status. To do so, you need to demonstrate that:

  1. You are unwilling or unable to go back to your country of origin because you have a legitimate fear that doing so will lead to your persecution or that you have been persecuted in the past.
  2. The reason for your potential or past persecution is related to any of the following grounds: belonging to a particular social group, religion, nationality, or race, or having an unfavorable political opinion.

Here’s what these requirements mean.

Persecution

Persecution refers to harassment, punishment, injury, oppression, or any other unjust action that causes physical or psychological harm to an individual. The US immigration law doesn’t specify the type of persecutory actions that would qualify someone for asylum status.

Nonetheless, based on past court cases, persecution includes actions that deny an individual of their fundamental human rights and freedoms, unjustifiable imprisonment, torture, violence, and threats.

Historically, the United States has granted asylum status to individuals whose home government has:

  • Committed genocide against a particular nation, race, or ethnic group
  • Excluded members of a specific religion from the political process
  • Opened fire on protesters
  • Tortured and imprisoned political dissidents or undesirables

The US government in recent years has also expanded its asylum protection to include individuals who are persecuted based on their gender – which is by definition, a “social group.”

As a result, women who have undergone or have a well-founded fear that they will be subjected to hostile cultural practices, including female genital mutilation, domestic violence, or forced marriage, can gain asylum.

Thousands of Trump administration asylum seekers were denied legal protection after the Attorney General at the time, Jeff Sessions, reversed immigration rulings that had previously set the legal precedent for individuals fleeing their home countries on account of gender-based or gang-related violence.

In June 2021, the Attorney General under the Biden administration, Merrick Garland, overruled that decision, effectively restoring critical protections for those asylum seekers.

Grounds of Protection

As mentioned before, the United States grants asylum protection to individuals who have been persecuted in their home country in the past or have a well-founded fear of being persecuted in the future if they return, on the grounds of their political opinion, social group, religion, nationality, or race.

Persecution based on one’s religion, nationality, and race is pretty much self-explanatory. This section explores the remaining two – political and social-based persecution.

Political Opinion

Political-based persecution means that an individual holds and disseminates opinions that the government does not tolerate. These opinions are likely critical of the administration’s methods and policies, which in turn causes the authorities to go after them.

An asylum seeker would have to demonstrate that:

  1. The government in their country of origin is aware of their political views
  2. They have been persecuted or have a genuine, well-founded fear of being persecuted in the future because of those views

You would have to show proof of publicly published written criticisms, participation in anti-government demonstrations, or public speeches where you have been critical of the government.

You may also qualify for asylum protection if you can prove that the authorities erroneously assume that you hold an unfavorable political opinion based on a personal characteristic such as your ethnicity, family membership, or religion. This assumption is known as imputed political opinion.

Social Group Affiliation

This particular reason for asylum application has been a hotly contested topic and the subject of several legal arguments. By definition, a social group refers to people who share specific common characteristics fundamental to their identity. Members cannot change these characteristics, nor should they be expected to. Such groups are recognized as distinct entities within society.

A few examples of the social groups whose members have sought and been granted asylum in the United States include ethnic groups or tribes, family members of political dissidents, targeted individuals of certain social statuses such as educated elites, former military personnel, and police officers who may be the targets of assassination.

Who Can Seek Asylum in the United States

Asylum in the United States

The Migration and Refugee Assistance Act of 1962 was enacted in response to the urgent and unexpected needs of conflict victims, displaced persons, refugees, and other at-risk individuals worldwide.

In 2001, the Clinton administration brought it into force to assist the Nepal and Balkans crisis victims. In 2009, the Obama administration cited the Act to authorize the release of $20.3 million to address the needs of the Gaza conflict victims.

Anyone with a legitimate fear of persecution based on their political opinion, social group, religion, nationality, or race can seek asylum in the US. Keep in mind, though, that the right of asylum isn’t always based on government-instigated persecution. It can also stem from other groups that the government has no control over including, organized vigilantes, paramilitary groups, warring tribes, or guerrillas.

Nonetheless, the root cause of the persecution needs to have some underlying social or political undertone. If members of a criminal network come after you or your family for failing to pay off a debt, asylum and refugee law does not consider that persecution.

Objective vs. Subjective Fear

It’s not enough to be afraid of future persecution to qualify for asylum. That fear needs to be “well-founded.” You would need to demonstrate to the US Immigration authorities that your fear is both subjective and objective.

Subjective fear means that you are genuinely and personally scared of returning to your home country. On the other hand, objective fear means that you can show concrete facts that demonstrate a genuine threat to your safety and well-being.

Demonstrating objective fear may involve getting witnesses to give credible, persuasive testimony on your behalf and proof of the persecution you might have undergone in the past. Doing this demonstrates to the US authorities that any reasonable person in your shoes would be afraid of returning home.

Humanitarian Asylum

If you have been persecuted in the past, the natural presumption would be that returning to your home country would expose you to persecution in the future as well. What if the US government argues that the conditions in your country of origin have since changed and that it is now safe for you to return?

If you are still unable or unwilling to return, an immigration attorney can help you apply for “humanitarian asylum.” Through your lawyer, you would have to demonstrate that the severity of the persecution you went through in the past, alongside the reasonable possibility of suffering severe harm upon your return, is still a looming threat to your safety and well-being.

Here are some possible scenarios that might make you eligible for humanitarian asylum:

  • Everything you previously owned was destroyed
  • The risk of severe psychological trauma upon your return
  • The possibility of remaining a social outcast even if the threat of persecution no longer exists.

How to Seek Asylum in the US

The difference between being granted asylum status and refugee status all boils down to when you apply and where you are at the time of application. Individuals outside the US have to go through the UN High Commission for Refugees (UNHCR) to apply. However, they cannot specify the country they want to go to in their application.

The United States has an annual limit on the number of refugee applications the President can approve for entry into the country.

On the other hand, asylum is granted to individuals who are already at a US port of entry or those already inside the country – legally or otherwise. Here’s an overview of the asylum application process.

  1. First, you’ll need to file and submit Form I-589 along with all relevant supporting documentation to the USCIS.
  2. You’re then required to present yourself for an interview at the USCIS Asylum Office in your current jurisdiction.
  3. At the interview, you will be asked a series of questions about your reasons for seeking asylum, your past experiences, and your fears about returning to your home country.
  4. The USCIS interviewing officer will then review your application and deliver their decision within 180 days.
  5. If the outcome of your asylum case status isn’t favorable, you can present your case before an immigration judge once the government initiates removal proceedings against you.

Seek Professional Assistance

Getting an experienced immigration attorney to help you lodge your application, prepare for the interview, and present your claim can significantly increase your odds of being granted asylum.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

Deportation order phrase written with a typewriter

Can a Naturalized Citizen Be Deported?

Legal AssistantImmigration Law, International Law

In 2019, the Trump administration embarked on a campaign to deport naturalized US citizens. More than 700,000 individuals were at risk of getting their citizenship stripped from them over what the government termed as “flaws in the naturalization process.”

It begs the question – Can a naturalized citizen be deported, and on what grounds? Here’s everything you need to know.

What Is Naturalization?

The United States can grant citizenship to a foreign national once they fulfill the requirements set out in the Immigration and Nationality Act of 1952. The law provides four principal ways through which an individual can become a naturalized US citizen.

In addition to meeting all the other eligibility requirements:

  1. You need to have been a permanent resident in the country for a minimum duration of 5 years;
  2. You need to have been a permanent resident in the country for at least three years to file as a spouse of a US citizen;
  3. You have served in the US armed forces;
  4. If you are a US citizen and your child was born and is currently residing outside the US, they may qualify for naturalization.

Keep in mind that if your adoptive/biological parents became US citizens before you turned 18, it automatically makes you a US citizen as well. This means you don’t need to apply for naturalization.

By its very definition, naturalization means that the United States now becomes the home country of the individual in question, meaning they cannot be deported from the US.

Can US citizenship be revoked? The short answer is – yes, it is possible. There are certain situations – although rare – where the government may revoke the citizenship of a naturalized immigrant.

What Is Denaturalization

Denaturalization is the process through which the US government strips citizenship from a naturalized immigrant. These proceedings are only applicable to individuals who filed Form N-400 to become US nationals and not people who became citizens by birth.

A denaturalized individual effectively reverts to the immigration status they had before becoming naturalized. It affects not only the person in question and their ability to continue working and residing in the country but also their spouse or child who was applying for citizenship through them.

What Are the Grounds for Denaturalization

As mentioned before, denaturalization is very rare. That is not to say it is impossible. Below are some common grounds for denaturalization.

An Illegal or Flawed Naturalization Process

If an individual received US citizenship without meeting the legal eligibility requirements for naturalization, they could get their status revoked. It applies whether or not the individual in question is a victim of willful or innocent misrepresentation or deception.

Here’s a list of criteria that government immigration authorities consider when determining if the naturalization process was illegal or flawed:

  • Is the person a legal, permanent resident of the United States?
  • Do they have good moral standing?
  • Are they continuously physically present in the United States?
  • Do they believe in the principles spelled out by the US Constitution?

Suppose the government establishes that the person in question was granted citizenship by naturalization without meeting any of the criteria outlined above. In that case, it can strip them of their citizenship and initiate deportation proceedings against them.

Willful Misrepresentation or Concealment of a Material Fact

If an individual is found to have deliberately deceived the government during their naturalization application or interview process, those are valid grounds for denaturalization.

The United States can revoke citizenship if:

  • An individual misrepresents or conceals some fact;
  • The misrepresentation or concealment in question was done willfully;
  • The information or fact(s) that was misrepresented or concealed was critical to the decision on whether or not to grant citizenship;
  • The individual was granted citizenship based on this misrepresentation or concealment.

A person can also be denaturalized for willful misrepresentation or concealment if they join or are affiliated with a terrorist organization or any totalitarian party such as the Communist party within five years of being granted citizenship.

In such instances, these would be grounds for denaturalization on the basis that the individual in question lied about believing in the principles spelled out by the US Constitution. It shows that they are neither concerned about nor willing to contribute to the happiness and good order of the United States.

Refusing to Testify Before a Congressional Committee

If you stand accused of being involved in subversive acts, particularly those intended to overthrow the government or harm United States officials, you are obligated to testify before Congress. Refusal is not an option since the Congressional committee’s job is to investigate your alleged involvement in those acts of subversion.

Keep in mind that this requirement only applies to naturalized citizens who’ve had their citizenship status for less than 10 years.

Dishonorable Discharge From the US Military

An individual, who became a citizen-based on their service in the US armed forces, can get their citizenship revoked if they get discharged for reasons other than “honorable.” This only applies to individuals who are dishonorably discharged before reaching the 5-year service threshold.

Criminal Revocation

According to 18 US Code § 1425, the government can initiate criminal proceedings against an individual for attempted or successful efforts to illegally obtain US citizenship for themselves or someone else.

Like any standard criminal conviction, federal prosecutors would have to prove “beyond a reasonable doubt” that the individual committed naturalization fraud, in which case, the person would then have their citizenship revoked before getting deported.

Other Grounds for Denaturalization

Aside from the reasons outlined so far, other possible grounds for losing US citizenship include:

  • Voluntarily renouncing US citizenship;
  • Gaining dual citizenship in countries that require you to renounce US citizenship;
  • Gaining dual citizenship in countries with which the US requires you to renounce your citizenship;
  • Serving as an army officer – non-commissioned or otherwise – in another country’s military;
  • Serving as an officer – non-commissioned or otherwise – in another country’s military while it is engaging in hostile activity against the United States;
  • Election to public service in a foreign country.

The Denaturalization Process

The US Citizenship and Immigration Services (USCIS), the federal agency responsible for overseeing all matters related to lawful immigration to the country, cannot denaturalize a citizen. Denaturalization can only be done once criminal or civil proceedings have been initiated against the individual in a federal court.

The USCIS director would first make a recommendation to revoke an individual’s citizenship and forward their report to the US Department of Justice. The DOJ would then file a complaint in a US district court with jurisdiction over the individual’s area of residence.

Given how high the stakes of losing citizenship are, the authorities must meet an exceptionally high burden of proof before the courts can issue a ruling to revoke citizenship. Regardless of what the grounds of denaturalization are, the government must prove, beyond a reasonable doubt, that its reason for revocation is clear, convincing, and unequivocal. If the evidence provided isn’t factual, lacks clarity, or is ambiguous, the courts will always rule in favor of the defendant.

If you’re a naturalized citizen and you get notified of proceedings to denaturalize you, get in touch with an experienced immigration lawyer as soon as possible. You have the right to due process as guaranteed by the US Constitution. This means that the government cannot revoke your citizenship without allowing you to defend yourself in a court of law.

An immigration attorney would be best placed to assess all the facts in your case and provide legal advice and representation on the best strategy to employ to help you retain your citizenship status.

What Is Deportation

What Is Deportation

Deportation refers to the formal removal of a foreign national from the United States if they’re found to have violated immigration law.

The law makes it extremely difficult to take away an individual’s US citizenship. In the last decade or so, most individuals who were denaturalized and deported were World War II persecutors such as Nazis, who lied and concealed information about their past to gain US citizenship when they first came to America.

Can a US Citizen Be Deported

While immigration law may be cut-and-dry in some instances, the straightforward answer to this question is – no. US citizens by birth or naturalization cannot be deported. If they commit a criminal offense, all due process takes place within the country’s legal framework. If they’re convicted, judgment is passed as per the law.

Even if they commit a crime overseas and are wanted for criminal prosecution in a foreign land, the US government would prefer the individual in question to seek justice in the US rather than deporting them to stand trial abroad.

When a person becomes a US citizen by birth or by naturalization, the whole premise of citizenship is that the United States becomes their home country. It, therefore, would not make sense to “deport” them to a different country.

Nonetheless, there are certain exceptions to the rule for naturalized citizens. If an individual commits naturalization fraud, is convicted of treason, or renounces their US citizenship, the government will initiate deportation proceedings against them.

Can a Permanent Resident Be Deported

Yes, they can. An individual can be deported during the naturalization process before they formally receive official US citizenship status. Remember, one of the requirements for naturalization is that the individual in question needs to have been a permanent resident in the country for at least five years.

Until they are formally granted US citizenship, they can still get deported in certain situations. The prospect of deportation for a permanent resident will always be on the table, even if they’ve initiated the naturalization process.

Can You Be Deported Because of an Expired Green Card

The short answer is – no. The USCIS cannot deport you simply because your green card expired. The expiry of your card will, nonetheless, cause you to have many sleepless nights, especially if you need to renew your driver’s license, apply for a new job, or travel.

The expiration date on your green card will vary depending on the category through which you got it. For instance, the validity period of a permanent residency card obtained through an employer will be different from that obtained through marriage to a US citizen. That being said, the validity period of standard green cards is usually 10 years.

Your green card does not determine your permanent residency status, so you cannot be deported if it expires.

How Long Is the Deportation Process

Deportation is a long, complex, drawn-out process that typically takes several years to conclude. It involves several entities, including the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency, immigration court, and the Board of Immigration Appeals. It may even involve the Circuit Court of Appeals.

Unless an individual meets the requirements for expedited removal from the country, most cases that involve appeals will usually last anywhere between two and three years.

Can You Be Deported if Your Child Is a Citizen

This answer to this question isn’t a straightforward one. A child born in the US automatically becomes a US citizen. Once they turn 21, they can petition the government to grant their parents green cards. Additionally, the petitioning child will need to be earning enough money to serve as their parents’ financial sponsor.

If the child in question is still a minor and the parents are illegal immigrants, deportation is a real possibility. If the parents do get deported, the children they leave behind would be sent into the foster care system.

If you are undocumented and face the risk of deportation but don’t want your child to go into foster care if you do get deported, the best thing to do would be to arrange for a custody transfer of your child. That way, they are assigned to a family member or any other trusted adult who then becomes your child’s legal guardian.

Talk to an Attorney

If you or a loved one is at risk of denaturalization and deportation, get in touch with a competent immigration lawyer as soon as possible.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

Winter storm causes millions of Texas residents to go without gas or electricity

What Is ERCOT – The Texas Power Grid Explained

Legal AssistantAdministrative Law, Business Law, Regulatory Law

ERCOT has come under fire in recent months for the mass power outage experienced in several parts of Texas earlier in the year. According to the grid operator, this widespread outage was attributed to a surge in demand for electricity that resulted from the extreme weather conditions witnessed in the weeks leading up to the blackouts.

What is ERCOT, and why does the Lone Star state have its own grid? Here’s the Texas power grid explained.

What Does ERCOT Stand For

ERCOT is short for the Electric Reliability Council of Texas. Its mandate is to manage electric power flow on the Texas Interconnection. This alternating current (AC) power grid spans most of the state and is one of three minor grids that make up the power transmission network in North America. The other two minor ones are the Alaska Interconnection and the Quebec Interconnection.

Aside from the Texas Interconnection, the other two major grids that service the lower 48 states are the Eastern Interconnection and the Western Interconnection. The Texas power grid – which is sometimes also referred to as ERCOT – is managed and maintained separately from the other interstate grids for political reasons.

Since the Texas grid does not cross state lines, it is, for the most part, independent from federal oversight by the Federal Energy Regulatory Commission (FERC). This begs the question – Who owns ERCOT?

ERCOT is a non-profit corporation defined by section 501(c)(4) of the Internal Revenue Code. It is membership-based, governed by a directorate board, and is subject to oversight by the Texas legislature and the Public Utility Commission of Texas (PUC).

ERCOT’s membership comprises municipality- and investor-owned electric utilities (including both distribution and transmission providers), retail electric providers, power marketers, electric generators, cooperatives, and consumers.

What Does ERCOT Do

ERCOT is an independent system operator (ISO). It was the first of nine ISOs that are currently in operation in the United States. ERCOT works with the Texas Reliability Entity (TRE), which is one out of the eight regional entities under the North American Electric Reliability Corporation (NERC). NERC’s mission is to coordinate and enhance bulk-power electric grid reliability.

Being a North American ISO, ERCOT’s mandate revolves around the dispatch of power through the electric grid. This is done via an elaborate network of 46,000+ miles of power transmission lines and 500+ electric generation units. It also provides retail-switching services for 7 million+ premises in various sectors and conducts monetary settlements for the wholesale bulk-power market.

Why Does Texas Have Its Own Power Grid

The separation of the Texas Interconnection from the rest of the country dates back to the early years of the 20th century. In the decades that followed Thomas Edison’s 1882 commission of the country’s first-ever power plant in Manhattan, smaller power generation plants began to sprout across Texas to power the different cities within the state.

After World War I, many of these power utilities began to link together, and the resulting transmission network grew significantly by the time World War II was winding up. These intrastate-linked power utilities are what later became the Texas Interconnected System. This union allowed them to connect to the big dams constructed along the state rivers and send additional electric power to the factories supporting the war effort.

For a long time, two independent entities were responsible for the management of the Texas Interconnected System. One was charged with operations within the state’s northern region, while the other was responsible for the operations in the southern part. Their main focus was ensuring that the Texas power grid remained within state lines to avoid being subjected to federal oversight.

When President Franklin Roosevelt signed into law the Federal Power Act of 1935, the then Federal Power Commission (FPC) had no jurisdiction over the Texas Interconnected System. The state had significant resources in the form of natural gas, coal, and oil, which were sufficient to fuel its power plants independently.

ERCOT was established in 1970 after a major blackout in November 1965, which plunged the northeastern part of the state into darkness. The newly formed agency was tasked with managing the grid’s reliability and ensuring its adherence to national standards. Even after FERC succeeded the FPC, the ERCOT grid remained beyond the federal regulator’s reach.

Why Is Texas Power Grid Failing

Several parts of the country, including Texas, were hit by a series of severe winter storms earlier in the year. Millions of households and businesses across the state turned up their heaters to keep warm, subsequently causing a spike in power demand. Unfortunately, the state’s power-generating capacity was unable to meet this sudden spike. As a result, electric operators resulted in disconnecting entire neighborhoods to ease pressure on the state power grid.

At the peak of the Texas power shortage, an estimated 4.5 million homes went days without electricity in sub-zero temperatures, in a state with almost no experience dealing with freezing cold for prolonged periods.

According to reports, the marginalized segments of the state’s population were hardest hit by the crisis, resulting in dozens of deaths due to hypothermia. Several other fatalities were attributed to carbon monoxide poisoning when some residents turned to their stoves and grills to warm up their cold homes.

The blackout also left millions of residents without water after it froze within plumbing systems. Some lines ended up bursting in the process. The power outages resulted in staggering economic losses, which analysts estimate to be well over $129 billion.

Why did the Texas power grid fail, and why is it still unable to cope with the power demands placed on it by state residents? The root cause of this failure can be examined in three parts.

1. Energy Independence From Federal Oversight – A Double-Edged Sword

The United States – with the exception of Alaska and Hawaii – is served by three major power grids: The Eastern Interconnection, the Western Interconnection, and the Texas Interconnection. However, apart from a few peripheral areas, the majority of the Lone Star State and its 29 million inhabitants are served by a standalone grid that is largely isolated from the other two systems.

The Texas Interconnection, which is regulated by ERCOT, does not fall within the jurisdiction of federal oversight since no section of its transmission network falls beyond the state’s borders. Given that it has no connections to the other two major grids, ERCOT and other state-based electric transmission agencies can operate their grid any way they see fit.

This isolationist approach to energy production and transmission stems from the state’s long-drawn narrative of independence from the federal government. After all, the southern state was independent of the rest of the United States for nine years after gaining independence from Mexico.

Its stance was further fueled by the abundance of natural gas, coal, and oil reserves. The almost infinite supply of these carbon-based resources allowed it to hive itself off from the federal power grid.

Unfortunately, this autonomy also meant that the state did not have access to a lifeline supply of power when the electricity demand by state residents surged beyond the power grid’s capacity.

2. Energy Market Deregulation

What Is ERCOT
Image Source: Unsplash

In 2002, the Texas governor at the time – Rick Perry – implemented sweeping deregulation of the state’s energy market. The governor, alongside the Republican-majority legislature, embraced a free market that supported the auctioning off of electricity in an ERCOT-coordinated wholesale marketplace.

According to the neoliberal methodology to electricity distribution, the approach assumes that several coordinating markets are superior to a single one that relies on centralized planning.

The newly deregulated market meant that the main concern among energy providers was the price of electricity as opposed to the stability and reliability of its supply. The result? Power generators in the southern state competed relentlessly against each other to provide the cheapest possible electricity.

Unfortunately, this was done at the expense of major long-term investments into their power-generating infrastructure. Moreover, since protecting their power transmission networks against adverse weather conditions took a back seat, these systems were ill-equipped to withstand the snowstorms that plagued the state.

Additionally, this new auctioning marketplace was barely regulated. Electricity prices fluctuated widely in response to the economic pressure on the market. The surge in demand and inadequate supply in the midst of crippling winter storms saw the prices soar by a staggering 10,000 percent. Rates shot up from the previous $50 for each megawatt-hour to $9,000 per megawatt-hour.

Texas residents who were fortunate enough to have had power during the outage period received bills amounting to thousands of dollars for the peak demand days.

The San Antonio municipal electric provider sued the state’s power grid operator in the wake of the pricing controversy. The ERCOT lawsuit comes after the state legislature and governor pressure to retroactively review the rates billed during the peak demand period, citing that scarcity pricing was no longer applicable.

3. Failure to Learn From Past Crises

The final reason why the Texas power grid is failing has to do with the state’s energy regulators’ failure to heed the lessons learned from similar power crises that befell the state in the past. While the winter storms of 2021 were long and severe, they were not the first of their kind in the Lone Star state.

In 2011 and 2014, several parts of Texas were hit by similar snowstorms. Many of the state power transmission lines and equipment froze, leading to a widespread power outage that lasted several hours.

The results of a state-sanctioned investigation revealed that Texas energy providers failed to properly test whether their power transmission network designs could withstand sub-zero temperatures. The report contained several feasible winterization recommendations, but the energy providers largely ignored these, and compliance was not made mandatory.

Nonetheless, the city of El Paso in West Texas took those recommendations seriously, spending millions of dollars upgrading and winterizing its grid, which happens to be separate from the main Texas Interconnection. It constructed a sophisticated dual-use power station that runs primarily on natural gas, although it can also utilize oil when gas becomes unavailable. As a result, only a handful of homes in the city lost power in the Texas outages that occurred earlier in the year.

ERCOT Rolling Blackouts

According to a May 2021 report released by NERC, several parts of the country were at higher-than-average risk of energy deficits over summer, particularly during periods of high peak temperatures. This means that Texas residents should brace themselves for potential power outages.

The assessment report further indicated that ERCOT would have a sufficient amount of power supply under what it termed as “normal operating conditions.” It did caution state residents that this year’s summer would see above-normal temperatures, subsequently increasing the risk of drought across several parts of the state. This would drive up the demand for power, which would, in turn, put more stress on the grid.

Additionally, the drought brought about by extreme temperatures reduces the availability of the water required for cooling power plants. This increases the amount of strain the grid is subjected to, inevitably increasing the likelihood of electricity shortages.

To curb this, ERCOT would have no choice but to implement rolling blackouts to preserve power and offset a devastating and uncontrolled outage. What is a rolling blackout anyway?

A rolling blackout, also known as a rotating outage, is a systematically engineered temporary power outage that helps balance the supply of and demand for electricity in the marketplace. The energy provider administers a temporary outage to one area at a time while limiting the duration of the outage. This is usually the last resort when there’s a market shortage of power supply after all other emergency measures have been deployed.

The Bottom Line

While ERCOT has advised state residents to reduce their electricity usage, the agency has begun to implement controlled outages. The blackouts are expected to last 45 minutes at a time, although this may increase in more extreme circumstances.

For more information on the Texas rolling blackout schedule, consult your local electric utility website.

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Critical Race Theory

What Is Critical Race Theory?

Legal AssistantCivil Rights, Constitutional Law

In September 2020, a Trump executive order was issued to exclude any diversity and inclusion training in federal contracts. The presidential directive targeted programs whose subject matter revolved around concepts like “gender or race-based scapegoating,” “gender or race-based stereotyping,” and “divisive concepts.”

Among the notions deemed “divisive” is the Critical Race Theory (CRT).

In response to the controversial directive, the African American Policy Forum launched a campaign dubbed #TruthBeTold to shed light on the danger posed by the executive order. The presidential directive resulted in the cancellation of more than 300 diversity and inclusion programs.

What is Critical Race Theory, and what effect does its prohibition have on civil rights for minority groups in the country? Here’s everything you need to know.

Critical Race Theory Definition

CRT was developed at Harvard Law School several decades ago as an intellectual framework. It hypothesizes that racism goes beyond individual bias, putting forth the idea that it is deeply rooted in the policies and legal systems within society.

In January 2021, the Republican member of the New Hampshire House, Rep. Keith Ammon, introduced a bill that rides on the concepts introduced in the 2020 Trump executive order. The premise of the proposed legislation is to bar educational institutions and organizations with an existing contract or subcontract with the state from perpetuating and endorsing “divisive concepts.”

The bill specifically proposes banning concepts that:

  • Suggest the country is fundamentally racist at its core
  • Question the value of meritocracy
  • Promote gender or race-based scapegoating

The New Hampshire bill is one of several proposed state legislation across the country and in the US Congress that have been drafted with similar prohibitions.

Lawmakers in Arkansas recently passed a directive aimed at banning state contractors and subcontractors from offering training programs that promote social justice for, resentment of, and division between groups, on the basis of their gender, race, or political affiliation.

Similarly, the Idaho state legislature enacted a bill designed to bar public education institutions from making it compulsory for students to adhere, adopt, or personally affirm specific beliefs about gender, race, or religion. Even the Louisiana legislature has passed similar directives.

To get a firm handle on the spirit and repercussions of such laws and measures, you first need to understand the origin of the Critical Race Theory and what it proposes.

Who Developed Critical Race Theory

The origin of the CRT dates back to the 1970s in the publications of renowned American legal scholars like Mari Matsuda, Kimberlé Crenshaw, Alan Freeman, Derrick Bell, Patricia Williams, and Richard Delgado. By the 1980s, it had evolved into a movement that reworked the existing theories in Critical Legal Studies (CLS), placing more emphasis on race.

During that period, students of color enrolled in Harvard Law School organized a series of protests highlighting the curriculum, student population, and faculty’s lack of racial diversity.

Derrick Bell, who was a professor at Harvard Law before becoming the dean at the School of Law in the University of Oregon in 1980, crafted several new programs during his tenure at the institution. These courses were designed to study the American legal system but from a racial standpoint.

After Bell resigned from Harvard Law, citing the institution’s discriminatory practices, the university rejected requests from students of color who wanted the new courses taught. The reason given by the administration was that there was no Black faculty member qualified enough to teach Bell’s courses.

Instead, the university employed what the students described as an “archetypal white liberal” instructor. According to them, this move was yet another attempt to interdict the growth of African-American leadership.

The result? Several colored students, including Mari Matsuda and Kimberlé Crenshaw, boycotted and went on to create an “Alternative Course” drawing from the core concepts of Bell’s work.

Why Critical Race Theory Emerged

To draw connections between the theoretical concepts of Critical Legal Studies and the everyday reality of racial politics in America, the first formal workshop dubbed “New Developments in Critical Race Theory” was held in 1989. At the time, only Matsuda, Crenshaw, and a handful of other scholars knew that there were no “new developments” in the field and that it was just a made-up name.

Nonetheless, that was the turning point that marked the divergence of CRT from CLS, emphasizing the racial importance of the emerging field. While CLS did criticize the role that the American Legal System played in legitimizing and generating social constructs that were oppressive in nature, it did not offer any solutions or alternatives.

As a result, the gap left behind for failing to address race and racial prejudice in its analysis meant that CLS did not suggest any viable alternatives for social transformation.

This marked the Critical Race Theory origin.

A total of 24 American scholars of color attended the 1989 workshop, which was held at the University of Wisconsin-Madison. In the years following this landmark event, many scholars went on to publish higher volumes of literary works that centered on CRT, some notable ones being Bell’s Faces at the Bottom of the Well and Patricia Williams’ The Alchemy of Race and Rights.

What Are the Five Principles of Critical Race Theory

Critical Race Theory is constantly evolving. Below is an overview of the five key principles of CRT.

1. Intercentricity of Race and Racism

The initial premise of CRT posits that race and racial prejudice are a fundamental, permanent, endemic, and central part of explaining and defining the operation and functioning of US society.

It further proposes that racialized subordination based on class, gender, accent, phenotype, surname, immigration status, and sexuality is deeply embedded into the system, making it inextricable.

2. Challenge to Dominant Ideology

This second principle counters the concept of White privilege. It opposes the assertions educational institutions across the country make toward equal opportunity, objectivity, the neutrality of race, meritocracy, and color-blindness.

CRT exposes deficiently informed research that distorts, ignores, or silences the epistemologies of people of color. It further asserts that the traditional knowledge that exists serves to camouflage the privilege, power, and self-interest of the dominant groups within society.

3. Commitment to Social Justice

CRT offers a transformative and liberatory response to class, gender, and racial oppression. The social justice agenda as proposed by the Critical Race Theory aims to empower subordinated groups including people of color, eliminate poverty, sexism, and racism, and expose the “interest-convergence” of the educational “gains” as it pertains to civil rights.

4. Significance of Experiential Knowledge

CRT acknowledges that teaching, analyzing, and understanding racial-based subordination requires experiential awareness that only people of color would have. It further states that this knowledge is critical, appropriate, and legitimate and draws explicitly on the life experiences of people of color through methods such as family histories, storytelling, parables, scenarios, narratives, chronicles, and biographies.

5. Transdisciplinary Perspective

Critical Race Theory transcends all disciplinary boundaries to evaluate race and racial-based prejudice in contemporary and historical contexts. It draws on scholarships from various fields, including psychology, law, history, sociology, ethnic studies, theatre, film, and several others.

Critical Race Theory Criticism

Critical Race Theory Criticism

Opponents of the CRT framework contend that examining the role of race in the US legal system, structures, and society is not only divisive but racist as well. Some critics have gone as far as to state that the very nature of the Critical Race Theory draws on a Marxist ideology – whose whole premise revolves around the nation being fundamentally evil at its core and that White people should feel guilty about the color of their skin.

In May 2021, several Republican Congress members proposed a bill that bans CRT training programs in federal institutions, in addition to a resolution meant to highlight the “dangers” of teaching critical race theory in schools.

According to the representatives, the theory promotes division and discrimination. It preserves the idea of treating people differently based on the color of their skin, which undermines equal protection in the eyes of the law and civil rights as guaranteed by the Constitution.

Project PAC

A political action committee, also known as PAC, was established to support school board candidates opposed to CRT. PAC argues that supporters of this intellectual framework not only reject capitalism, but the principles created by the nation’s founding fathers as well. It further contends that the principles fronted by CRT are “hostile to White people.”

Although the Critical Race Theory may not be innately Marxist, a loose link exists between the two. Neo-Marxists and other oppositionist varieties in law schools were included in Critical Legal Studies – which was the precursor to CRT. Critical race theorists diverged from CLS and focused their studies on race and racial prejudice.

According to some factions of CRT proponents, racism continues to exist because of its profitability since fighting it also means suppressing capitalism. However, not all critical race theorists agree with this opinion.

Critical Race Theory and Law

CRT hypothesizes that the civil rights laws in the US have continued to serve the interests of White people. It emerged as part of CLS to specifically address the issues of racial subordination, racism, and discrimination and oppose all continued judicial considerations formed on those ideals. The relationship between Critical Race Theory and law has two fundamental viewpoints.

1. Derrick Bell Approach

Critical Race Theory founding father Derrick Bell put forward three major propositions related to the racial patterns observed in the American legal system.

  • Constitutional contradiction: In this argument, Bell maintained that those who framed the Constitution made the decision to choose the rewards that came with property acquisition rather than seek out justice.
  • The principle of interest convergence: In this argument, Bell proposed that White people support racial-based advances for Black people only when those advances also promote the self-interest of White people.
  • The price of racial remedies: The third proposition puts forward the idea that White people would never promote civil rights policies that may pose a threat to their social status.

2. Freeman Approach

According to Alan Freeman, the idea of racial prejudice and discrimination can be looked at from the perspective of either the victim or the perpetrator. Freeman argued that racial discrimination looks at the circumstances of social existence from the perspective of the victim belonging to a perpetual class. On the other hand, a violation as per the provisions of anti-discrimination law is rooted in the perspective of the perpetrator.

The Affirmative Action Law Through the Lens of the Critical Race Theory

Affirmative action in the US refers to a set of administrative practices, guidelines, and policies designed to end and rectify the impact of specific forms of discrimination. Some of the practices and guidelines include voluntary private programs, as well as government-sanctioned and government-mandated programs.

The idea behind these laws is to help even out the playing field by increasing opportunities in the education sector or the workplace for historically disadvantaged groups based on factors like their race, gender, color, national origin, or religion.

Affirmative action goals rely on “good-faith efforts” to seek out, select, and train qualified disadvantaged individuals and not necessarily conform to specific quotas.

Such goals in the university admissions context, for instance, use racial minority status positively to determine which applicants to accept into a program. Minority applicants would be awarded extra points to remedy the deeply-rooted societal discrimination rooted in certain protected characteristics.

CRT in affirmative action laws puts forward that such practices, guidelines, and policies compensate for the disparity that would otherwise perpetuate racial privilege, given that standardized tests are typically skewed in favor of White students.

The Way Forward

Although the former President issued an executive order to ban all Critical Race Theory-related training programs, a federal judge blocked this directive. President Joe Biden later rescinded the order once he took office, with his administration pushing for federal funding to support programs that “reflect diversity.”

Although some state legislatures – like those in Texas, Tennessee, Idaho, Oklahoma, and Arkansas – with Republican majorities have passed measures to ban CRT training, others have restricted the programs to lower-level classrooms and public colleges.

Despite the attempts to ban the teaching of CRT, the question of whether such actions infringe on the Constitutional right to free speech is still up in the air. For now, it is still unclear which way the courts will rule.

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Can Gun Manufacturers Be Sued

Can Gun Manufacturers Be Sued?

Legal AssistantBusiness Law, Consumer Law, Mass Torts, Personal Injury Law

Nearly every sector of the American economy could potentially face civil and product liability lawsuits if they’re found culpable. This has been used as a way to keep irresponsible manufacturers and rogue retailers in check. As with all things, however, there is an exception to that all-important rule, and that’s the gun industry.

In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act, which effectively gave manufacturers and sellers in the gun industry immunity from all forms of civil action. It meant that families of the victims of gun violence could not seek legal redress from the courts against the makers of firearms.

If the recent developments in New York are anything to go by, it looks like all that’s about to change.

Can gun manufacturers be sued? Here’s everything you need to know.

The Protection of Lawful Commerce in Arms Act

The Protection of Lawful Commerce in Arms Act (PLCAA) of 2005 is a federal statute that gives broad immunity to gun dealers and manufacturers in state and federal courts across the country. According to the provisions of the Act, any qualified civil liability action resulting from the unlawful or criminal misuse of ammunition or firearms is expressly prohibited by law.

The PLCAA does, however, provide six exceptions in which the blanket legislation does not apply:

  1. A person who is directly harmed by gun violence can bring a civil suit against an individual who is convicted of knowingly transferring a gun, with full knowledge that the gun in question would be used to perpetrate a violent crime;
  2. An individual can bring a civil suit against a gun dealer on the grounds of negligence or negligent entrustment;
  3. If a gun violation is the proximate cause of the injury suffered by a plaintiff, they can sue the gun dealer or manufacturer if they knowingly violated an applicable state or federal statute with regards to the marketing or sale of the firearm used in the crime;
  4. Gun dealers or manufacturers can be sued for breach of contract or breach of warranty related to the purchase of a gun;
  5. A gun dealer or manufacturer can be sued for a defect in the design or manufacture of a gun if it causes death, physical injury, or property damage when used in a reasonable manner as intended. If a volitional act tied to a criminal offense led to the discharge of the firearm, resulting in death, physical injury, or property damage, the Act in question would be considered the proximate cause, and the gun dealer or manufacturer will not be liable in a civil suit brought against them;
  6. Gun dealers and manufacturers are not immune from legal action brought against them by the Attorney General if their actions violate the National Firearms Act or the Gun Control Act.

Sandy Hook Shooting – Background

On December 14, 2012, shortly after 9.30 a.m., Adam Lanza shot his way through the plate-glass window located next to the main entrance to the Sandy Hook Elementary School, located in Newtown, Connecticut. The 20-year-old gunman, who had previously attended the school, gained access to the premises, shooting dead six school employees and 20 first-graders aged between six and seven years old, before turning the gun on himself.

The Sandy Hook shooting went down in history as the second-deadliest mass shooting in the US after the Virginia Tech shooting of 2007. Lanza was in possession of two semi-automatic pistols, a semi-automatic rifle, and several rounds of ammunition.

Investigators later learned that the gunman had shot and killed his 52-year-old mother, Nancy Lanza, prior to the elementary school incident at the home they shared. She was the licensed owner of the firearms Lanza used during his deadly rampage.

In November 2013, a year after the mass shooting incident, the State Attorney released a report revealing that Lanza had been grappling with “significant mental health issues” that prevented him from properly interacting with others and living a normal life.

The mental health professionals who had worked with Lanza in the past refuted that report, stating that they had not noticed or witnessed any signs or behavior that would have signaled a problem.

Remington Lawsuit – Soto v. Bushmaster Firearms

The parents of the victims who lost their lives in the Sandy Hook shooting filed a lawsuit against Remington Arms – the manufacturer of the weapon used by Lanza in the mass shooting incident. The plaintiffs in the civil action alleged that the manufacturer’s marketing of the Bushmaster rifle played a causative role in the death of their loved ones.

They alleged that the company’s firearm marketing went against the Connecticut Unfair Trade Practices Act (CUTPA) since it promoted the unlawful use of a military-grade rifle by civilians.

In addition, details of the suit reveal that the gun maker’s advertisements upsold the assaultive and militaristic qualities of the weapon, even using phrases like, “…forces of opposition [will] bow down,” and “…you’re single-handedly outnumbered.”

The plaintiffs further stated in their suit that their CUTPA claim fell within the predicate exception provided for in the PLCAA since Remington Arms knowingly violated the state statute in its marketing and sale of the weapon. The violation in question was the proximate cause of the deaths and injuries that occurred at the school shooting, and, as such, the firm was no longer covered by PLCAA immunity.

The Connecticut Supreme Court ruling stated that while Congress passed the PLCAA to shield and protect gun dealers and manufacturers against criminal and civil liability for the conduct of third-party firearm users, the Act did not provide any indication that it was meant to absolve dealers and gun makers who marketed their weapons for illicit use, nor was it supposed to protect them from the injuries resulting from said use.

The Supreme Court ruling held that CUTPA could be applied to the PLCAA predicate exception, given Congress’ use of the word “applicable” in the statute. This implies that gun marketing violations were not limited to laws that exclusively, expressly, or directly go against the provision of the Act.

What Happened to Remington

In its ruling, the Supreme Court indicated that allowing the lawsuit to proceed would not be crippling to the PLCAA. The claim only targets one specific manufacturer marketing one specific type of firearm in an unlawful manner that promotes its appropriateness for use in illegal assaults.

Additionally, the court deemed that the deceptive advertising of guns is not traditionally regulated by unfair trade practices and consumer protection statutes. As a result, regulating marketing practices that threaten the public’s health, safety, and morals falls within the state’s policing mandate. It further stated that CUTPA falls within the scope of predicate statutes that strip PLCAA immunity from gun dealers and manufacturers alleged to have gone against the provisions of the state law.

The Supreme Court concluded that the plaintiffs in the suit were well within their legal rights to plead a claim under both CUTPA and PLCAA, and therefore, deserved the opportunity to prove their allegations of wrongful marketing.

In 2018 Remington filed for Chapter 11 bankruptcy after several years of litigating suits brought by the surviving kin of the 2012 Sandy Hook mass shooting. The lawsuit-related costs resulting from having to buy out investors and finance legal representation took a toll on the firm’s finances. Remington was able to offload an estimated $775 million it had accrued in unpaid debt.

In July 2020, the gun maker filed its second bankruptcy claim. This time, the company’s decline was attributed to mismanagement.

While the initial bankruptcy filing preserved the Remington lawsuit that the families of the victims launched in the school shooting, it was not immediately clear how the second filing would affect the progression of the case. The plaintiffs expressed concerns about the potential loss of the benefits, stating that the gun manufacturer should not be allowed to use bankruptcy as a crutch to escape financial liability.

Who Bought Remington Arms in 2020

Who Bought Remington Arms
Image Source: Unsplash

Despite the company’s slight upsurge due to increased demand for firearms during the COVID-19 pandemic, it was still struggling financially. As a result, various segments of the firm were hived off and sold to different buyers in a bankruptcy auction, injecting a $155 million cash inflow, which went towards helping the firm pay off its outstanding debt.

The largest purchase in the auction was made by Vista Outdoor Brands, which bought the Lonoke ammunition division for $81.4 million. Roundhill Group LLC spent $13 million on some segments of the firearm manufacturing division, while Sierra Bullets Inc. spent $30.5 million on another segment of the ammunition section of the business.

Remington’s financial troubles did not start recently. The company’s debt load dates back to the early 2000s when sales hit an all-time low. Cerberus Capital Management stepped in in 2007, taking ownership of the company after it failed to report a profit for almost a decade.

At the time, the capital management firm was looking to diversify its interests in the firearms industry by buying weapons-related companies and pooling them under the Freedom Group umbrella.

If you were wondering who owns the Freedom Group, the short answer is Cereberus. Some of the other companies owned by Cerberus Capital Management included ACC, Tapco, H&R, DPMS, Bushmaster, Marlin, and several others, turning it into the biggest firearms player in the industry at the time.

Later, the company decided to branch off into outdoor lifestyle products under the brand name Remington. At that point, Cerberus decided to change the subsidiary’s name to Remington Outdoor Company from the previous Freedom Group. The name change was done for two main reasons.

The first was to distance the private equity firm and its brand from the 2012 events surrounding the Sandy Hook school shooting. The second was for the umbrella company to get as much mileage as it could from the Remington brand.

Is Remington Still Making Guns

When Cerberus bought Remington in 2007, it also assumed the $252 million debt it had accrued by that time. When the gun maker filed for bankruptcy in 2018, a group of creditors took control of the business, effectively stripping Cerberus of its ownership in the firm. One of these creditors was JPMorgan Chase.

The 2020 bankruptcy auction resulted in the division of Remington’s assets and the brand, all of which are now owned by different companies including, Roundhill Group LLC, Vista Outdoors, JJE Capital Holdings, Franklin Armory, Ruger, and Sierra Bullets. These companies will continue to manufacture Remington guns under their respective companies.

Sandy Hook Lawsuit Settlement

In July 2021, attorneys for the now-bankrupt Remington tabled a $33 million settlement to some of the families of the victims who died in the Sandy Hook Elementary School shooting. Nine of the plaintiffs in the lawsuit are each being offered close to $3.7 million.

The initial court documents indicated that the wrongful death settlements were projected to reach $225 million, excluding punitive damages. Attorneys acting on behalf of the plaintiffs indicated that the amount on the table fell short of what the families were expecting. At the time of this publication, the plaintiffs requested time to consult widely before deciding on their next steps regarding the settlement offer.

The Way Forward

Can gun manufacturers be sued? Yes, they can, but the broad immunity that the PLCAA affords them makes it extremely difficult to bring civil lawsuits against them. New York is set to change all that.

The state legislature recently passed a first-of-its-kind bill designed to hold firearm manufacturers and dealers liable for the irresponsible and improper advertising of guns. The proposed law seeks to classify these types of marketing activities as a nuisance to curb the state’s ever-rising levels of gun violence. New Jersey has also proposed similar legislation.

The move came months after President Biden voiced his support over the proposal to repeal the 2005 PLCAA. The President stated that doing so would give victims and their loved ones an opportunity to hold gun manufacturers accountable for their role in the growing incidents of gun violence currently plaguing many states across the country.

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