Manager engineer check and control automation robot arms machine

Can You Sue a Manufacturer?

Legal AssistantConsumer Law, Mass Torts, Personal Injury Law

Product manufacturers have a responsibility to ensure that the products they make are safe for consumers. If a flaw in the manufacturing process or the failure to properly label a product results in an injury, they can be held liable in a civil lawsuit.

That being said, it doesn’t always mean the suit will hold up in court, and if it does, you might not receive adequate monetary compensation in the form of damages. Here’s everything you need to know about suing a manufacturer when defective products cause injury.

Reasons to Sue a Company

Manufacturers are expected to make products that meet a specific threshold for quality and performance. A claim against them will generally fall into any of the following three categories:

  • Design defect – This type of suit alleges that the product design makes it hazardous for its intended use
  • Manufacturing defect – This comes about when a product is compromised during its manufacture
  • Marketing defect – Also known as “failure to warn,” this type of claim arises from the failure to provide adequate instructions or warnings about the proper use of a product

Keep in mind that not all states classify injuries caused by defective products as product liability cases. Depending on the state laws in question, a claim might fall into any of the following categories:

  • Negligence – These cases focus on the actions of the manufacturer, distributor, or retailer
  • Product liability – These focus specifically on the product itself
  • Breach of warranty – This means that a product failed to meet the guaranteed standard of performance

How to Sue a Manufacturer – The Basics

If a product you used has resulted in injury, you first need to identify who is liable in the first place. These are the parties you’ll name as the defendants in your lawsuit.

There are three main elements you need to establish right off the gate:

  1. The “chain of distribution”
  2. The special considerations that exist for foreign and corporate defendants
  3. The concept of “joint and several” liability when multiple defendants are involved

Below is an overview of how each of them works.

1. Figure Out the Chain of Distribution

The “chain of distribution” refers to the path a product takes from inception right up to the point it gets to the consumer. Most state laws define three main types of defendants that can be held liable in product liability suits.

Manufacturer

Engineer hand using tablet with machine real time monitoring system software
Source: Shutterstock

Manufacturers sit at the helm of the chain of the distribution of an injury-causing product. A manufacturer can range in size from an individual working out of a garage (in which case you cross your fingers and hope they have a solid insurance policy) to a large multinational corporation.

If the defective component forms part of a larger product, you’ll need to hold the manufacturer of the defective part and the manufacturer of the product itself liable in your suit. For instance, can you sue a car manufacturer if your car battery exploded, causing burns on your body? The short answer is – yes, you can. You would bring a product liability lawsuit against the car manufacturer and the battery manufacturer as well.

Ensure that you include any other parties that may have been involved in the design, manufacturer, or marketing of the defective product. The idea is to identify all entities that could be linked to the defect, particularly if they are separate from the manufacturer.

For instance, if a contractor or external consultant had a role in the design or manufacturing defect of the product in question, you also need to name them as the defendants in your manufacturer defect lawsuit.

It could be the quality-control engineers who gave the green light for the product to be manufactured or the design consultant contracted by the manufacturer who dropped the ball. You can even include the technical experts who were brought on board to come up with the usage instructions for the flawed product.

Retailer

While the retail store that sold a defective product may not be directly involved in producing a defective product, they can still be held liable for selling it to consumers. When naming the defendants in your lawsuit, it isn’t a question of choosing one over another. Any party in the chain of distribution involved in your acquisition of the defective product can be held liable.

When deciding whether to sue the retailer, there are a few things you need to keep in mind:

  • You don’t have to be the actual buyer of the product – You can bring a lawsuit against the retailer if a borrowed product caused an injury.
  • You don’t have to be the actual user of the product – You can sue the retailer if you were injured by a defective product that was being used by someone else.
  • You might be able to recover damages for used products – You can sue the supplier of used goods if a defective product they sold you caused an injury.

Wholesaler or Distributor

All middlemen that may be involved in the chain of distribution between the manufacturer and retailer can also be held liable in a product liability suit. Middlemen in the case could be wholesalers, distributors, suppliers, and any other party in the chain.

2. Establish Whether the Defendants Are Foreign or Corporate Entities

If any of the entities in the chain of distribution is a foreign corporation, this doesn’t stop you from naming them in your lawsuit. Any foreign company doing business in the United States falls within the jurisdiction of the courts where it conducts business.

If the entities happen to be corporations, they can also be held liable since the law considers them the equivalent of persons. Even when they merge with or are acquired by other companies or spin-off from their existing one, you can also name the successor companies as defendants in your suit.

3. Figure Out if the Doctrine of “Joint and Several Liability” Applies

This legal doctrine holds that each defendant in your suit is liable both together (jointly) and individually (severally). If one of the defendants in your suit cannot pay their share of the damages, the other defendants have no choice but to pick up the tab.

Can You Sue Vaccine Companies

If you’ve experienced severe side effects after receiving the COVID-19 vaccine or any other vaccine for that matter, you’re likely wondering how to sue a drug manufacturer. While you can technically sue pharmaceutical companies for drugs that end up causing injury or death, vaccines don’t fall into that category.

The 1986 National Childhood Vaccine Injury Act was enacted to provide protection to drug manufacturers against open-ended liability. The law protects pharmaceutical companies against design-defect suits, provided that the vaccine was manufactured properly and had adequate warning labels.

Additionally, in 2005, Congress passed the Public Readiness and Emergency Preparedness Act. The law gave the US Department of Health and Human Services (HHS) the authority to provide legal immunity to pharmaceutical companies manufacturing or distributing vaccines, treatments, and other critical medical supplies, unless “willful misconduct” can be demonstrated. This legal immunity expires in 2024.

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lawyer signing legal document and agreement with court

Can I Sue the United States Government?

Legal AssistantPersonal Injury Law

Maybe you had a slip and fall incident at the local post office, and you ended up with a fractured ankle. Perhaps an FBI agent swerved past you on the freeway, causing you to lose control of your vehicle and ram into other cars. The point is – a federal agency or employee was responsible for your injury.

Naturally, the question on your mind would be – Can I sue the United States government? If so, how do I go about it? Here’s everything you need to know.

Is it Possible to Sue the US Government

The short answer is – yes, you can, but it’s not going to be easy. Filing a civil suit against the federal government is a lot harder than suing a private citizen. These lawsuits are marred with a complex list of legal limitations that may require you to jump through several hoops just to get the justice you deserve.

Historically, the doctrine of sovereign immunity made it impossible to sue the monarchy. That practice has carried over to modern rule, making it impossible to file a civil suit against the government unless, of course, the government allows it. That’s essentially what the Federal Tort Claims Act (FTCA) is – a means through which the government allows private citizens to sue it.

What Is the Federal Tort Claims Act

If a federal employee or agency acts negligently, causing you to suffer harm or injury in the process, the FTCA allows you to take civil action against them. Keep in mind that unless your negligence claim is explicitly allowed by the FTCA, chances are, it will be excluded by sovereign immunity.

Below is an overview of the claims covered under the Act:

  • You can only file a claim against an actual employee of the government and not a partner or independent contractor (unless the contractor is treated as an employee)
  • The act of negligence needs to have taken place within the employee’s line of work and not when they were off the clock, in which case they’ll be deemed to have acted individually
  • Only negligence claims are authorized under the provisions of the Act, as opposed to intentional misconduct (except for wrongful acts perpetrated by law enforcement officers)
  • The claim should be based on the existing personal injury and negligence laws in your state

Once you’ve established that your claim is covered under the FTCA and that you can indeed sue the United States government, you can now initiate the administrative process. You’ll need to submit it to the agency responsible for causing your injuries.

Who Is Covered Under the Federal Tort Claims Act

The Federal Tort Claims Act authorizes private citizens to sue the federal government, meaning it protects individual employees from personal liability when acting within the scope of their official duties. Federal employees and public health service officers are all covered under the FTCA.

What is covered? Acts of negligence or omission that are committed by covered employees within the scope of their employment. The FTCA does not cover deliberate torts such as fraud or battery.

Rules Governing the Administrative Remedies of an FTCA Claim

Justice mallet and FTCA acronym
Source: Shutterstock

The administrative remedies phase has specific rules you need to be aware of before filing a lawsuit in court. Here’s a brief overview of each.

Statute of Limitations

The FTCA claim statute of limitations is two years from the date of the incident in question. If you’re filing a medical malpractice suit, the clock starts ticking when you first discover your injury.

Provide Detailed Facts

When filing your claim, ensure it has detailed facts and information about how you sustained the injuries and the damages you suffered as a result. In addition, you’ll need to provide a precise figure to allow the federal agency that employs the person responsible for causing your injuries to investigate your claim and determine whether or not they’ll pay it.

Wait for the Determination Period

The agency has six months within which to respond to your claim. If it admits the validity of your claim, it may pay a portion of or all the damages you seek. You don’t have to go to court to enforce Federal Tort Claims Act settlements.

Sue In Court

If the agency’s offer to settle your claim is not satisfactory, you can file a formal lawsuit in a court of law. You’ll have six months within which to do this.

Only Sue After You’ve Received a Response

In some cases, you may not get a response from the government regarding your claim long after the six-month determination period has elapsed. You cannot sue in court before you receive a response. As long as your claim is under consideration, there’s no time limit to file a suit.

How to File a FTCA Claim

Once you have exhausted your administrative remedies meaning, you’re not satisfied with the offer you received from the federal agency; you can now file a lawsuit against the federal government.

To file an administrative claim, you need to fill out Standard Form 95 or SF 95 for short, which you can download from any federal agency website. Instructions on how to fill out SF 95 form and where to send it are provided on the document.

Some of the information you need to provide on the SF 95 form include:

  • The name of the appropriate federal agency
  • Your name, address, and date of birth
  • The date and time of the accident or incident
  • The basis of the claim
  • Information on the nature and extent of the personal injury, wrongful death, or property damage
  • Names and addresses of the witnesses
  • The amount of the claim
  • Information regarding the insurance coverage of the damaged property or vehicle

Once you’ve gone through the administrative process, only then can you sue the government in federal court to seek monetary compensation.

It is worth noting that the government pays out millions of dollars every year in Federal Tort Claims Act settlements. Therefore, despite the numerous limitations placed on these claims, it is worth pursuing if you believe you have a valid case.

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Transgender Pride Flag on military uniform

Can Transgender People Join the Military?

Legal AssistantCivil Rights, Constitutional Law

In April 2019, President Trump signed an order banning transgender people from joining the military. The controversial policy not only barred transgender troops from serving in the nation’s defense forces; it also blocked the use of Department of Defense (DOD) and Department of Homeland Security (DHS) resources to fund surgical procedures related to sex reassignment.

Fast-forward to January 2021, when President Biden signed a new executive order to lift the previously instituted transgender military ban. What does the new presidential directive mean going forward? Can transgender people join the military? Here’s everything you need to know.

Transgender Military Ban

Trump’s 2019 directive came a year after revoking the blanket ban he had previously instituted. He stated in a memorandum that after consulting widely, he would defer to the recommendations of James Mattis, the then Secretary of Defense.

Mattis stated that individuals diagnosed with gender dysphoria – a condition in which they feel that their psychological and emotional identity is different from their biological gender – would not be eligible for military service unless in specific special circumstances.

The White House memo read that military personnel who have been diagnosed with the condition or have a history of gender dysphoria (especially those who would require considerable medical treatment) presented a substantial risk to the “lethality and effectiveness” of the military.

The sweeping ban affected approximately 1,320 to 6,630 active-duty troops and 830 to 4,160 reserve duty personnel who identify as transgender. That’s how many transgender serve in the military. Some advocacy groups project that number to be as high as 15,000.

In an earlier statement, Trump backed his decision citing the tremendous transgender cost to military resources. He stated that the military could not be burdened with the disruption and expenses of accommodating transgender troops. A study by Rand Corp. estimated that troops seeking transition-related healthcare cost the DOD approximately $2.4 million to $8.4 million every year.

The 2019 DOD Transgender Military Policy

Following President’s Trump directive, the DOD released a policy addressing military service among people with gender dysphoria. Below are its key highlights.

1. All Persons Must Meet the Military Standards Associated With Their Gender at Birth

The 2019 policy defined a transgender person as an individual who identifies as a gender that’s different from their biological sex. It stated that while the DOD did not exclude transgender individuals from military service, every person – transgender or not – was required to meet all military enlistment standards, including those associated with their gender at birth. Any waiver or exception to those standards would only be given on a case-by-case basis.

2. Transgender Personnel Already Serving in the Military May Continue to Do So

Any individual who joined the military as a transgender person, or was diagnosed with gender dysphoria before the transgender military ban took effect, was exempt from the new policy.

Transgender military members who were already serving honorably – whether in their biological sex or preferred gender – would not be dismissed or separated from active duty. The DOD policy prohibited involuntary separation from service on the basis of an individual’s gender identity.

3. All Individuals Wishing to Join the Military Must Meet All Military Standards Without Special Accommodations

Any person with gender dysphoria, who had been treated for the condition through various procedures such as sex reassignment surgery or cross-sex hormone therapy, and as such was unable or unwilling to meet the military standards associated with their biological gender, would be dismissed from service.

For instance, a transgender woman born a man would have to meet the military standards associated with male recruitment and training during service. If they were unable to meet and maintain those standards, they would be presumptively dismissed.

4. Gender Dysphoria Is a Medical Condition

The policy defined gender dysphoria as a “serious medical condition” that causes significant clinical distress and impairment in occupational, social, and other critical areas of functioning. In some individuals, the condition can be alleviated through counseling, while in others, the only course of treatment is gender transition.

According to the 2019 policy, these individuals would require special accommodations outside the normal military standards and, as such, were not eligible to join.

5. Special Accommodations Accorded to Individuals With Gender Dysphoria and Not to Others Were Removed

The previous 2016 DOD policy instituted during the Obama administration allowed persons with gender dysphoria who underwent sex reassignment surgery or hormone therapy to join the military in their gender of choice without a waiver. This was on the condition that they were stable for at least 18 months prior to their enlistment.

On the other hand, other non-transgender individuals diagnosed with conditions such as low testosterone could not enlist for service, even with hormone therapy. The 2019 policy eliminated this disparity by barring individuals who had undergone sex reassignment surgery or received hormone therapy for any reason from joining the military.

Transgender Military Ban Lifted

Transgender Military Ban Lifted
Source: Pexels

While the policy’s constitutionality was challenged several times, the Supreme Court issued a 5-4 ruling in Trump v. Stockman and Trump v. Karnoski, allowing the directive to stand until the lower courts had finalized all pending litigation on the matter.

The new military policy received widespread criticism from several factions and members of the LGBTQ community, including retired transgender navy seal Kristin Beck. Beck, who fought in Afghanistan and Iraq, received the highly coveted Meritorious Service Medal, the Purple Heart, and the Bronze Star.

In the 2021 executive order, President Biden repealed the controversial transgender military policy, stating that military personnel would not be subjected to the possibility of being discharged from service or undergoing separation of duty based on their gender identity.

The new presidential directive:

  • Lifts the 2019 Trump-instituted ban that barred transgender people from serving in the military
  • Prohibits the discharge or denial of reenlistment of troops on the basis of their gender identity
  • Rectifies the records of individuals who were dismissed from service because of their gender identity from dishonorable to honorable
  • Issues a directive to the DHS Secretary and DOD Secretary to provide a detailed brief on the progress of implementation within 60 days of signing the new order

Far From the Finish Line

Although many welcomed the new Biden order, some factions argue that more needs to be done to protect the rights of members of the LGBTQ community. Unless Congress enacts new legislation, there’s no telling whether the next administration will overturn the newly instituted policy.

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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.

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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.

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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.

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