Author Archives: Robert Magee

The Widow’s Penalty: Fair Policy or Unjust Punishment

Kristin Wernig, Staff Writer

Jamaican immigrant Osserritta Robinson is bringing a different type of immigration fight to the U.S. Supreme Court.  Her goal:  to end the so called “widow’s penalty” that affects almost 200 immigrants.

Robinson, 31, of Mahwah, New Jersey, lost her American husband in the Staten Island Ferry crash in 2003.  Because the couple had only been married eight months when her husband died, immigration officials denied Robinson’s green-card application for permanent residence.1 Their basis was a United States law that, while aimed to crack down on sham marriages involving illegal immigrants, ends the green card eligibility of any immigrant whose citizen spouse dies before two years of marriage have elapsed.2 In 2007, a federal judge in Newark ruled that immigration officials were wrong, but that decision was overturned by the Third Circuit Court of Appeals in February of this year, holding that an immigrant who has been married to a U.S. citizen for less than two years upon the spouse’s death is not necessarily entitled to permanent status.3 The court noted that the holding was consistent with the core purpose of the U.S. family-based immigration policy: “the promotion of family unification for U.S. citizens and lawful permanent residents.”4

The widow penalty first appeared in the courts in the case of Piero v. INS.5 In that case, the Court of Appeals struck down a regulation that provided for immediate revocation of approval of an immigrant’s petition for nonquota status upon the death of the citizen spouse.6 The Piero case was the likely source of the “humanitarian reinstatement” regulations, wherein approved petitions could be reinstated.7 However, this left a loophole into which fell immigrant spouses whose citizen spouse died prior to approval of the petition.8 Federal court challenges to the effect of this loophole, dubbed the “widow’s penalty,” began in 2004 with the case of Freeman v. Gonzales.  Since then, numerous cases have been brought to the courts looking for an end to the widow’s penalty.  If the Supreme Court grants certiorari to Robinson, it could end the long-time penalty that has affected numerous alien widows and widowers that, having already suffered the tragic loss of their spouse, are forced to fight to stay in the United States. Continue reading

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Filed under Immigration Law, Matrimonial Law

Safford v. Redding in Context: A Brief History of Corporal Punishment at Common Law

Robert Magee,* Lead Writer

I. Introduction

Today, the Supreme Court of the United States will hear arguments in the case of Safford Unified School District v. Redding.1 The case involves the strip search of a thirteen-year-old girl, Savana Redding, on the orders of her school’s vice principal after she had been implicated in a scheme to distribute prescription strength ibuprofen.  The strip involved her taking off all her clothes and shaking out her underwear in front of the vice principal’s female assistant and the school’s female nurse.2 Ms. Redding instituted the present section 1983 claim for violation of her Fourth Amendment right against unreasonable search and seizure.3

Though the precise issue today will be whether the Fourth Amendment protects students against being strip searched by school officials and, if not, what level of suspicion must school officials have before doing so, the facts of the case invoke a debate which has murmured throughout the history of the common law and education: what authority does a school official possess over the person of a student?  The treatment at common law of corporal punishment, the physical discipline of students, sheds valuable light on this debate, and provides insight into what the court may be considering during today’s argument.

II. The In Loco Parentis Doctrine

The legal mechanism which allowed corporal punishment by educators against students notwithstanding laws against battery was the doctrine of in loco parentis, the legal fiction that certain individuals, for our purposes educators, occupy the position of parent in relation to students.4 In loco parentis enabled educators to assume the role of the child’s parent when children came under their charge and thus allowing them to inflict corporal punishment in certain instances.  It was fundamentally accepted that parents had the authority to inflict corporal punishment, and therefore so could the educator.5 Continue reading

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Filed under 1983 Litigation, Constitutional Law, Education Law, Legal History, Municipal Liability

Will the Prayers for Pulpit Freedom be Answered?

Kristin Wernig, Staff Writer

On September 28, 2008, pastors all over the country took to the pulpit to protest the Internal Revenue Service (IRS) restriction on political activity by tax exempt organizations.1 Although the form of protest is new, the battle over the restriction has been waged since its inception in 1954.

Internal Revenue Code § 501(c)(3) restricts the political activity of certain tax exempt organizations by allowing them to retain their tax-exempt status so long as they do not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”2 Churches fall under the (c)(3) category along with other organizations “organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition . . .  or for the prevention of cruelty to children or animals.”3 In 1987, the section was amended to clarify that the prohibition applied to activities in opposition to, as well as on behalf of, any candidate for public office.4 The political activity restriction is absolute; the IRS need not consider whether the activity constituted a substantial part of the church’s actions.5 The statute does not offer much insight as to what activities are prohibited.  These organizations must rely on the guidance available in the various IRS revenue rulings and publications and cases.

Since its inception in 1954, churches have battled over the political activity restriction.  Throughout history, because of the special roles churches hold in society, they have been accorded special treatment under the IRC.  Proponents argue that this special treatment should continue to the political activity restriction.  Numerous proposals have been introduced into the Congress to allow for this special treatment.  However, a proposal has not yet received the necessary votes. Continue reading

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Filed under Constitutional Law, Tax Law

Legislative Oversight: Marihuana Excepted from Controlled Substance Presumption

Steven Sharp, Staff Writer

The Appellate Division, Third Department determined that the evidentiary presumption of knowing possession of a controlled substance pursuant to Penal Law § 220.25(1) is unavailable in marihuana cases.1 Recently, the Court of Appeals denied leave despite previously employing the presumption to uphold a finding of substantial evidence of marihuana possession in a police disciplinary proceeding.2 It is my position that the Third Department erred in its decision.  To remedy the situation, I call on the New York State Legislature to amend Penal Law § 220.25(1).

In People v. Dan, two police detectives, Dennis Guiry and Jeffrey Connery, received a tip regarding suspicious behavior involving a blue SUV.3 The detectives walked by the SUV and detected a strong odor of marihuana emanating from the vehicle.4 Guiry and Connery decided to conduct surveillance of the SUV.5 Eventually, the defendant, Migel Dan, used a remote to unlock the SUV and he drove away in the vehicle.6

The detectives followed defendant briefly, pulled him over and asked him to step out of the vehicle.7 A canine unit arrived and a drug detection dog “alerted” to the presence of a narcotic.8 A subsequent warrantless search revealed the presence of almost 13 pounds of marihuana in the trunk of the vehicle.9 Continue reading

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Filed under Criminal Law, Health Law