Eatery workers: Boycott Army base that called ICE on pizza delivery guy

[Voice of Reason 10,298]

58 minutes ago, Boiler said:

Remind about their coverage of the Clinton Family Crime Foundation?

Their WHAT???

[TBoneTX 43,058]

4 hours ago, Boiler said:

Most unlikely he entered legally.

Whole whole whole whole bunch of Ecus in the U.S. whose status is questionable.

5 hours ago, Bill & Katya said:

the wife and kids may want to start making plans to live in Ecuador. 

Whole bunch of expatriate or retired gringos in Ecu.

21 hours ago, Randyandyuni said:

the laws only apply to citizens and legal immigrants

Lest one be a racist and a bigot.

[Randyandyuni 2,682]

Quito ecuador has quite a few Americans and ecuador used the usd as currency

[elmcitymaven 9,711]

I tried to access a copy of the petition that was filed in this case but it is not yet available online. Going by the description on the docket, and the wording of the TRO, here's what has happened, stripped of emotion:

 

Villavicencio's attorneys have filed a petition for declaratory relief, and for a permanent injunction preventing his removal. The dec relief is probably (and I'm going to say probably, since the petition isn't available) for the court to decide whether he has a right to have his I-485 petition adjudicated before removal. It is common for a petition for dec relief to be accompanied by a request for injunctive relief, and for a TRO to be sought. The standard of proof for TROs is the same for preliminary injunctions: “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). There's a fifth requirement -- that no legal (i.e., pecuniary) remedy will suffice.

 

So, you might ask, why would a judge rule that Villavicencio could satisfy all of these elements? I mean, look at number 1 -- that he is likely to succeed on the merits! Without seeing the petition, it is currently not possible to state the argument that was persuasive here, but bear in mind the standard is not will succeed on the merits, but likely. If there is a cognizable claim that he is entitled to have his I-485 adjudicated (not granted) prior to deportation, he is likely to succeed on the merits. That's it. No one is saying that adjudication will lead to a successful adjustment of status; rather the question is, does he have a right to have this adjudicated? And if he does have that right, it's going to require the opportunity for his claim to be heard. If he's deported before adjudication, he will not have an opportunity to have his claim heard, which is a violation of his right to due process under the Fifth and Fourteenth Amendments (the right to have his permanent residency application is classified as a property right, so you gotta have due process). Annndddd of course even non-citizens and those in the states without permission have the protections of nearly all of the Constitution (and what they don't have access to is spelled out pretty plainly).

 

What about number 2? That's pretty easy -- if his deportation isn't stayed, his I-485 can't be adjudicated. Fine. What about the balance of equities? Well, in order for the balance of equities to tip in Villavicencio's favor, the harm he must suffer if the injunction is not granted must outweigh the detriment the government will suffer if the relief sought is granted. What is the detriment to the government if the injunction is granted? They have to pay for continued detention or supervised monitoring if released (which hasn't happened), and there's a decent but kinda fuzzy argument that by granting injunctive relief, others similarly situated to Villavicencio will be encouraged to live their lives assuming that they can live without fear of detention. On the other side, we have both a property interest (I-485 adjudication) and a liberty interest (immigration lockup) that are real and concrete. If Villavicencio has a right to have the application adjudicated, depriving him of the opportunity is, um, unconstitutional. These interests are likely to outweigh the monetary price of detention, and the murky "other people are going to do it" argument, assuming those were made in opposition.

 

How is this injunction in the public interest, element number 4? Well, people with life, liberty and property interests have a right to due process. The court is trying to figure out through the declaratory relief petition whether Villavicencio has the right to due process in relation to his I-485. It is in the public interest to know that people can rely on their right to due process being executed and not curtailed by the government. If they can do this to this guy -- assuming he has a right -- who's to say the government can't curtail your rights in a way that is violative of due process? We need to know we can rely on our institutions.

 

Finally, no pecuniary remedy will suffice. If Villavicencio is deported before declaratory relief is granted, no amount of money will remedy the wrong. If he is entitled to adjudication of the I-485, and that I-485 was approved, he would have permanent residency, which has no monetary value. Of course, he may not be approved, but that really isn't the point. The point is that curtailing adjudication is potentially violative of the Constitution, and there is no price tag on preventing a person who has a (possible and undetermined) claim for permanent residency from having that claim decided.

 

Could another judge have found differently? Yeah! You can see some of the paths another judge could have followed quite easily. But this is a TRO, and this guy is still in lockup. Nothing's happening; the status quo is being maintained until July 20th at the next hearing. 

 

CAUTION: For the eighty bajillionth time, I have not read the petition, so I don't know the arguments definitively. I'm just making an educated guess.  

[Voice of Reason 10,298]

That’s a mighty lot of wordy lawyerese (and your input is appreciated as always).

 

But doesn’t it boil down to an illegal alien being present, once deported, and now being deported yet again?  

 

From a CNN article (sorry if it was already posted):

 

Quote

Villavicencio, an undocumented immigrant from Ecuador, didn't have a "valid Department of Defense identification" and was asked to get a daily visitors pass, Fort Hamilton said in a statement.

 

He ended up "signing a waiver permitting a background check," which revealed there was an active warrant for Villavicencio's deportation and prompted military police to call immigration agents, the base and Immigration and Customs Enforcement said.

"He was doing his job, he wasn't committing a crime," his wife, Sandra Chica, told reporters. "He wasn't doing anything illegal other than working to support his two daughters."

 

Quote

An immigration judge had ordered Villavicencio's deportation in 2010 after he overstayed his visa, ICE said in a statement.

He was initially ordered to leave without an official deportation order on his record but when he failed to leave the country, he was issued a final order of removal -- an order from a judge that a person can be deported and has no more appeals left.

 

So Cuomo gets him some free legal assistance to “reward” his illegal presence.  Is there something wrong with simply following the laws already on the books as regards immigration (and things like guns)?  Do we really need MORE laws to “fix the problem”?

 

 

[elmcitymaven 9,711]

The question is: does this man have a valid claim to have his I-485 adjudicated? If he does, and he is deported before it is adjudicated, the government will have not given him due process. No due process can give rise to a claim for violation of his civil rights, which can result in $$$$$$$$$$$ the government will have to pay. Now, if there were no I-485 on file, that would be a different story. But there is one, and he *might* be eligible to have it adjudicated -- we just don't know yet, hence the petition.

 

On a separate note, I think it's not that he was deported once before, and now is being deported again. If I'm reading what you posted correctly, he's an overstay and has been ordered removed. If that's the case, and he entered with inspection, then he really could have standing. Does he? Dunno.

 

We don't need additional laws here, but we do need to justly and consistently apply what is on the books.  

[jb914 33]

On 6/8/2018 at 3:51 PM, Nature Boy Flair said:

What if the guy gets in a wreck. Insurance isnt going to pay. I am sure the guy will not be able to afford to compensate. Amazing

Not sure when you last ordered a Pizza in Brooklyn, but it most certainly was not delivered by automobile.

And thus far, the great State of New York requires neither insurance nor a motor vehicle license to ride a bicycle.

Edited June 12, 2018 by jb914

[Umka36 781]

10 minutes ago, elmcitymaven said:

The question is: does this man have a valid claim to have his I-485 adjudicated? If he does, and he is deported before it is adjudicated, the government will have not given him due process. No due process can give rise to a claim for violation of his civil rights, which can result in $$$$$$$$$$$ the government will have to pay. Now, if there were no I-485 on file, that would be a different story. But there is one, and he *might* be eligible to have it adjudicated -- we just don't know yet, hence the petition.

 

On a separate note, I think it's not that he was deported once before, and now is being deported again. If I'm reading what you posted correctly, he's an overstay and has been ordered removed. If that's the case, and he entered with inspection, then he really could have standing. Does he? Dunno.

 

We don't need additional laws here, but we do need to justly and consistently apply what is on the books.  

You're right if a recent I-485 was filed then there shouldn't be an issue (he should have a confirmation notice and at the very least USCIS has it on file). Even if one was not filed and he is just a visa over stayer, I imagine the judge would tell him to file to get it filed ASAP as he is married to a US citizen minus if they see he married for immigration purpose only.

 

My posting was really about the ID check at a military installation as it's a security issue. Are people really going to boycott them because of this?

[elmcitymaven 9,711]

7 minutes ago, Umka36 said:

You're right if a recent I-485 was filed then there shouldn't be an issue (he should have a confirmation notice and at the very least USCIS has it on file). Even if one was not filed and he is just a visa over stayer, I imagine the judge would tell him to file to get it filed ASAP as he is married to a US citizen minus if they see he married for immigration purpose only.

 

My posting was really about the ID check at a military installation as it's a security issue. Are people really going to boycott them because of this?

I was really responding more to those who thought he should just be chucked out, and that the judge didn't have any legal basis for granting a TRO and keeping the guy in immigration lockup. But... why not boycott? No one is required to sell or deliver a pizza to a military base. If the restaurant owners wish to cut off that stream of income, it is their decision in our big, beautiful capitalist economy.

[Umka36 781]

Oh well, it works both ways as the military installation can blacklist them to. It's a shame, soldiers spend a huge chunk of their dollars in the local community as I did myself. It's only hurting them.

[The Nature Boy 7,659]

1 hour ago, jb914 said:

Not sure when you last ordered a Pizza in Brooklyn, but it most certainly was not delivered by automobile.

And thus far, the great State of New York requires neither insurance nor a motor vehicle license to ride a bicycle.

So he was on a bicycle..not

[The Nature Boy 7,659]

2 hours ago, elmcitymaven said:

I tried to access a copy of the petition that was filed in this case but it is not yet available online. Going by the description on the docket, and the wording of the TRO, here's what has happened, stripped of emotion:

 

Villavicencio's attorneys have filed a petition for declaratory relief, and for a permanent injunction preventing his removal. The dec relief is probably (and I'm going to say probably, since the petition isn't available) for the court to decide whether he has a right to have his I-485 petition adjudicated before removal. It is common for a petition for dec relief to be accompanied by a request for injunctive relief, and for a TRO to be sought. The standard of proof for TROs is the same for preliminary injunctions: “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). There's a fifth requirement -- that no legal (i.e., pecuniary) remedy will suffice.

 

So, you might ask, why would a judge rule that Villavicencio could satisfy all of these elements? I mean, look at number 1 -- that he is likely to succeed on the merits! Without seeing the petition, it is currently not possible to state the argument that was persuasive here, but bear in mind the standard is not will succeed on the merits, but likely. If there is a cognizable claim that he is entitled to have his I-485 adjudicated (not granted) prior to deportation, he is likely to succeed on the merits. That's it. No one is saying that adjudication will lead to a successful adjustment of status; rather the question is, does he have a right to have this adjudicated? And if he does have that right, it's going to require the opportunity for his claim to be heard. If he's deported before adjudication, he will not have an opportunity to have his claim heard, which is a violation of his right to due process under the Fifth and Fourteenth Amendments (the right to have his permanent residency application is classified as a property right, so you gotta have due process). Annndddd of course even non-citizens and those in the states without permission have the protections of nearly all of the Constitution (and what they don't have access to is spelled out pretty plainly).

 

What about number 2? That's pretty easy -- if his deportation isn't stayed, his I-485 can't be adjudicated. Fine. What about the balance of equities? Well, in order for the balance of equities to tip in Villavicencio's favor, the harm he must suffer if the injunction is not granted must outweigh the detriment the government will suffer if the relief sought is granted. What is the detriment to the government if the injunction is granted? They have to pay for continued detention or supervised monitoring if released (which hasn't happened), and there's a decent but kinda fuzzy argument that by granting injunctive relief, others similarly situated to Villavicencio will be encouraged to live their lives assuming that they can live without fear of detention. On the other side, we have both a property interest (I-485 adjudication) and a liberty interest (immigration lockup) that are real and concrete. If Villavicencio has a right to have the application adjudicated, depriving him of the opportunity is, um, unconstitutional. These interests are likely to outweigh the monetary price of detention, and the murky "other people are going to do it" argument, assuming those were made in opposition.

 

How is this injunction in the public interest, element number 4? Well, people with life, liberty and property interests have a right to due process. The court is trying to figure out through the declaratory relief petition whether Villavicencio has the right to due process in relation to his I-485. It is in the public interest to know that people can rely on their right to due process being executed and not curtailed by the government. If they can do this to this guy -- assuming he has a right -- who's to say the government can't curtail your rights in a way that is violative of due process? We need to know we can rely on our institutions.

 

Finally, no pecuniary remedy will suffice. If Villavicencio is deported before declaratory relief is granted, no amount of money will remedy the wrong. If he is entitled to adjudication of the I-485, and that I-485 was approved, he would have permanent residency, which has no monetary value. Of course, he may not be approved, but that really isn't the point. The point is that curtailing adjudication is potentially violative of the Constitution, and there is no price tag on preventing a person who has a (possible and undetermined) claim for permanent residency from having that claim decided.

 

Could another judge have found differently? Yeah! You can see some of the paths another judge could have followed quite easily. But this is a TRO, and this guy is still in lockup. Nothing's happening; the status quo is being maintained until July 20th at the next hearing. 

 

CAUTION: For the eighty bajillionth time, I have not read the petition, so I don't know the arguments definitively. I'm just making an educated guess.  

That was awesome. Wish I could put my thoughts to words like that .

 

So basically in a nutshell. He has the right to apply.  Does not mean he will be successful. 

 

I was sincere about the compliments on your writing ability 

[Ban Hammer 12,839]

37 minutes ago, Nature Boy Flair said:

Wish I could put my thoughts to words like that .

 

heaven forbid.

[jb914 33]

42 minutes ago, Nature Boy Flair said:

So he was on a bicycle..not

Of course he was on a bike. You, my friend, are clearly not a New Yorker

 

 

Food delivery by automobile would never work in NYC (aside from maybe the suburban outer fringes). You might have to drive around for an hour to find street parking, then pay a meter, or risk $100+ tickets for double parking. NYC's long-suffering legion of food delivery workers are always on a bicycle, Every now and then you see one on some sort of scooter.

[Voice of Reason 10,298]

3 hours ago, Nature Boy Flair said:

So he was on a bicycle..not

It’s Brooklyn, so I am pretty sure the bicycle reference is correct.  Or perhaps a moped.

 

But on that note, I never heard of Fort Hamilton in all my years of military service.  Had to look it up.  Guessing it is mostly DOD contractors on the post today.  Interesting little hidden treasure, though according to one article, it is a “well known” army base.