Category Archives: Lawyer

The Ins and Outs of a Civil Lawsuit

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How Does a Civil Lawsuit Work?

Civil lawsuits emerge out of disagreements between people, business, and other entities like the government. Generally speaking, civil lawsuits follow four significant steps; pleadings, discovery, trial, and a possible appeal. Keep in mind that not all lawsuits will go to trial.  

Pleadings

To capture each party’s side, every lawsuit begins with pleadings. Litigation will begin once the plaintiff files a complaint with the court. The complaint will then be normally delivered to the defendant. Within the complaint, the document will explain the plaintiff’s reason for taking legal action. The defendant will then have a deadline to answer the complaint and provide their side of the story.

Discovery

The longest part of a civil lawsuit is the discovery. Discovery begins as soon as the lawsuit is filed and will continue until right before the trial.  During discovery, the parties will gather facts and issues about the case by asking the opposing parties and third parties.

Information is also gathered by interrogatories (formal written questions)m requesting documents, and by conducting depositions. Dispositions are often used during trial to show inconsistencies or credibility of the witness. A claim or defense often requires support from witnesses to either support an argument or explain technical information.

Trial

If the case makes it to trial, each party will present evidence in front of a jury and/or judge that supports their claim or defense. Before the trail starts, each party will provide the judge with a “brief” that outlines both the arguments and evidence that will be used in the trial. During the actual trial, each party will present an opening statement and the present their evidence such as calling a witness or introducing a document. After one party calls a witness, the opposing side is allowed to cross-examined the witness.

When both parties have presented their evidence, each party will provide closing statements. The court will then as the jury to deliberate until they reach a decision or verdict.

Appeal

If a party is not happy with the result, they may appeal. When a party appeals, the case will go to higher court to review. The parties will present their arguments in briefs which will then be sent to the appellate court. The purpose of the appellate court is to determine if the law was correctly applied in the trial court. The court typically only reviews the case for legal error and unless under unusual circumstances will not override the jury’s decision or verdict. If the appellate courts find that was an error, the appellate court can either reverse the verdict or order the court to begin a new trial.

Alternatives to Litigation

Alternatives to litigation help save time and money. However, they don’t always result in a complete resolution of the dispute. Three alternatives to litigation include settlement, mediation, and arbitration.

A settlement is a cost-effective alternative to trial.  A settlement can be discussed at any time by any party.

Mediation is when an unbiased third party member helps the parties agree on settlements. The mediator will meet with both parties and discuss the strengths and weaknesses of the case. The mediator will point out risks and talk about how the risks may affect their goals.

Lastly, attribution is when the parties selected an unbiased third party to resolve the dispute for the, Both the parties will presents evidence and the arbitrator will decide which party wins. The process is more casual than a formal trial and is usually done privately.

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Is Access to Cell Phone Data Without a Warrant a Violation of the Fourth Amendment?

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Technology advances so quickly that the courts have little hope of keeping up. Cases involving new technologies take years to make their way to the high court. During that time period, lower courts are often bound by precedents related to already outmoded technologies. A sort of legal limbo occurs, where litigants, lawyers, and the public remain uncertain about the law.

 

Though law enforcement and prosecutors have been using cellphone evidence for two decades, the Supreme Court has yet to make a definitive ruling on the constitutionality of warrantless access to a defendant’s cellphone data. The question will finally be decided later this year, when the supreme court issues its ruling on Carpenter v. United States. The court’s ruling will decide whether Carpenter’s fourth amendment rights were violated when the FBI obtained his cellphone records without a warrant and used them as evidence against him.

 

The Carpenter Case

 

In April, 2011, Carpenter was arrested for robbery, along with three other men. One of the other suspects confessed and provided the FBI with the phone numbers of the other suspects, including Carpenter’s. The FBI applied for and received a magistrate’s order for Carpenter’s cellphone’s transactional records, which show his calls and the locations and times he made them. Based partially on this evidence, Carpenter was convicted of robbery.

 

He appealed, and the sixth circuit federal court affirmed his conviction. The Supreme Court heard oral arguments in his case and, as of June 4th, 2018, he is awaiting the decision.

 

The case’s impact

 

The Carpenter case is widely expected to provide the definitive answer to whether law enforcement must obtain a warrant for cellphone data. In Carpenter’s case, he argues that the magistrate’s order was not enough to meet constitutional requirements. His lawyers believe that the fourth amendment, when it states citizens have the right to privacy in their personal effects, includes cellphone data.

 

Courts have a history of looking backwards for guidance in technology-related cases, which often results in the court basing its decision on an analogy. For example, a tablet could be compared to a notebook in terms of determining if the data on the tablet constituted protected data. The court now will struggle to determine how the framers of the constitution would view the seizure of Carpenter’s phone records.

 

Legal experts anxiously await the decision. Many courts, as seen from the Carpenter case, lean toward law-enforcement’s view that the constitution provides no protection for cellphone records. When the court rules, a definitive standard will apply across the U.S.

 

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Is Access to Cell Phone Data Without a Warrant a Violation of the Fourth Amendment?

Abogado Aly Most Recent Blog Post

Technology advances so quickly that the courts have little hope of keeping up. Cases involving new technologies take years to make their way to the high court. During that time period, lower courts are often bound by precedents related to already outmoded technologies. A sort of legal limbo occurs, where litigants, lawyers, and the public remain uncertain about the law.

 

Though law enforcement and prosecutors have been using cellphone evidence for two decades, the Supreme Court has yet to make a definitive ruling on the constitutionality of warrantless access to a defendant’s cellphone data. The question will finally be decided later this year, when the supreme court issues its ruling on Carpenter v. United States. The court’s ruling will decide whether Carpenter’s fourth amendment rights were violated when the FBI obtained his cellphone records without a warrant and used them as evidence against him.

 

The Carpenter Case

 

In April, 2011, Carpenter was arrested for robbery, along with three other men. One of the other suspects confessed and provided the FBI with the phone numbers of the other suspects, including Carpenter’s. The FBI applied for and received a magistrate’s order for Carpenter’s cellphone’s transactional records, which show his calls and the locations and times he made them. Based partially on this evidence, Carpenter was convicted of robbery.

 

He appealed, and the sixth circuit federal court affirmed his conviction. The Supreme Court heard oral arguments in his case and, as of June 4th, 2018, he is awaiting the decision.

 

The case’s impact

 

The Carpenter case is widely expected to provide the definitive answer to whether law enforcement must obtain a warrant for cellphone data. In Carpenter’s case, he argues that the magistrate’s order was not enough to meet constitutional requirements. His lawyers believe that the fourth amendment, when it states citizens have the right to privacy in their personal effects, includes cellphone data.

 

Courts have a history of looking backwards for guidance in technology-related cases, which often results in the court basing its decision on an analogy. For example, a tablet could be compared to a notebook in terms of determining if the data on the tablet constituted protected data. The court now will struggle to determine how the framers of the constitution would view the seizure of Carpenter’s phone records.

 

Legal experts anxiously await the decision. Many courts, as seen from the Carpenter case, lean toward law-enforcement’s view that the constitution provides no protection for cellphone records. When the court rules, a definitive standard will apply across the U.S.

 

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5 Employee Rights you Should Know About

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5 Employee Rights you Should Know About

Businesses owners and managers need to pay attention to their employees. Although your work to create a healthy, productive work environment matters, you can hurt yourself if you ignore the legal and regulatory requirements that affect your firm as an employer.

Failure to discover and fulfill your obligations can result in civil and legal penalties that can negatively impact your ability to do business. The following five employee rights will remind you of some of your basic responsibilities as an employer.

Privacy

Although employers have a right to monitor employees as they do their work, your employees still have a right to privacy regarding their personal possessions. These rights extend to handbags, briefcases, and lockers. They also apply to mail that is personally addressed to employees.

Also, you should be aware that employees may have privacy regarding their telephone calls and voicemail messages. However, practically no protections exist for the way employees use your business’ computers, network and internet connection.

Fair compensation

Labor laws require that you must pay your employees in a fair and equitable way that at least approximates industry norms. However, you must pay employees within your organization similar wages if they do similar work. If you follow this guideline, you will protect yourself from allegations of gender, age, and race-based discrimination.

Hiring practices

Federal law prohibits employers from discriminating in the hiring of workers based on their race, religion, sex or nationality. Some laws may also forbid you from discriminating based on sexual preferences. Generally speaking, you should hire based on the knowledge, skills and other capabilities of an applicant.

Disabilities

The Americans with Disabilities Act (ADA) prohibits your firm from discriminating against qualified candidates with certain disabilities. Also, “reasonable accommodation” rules mean that you must take reasonable measures to ensure that disabled team members have equal access to your facility and work areas.

Age Discrimination

Laws prohibit employers from discriminating against applicants and employees who are more than 40 years old. However, these rules don’t work in reverse, so you can favor older employees over younger ones.

You’ve just reviewed five important rights that employees have. Now, it’s up to you to take the next step and learn more about employment law and the federal, state, and local regulations that affect your business.

 

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The ACLU Effect on Crime and Policing

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Chicago citizens and police officers have always had something of a tense relationship. The residents of the city have complained of mistreatment from law enforcement due to racial biases; meanwhile, police officers and first responders are desperately trying to keep bad guys off the streets to keep good guys, their stuff, and the city at large safe.

Starting in 2011 with the untimely death of Trayvon Martin, the Black Lives Matter movement renewed public interest in police brutality and the safety of inner city residents against the force of police who may be entering scenes with ill intentions and racial prejudices. Calls for mandatory body cameras and more transparency during police-civilian interactions that left people dead have taken up a permanent dwelling on social media and at every political rally.

With the tide of public opinion turning against police officers, the prison system, and law enforcement at large, many police precincts are up against steep odds for increasing their budgets during local votes and reminding citizens that they exist to keep streets safe, not to purposefully hurt or terrorize people.

Nonetheless, the ACLU and the Chicago PD struck a once-in-a-lifetime agreement that both sides hoped to benefit from, the former, fewer cases of police misconduct, and the latter, better public support. In particular, the ACLU was interested in putting an end to controversial “stop and frisk” laws that were intended to allow police to be proactive in getting guns and drugs off the streets, but were generally racially biased in execution, leading to numerous court cases. As per the truce, officers have been instructed to meticulously document each and every interaction they have so that a file is prepared if and when the ACLU has to respond to claims of police brutality. Naturally, with the pressure to catalog every traffic stop and stop-and-frisk, the number of both has dramatically decreased. 

In a landmark study recently released from the University of Utah, though, researchers Paul Cassell and Richard Fowles blamed what they call the “ACLU Effect” for Chicago’s 58% increase in homicides in 2016, a peak even for the troubled city itself. The former a professor of law and the latter an economist, the two set out to create an econometric model that accounted for all the possible variables that lead to an increase in homicides in the city, and time and time again, they continued to be struck by the “ACLU Effect,” or the fact that increased paperwork lead to an 82% decrease in traffic stops and stop-and-frisks. Naturally, the ACLU has come out staunchly opposed to the study’s findings and note that it’s more important for the police force to function constitutionally than for them to play fast-and-loose with people’s lives.

This isn’t the first time cities have had to evaluate the efficacy of stop-and-frisk policies. In the 1990s, the “Broken Windows Theory” said, in essence, that decay and neglect beget more decay and neglect. As such, if communities clamp down on smaller infractions like turnstile jumping, graffiti, prostitution, and selling loose cigarettes, then they could reduce the downstream crime. Rudy Giuliani became the mayor of New York City and the champion of broken windows theory and boasted that his officers’ ruthlessness on petty crime leads to the decrease in New York City homicides.

This “Broken Windows Policing” had some fans, and a 2001 paper noted that in areas of NYC that saw spikes in misdemeanor arrests also saw sharp reductions in violent crimes. However, upon further review, the 2001 study omitted some important information that rendered it almost wholly irredeemable. Most notably, the study failed to account for “reversion to the mean,” or the tendency for large spikes in anything — stock prices, crime rates, etc — tend to be followed by large dips back down to a mean amount. While yes, crime in New York did fall under Giuliani’s administration, that likely would have happened with or without stop and frisk policies.

As more and more media outlets pick up the story of the ACLU Effect, we’ll see who can offer additional information or potential solutions. In the end, everyone in Chicago wants to see a reduction in crime, and the ACLU and the Chicago PD may have to reevaluate how they can join forces to do so with the best interests of the citizens in mind.

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Texas and the Case of Illegal Voting

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During the 2016 election cycle that included the presidential ballot, voting rights took center stage as November 8 drew closer. Many contenders who ran on the Republican ticket called for stricter legislation on who could and couldn’t vote as a case-in-point against undocumented immigrants enjoying rights and privileges usually reserved for US citizens only. As many may recall, immigration policy and reform was a pivotal point during debates and interviews, and calling for a closer watch on non-citizens attempting to vote galvanized voters who wanted to see tightened practices for immigrants without legal standing.

On election day, reporters and election watchers hawked polling places, chomping at the bit to break a story about a non-citizen attempting to vote or catch someone in the act of trying to vote twice. All the fervor yielded very little in terms of headlines, and ultimately, the President even disbanded his “voter fraud” commission, as it proved to be a waste of time and resources. However, a few stories made headlines. In one, a woman attempted to cast two ballots for now-President Trump and was stopped in the act. In a more calamitous story, though, a woman from Texas was sentenced to five years in prison for voting when she shouldn’t have because of a prior crime.

Voting rights for convicted felons has long been a sticking point. A state-level law, some states are more lenient with their felons and allow them some voting rights if they’ve made it through their probation cleanly and avoid a life of crime. In others, though, felons are essentially banned from voting for life. On the one hand, this functions as a deterrent to would-be criminals to keep them from breaking their social contract. On the other hand, though, many politicians don’t want felons to vote because of they way they would vote, most notably against increasing funding for police officers and in favor of more relaxed laws on crime. Florida has made recent headlines as activists there are trying to repeal some of the nation’s toughest law against felons voting and

In this specific case, Crystal Mason, a 43 year old Black resident of Texas, cast a ballot on November 8 despite the fact that she was still on probation for a tax fraud felony of which she’d been convicted. Not finding her name on the voter roll, Mason filed a provisional ballot and was subsequently arrested for illegal voting. At the trial, she reiterated time and time again that she was voting in good conscious and did not intend to make a statement or break the law. However, the prosecution produced numerous documents Mason had signed saying she could not vote again until her probation had been served in full. She has been sentenced 5 years for her crime.

Across the US, the punishment for such a crime has come nowhere close for others who were found guilty of voting when they weren’t supposed to. NPR reported that two Nebraskan men struck a deal for $10,000 after they were charged with voting multiple times in local elections. Texas has stepped up its punishment of illegal voting and has used Crystal Mason’s case to make an example for others considering voting when they shouldn’t. However, Mason is appealing the case, and voting rights activists are calling for governments to encourage voting, not scare people out of it even more. Among developed nations, the US ranks one of the lowest in voter turnout, and yet, more and more governments, both federal and state, are trying to make it harder to vote, not easier.

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Protesters and Civil Liberties

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The year of 2017 saw a huge swell in public protests stemming from racial unrest and displeasure with systemic injustices targeted at certain groups of people. Since the death of Trayvon Martin in 2012, the grassroots activist group Black Lives Matter has staged public protests, marches, and social media campaigns designed to bring awareness to the plight of people of color against law enforcement and the criminal justice system. On the other end of the spectrum, though, white nationalists and white supremacists have also taken to the streets with torches to protest the immigration policies they view as lax and the perceived vilification of white and caucasian Americans. Each group independently caught pushback from both the media and their communities, who bemoaned the damage to public property and the need for increased crowd control and first responders.

These two forces came to a head in Charlottesville, when a clash between a white nationalist group and a combination of Antifa (anti-facist) and Black Lives Matter protesters ended in fist-fights, property damage and destruction, arson, and the death of a young white woman.

Sympathizers of both Black Lives Matter and White Nationalism have accused the other side of hurling “hate speech” and inciting race-based violence against the other. Both claim the other uses inflammatory verbiage, divisive rhetoric, and skewed-if-not-wholly false information to debase the other and forward their own agenda. To that end, speakers or activists considered too political on one side or another have been barred from speaking on various college campuses. While the administrators of these institutions of higher learning tend to call on “security concerns” when prohibiting “extremists” from either side from speaking on campuses, many believe that these higher ed institutions are sheltering their students and suppressing certain viewpoints in violation of the first amendment.

Calls to “stop hate speech” on both sides have reinvigorated first amendment fanatics who are nervous about how far we’ll be able to limit free speech in the name of reducing violence. The first amendment as it’s written prohibits the US government from passing laws that infringe on the people’s right to free speech. We have made some important caveats, though, the classic example being that a person can’t yell “fire” in a crowded theater to purposefully incite panic. We also prohibit organizing terrorist threats against the US.

While we can’t legally stop people from saying what they want, the administrators of some of the biggest social media websites can claim that it’s against their terms of service to post racially insensitive or discriminatory information or to actively champion such causes as ethnic cleansing or white supremacy. Unlike the government, social media platforms are private businesses who can set terms and conditions under which they will permit users to utilize their services. Twitter and various white nationalist groups have been caught up in a cat-and-mouse game over how to ensure that twitter’s crawlers catch white nationalists and only white nationalists, but their algorithm isn’t great, and their terms aren’t clear.

The future of free speech as it pertains to potentially offensive and inflammatory information is yet to be determined, but as our society proves more and more divided, we’ll have to come to a new truce sooner rather than later to avoid more deadly clashes.

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Texas Immigration Enforcement Law: What’s Happening with Senate Bill 4

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There’s major buzz throughout the state of Texas due to recent news on Texas passing an immigration enforcement law, Senate Bill 4 (SB 4). This bill allows law enforcement to question the immigration status of anyone who gets arrested or looks suspicious. It also threatens officials who refuse to cooperate with federal immigration agents and the implementation of the new law. Over the 2016 presidential campaign, President Donald Trump brought high attention to immigration and its controversy.

 

Now San Antonio and Austin, both major Texas cities, filed a lawsuit against the federal court to challenge the constitutionality of SB 4. MALDEF, a civil rights legal voice for Latinos in America, stated that this bill will only increase racial profiling against Latinos. This is by no means the first lawsuit against the federal court. When Trump administration tried to withhold fundings from sanctuary cities, San Francisco then sued Trump administration just recently.

 

San Antonio, Austin and non-profit organizations in Texas are working towards blocking SB 4 from being implemented by the state of Texas. MALDEF (Mexican American Legal Defence and Education Fund) was sued just weeks ago by Texas governor, Greg Abbott for denouncing the sanctuary city law in back and forth law suits over immigration disputes.

 

With steep fines and criminal prosecution, the bill will try to force cities, counties and officials to comply with cracking down on the immigration law. Due to several factors of the bill, there are numerous non-profits and cities speaking up. With great controversy, many believe that SB 4 violates the Constitution. Federal immigration law enforcement takes training, knowledge and practice. It can’t simply be implemented by any officer or government official, creating a major concern of racial profiling and the safety of immigrants after acknowledging the history of racism against Mexican-Americans in Texas.

 

Texas federal government as well as the immigration enforcement law supporters will try to enact SB 4 on September 1, 2017. If this law is indeed enacted, many fear the racial profiling and cultural challenges that Latinos, Mexicans and Mexican-Americans face going forward.

 

Instead of immigrants moving to the United States and being treated like U.S. Citizens, Texas law will view them as foreigners. Anti-discrimination and non-profits will continue to push hard in order to fight for the civil rights of Mexican-Americans and their citizenship in the months to come as all eyes in Texas are on the SB 4 immigration enforcement law.

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Texas Immigration Enforcement Law: What’s Happening with Senate Bill 4

Abogado Aly Latest Blog Post

 

Abogado Aly Senate

There’s major buzz throughout the state of Texas due to recent news on Texas passing an immigration enforcement law, Senate Bill 4 (SB 4). This bill allows law enforcement to question the immigration status of anyone who gets arrested or looks suspicious. It also threatens officials who refuse to cooperate with federal immigration agents and the implementation of the new law. Over the 2016 presidential campaign, President Donald Trump brought high attention to immigration and its controversy.

 

Now San Antonio and Austin, both major Texas cities, filed a lawsuit against the federal court to challenge the constitutionality of SB 4. MALDEF, a civil rights legal voice for Latinos in America, stated that this bill will only increase racial profiling against Latinos. This is by no means the first lawsuit against the federal court. When Trump administration tried to withhold fundings from sanctuary cities, San Francisco then sued Trump administration just recently.

 

San Antonio, Austin and non-profit organizations in Texas are working towards blocking SB 4 from being implemented by the state of Texas. MALDEF (Mexican American Legal Defence and Education Fund) was sued just weeks ago by Texas governor, Greg Abbott for denouncing the sanctuary city law in back and forth law suits over immigration disputes.

 

With steep fines and criminal prosecution, the bill will try to force cities, counties and officials to comply with cracking down on the immigration law. Due to several factors of the bill, there are numerous non-profits and cities speaking up. With great controversy, many believe that SB 4 violates the Constitution. Federal immigration law enforcement takes training, knowledge and practice. It can’t simply be implemented by any officer or government official, creating a major concern of racial profiling and the safety of immigrants after acknowledging the history of racism against Mexican-Americans in Texas.

 

Texas federal government as well as the immigration enforcement law supporters will try to enact SB 4 on September 1, 2017. If this law is indeed enacted, many fear the racial profiling and cultural challenges that Latinos, Mexicans and Mexican-Americans face going forward.

 

Instead of immigrants moving to the United States and being treated like U.S. Citizens, Texas law will view them as foreigners. Anti-discrimination and non-profits will continue to push hard in order to fight for the civil rights of Mexican-Americans and their citizenship in the months to come as all eyes in Texas are on the SB 4 immigration enforcement law.

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ICE: Functioning Among Chaos

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As the laws and regulations of immigration are widely debated, including the border wall and sanctuary cities, eyes are on ICE as they’re demeanor and actions are a target of the news. A Department of Homeland Security, the Bureau of Immigration and Customs Enforcement was established in 2003 to better protect the safety of citizens after the tragic attack on 9/11. ICE has been pressing forward with the safety of the nation’s borders for years.

In recent news, Mexican crime and deportation is just one of President Donald Trump’s focus to crack down on. In attempts to reduce the crime of illegal immigrants, Trump sought to withhold funding from sanctuary cities, as some local governs, Greg Abbott of Texas for example, already have.

This brings the public’s attention to ICE. One of the largest sweeps in Texas just occurred, arresting 26 undocumented immigrants who thought they were paying their dues through community service. Paroles in Fort Worth, Texas were court ordered to give their dues through community service, however when they arrived there was an ICE bus waiting for them, taking them into customs in Dallas where they will receive their sentencing.

Many citizens, including those who have loved ones accounted for in the 26 arrested, are furious over this sneaky, meticulous attempt to remove undocumented immigrants who have been here for years. One American citizen recently married an undocumented immigrant from Honduras and stated this situation is unjust. The immigrants who are paying for their mistakes are punished further while the uncaught criminals remain free, posing threats with more dangerous crimes than the misdemeanors of the 26 arrested.

Other citizens aren’t taking the role of ICE seriously, and have started to prank call the VOICE (Victims of Immigration Crime Engagement) hotline. Numerous prank calls have been received, reporting “aliens” from outer space to mock Trump’s terminology of illegal immigrants as “aliens” in the country. VOICE is a line for victims to obtain information, and yet certain people in the public have found this mockable.

Along with Trump’s signed order to withhold funding from sanctuary cities, came is proposal to hire 10,000 employees in addition to the ICE task force. This would have been a costly plan, with the expectation of funding from congress. However, among all the chaos surrounding ICE news, they have found a way round it.

ICE’s new priority is to enforce more serious crimes such as: human trafficking, drug smuggling and the violation to immigration law. By taking over more serious crimes, ICE may appear more trustworthy in the eyes of the public and local officials.

There are mixed opinions on the role of ICE, but hopefully in the future, the government will come to an agreement on the role of ICE and how it should be functioning in regards to local, state and federal government.

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