Governor Brown Signs Only Half of California DREAM Act

BY CAITLIN PATLER, DOCTORAL STUDENT AT UCLA’S DEPARTMENT OF SOCIOLOGY

This week, California Governor Jerry Brown signed into law Assembly Bill (AB) 130. This new law allows undocumented students enrolled in California’s public colleges and universities to receive privately-funded university scholarships from non-state funds.. While AB 130 is a significant step for the Golden State, it is only one of two bills known collectively as the California DREAM Act. Without its companion bill, AB 131, the legislation does little to address the systemic inequality facing undocumented students in California.

Currently, undocumented students are ineligible for state-sponsored financial aid. AB 131 builds on AB 130 by allowing undocumented students to apply for and receive Board of Governors Fee Waivers at community colleges, Cal Grants at universities (only after such grants are awarded to eligible documented students), and some types of financial aid administered at the university or college level (such as UC Grants). It would also expand eligibility for California in-state tuition to those who graduate from California adult schools and vocational schools, as long as the student also attended a California high school for at least one year.

Unfortunately, AB 131 has been stuck in the California Senate Appropriations Committee since early July. While opponents argue that AB 131 would negatively impact California’s economy, a recent study by the UCLA Institute for Research on Labor and Employment (and co-written by this author) shows that passing AB 131 is a critical step to improving California’s economy over time by reducing barriers to higher education for some of the state’s lowest income residents:

“The California DREAM Act [both AB 130 and 131] would make higher education significantly more affordable for undocumented students in California, likely increasing their post-secondary enrollment.

The Public Policy Institute of California estimates that by 2025, California will have 1 million fewer college grads than are demanded by its economy. Therefore, providing access to affordable education for all our state’s students will become even more critical over the coming decades. And importantly, according to the California Assembly Committee on Appropriations, AB 131 would not increase overall spending on institutional aid in the state of California. The Golden State simply cannot afford not to educate its immigrant students.”

The UCLA report also points out that the average annual income for an undocumented family in California in 2003 was only $29,700 (compared to $54,600 for U.S.- born families): “this low socioeconomic status, combined with the ever-increasing cost of college attendance, keeps higher education elusive for many undocumented students, even if they qualify for in-state tuition.” The California DREAM Act has the potential to help make higher education much more accessible for undocumented children, estimated to number more than 430,000 in California alone.

Efforts are under way to ensure that AB 131 becomes law this year. Thousands of immigrant students across California are fighting hard for their well-earned piece of the pie. While simultaneously juggling full-time jobs and course loads, they have also been long-term advocates for equal access to higher education as well as for legalization programs such as those included in recent versions of the federal DREAM Act. Organizations like the California Dream Network and the California Dream Team Alliance have called upon the California Senate to follow the lead of the State Assembly and move AB 131 out of Appropriations.

Passing the entire California DREAM Act is simply what’s right for our state’s economy and for the hard-working immigrant students who call California home.

Photo by Randy Bayne.

Microsoft, Experts Stress Need for High-Skilled Immigration in Senate Committee Hearing

While the House Judiciary Committee focused on a very different part of immigration yesterday, its Senate counterpart held a hearing on “The Economic Imperative for Enacting Immigration Reform.” In the hearing, witnesses testified that immigration reform that makes it easier for high-skilled immigrants to come work in the U.S. is not only good policy, but an economic necessity. Brad Smith, General Counsel and Senior VP for Legal and Corporate Affairs at Microsoft testified that smart immigration reform could create more jobs for American workers, something the economy needs as our nation struggles to recover from the recession.

David Skorton, President of Cornell University, outlined the problems currently plaguing high-skilled immigration, telling the committee that times have changed, and that:

The U.S. is not always the top choice of students from Asia who are applying to graduate school in science and engineering. ..If our immigration policy causes the number and quality of international students who matriculate in STEM disciplines at U.S. universities to decline significantly, it will reduce our capacity for research, innovation, and ultimately economic growth.

Skorton went on to explain that there are not enough qualified or interested American students to fill the slots in STEM (science, technology, engineering, and mathematics) undergraduate and graduate programs and recommended streamlining the green card process for international students with STEM degrees from U.S. universities. Skorton also recommended reducing the backlog for skilled legal immigrants, enacting policies that keep families together, and passing the DREAM Act.

Federal inaction isn’t the only danger to the U.S. economy. During the hearing, Paul Bridges, Mayor of Uvalda, GA, testified about the economic repercussions of the anti-immigrant law recently passed in Georgia.

The reality is this law won’t solve the immigration problem in the state. It will only devastate local economies…We grow many different crops year round [which are] harvested by skilled migrant farm laborers who have harvesting down to a fine art…

These workers are a critical part of Georgia’s economy. Their work helps agriculture to inject $6.85 billion into Georgia’s economy. These workers also contribute to local economies as consumers, too. Every time they buy a good or service, they pay the same taxes that I pay. Many own their homes and pay property taxes. Their taxes are co-mingled with my taxes and are used to pay for schools and public service.

The loss of their tax revenue will be felt in Georgia…Now that migrant workers are fleeing Georgia, perfectly healthy crops have been left rotting in the field. The Georgia Agribusiness Council has already reported that farms have lost $300 million due to a lack of workers. The economic toll could reach $1 billion.

Both the patch work of restrictive state laws and federal inaction are putting the U.S. behind its global competition. In an editorial for The Hill, Sen. Schumer pointed out that “our competitors are enacting immigration policies that offer scientists and engineers from around the world up to $250,000 to emigrate, in order to deploy their talents and skills in for the good of our competitors’ economies.”

If Congress fails to come together and pass immigration reform, the potential effect on the U.S. economy could be devastating, wasting economic opportunities that would benefit all Americans and leaving the U.S. to fall behind other nations in attracting foreign talent which, by the way, supplements not supplants American workers.

Sen. Schumer stated that our economic supremacy arose because we “successfully attracted the world’s best minds.” The U.S., however, is no longer doing that, which puts us in jeopardy of losing the global competitive edge we once had.

Photo by PNNL.

Lamar Smith’s HALT Act Would Limit Administration’s Ability to Administer Humanitarian Relief

Today, the House Judiciary Subcommittee held a hearing on the “Hinder the Administration’s Legalization Temptation Act” (HALT Act), introduced by House Judiciary Chairman Lamar Smith (R-TX). The bill, which some are calling a political response to recent ICE memos, would suspend the Administration’s ability to exercise certain discretionary forms of immigration protections and relief until January 21, 2013—the day after the first Obama administration comes to an end.

In his opening statement, Rep. Smith stated that the HALT Act was introduced because “the current administration now wants to grant a ‘backdoor amnesty’ to illegal immigrants.” However, as Marshall Fitz of the Center for American Progress points out, “the president can’t ‘legalize’ undocumented immigrants. The most he can do is delay their removal from the country for compelling reasons.” The HALT Act would, in devastating fashion, remove the power of the Administration to delay removal for certain immigrants in dire need. A far cry from the “amnesty” that Rep. Smith fears, this relief is often provided on a temporary basis to ensure the safety of the immigrants or their immediate family.

In the hearing, Margaret Stock, an immigration attorney and retired Lieutenant Colonel, stated that this discretionary relief is important for a number of reasons. If the HALT Act were passed, a number of forms of discretionary relief would be unavailable. For example:

• The Administration would be prevented from granting Temporary Protected Status (TPS) for countries suffering disasters such as earthquakes, hurricanes, tsunamis or countries experiencing civil war or other armed conflict.
• The Administration would be unable to grant deferred action to domestic abuse survivors seeking protection under the Violence Against Women Act (VAWA).
• An immigration judge would not longer have the authority to cancel a deportation on the grounds that a non-citizen’s deportation would result in “exceptional and extremely unusual” hardship to a qualifying U.S. citizen or lawful permanent resident family member.

The bill seemingly comes as a response to ICE’s prosecutorial discretion memos, which Ranking Member Zoe Lofgren (D-CA) characterized as ICE’s attempt to prioritize the removal of dangerous criminals, given that “like every other law enforcement agency on the planet, ICE has limited resources.” Rep. Pierluisi berated ICE Council President Chris Crane, who testified in support of the bill, stating that the Obama Administration has already focused more resources on the border and deported more immigrants per year than any previous administration.

In the end, the policies of the HALT Act are misguided and overbroad. While Rep. Smith stated that the purpose of the bill is to prevent the President from granting a “mass amnesty,” the reality is that the bill suspends a number of tools that the Administration may use on a case-by-case basis for the most extreme humanitarian cases, tools that Smith himself advocated for in 1999.

Passage of the HALT Act would result in the loss of some of the few protections we have left for immigrants in this country, and would sacrifice many of the values that form the foundation of United States.

Photo by United Nations Photo.

President Obama Promises to Keep Promising Immigration Reform at Latino Conference

Amid frustrated shouts of “Yes, You Can!” from advocates in the audience, President Obama again deferred the power to fix our broken immigration system to Congress today during a speech at the National Council of La Raza’s (NCLR) annual conference. After highlighting his administration’s bona fides on issues important to the Latino community—appointing Justice Sonia Sotomayor on the Supreme Court, naming Labor Secretary Hilda Solis to his cabinet and delivering health care to millions of Latino families—the President turned to the thorny issue of our broken immigration system—a system many advocates believe the President should fix using the power of executive authority.

In his address to NCLR, the President began by highlighting the many promises his administration has made and kept to the nation, particularly the Latino community, as well as the economic and moral imperative of a functioning immigration system. But when it came to actually fixing our broken immigration system, the President could only promise to enforce the laws on the books “in the most humane and best way possible,” then shifted responsibility for an immigration overhaul back to Congress:

Now, I know some people want me to bypass Congress and change the laws on my own.  And believe me, right now dealing with Congress… Believe me, the idea of doing things on my own is very tempting.  I promise you. Not just on immigration reform.  But that’s not how our system works. That’s not how our democracy functions.  That’s not how our Constitution is written. So let’s be honest.  I need a dance partner here — and the floor is empty.

The President also reminded the audience that Republicans have repeatedly walked away from immigration reform efforts, mostly recently the DREAM Act, and urged them to build a movement that bridges party lines.

So, yes, feel free to keep the heat on me and keep the heat on Democrats.  But here’s the only thing you should know.  The Democrats and your President are with you.  Don’t get confused about that.  Remember who it is that we need to move in order to actually change the laws. So I need you to keep building a movement for change outside of Washington, one that they can’t stop.  One that’s greater than this community.

But to many advocates, the President’s continued promises were simply not enough. Felipe Matos of Presente.org, who called the President’s speech “predictable,” said that it was “inconceivable that [President Obama] keeps giving political speeches to win the Latino vote for 2012 while dividing the Latino community with his inhumane immigration policies.” According to Matos, the President has deported more than one million immigrants, including DREAM Act eligible students, since he took office. Another group referred to the President as “Deporter-in-Chief.”

And tomorrow, congressional leaders—including Reps. Raul Grijalva (AZ), Luis Gutierrez (IL), Mike Honda (CA) and John Lewis (GA)—as well as faith, union, civil rights and community leaders, will rally outside the White House to protest the record number of deportations and demand that the President use executive authority to “alleviate the suffering experienced in the Latino and immigrant communities.”

While it’s true that the whole of our complex immigration system cannot be fixed by a stroke of the President’s pen, there are some things the President can do now using executive authority to alleviate some of the pressure points. At some point, simply acknowledging that our immigration system is flawed and pointing to Congress to fix it will not be enough for the President, who some critics say is dangerously close to falling into the Latino/immigration credibility gap.

Photo by theobamadiary.com.

Report Reveals Basic Misunderstanding of Deportation Process

As readers of this blog know, the Center for Immigration Studies (CIS) often issues studies that make us cringe. Earlier this week, however, the DC-based restrictionist organization issued a report that made us laugh. Pseudonymously written by a retired government employee, the report purports to explain the “basics” of the deportation process. At more than 10,000 words, the report contains too many false analogies, misleading statistics, and non sequiturs to individually refute. But a few of the more outlandish arguments are too good not to pass up.

• The report states that immigrants facing deportation receive too many of the protections given criminal defendants. Yet as anyone with passing familiarity of the removal process knows, immigrants have long been denied the very rights that Americans expect from a civilized justice system. Unlike criminal defendants, immigrants facing deportation have no right to a jury, Miranda warnings, or counsel provided by the government; can be deported on the basis of hearsay and other evidence not admissible in criminal trials; and are often transferred far from the site of arrest, making it difficult to retain an attorney and collect evidence needed to bolster their case. In the end, our justice system should provide protections not because of who receives them, but because of who we are and the values we cherish as a nation.
• The report also laments the number of immigrants allowed to appear before an immigration judge at all, rather than face summary deportation by officers in the field. The report recommends greater use of “expedited removal” and “stipulated removal orders,” procedures by which immigrants never see a judge and either don’t have or give up their right to appeal. Implementing this proposal would not only trample the minimal rights that immigrants now enjoy and further encourage manipulation and abuse by immigration officers, but would likely provoke legal challenges that would tie up the courts for years.
• The report criticizes ICE for not detaining enough people and suggests that the government should drastically increase the number of immigrants it holds in jails. Already, ICE detains nearly 400,000 immigrants per year at a cost of nearly $1.8 billion. Detaining even more immigrants—including those with no criminal records and who pose no threat to the community, as the author suggests—is unpalatable both from a fiscal and a humanitarian perspective.
• Finally, the report frets that ICE officers could be subjected to lawsuits if an immigrant they decline to deport for policy reasons later commits a violent crime. Yet in ginning up fears about frivolous lawsuits, the report itself makes a frivolous argument. The author cites not one example of such a suit being filed, much less a law that would permit immigration officers to be sued for the exercise of prosecutorial discretion in the first place.

Amusing as some of the report’s assertions may be, its true intent is no laughing matter. The expansion of Secure Communities and other programs that rely on local police to identify undocumented residents has created crushing backlogs in our nation’s immigration courts. Rather than seek the hiring of more immigration judges, or giving them the tools necessary to manage their docket, restrictionsists are pushing for immigrants to be deprived of hearings in the first place.

While the problems plaguing our immigration courts are a prominent symptom of our broken immigration system, the solution is not to mean-spiritedly detain more people or deport them outside the existing process. Instead, it is to provide immigrants more of the rights available to criminal defendants, and to use enforcement resources wisely. This means setting priorities and exercising prosecutorial discretion in appropriate cases, something the Obama Administration has expressed its commitment to do. Just as criminal prosecutors routinely dismiss charges against minor criminal suspects, the federal government need not deport every undocumented immigrant they happen to encounter. In that respect, the truth could hardly be more basic.

Photo by Icars.

U.S. Commerce Secretaries Highlight Economic Benefits of Immigration Reform

As the American economy continues to level out post-recession, some experts are looking at immigration reform as a way to help start new businesses and aid job creation. A recent letter from U.S. Commerce Secretary Gary Locke and former Commerce Secretary Carlos Gutierrez outlined the economic benefits of reforming our immigration system and, consequently, the possible further detriment to our economy if Congress fails to act.

In their letter, the Commerce Secretaries echoed what economists have been pointing out for years—immigrants already contribute to our economy in significant ways:

According to the National Venture Capital Association, immigrants have started 25 percent of U.S. public companies that were venture-backed – including Google, eBay, Yahoo!, Sun Microsystems and Intel. Further, immigrant-founded, venture-backed public companies employ 220,000 people in the United States. Meanwhile, immigrant inventors or co-inventors have contributed to more than a quarter of U.S. global patent applications.

Despite this evidence, the U.S. wastes much of the foreign talent that comes to the U.S. Each year, around 400,000 students come to study in the United States from foreign nations. The U.S., however, fails to provide opportunities for these students to permanently immigrate to the U.S. In his immigration blueprint, President Obama acknowledged this problem and recommended that we encourage:

…foreign students to stay in the U.S. and contribute to our economy by stapling a green card to the diplomas of science, technology, engineering and mathematics (STEM), PhDs and select STEM Masters Degrees students so that they will stay, contribute to the American economy, and become Americans over time.

If the U.S. fails to reform immigration in a way that allows America to retain the best and brightest students and innovators, it risks falling behind in the global race to remain economically competitive. Already, Australia, Canada, New Zealand, and the U.K. have instituted programs designed to attract immigrant entrepreneurs.

Some in Congress, however, are trying to implement immigration policies that stimulate the economy and create jobs. Senators John Kerry (D-MA) and Richard Lugar (R-IN) recently introduced the Startup Visa Act of 2011, which would provide a two year visa for immigrant entrepreneurs who either find a qualified U.S. investor to back their business. The visa would allow the immigrant to become a lawful permanent resident after two years if they create full time jobs for U.S. citizens.

Senator Chuck Schumer (D-NY) also renewed efforts this week to pass an immigration reform bill, calling on advocates to focus on the economic benefits of reform. Sen. Schumer stated that “we ought to start highlighting the fact that immigration creates jobs rather than takes them away. Everyone agreed that is how we are going to start talking about immigration, as a job creator.” Sen. Schumer will hold a hearing next week on the economic benefits of immigration reform.

In light of the current U.S. economic struggles, Congress could look to immigration reform for policies that would help stimulate the economy and create U.S. jobs. If Congress continues to stagnate on this issue as they have many others, it would be a wasted opportunity.

Photo by The National Academy of Sciences.

U.S-Mexico Border Residents Not Surprised by Falling Crime Stats

Listening to politicians, one would think that the border is rife with murder, arson, theft, kidnapping, and every other type of violent crime imaginable. Unfortunately, those who spread these images often conflate the violence associated with drugs and arms trafficking with immigration, unfairly painting immigrants as the perpetrators. This image of a violence-ridden, out-of-control border has been used to justify increasingly higher spending on enforcement along the border, increases in Border Patrol agents and the deployment of the National Guard. Immigration restrictionists have also used images of border violence and immigrants committing crimes to shut down attempts at serious comprehensive immigration reform.

However, as residents who live along the U.S. side of the border have known for years, the border is actually a very safe place, and reports of “spillover” violence from Mexico are unfounded. New data recently compiled by USA Today confirms the fact that U.S. border cities have not been struggling with the violence and crime associated with drug and arms trafficking in Mexico. In fact, border cities are statistically safer than other similarly-sized cities in the border states.

USA Today, using data from city and county police agencies and from the FBI found that, from 1998 to 2009, the murder rate for cities within 50 miles of the border was lower than the respective state average. The robbery rate was also lower than the state average. And the FBI reports that kidnapping cases are declining.

In fact, El Paso, TX—located right across the border from notoriously dangerous Ciudad Juarez—was named the safest city in the US in 2010, and has consistently been in the top three since 1997.

Despite all of this evidence, Congress and the Administration remain intent on maintaining the violent border imagery and putting money and personnel along the border. In 2010, for example, the Obama administration authorized the deployment of 1,200 more National Guard troops to enhance border security and requested an additional $500 million from Congress to further modernize southwestern border security. Congress also approved $600 million in the “Border Security Supplemental Appropriations Act of 2010.”

According to border experts David Shirk and Eric Olson, the U.S. is putting its enforcement resources and muscle in the wrong place. Rather than focusing on illegal immigration, more enforcement dollars should be redeployed to “intelligence-based law-enforcement efforts” to focus on cartels and disrupt the flow of guns, drugs, and money. Shirk and Olson also suggest that Congress:

…bring immigrants who are otherwise law-abiding out of the shadows and provide them with legal avenues to enter the country. Widening the gates—with more elastic quotas for work visas (especially for our Mexican and Central American neighbors)—would allow U.S. Border Patrol agents to turn their fullest attention to organized criminal groups and would-be terrorists without the distraction of hunting down would-be gardeners and dish-washers.

There is a great deal of data dispelling the myth of an out-of-control border and immigrants committing crime. Border experts continue to advocate focusing border enforcement resources on drug trafficking, arms trafficking, and money laundering. The question is, when will Congress get over its fixation on deporting immigrants and begin a constructive debate over fixing our broken immigration system and addressing real problems along the border?

WATCH:

http://c.brightcove.com/services/viewer/federated_f9?isVid=1

Photo by Rockin’ Robin.

Dear Mr. Smith, Our Broken Immigration System Requires Solutions that Embrace Discretion, Not Eliminate It

Over the last six months, Congressman Lamar Smith (R-TX), along with other members of the House Judiciary Committee, have engaged in an all-out effort to turn back the clock on our immigration laws through a series of bills that may tackle one issue at a time, but equal a comprehensive overhaul. This week, the restrictionists’ Comprehensive Immigration Reform package (RCIR, as we call it) became complete with the introduction of the “Hinder the Administration’s Legalization Temptation Act” (HALT Act), a bill that would suspend discretionary forms of immigration relief until January 21, 2013. Yes, until the day after the next inauguration.

Just yesterday, Congressman Smith inched a bit closer to RCIR when the full Judiciary Committee voted to advance the “Keep Our Communities Safe Act of 2011” (H.R. 1932)—a bill that authorizes indefinite detention for immigrants. Apparently Smith is not content with the current mandatory detention laws because they include some provisions for release of immigrants, such as asylum seekers and others who have committed no crimes. His bill, however, would create a penal system for immigrants far more restrictive than the current detention system, which has generally been under fire from all sides.

And it doesn’t stop there. Other bills in the RCIR package include mandatory E-verify with no provisions for current undocumented workers to become legal, elimination of the diversity visa, expanded authority for the Secretary of Homeland Security to revoke visas issued by the Department of State, the elimination of review for those visas, suspension of waivers for the 3 and 10 year bars, suspension of cancellation of removal, suspension of Temporary Protective Status(TPS), suspension of virtually all parole authority, deferral powers, and work authorization, and a revocation of any such benefits that are awarded between the date of introduction of the HALT Act and its enactment.

Taken together, this package of proposals does more than enshrine the status quo. It literally rewrites the 1996 immigration laws that Smith himself authored. He has justified the HALT Act, in particular, as an attempt to head off possible “backdoor amnesty” by the Obama Administration, fearing that Obama would use his executive branch authority to defer the removal of thousands of DREAM Act eligible students and other vulnerable persons caught in the crush of our broken immigration system. Despite the fact that A) the Obama Administration has repeatedly said it had no plans to use its authority in this way (even though it certainly could) and B) Smith himself asked then Attorney General Janet Reno to exercise prosecutorial discretion in a 1999 letter, Smith continues to let loose one hysterical tirade after another any time the possibility of any relief for any immigrant is suggested.

The tremendous irony of the HALT Act, however, is that it actually reinforces the President’s authority to take action by highlighting the number of areas where discretion currently exists in existing immigration law. His fear that the President might act has led him to relentlessly strip away every possible discretionary action except that of declining to put people in immigration proceedings (and even that he attempted to curtail by suspending formal deferred action authority and eliminating work authorization in the case of deferrals). In his efforts to block the Obama Administration at every turn, he has excised the notion of discretion from the immigration laws, but in doing so he has pointed out just how necessary discretion is.

For instance, the HALT Act would suspend all grants of TPS between now and January 21, 2013. Heaven forbid that a natural disaster or civil war breaks out anywhere in the world because under the HALT Act, we would be powerless to help victims—like we did for Haitians after a devastating earthquake—stranded in the U.S. Similarly, by suspending cancellation of removal, Smith strikes at one of the very few safety valves currently in the system—a provision of relief that has existed in some form since at least the 1952 immigration law by which an immigration judge determines that someone was removable but also finds that he or she merits suspension of that removal and permanent resident status based on compelling humanitarian circumstances.

Moreover, the HALT Act would eliminate even the potential for family members to be reunited who are subject to the 3 and 10 year bars. For example, if your spouse entered the country illegally, met you, fell in love, and wanted to get right with the law, there would be absolutely no way that he/she could obtain legal status unless he/she waited outside the country for 3 to 10 years. Despite the fact that Congressman Smith’s own 1996 law created both the bar and the waiver, the Congressman thinks that it is better to keep everyone from even having a chance to reunite in order to punish the Obama administration.

The restrictionists’ CIR package really only leaves one recourse—mass deportation—which would be both impractical and expensive given that a mass deportation is estimated to cost at least $285 billion over five years. As the U.S. teeters on the brink of another financial crisis, the irresponsibility and craven politics of the HALT Act and the restrictionists’ CIR package is a sad reminder that a broken immigration system requires solutions that embrace discretion, not eliminate it.

Photo by radaris.

House Committee Takes Up Bills That Would Indefinitely Detain Immigrants and Eliminate Diversity Visas

In the absence of a federal immigration overhaul, state lawmakers have attempted—many in vain—to address immigration at the state-level. Equally misguided, however, are recent efforts by immigration restrictionist to move anti-immigrant legislation on the federal level. Today, the House Judiciary Committee marked up and passed through committee a bill (and will take up another tomorrow morning) which promises a safer America yet will likely deliver a more costly and dangerous one.

Today, the Judiciary Committee approved the “Keep Our Communities Safe Act of 2011” (H.R. 1932), which proposes indefinite—that is, potentially life-long— detention of immigrants who pose no threat to public safety. These persons include lawful permanent residents who have already served their sentence and have been productive members of society for many years, refugees, and persons seeking asylum in the U.S. Introduced by Judiciary Chairman Lamar Smith (R-TX), this bill would likely force the government to spend resources on immigrants who are not a danger to the public and take resources away from detaining those who are.

Furthermore, H.R. 1932 would also cost taxpayers hundreds of millions of dollars to enforce and is completely out of line with the stated priorities of Immigration and Customs Enforcement (ICE) to focus their limited resources on the detention of serious criminals.

Set to be marked up on Friday is the “Security and Fairness Enhancement for America Act of 2011” (SAFE Act). Introduced by Rep. Bob Goodlatte’s (R-VA), the SAFE Act (H.R. 704) would eliminate the diversity visa—a lottery that offers 50,000 visas per year to immigrants from countries that send few people to the U.S.

Introduced by members of Congress who are using fear to push an anti-immigrant agenda, these bills are part of a costly and restrictive set of immigration policies masquerading as solutions. Once upon a time, Judiciary Chairman Lamar Smith believed in refraining from the unfair detention and deportation of immigrants who had jobs, families, and U.S. citizen family members.

These bills, however, as well as Smith’s newly introduced “HALT” Act, are a clear departure from that philosophy and a departure from productive and meaningful immigration reform.

Photo by insunlight.

Agency Urges USCIS to Streamline “Deferred Action” Process

In a new report issued this week, the United States Citizenship and Immigration Services’s (USCIS) Ombudsman’s office called on USCIS to create a standardized procedure for accepting and tracking requests for deferred action made to the agency. The timing of this report, following ICE’s memos on prosecutorial discretion last month, further reinforces the importance of understanding and applying the tools of executive branch authority in immigration law. It also gives USCIS an excellent opportunity to build on these new developments to offer its own contribution to the discussion over deferred action, prosecutorial discretion and executive branch power.

The Ombudsman’s office is an independent agency established under the Department of Homeland Security Act of 2003 which is charged with monitoring the delivery of benefits by USCIS and making recommendations to improve USCIS procedures. To that end, the new Ombudsman report stresses process, recommending a number of ways for USCIS to increase the transparency and accountability of its handling of deferred action requests.

Deferred action, which has gotten a lot of attention in the context of ICE cases, especially over the potential removal of DREAM Act students, is a discretionary determination to decline to institute proceedings or execute a removal in a given case. In USCIS’s case, requests for deferred action may arise when someone is found ineligible for a benefit but nonetheless can make a compelling case for remaining temporarily in the country. More recently, many Haitians who were in the U.S. but ineligible for Temporary Protected Status because they arrived after the earthquake devastated their country began affirmatively asking for deferred action.

According to the Ombudsman’s report, interviews with stakeholders suggest that there is currently no clear path for understanding what takes place when a deferred action request is made. The report, however, does note that USCIS tracks formal requests for deferred action and that some offices, such as Miami, provide guidelines to the public on necessary evidence. But all in all, the report suggests formalizing what is essentially an informal process.

While the government’s authority to grant deferred action is clear, uncertainty remains about what really constitutes deferred action with a capital D. Is it simply declining to pursue a case, or is it the more formal decision to specifically give someone protection from removal for a certain period, and to provide work authorization where appropriate? Although many advocates are pushing for a more formalized process for deferred action as a way to keep thousands of people out of the grip of deportation, this is not the intention of the Ombudsman’s recommendations. The recommendations essentially ask USCIS to provide improved information about a process that seems unclear to the public. Although aimed at USCIS, the recommendations apply equally to all of DHS.

A far more difficult question, however—one that the Obama administration must continue to address—is whether anyone who isn’t already facing deportation will be allowed to access the deferred action process. No matter how clear a procedure may be, if it is essentially unattainable for most people, it will remain frustrating and confusing because people will not understand why the term “deferred action” is bandied about, but isn’t really used. Like it or not, deferred action is no longer the last trick that can be pulled out of the hat, but is instead becoming more and more part of the advocacy world’s tool kit because so little relief is available.

Honest conversations about what and how discretion will be used in the cases that aren’t immediately in DHS’s line of sight have to come. Perhaps the Ombudsman’s report is an invitation to that conversation—a conversation that DHS and the Administration, not just USCIS, should be having.

Photo by nerdcoregirl.

eBay Standard Applies to Preliminary Injunctions in Trademark Cases

Considering whether requests for preliminary injunctions against alleged trademark infringement are subject to the traditional equitable principles set forth by the Supreme Court of the United States in eBay v. MercExchange, the U.S. Court of Appeals for the First Circuit vacated the district court’s grant of preliminary injunction to a trademark owner. Voice of the Arab World, Inc. v. MDTV Medical News Now, Inc., Case No. 10-1396 (1st Cir., May 27, 2011) (Torruella, J.).

Voice of the Arab World filed an action against MDTV Medical News Now in the District Court of Massachusetts, seeking a declaratory judgment that the plaintiff’s use and registration of the mark “MDTV” did not infringe on the defendant’s trademark rights. After filing counter claims, including one alleging trademark infringement, the defendant moved to preliminarily enjoin the plaintiff from using the MDTV mark. After the district court granted the preliminary injunction, the plaintiff appealed to the 1st Circuit.

The plaintiff challenged the district court’s preliminary injunction order on three grounds. First, the plaintiff argued that the district court erred in finding that the defendant demonstrated a likelihood of success on the merits of its trademark infringement claim. Second, the plaintiff alleged that the lower court erred as a matter of law by presuming that the defendant would likely suffer irreparable harm in the absence of preliminary injunctive relief and in not requiring the defendant to actually demonstrate such likelihood of irreparable harm. Third, the plaintiff argued that even if a preliminary injunction was appropriate, the district court abused its discretion by issuing an overly broad injunction.

The plaintiff’s argument concerning irreparable harm was two-fold. First, the plaintiff argued that presuming irreparable harm in trademark infringement cases where preliminary injunctive relief is sought is inconsistent with the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C. In the alternative, the plaintiff contended that even if irreparable harm is properly presumed in certain trademark infringement cases, such a presumption could not apply in this case due to the defendant’s excessive delay in seeking injunctive relief.

Citing eBay, which dealt with a request for permanent injunction in a patent infringement case, the court held that a request to preliminarily enjoin alleged trademark infringement is subject to the traditional equitable principles delineated in eBay. Specifically, the court reiterated the eBay holding that “the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.” In recognizing that eBay properly applies to non-patent cases, the court noted that “it is significant that the Court in eBay supported its formulation of the traditional four-factor permanent injunction standard by citing cases that were unrelated to patent law.” The court also recognized that “nothing in the Lanham Act indicates that Congress intended to depart from traditional equitable principles,” noting, “like the Patent Act, the Lanham Act provides a court the ‘power to grant injunctions, according to principles of equity and upon such terms as the court may deem reasonable, to prevent[,]’ among other things, trademark infringement and domain name cybersquatting” citing 15 U.S.C. § 1116(a) (emphasis supplied). The court stated that the fact that eBay dealt with a permanent injunction did not change the conclusion that the its principles are equally applicable in the context of preliminary injunctions.

Boston Scientific Corp. v. Johnson & Johnson: Written Description Requirement Spreads its Wings

On June 7^th, in a Fed. Cir. panel decision written by Judge Moore, the panel affirmed the invalidation of four J&J patents (a copy of these patents is available at the end of this post) for failure to meet the written description requirement of s.112(1). The patents claimed drug eluting stents, used to keep angioplastied arteries from re-closing, or undergoing restenosis. Boston Scientific Corp. v. Johnson & Johnson, App. No. 2010- 1230-1234 (Fed. Cir. June 7, 2011). The stents disclosed in the specifications all released rapamycin, a macrocyclic lactone, but the claims were broader, and used terms like “rapamycin or a macrocyclic lactone analog of rapamycin” or a” macrocyclic triene analog of rapamycin.” However, no such rapamycin analogs were disclosed in the specification.

The “problem” with the summary judgment below, at least as J&J saw it, was that a number of workable rapamycin analogs were known to the art as of the effective filing date of the applications. In fact, BSC was using one of them in its stents. J&J felt it could rely on the court’s holding in Capon v Eshhar, 418 F.3d 1349 (Fed. Cir. 2005) which affirmed that claims to chimeric DNA molecules were adequately supported by the specification in combination with evidence that many examples of useful subunits were known.

The court started out by quoting from UC v. Lilly – always a bad sign for patentee – and then reaffirmed that the Lilly standards for meeting the WDR applied both to novel compounds and to “inventions claiming combinations of prior art compounds with other elements,” citing Carnegie Mellon Univ. v. Hoffmann-La Roche, 541 F.3d 1115 (Fed. Cir 2008). “The test for WDR is the same whether the claim is to a novel compound or a novel combination of known elements. The test is the same whether the claim element is essential or auxiliary to the invention [Ed.: remarkably now citing Aro Mfg. Co. v. Convertible Top Replacement Co.!].”

However, at this point, Judges Moore and Bryson get a bit lost. Instead of explaining why the specification read in combination with the knowledge of the art about rapamycin analogs fails to meet the Lilly standards, the majority jumped back to the deficiencies in the specification:

“With no guidance at all in the specification as to how to properly identify or choose the claimed analogs, and in light of the unpredictability and nascent state of using drug-eluting stents to treat restenosis, we agree with the [grant of SJ below].” Slip op. at 21.

The panel put a great deal of emphasis on disclosures in the two specifications that “directly contradict information that the patentee alleges is ‘well-known’ to a person of skill at the effective filing date.”  In this case, the specifications of one group of patents stated that “the precise mechanism of action of rapamycin in still under active investigation…The shared specification indicates that the alleged correlation between structure and function was not well known by the effective filing date.” Slip. Op.. at 22. In other words, the panel used statements in the specification to effectively cut off the ability of the patentee to argue that knowledge available to the art could be used to meet the WDR:

“Given the absence of information regarding structural characteristics of [rapamycin analogs] in the specification, the unpredictability of the art and the nascent state of using drug eluting stents…we affirm the [grant of SJ]. The patent laws do not reward an inventors invitation to other researchers to discover which of the thousands of macrocyclic lactone analogs of rapamycin could conceivably work in a drug eluting stent.” Slip. Op. at 23.

This is starting to sound a lot like a holding based on “broader than the enabling disclosure,” and this was specifically noted by Judge Gajarsa, concurring-in-part, when he wrote: “The majority’s opinion further extends the [WDR] into the realm of enablement. Much of the confusion in this case is due to the difficulty of determining…how the [WDR] applies to novel compounds as opposed to novel combinations of known elements…the enablement analysis is simpler and more appropriate.” He would have affirmed the invalidation of the patent claims for non-enablement as well. If this opinion has anything to teach the court, it may be that the “easy button” of using the WDR to eliminate patents with claims a panel feels are just too broad, is not as easy as Lilly, Rochester and Ariad made it look.

Patents Invalidated

Arizona’s Latest Border Fence Initiative Yet Another Obstacle to Fighting Crime

While the authors and proponents of state level anti-immigrant legislation received some measure of notoriety initially, one could also predict that there would be a corresponding price to pay for pursuing such costly and divisive immigration measures. Aside from the immediate lawsuits filed in nearly every state that passed Arizona copycats, there are now additional political and fiscal costs that states and supporters of these restrictive laws must pay.

Last Friday, enough signatures were certified to initiate a recall election against Arizona Senate President Russell Pearce this November. Pearce was nationally unknown until authoring Arizona’s SB 1070. While Pearce’s pursuit of this bill has cost Arizona millions in legal fees, lost business and tourism revenue, it now stands to cost him his senate seat. According to the Arizona Republic Arizona, this is “believed to be the first recall election of a state legislator in Arizona history.”

In Georgia, evidence is mounting that the state’s attempt to regulate immigration is backfiring as well. Reports from a variety of news outlets are showing the Georgia’s agriculture business is on the ropes. The growers reportedly don’t have the 11,000 workers they need to harvest their fields. Governor Nathan Deal’s plan to have probationers take to the fields also appears to be backfiring. According to CBS News:

Supporters of Georgia’s new immigration law argued legal workers should be easy to find in a state where the unemployment rate’s almost ten percent. But farmers like Paulk know most Americans want no part of picking blackberries. It’s hot, back-breaking work, for $12 an hour.

This is just the beginning, however. For Alabama, which recently passed the most aggressive copycat requiring local school administrators and clergy to act as immigration cops, the worst is yet to come. With all the mandates already placed on schools and educators, add what the Birmingham News editorial board calls “a massive amount of paperwork” in an environment of “double digit-budget cutbacks.”

School systems and the state Board of Education must generate regular, comprehensive reports to the Legislature, as must the attorney general’s office and the state Department of Homeland Security…Who, in these days of double-digit cutbacks to state agencies and schools, will do all this?

While the fall out in Alabama is yet to be seen, it’s hard to imagine how turning school principals and clergy into immigration agents will have a positive outcome. Birmingham News also reports:

Many church leaders say they will disobey the law because it is unjust. United Methodist Bishop William Willimon, head of the North Alabama Conference, wrote: “We do not check people’s immigration status before inviting them into our church vans and cars. We United Methodist clergy will continue to be in ministry to all people and we call on all United Methodists to do the same.”

While Georgia and Arizona are just beginning to feel the pain, there is no doubt that other states that pushed humane and sensible policies aside for politically expedient and shortsighted legislation will meet similar consequences. Birmingham News said it best: “the Legislature shot itself and the state in the foot. Alabamians, not just illegal immigrants, will pay a steep price.”

Photo by Gage Skidmore.

The Gabon Mistrial: DOJ Prosecution of Individuals Puts Aggressive FCPA Theories Under Fire

In a blow to the U.S. Department of Justice‘s (DOJ’s) efforts to increase enforcement of the Foreign Corrupt Practices Act (FCPA) against individuals, Judge Richard J. Leon of the U.S. District Court for the District of Columbia declared a mistrial on July 7 in a case against four defendants charged in connection with an extensive undercover sting operation executed by the FBI. The trial was against four of 22 defendants charged with conspiring to pay bribes to the Defense Minister of Gabon in order to secure a $15 million equipment contract.

The mistrial has been largely attributed to weaknesses in the sting operation itself, including alleged outrageous behavior by the key informant and suggestions that the defendants were entrapped by government operatives who concealed the illegal nature of the transaction. The Gabon mistrial represents a setback in efforts by the DOJ to prosecute individuals for FCPA violations. However, its greater significance lies in highlighting that prosecutions of individuals will likely backfire on the DOJ’s enforcement efforts against companies and result in a narrowing of the DOJ’s jurisdiction to enforce the FCPA. For example, one of the DOJ’s aggressive jurisdictional theories under Section 78dd-3 failed last month when Judge Leon dismissed an FCPA count against defendant Pankesh Patel.

Pankesh Patel is a citizen of the United Kingdom. Under Section 78dd-3 of the FCPA, in the absence of some other basis of jurisdiction, a party must have committed an act within the United States in furtherance of the improper payment or offer. After oral argument, Judge Leon determined that the DOJ failed to establish jurisdiction based on allegations that Patel had mailed an agreement relating to the alleged illegal deal from the United Kingdom to Washington, D.C. since Patel’s conduct of mailing the package occurred in the United Kingdom, not “while in the territory of the United States.” 15 U.S.C. § 78dd-3(a).

The DOJ’s effort to charge Patel for sending a DHL package into the United States was not the first time the DOJ had prosecuted an FCPA case based on an aggressive interpretation of Section 78dd-3 when the conduct occurred outside the United States. In July 2004, foreign company ABB Vetco Gray UK, Ltd. (ABB Vetco) pled guilty to an FCPA violation; the information filed against the company alleged that the company had “caused a wire transfer . . . to be made by a Nigerian Agent from a bank account in London, England, to a bank account in Houston, Texas.” In October 2006, SSI International Far East, Ltd. (SSI), a South Korean company, pled guilty to violating the FCPA. The indictment against SSI alleged that the company had acted within the territorial jurisdiction of the United States by “transmitt[ing] requests to the United States for approval and wire transfer of funds.”

In other cases, DOJ prosecutors have gone so far as to suggest that they could assert jurisdiction over foreign companies based on the conduct of non-U.S. nationals taking place entirely outside the United States if emails sent from one person to another within a foreign country went through a U.S.-based server. Because ABB Vetco and SSI pled guilty, the DOJ’s arguments regarding jurisdiction under Section 78dd-3 were not subject to challenge or judicial scrutiny. However, the plain language of the statute and Judge Leon’s recent ruling in the case against Patel raises questions about the DOJ’s jurisdiction to prosecute FCPA violations in those cases.

While many companies are unwilling to face the risks associated with taking an alleged FCPA violation to trial, individuals facing a loss of liberty may have more motivation to fight and push back against the DOJ’s interpretations of the FCPA. When the DOJ brings cases against these opponents, it risks having its jurisdiction narrowed as some of its aggressive interpretations will fail under judicial scrutiny.

ACLU, Civil Rights Groups File Suit Against Alabama’s Immigration Law

More than just stars fell on Alabama last week when civil rights groups filed a class action lawsuit against the state’s restrictive immigration law, HB 56, charging that the law unconstitutionally interferes with federal law and will lead to racial profiling. Filed on Friday, the lawsuit makes Alabama the fifth state (joining Arizona, Utah, Indiana and Georgia) to defend itself against a costly legal challenge to Arizona-style immigration laws. Federal courts have blocked key provisions of restrictive immigration enforcement laws in every state that passed them, save South Carolina, which only recently passed a copycat law.

Signed by Governor Robert Bentley last month, Alabama’s immigration law requires local law enforcement to verify the immigration status of those stopped for traffic violations, public schools to determine the immigration status of students, employers to use E-Verify and makes it a crime to knowingly rent to, transport or harbor undocumented immigrants. The law is slated to take effect September 1, 2011.

In their lawsuit, however, the ACLU, National Immigration Law Center, Southern Poverty Law Center, Asian Law Caucus and Asian American Justice Center, charge that HB 56 interferes with federal law (in violation of the Supremacy Clause of the U.S. Constitution), subjects all Alabamians to unlawful search and seizure (in violation of the Fourth Amendment) and unconstitutionally restricts immigrants and their families from enrolling in educational institutions. According to National Immigration Law Center’s general counsel, Linton Joaquin:

“… Alabama’s law will affect the daily lives of countless residents, native-born and foreign alike. Alabama cannot constitutionally turn teachers, landlords, and community members into de facto immigration enforcement agents. We look forward to adding HB 56 to the roster of discriminatory laws that have been blocked by federal courts.”

To date, federal judges have blocked key provisions of state level immigration enforcement laws in Arizona, Utah, Georgia and Indiana, finding that they unlawfully interfere with federal government’s authority over immigration matters as well as violate the Constitution’s due process, search and seizure provisions and other protections. So it stands to reason that a federal judge will likely block key provisions of Alabama’s law, which some refer to as “SB 1070 on steroids.” Although South Carolina Governor Nikki Haley only recently signed their immigration bill S 20 into law, the ACLU and other civil rights groups have already threatened to sue.

And these laws aren’t cheap. Arizona has already doled out $1.9 million defending their law, not to mention the millions lost in tourism revenue and conference cancellations. As previously reported, Alabama stands to lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs if all undocumented immigrants were driven from the state.

How much more evidence do state lawmakers need before they accept these laws are bad for business, state economies and most importantly, for the well-being and safety of communities in their state?

Standing Under California § 17200 Only Requires Injury From Business Practice

Drawing upon recent California Supreme Court rulings, the U.S. Court of Appeals for the Federal Circuit reversed a California federal district court’s dismissal of claims under the state’s unfair competition law, finding the court had wrongly dismissed the claims for lack of standing. Allergan, Inc. et. al. v. Athena Cosmetics, Inc. et. al., Case No. 10-1394 (Fed. Cir., May 24, 2011) (Gajarsa, J.).

Allergan, a manufacturer of an FDA-approved treatment for inadequate eyelash growth, Latisse®, brought suit alleging the defendants had infringed or induced infringement of multiple patents. Allergan also claimed defendants violated California’s unfair competition law, U.C.L. §§17200 et seq. With respect to the latter claim, Allergan contended that defendants’ manufacture, sale or marketing of hair/eyelash growth products that had not been approved by the FDA or state health regulators constituted unfair competition under the California statute.

The defendants countered that Allergan lacked standing because the statute only protects persons who have suffered a loss that is eligible for restitution. Restitution is a remedy that seeks to restore the status quo; it requires the plaintiff to have had an ownership interest in the money or property it seeks to recover. The district court found Allergan had no such interest in lost profits or market share because defendants’ profits derived from third-party consumers. Allergan appealed; its patent claims were stayed pending appeal of the unfair competition claim.

The Federal Circuit rejected the district court’s narrow view of the California unfair competition statute. While acknowledging that California voters had approved Proposition 64 to restrict standing requirements and address abuses that had resulted in frivolous lawsuits, the Court noted that the California Supreme Court’s decisions in two cases that were decided while the Allergan appeal was pending (Kwikset Corp. v. Superior Court of Orange County and Clayworth v. Pfizer, Inc.,), demonstrated that Proposition 64 did not limit standing solely to injuries compensable by restitution. Instead, a plaintiff need only allege an injury in fact that was the result of the unfair business practice. Applying this reasoning, the Court held that Allergan had adequately pleaded a claim under U.C.L. §17200.

Importantly, the Court also rejected the defendants’ claims that standing under U.C.L. §17200 required a plaintiff to have direct business dealings with a defendant. The Court denied that Proposition 64 added any such “business dealings” requirement to U.C.L. §17200 claims.

Practice Note: The Allergan decision demonstrates that while standing to file suit under §17200 is more limited than it was in the past, §17200 remains a potent tool that litigants can use to challenge a competitor’s practices.

Entrepreneur’s Guide to Litigation – Blog Series: Introduction

The words “lawsuit” and “trial” usually conjure up images based upon either media coverage of recent, significant cases or trials depicted on television and in movies. A real lawsuit and trial are significantly different than what we see on television or in the movies. Media coverage of a trial does not delve into the frequent reality of a lawsuit – the months and possibly years of pre-trial “discovery” and motion practice that occur before a case can even go to trial.

This upcoming blog series is aimed at removing some of the mystery of a lawsuit and a trial, and also at informing entrepreneurs what really happens prior to and during all those trials you see on television. The next seven blogs cover the basics on a lawsuit, from filing of a “Complaint” through trial and, ultimately, the appeal process. It can provide a complete picture of the litigation process to alert the entrepreneur what to expect as a potential party to a lawsuit.

There are other, important considerations to litigation not addressed in this series, such as insurance coverage, if any, and confidentiality agreements (known as protective orders) between the parties to a lawsuit. Additionally, a corporation usually cannot appear by one of its owners, but must be represented by counsel. Certainly, anyone that is sued or is thinking about suing another, should consult with a lawyer as soon as possible. We hope this blog series helps entrepreneurs develop a better understanding of the litigation process.

Entrepreneur’s Guide to Litigation – Blog Series: Complaints and Answers

A.  The Complaint

Litigation begins with a Complaint. “Complaint” is capitalized because it is a specific legal document, rather than a garden-variety complaint about something. The Complaint lays out the plaintiff’s specific legal claims against the defendant. It needs to contain enough facts that, if everything stated is true and there are no extenuating circumstances, a judge and jury could find in favor of the plaintiff.

As an example, Paul Plaintiff is suing Diana Defendant for violating a contract. Paul files a Complaint with a court claiming several facts: 1) Diana signed a contract to buy widgets; 2) Paul delivered the widgets; and 3) Diana did not pay the agreed-upon amount. If the court finds that these facts are true, then, unless there were extenuating circumstances, Diana probably breached a contract with Paul and should pay damages.

Paul’s Complaint also needs to allege facts showing that he has a right to be in that court. For example, if Paul wants to sue Diana inTexas, he has to show that the case and the parties have some connection toTexas. If he wants to sue her in a federal court, he has to meet a number of other criteria. (Federal court is generally only available if the parties are based in different states and the damages are relatively substantial or if the legal question is one of federal law.)

B.  Response to a Complaint

Once the defendant officially learns of the Complaint, she has a certain limited time to file some sort of response with the court. The time to respond, however, does not run from when the plaintiff filed the lawsuit, but generally when he officially delivered notice of the Complaint to the defendant. (There is a timeline that starts ticking when the defendant becomes aware of a state court lawsuit she wants to “remove” to federal court.) The amount of time for the defendant to respond varies by what court the case is in, but is generally a short period of time.

After receiving the complaint, the defendant has three options: 1) Ignore the Complaint and have the court grant judgment in favor of the plaintiff; 2) Tell the court that the Complaint is defective and ask for dismissal; or 3) Answer the Complaint. Option one is usually not a good plan; courts do not look favorably on defendants who ignore the legal process, and this option prevents a defendant from fighting the plaintiff’s claims.

Option two does not deal with the merits of the plaintiff’s issue. It is simply telling the court that the Complaint is defective for a variety of reasons including, for instance, how it was served, who the parties are (or are not), which court the case is in, or simply that, even if everything is true, the plaintiff cannot win. For example, if Paul sues Diana, but never tells Diana about the suit, Diana can then ask the court to dismiss the case. Also, if Diana works for DefendCo and Paul’s contract was actually with DefendCo and not with Diana, personally, she may be able to have the case dismissed because Paul sued the wrong party. If Paul sued Diana in a federal court inTexaswhen both parties are residents ofCaliforniaand neither has ever been to or done business in Texas, then Diana may be able to get the case dismissed, at least from theTexascourt.

Finally, there is the “So, what?” defense. If the Complaint doesn’t actually allege a cause of action, the defendant can ask the court to dismiss it. This usually happens because the plaintiff simply assumes a fact, but does not include it in the Complaint. If, for example, Paul alleges only that Diana failed to pay him a certain amount of money, but does not allege that a contract existed between them, then Diana can essentially say “So, what?” and ask the court to dismiss the case. She would ask the court to dismiss the case because, even if true (she really did not pay him any money), he did not plead any facts showing that she was supposed to pay him money. The defendant is not admitting the truth of the allegation; she is just saying that even if true, the plaintiff cannot win.

Finally, a defendant can file an Answer. Again, “Answer” is capitalized because it is a specific legal document. In an Answer, the defendant responds, paragraph by paragraph, to each of the plaintiff’s allegations. The defendant must admit, deny, or say that she does not know the answer to each specific allegation. Saying “I don’t know” functions as a denial.

For example, Paul’s Complaint probably alleges that Diana lives at a certain address. Assuming Diana actually lives there, she has to admit that fact. Paul may allege that he delivered the correct number of working widgets to Diana. If the widgets were not what she actually ordered or did not work, Diana would deny that allegation. Finally, Paul may claim that those widgets cost him a certain amount of money. Diana likely has no way to know how much Paul paid for the widgets, so she would say she does not know – thus leaving Paul to prove that allegation.

Also in the Answer, the defendant can claim affirmative defenses. Those tell the court that there were extenuating circumstances so that, even if everything the plaintiff says is true, the court should not find in favor of the plaintiff.

For example, if Paul told Diana not to worry about paying him for the widgets for six months but then turned around and immediately sued her, she would claim that as an affirmative defense.

Finally, the Answer may contain counterclaims. These claims are the defendant counter-suing the plaintiff for something. The counterclaims may be related to the original suit or not. Usually they are related, but they do not have to be. This section follows the same rules as if the defendant were filing a complaint.

For example, Diana may counterclaim against Paul because he sent her the wrong widgets and, perhaps, add a claim that when Paul delivered the widgets to her warehouse, he backed his truck into her building and caused damage. She would then counterclaim for breach of contract and property damage. The court would then sort out the whole mess to decide who owed whom how much.