Monthly Archives: September 2019

The State Legislature has started taking a serious look at state policies and practices around the issue of civil asset forfeiture, with a newly-established commission designed to gather data on the practice statewide and then submit recommendations for potential reforms.  The recently-enacted state budget for the current fiscal year creates the 21-member commission in Section 90, with a tight—and, shall we say, optimistic—deadline of December 31 to present the Legislature with “a report of its study and any recommendations, together with any draft legislation necessary to carry those recommendations into effect”.

This is an issue we’ve been keeping an eye on, as it attracted attention in the media (including an episode of John Oliver’s TV show), from think tanks of various stripes (one of which gave Massachusetts an F grade for its current forfeiture laws), and from legislators sponsoring reform-minded bills.  The concerns mostly center on the low standard of proof in Massachusetts as compared with other states, limited reporting requirements, and incentives that arguably encourage its use and perhaps skew law-enforcement priorities.  We were pleased that the budget language carves out a seat for the BBA on the new panel, and former President Carol Starkey has been appointed to represent us there.

The commission met for the first time earlier this month, with four further meetings scheduled for the rest of this year ahead of the deadline.  Perhaps not coincidentally, the Judiciary Committee—whose co-chairs, Sen. Jamie Eldridge and Rep. Claire Cronin also head the commission—held a hearing the following day with an agenda that included five bills dealing with civil asset forfeiture.

The commission is tasked with:

• an evaluation of the standard of proof required for law enforcement to establish that property seized is related to a crime, as compared to the standard imposed in other states;
• a review of current documentation and reporting obligations for law enforcement, including the extent to which law enforcement records whether the property’s owner was charged with or convicted of a crime, and any recommendations for enhanced or additional reporting requirements;
• an analysis of the scope of civil asset forfeiture, including an estimate of the total value of assets seized annually, the average value of assets seized in a case and a breakdown by percentage of the underlying offenses giving rise to the forfeiture;
• an examination of how civil asset forfeiture proceeds are allocated and spent;
• an evaluation of the process by which property owners may challenge a seizure, including the percentage of seizure proceedings challenged annually, the percentage of successful challenges and the average cost of bringing a challenge;
• an analysis of any racial or socioeconomic disparities in the application of civil asset forfeiture laws; and
• a review of best practices undertaken in other states.

…

It bears mentioning, as well, that Section 101 of the state budget creates another commission on which the BBA has a seat, albeit one that has a longer timeline (reporting deadline: September 1, 2020) and hasn’t yet gotten up and running.  This one (to which a BBA representative has not yet been appointed) will, in the words of the enacting language, “conduct a comprehensive study to evaluate and make recommendations regarding the appropriate level of funding for the department of correction and each sheriff’s department.” 

We will use this space to keep you updated as each of these commissions progress.

—Michael Avitzur
Government Relations Director
Boston Bar Association

We are well into the season of legislative public hearings now, and earlier this month, the Judiciary Committee heard bills related to probate and family law—including two that are of great interest to our Trusts & Estates section.

You may have read previously in this space about each of the bills: The Uniform Trust Decanting Act (UTDA), and the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).  Each of them was developed by the Uniform Law Commission and then tweaked, mostly to conform with existing Massachusetts statutes, by an independent standing committee of T&E practitioners

Four members of that committee—Marc Bloostein (Ropes & Gray), Renat Lumpau (Choate), Eric Hayes (Goodwin) and Mark Leahy (Burke, Whittum & Leahy LLC)—were able to testify at the hearing, collectively representing the BBA, MBA, and Massachusetts Bankers Association, all of whom are supporting both bills, as well as the standing committee itself.  The UTDA bill (S. 896) was filed by Sen. Cynthia Stone Creem, and companion RUFADAA bills (H. 3368 and S. 936) were filed in the House and Senate by Rep. Jay Livingstone and Sen. Barry Finegold, respectively.

To summarize the case for the two bills:

• UTDA:
  • Decanting, or the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust, is a form of trust modification that’s available to fiduciaries now in Massachusetts.  But while it can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—the law on decanting in Massachusetts—what can and can’t be done, under what circumstances—is far from clear.
  • The UTDA was designed to create a national framework for practitioners facing questions of how best to accomplish trust decanting, and if it’s adopted here, Massachusetts would join the majority of states with some type of statutory decanting in place.  Massachusetts practitioners would remain free to continue to decant trusts under common law, if that makes the best sense for a client or situation, but they would also have an alternative and clear guidance concerning how to decant properly in accordance with the statute.
• RUFADAA:
  • This uniform language was developed in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, e-mails, on-line banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies—if they have any policies on the matter at all. RUFADAA would add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 43 other states have adopted RUFADAA in some form.
  • The bill establishes a hierarchy to determine the preferences of the user:
    • First is a so-called “online tool” by which a user has named someone to manage their digital assets upon death or incapacity.  That person is considered the “designated recipient” under the bill, rather than a fiduciary, and the user could conceivably name a different person for each account.  The user could also direct the provider not to allow any access.
    • Next in the hierarchy is a will or other properly executed document, either allowing or prohibiting access. 
    • Finally, in the absence of either of the above, the provider’s terms-of-service agreement will apply as a default.
  • The bill explicitly covers personal representatives (who manage decedents’ estates), conservators (appointed to assist protected persons), trustees (only for the purpose of managing trust property), and agents acting under power of attorney.

These bills help demonstrate the importance of the BBA’s sections to our development of policy positions: The legislation would not enjoy the BBA endorsement had the Trusts & Estates section not flagged these two issues for us.  We rely heavily on our substantive-law sections to spot issues for us within their practice areas, especially those that our section members feel the BBA ought to speak out on as an organization.
 

—Michael Avitzur
Government Relations Director
Boston Bar Association

Last September, the BBA released Immigration Principles that have guided our response to various immigration-related issues since. Every few months, we like to offer updates on significant immigration developments and events to be reminded of these principles and their importance, as well as the BBA’s long-standing support of measures to uphold due process and equal protection rights and access to counsel for immigrants.

In the past few months, there have been four significant developments in immigration policy that we would like to direct your attention to.

The Flores Settlement

In October 2018, as part of our first Immigration Update following the publication of the Immigration Principles, we published an Issue Spot on the Department of Homeland Security’s proposed regulations related to the Flores Settlement Agreement (FSA). The following month, we filed a letter, directed at Debbie Seguin, the Assistant Director of the Office of Policy at U.S. Immigration and Customs Enforcement, opposing this effort to undermine the protections asserted by the FSA.  Earlier this summer, the Trump Administration announced a proposal to terminate the FSA, a move that would significantly reduce protection of detained migrant families traveling with minors.

The FSA was established in 1997 as the outcome of the Flores v. Reno case. This court agreement requires the government to release children from immigration detention, without unnecessary delay, to their parents. The settlement also required immigration officials to provide detained minors a certain quality of life, including things such as good drinking water and medical assistance in emergencies. (A Congressional Research Service report details the conditions and protections of minors required by the settlement.)

The settlement was reached after Jenny Lisette Flores, a 15-year-old girl from El Salvador, was arrested by the former government agency Immigration and Naturalization Service (INS) while trying to cross the US-Mexico border and was taken into custody separate from the family member she was traveling with. The ACLU filed a class-action suit on behalf of Jenny and other minors, eventually leading to the Flores agreement.

The Trump administration has made repeated attempts to change the Flores settlement agreement, arguing that it prevents the government’s efforts to deter undocumented immigrants from entering the country. The administration claims that this new rule will keep families together by reducing the number of undocumented children attempting to travel into the United States. However, attorneys for migrant children and advocates for immigrant rights are arguing—and the BBA shares this concern—that this effort will compromise the health and safety of detained minor children by allowing the government to detain them as long as it wishes.

A coalition of 20 states led by California and Massachusetts are filing a lawsuit against the Trump administration in the hopes of blocking the implementation of the proposed regulation and protecting the FSA. Our November 2018 letter, issued by then-BBA President Jon Albano, argues that failing to fulfill the purpose of the FSA “raises serious due process concerns, is fiscally irresponsible, and will endanger the well-being and rights of immigrant children”. We have for years been speaking in opposition to practices that threaten the rights and well-being of immigrants and in support of measures that ensure the just, humane, and fair treatment of all individuals within our borders, but now those positions have been enshrined in our Immigration Principles.

The Public Charge Rule

Earlier this month, the Trump administration announced a proposed change to a regulation known as the “public charge” rule. This regulation denies green cards to immigrants deemed likely to be reliant on various forms of social welfare.

The BBA submitted comments in opposition to the proposed public charge rule in December 2018. In the letter, then-President Jon Albano cited our Immigration Principles and argued that the new public charge rule would “create significant barriers to accessing justice, have harmful impacts on immigrants, their families, and our communities and economies, and may be applied unfairly and inconsistently”. Further, Mr. Albano noted that in the past, public charge determinations have been used to justify exclusion of groups such as low-income Irish immigrants and Jews fleeing Nazi persecution, and how dangerously close to repeating these troubling moments in history we are. The BBA urged others to join them in opposing the proposed public charge rule.

Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges. The proposed rule would dramatically expand the list of public benefits that could lead to an immigrant being considered a “public charge”. Starting in October, the government’s decision to grant green cards will be based on an aggressive wealth test that will deny legal residence to hundreds of thousands of immigrants. The new rule appears designed to reshape, reform, and significantly shrink the legal immigrant community. A study conducted by the Migration Policy Institute when the proposed regulations were first announced in June 2018 found that:

• Nearly half of the U.S. noncitizen population could be at risk of a public-charge determination – up from a current 3 percent.
• The rule will discourage millions of immigrants from accessing health, nutrition, and social services.
• The effects of this rule are likely to stretch beyond immigrants themselves to affect U.S.-citizen children whose parents may disenroll them from services for fear of immigration consequences.

A new Migration Policy Institute study from last month found that of the legally present noncitizens in families with annual incomes below 250 percent of the federal poverty line, the vast majority are from Mexico and Central America, Africa, and Asia. In fact, 72% of legal noncitizens from the Caribbean, 71% of those from Mexico and Central America, and 69% of those from Africa are in families with annual incomes below 250 percent of the federal poverty line. The intention behind this rule is said to be that new legal residents “carry their own weight”, without acknowledging that it will specifically target poor people from Latin America, Africa, and parts of Asia. In other words, this rule will directly impact poor people of color, discouraging them from seeking out public assistance and putting their housing situation, health, and economic stability at risk.

This isn’t the first time that Trump has targeted immigrants coming from specific countries or attempted to curtail legal immigration into the United States, and follows a set of troubling immigration policies proposed by the current administration.

Halt of Medical Deferred Action Program

Earlier this summer, the Trump administration announced that it was ending the program that allowed immigrants to avoid deportation while they or their relatives were undergoing lifesaving medical treatment. This program, called “deferred action”, ensured at least 1,000 qualified people every year would not be deported until their medical treatment was over. The BBA tweeted that we were “deeply concerned” and “dismayed” by this change in policy and referenced one of our Immigration Principles, that “no person’s rights or human dignity should be devalued on the basis of immigration or citizenship status” to explain our opposition to it.

USCIS began informing families that it would stop considering requests for deferred action and that the families must leave the country within 33 days. In a statement to the Boston Globe, Congressional Representative Ayanna Pressley said that, “deportation from the United States with this type of medical condition is a death sentence”.

Since the announcement of this rule change, public outcry has led the Trump administration to reinstate the program. This followed a coordinated effort by 100 members of Congress who signed a letter denouncing the suspension of the program as well as public uproar as migrants affected by this change began to come forward. The American Immigration Lawyers Association welcomed the decision and thanked the impacted clients for bringing the “cruelty of this rescission to light through their bravery and courage sharing their stories with the agency, the media, and Congress”.

Halt of Asylum Application Processing in Boston and Newark

Boston and Newark are currently the only two cities that process asylum claims for New England residents, and that may be coming to an end. The Trump Administration is halting the processing of most New England asylum cases, leaving behind more than 40,000 pending cases, by redirecting most of the officers from the Boston and Newark offices to the southern border.

USCIS Director Ken Cuccinelli tweeted that the claim that Boston and Newark will stop processing asylum claims is false, and that it is simply a slight shift of staff to help with the “credible fear” workload piling up at the southern border. However, immigration attorneys and asylum officers are saying that they received an email from USCIS last week saying that it would no longer schedule any new asylum interviews in Boston and only a small number in Newark. Senator Elizabeth Warren said it is part of the Trump Administration’s “shameful campaign to prevent people fleeing violence from finding refuge in the US.”

We will continue to monitor these situations as new developments unfold.

-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association