Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Family Law

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Weighing the Options of Care

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By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Over 23,000 mentally disabled people were on the waiting list to receive housing and medical care from any of the eight state-operated developmental centers (SODC) in Illinois.  Another 600 were in emergency situations awaiting services. The State of Illinois could not provide essential services to those on the waitlist because it already cared for nearly 25,000 people.  In 2012, Illinois planned to close roughly a third of its SODCs to save costs. The state chose to close the Warren G. Murray Development Center, an SODC. Residents of Murray faced relocation due to the planned closure. The state tried to shift the residents of the SODCs to community-based facilities because it is cost effective.

Before the residents are moved, the state must assess their fitness. The assessment determines what kind of facility the disabled person will be placed in. Standing in the state’s way were the guardians of the Murray residents; the guardians wanted to prohibit the state from carrying out the assessment without their consent. The Illinois League of Advocates for the Developmentally Disabled represented the plaintiffs. They sued the Illinois Department of Human Services under 42 U.S.C. § 12132 of Title II of the American with Disabilities Act.  Plaintiffs alleged discrimination by a public entity.

The guardians claimed treatment of residents at community-based facilities are worse than at SODCs.  In addition, the guardians claimed the state left them with no other choice but to accept the relocation of the wards. Plaintiffs filed for a preliminary injunction against the assessment and transfer of the wards.  The case went before the district court of Northern Illinois.  The district court denied the plaintiff’s request.  Plaintiffs appealed to the Seventh Circuit Court of Appeals.

Judge Posner, Manion, and Hamilton presided over Illinois League of Advocates for the Developmentally Disabled, et al. v. Illinois Department of Human Services, et al. and affirmed the district court’s holding.  Plaintiffs failed to prove mistreatment of their wards at community-based facilities. The judges relied on factors such as emotional benefits of community-based facilities, the likelihood of residents having his or her own room, and the lack of irreparable harm on the plaintiffs in affirming the decision.

First, the judges reasoned that community-based facilities are emotionally beneficial for the residents. Being near stores, parks, restaurants, or movie theaters bring emotional benefits that allows them to feel free. Second, the chances of residents having his or her own room is better than at SODCs where less than 29 percent have their own room. Community-based facilities are less crowded than SODCs.  Finally, the judges thought that granting the preliminary injunction would impose irreparable harm on the state because of the financial distress.

SODCs are isolated medical centers cut off from society. Although the mentally disabled are severely hindered in life, it does not mean that they cannot experience the joy of being a part of the community. Academic studies show that severely disabled persons feel less isolated at community-based facilities.  Yes, parents or guardians should have the ultimate say in the care of their wards, but at times the state is in a better position to know what’s best in weighing the options of care.

Court Rules Right to Marry Includes Choosing Whom to Marry

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Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law School

Almost fifty years ago, the Supreme Court held that men and women had the fundamental right to marry in Loving v. Virginia. Then this past summer, the Court extended the right to marry to include same-sex couples in the landmark case Obergefell v. Hodges. But what about when the government interferes with whom you choose to marry?

The Seventh Circuit took up this issue in Riker v. Lemmon. From 2007 to 2008, Rebecca Riker worked at the Wabash Valley Correctional Facility in Indiana where she met prison inmate Paul Vest, whom she supervised during his kitchen duty. After a few months, their interactions went beyond work and they began a romantic relationship, often engaging in sexual rendezvous inside a walk-in cooler. Their secret relationship was eventually discovered after another prison employee caught the two kissing inside the cooler, and Riker quit her job the same day.

However, this did not stop Riker and Vest from continuing to keep in contact with one another through letters. From 2008 to 2009, Riker also wrote several letters petitioning the department of corrections for privileges to visit Vest. However, those requests were repeatedly denied due to a prison policy prohibiting ex-employees from visiting inmates.

Distance and challenges brought on by the department of corrections still did not keep the couple apart. In 2010, Vest proposed to Riker and she accepted. But when the couple applied to be married, the prison denied their application because Riker was not on a list of approved visitors. Ultimately, Riker would never be allowed visit due to a prison policy barring ex-employees from visiting inmates if a relationship began while the employee worked at the corrections facility.

Riker filed suit in 2013, claiming the prison had denied her constitutional right to marry. The Seventh Circuit agreed, and decided that although the department of correction’s interest in preventing security risks was legitimate, the prison failed to justify how preventing Riker from marrying Vest would meet this interest. The prison did not submit any evidence to show how allowing a wedding ceremony would jeopardize prison security.

The Court of Appeals also rejected the prison’s argument that Riker’s right to marry had only been minimally burdened because she could wait to marry Vest after he was released from prison– in 2030. The court ruled that Riker had been left with no alternatives at all to exercise her right to marry, especially since she was prohibited from ever visiting Vest.

The Seventh Circuit explicitly expanded the right to marry to also include the right to choose one’s spouse, citing to language in Obergefell – “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” More narrowly, this decision also includes prisoners, and dictates that the right to marry overcomes an interest in maintaining prison security and stability, which is otherwise highly deferential under a rational basis analysis. It will be interesting to see if the Seventh Circuit applies this holding in any other contexts in the future.

Child Support Obligations: Custodial vs. Noncustodial Parents

By: Jonathan E. Joseph, MBA, CPA
Juris Doctor Candidate, 2016
Valparaiso University School of Law

Generally, child support guidelines serve two important functions: (1) Promote uniformity, which in turn, encourages settlement, and (2) Ensure the adequacy of child support orders.

Two parents and a child; statute Family in the garden of the Palace of Nations (Geneva, Switzerland)

Two parents and a child; statute Family in the garden of the Palace of Nations (Geneva, Switzerland)

The Supreme Court of Illinois had the pleasure of presiding over a dispute between a custodial parent and a noncustodial parent seeking child support payments.

In 2005, Steven and Iris Turk divorced after 12 years of marriage. The court awarded joint custody with the children residing with Iris and Steven paying $4,000 per month for 42 months.

In 2010, Following various circumstances, Steven was awarded temporary custody. Subsequently, Steven filed a petition pursuant to the Illinois Marriage and Dissolution Act (“Act”) to terminate his child support payments entirely. The petition was partially granted with child support reduced to $700 per month.

Unsatisfied, Steven asked the court to force Iris to pay him child support even though she was technically the custodial parent. Additionally, he asked the court to vacate his $700 child support payments because their youngest son was enrolled in a summer camp which alleviated Iris’ need for child care expenses, he argued.

In July 2012, the circuit court granted Steven sole custody but disposed of his petition to terminate child support payments. The court mandated that Steven pay $600 to Iris because of their respective financial situations.

He appealed this judgment because, he argued, that the circuit court had no authority to force him to pay the $600 child support to a non-custodial parent based on Section 505 of the Act.

The Supreme Court of Illinois ruled that the circuit court’s decision to mandate Steven, the custodial parent to pay Iris, the non-custodial parent, was within its authority to do so as long as the proper procedure was followed and the best interest of the child was met. The Court failed to address whether in this particular situation the lower court followed proper procedure.

In this case, the Court majority was confident that the circuit court applied the child support statute properly, but it failed to explain what a proper application entailed. Indeed, the majority’s silence is misleading because it incorrectly suggests that the lower court’s application of the statutory formula to the custodial parent’s income was proper.

The procedure employed by the court, which the majority did not address, effectively absolved the noncustodial parent of any support obligation. To be sure, it may be that the facts and circumstances of this case required the custodial parent, notwithstanding his status, to pay child support to the noncustodial parent. But the noncustodial parent’s support obligation must be acknowledged in the first instance by applying the statutory guidelines to the noncustodial parent, which the court simply did not do.

In Illinois, the support of a child is the obligation of both the husband and the wife. That shared obligation is reflected in the child support statute. Here, where Steven had sole custody of the children, the statutory guidelines clearly applied and should have been the starting point for an award of child support.

Steven interpreted the Act to mean that the obligation to pay child support may be imposed only on noncustodial parents and that a custodial parent may never be ordered to pay child support to a noncustodial parent. The terms of the statute do not support this view. In contrast to the child support laws of some states which single out noncustodial parents for payment of child support, the Act expressly confers on courts the option to “order either or both parents owning a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child, without regard to marital misconduct.

Regardless, the Supreme Court missed its mark in providing steps for proper analysis of the Act for lower courts to follow, in fact, the Court muddies the waters by making it fact specific.

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