1. Your Basic Rights; from the pamphlet Legal Guide, by the American-Arab Anti-Discrimination Committee, ADC Research Institute, DC
2. Ways and Means of Getting a "Green Card" in the US; contributed by Bahman Z. Lotfi, Esq., Law Offices of Lotfi and Associates, P.C.; DC
3. Preparation for Citizenship Application; from the pamphlet Legal Guide, the American-Arab Anti-Discrimination Committee, ADC Research Institute, DC; and a memorandum by Robert Foley, Professional Corporation, DC
4. Getting a Job, Recognizing Employer Discrimination; from materials supplied by Samy Baaghil, Director, Minority Assistance Group, Immigration Department, CA
5. Discrimination on the Job; contributed by Bahman Z. Lotfi, Esq., Law Offices of Lotfi and Associates, P.C.; DC
6. Discrimination Must be Documented; contributed by Saeed A. Khan, Esq., MI
7. Title VII and the Right to Religious Practices; contributed by Kenneth R.A. Rasheed, Esq., Director, Shura Law Center, GA
8. Religious Freedom Restoration Act of 1993; researched by Kareema Altomare, Director, Legal Office, American Muslim Council, DC
9. If You Are Visited by the FBI; from the pamphlet of the same name, by American Muslim Council, DC
10. Reporting Hate Violence - Preventing Hate Crimes; from Hate Crime Prevention Kit by the American Muslim Alliance, CA
11. Legal and Business Issues for Muslim Communities; contributed by Kenneth R.A. Rasheed, Esq., Director, Shura Law Center, GA
12. Writing Your Will; contributed by Jeffrey A. Hassan, Esq., Law Firm of Jordan & Keys, Legal Team of Masjid Mohammed, DC
13. The Laws of Contracts; contributed by Irshad Abdal-Haqq, Esq., Director, Institute for Intercultural Relations, DC
The Constitution of the United States is one of our most precious resources. Everyone in the United States - citizen, permanent resident, visitor and foreign student - has some rights and protections in common, which are granted by this Constitution. We must know these rights, and exercise them to defend our most valuable entitlement.
Two amendments to the Constitution are particularly important for you to know about. The Fifth Amendment guarantees that no person shall be deprived of life, liberty or property without "due process of law." This means that any action such as arrest, imprisonment or deportation, must be in accordance with the law, whether it is local, state or national law.
The Fourteenth Amendment also guarantees this right, and it emphasizes that everyone must be treated equally under the law. It doesn't matter whether you are a citizen or foreign visitor, or if you are black or white, or a man or a woman; everyone has the right to equal treatment and protection under the law.
There are other important safeguards of your rights, as well. The Civil Rights Act prohibits discrimination against anyone exercising his or her constitutional rights, privileges and immunities. This applies to both citizens and non-citizens. The Civil Rights Act provides the legal means for you to protest, should you encounter discrimination when you try to rent an apartment, apply to schools and apply for a job. The Civil Rights Act gives you the right to fair and equal treatment in your daily and private life, and if anyone discriminates against you, that person can be prosecuted under that act.
The Freedom of Information Act (FOIA) guarantees citizens the right to obtain documents about themselves from federal departments and agencies without having to declare a reason for requesting them. The FOIA has been a tool for Americans to correct injustices, abuses and corruption in government; it is a way to keep government honest and open.
The Privacy Act guarantees everyone, citizens and non-citizens, the right to examine records pertaining to him or her in order to correct any errors.
And finally, the First Amendment Guarantees the right of freedom of expression for everyone. This very short amendment ensures that everyone in this country may express his or her own opinions and beliefs in public. Because of the First Amendment, it is entirely legal for you to attend a political rally or work for a political group openly, whether you are a US citizen or not. The right of a foreign student to join student organizations that address political issues is also protected under the First Amendment.
Although there are a number of ways to obtain permanent residency ("Green Card") in the US, the following are the most popular.
1) Family sponsorship: a) First preference - unmarried children of US citizens may be sponsored by their US citizen parents for the green card. There is no waiting period for such green cards at the present time. b) Second preference - spouse and unmarried children of green card holders may be sponsored by their spouse or parent. Because there is a large number of applicants, there is a waiting period of 3 to 5 years for this category. c) Third preference - married children of US citizens may be sponsored by their parents. There is a 2 to 3 year waiting period for this category. d) Fourth preference - sisters and brothers of US citizens may be sponsored by their US brothers and sisters. Because there is a large number of applications pending, there is a 10 to 15 year waiting period for this category.
2) Employment based green cards: Depending on the individual's profession or experience, employment based permanent residency is one of the fastest ways of obtaining a green card in the US. This group is divided into three categories. a) First preference - persons of extraordinary ability in the arts, science, education, business or athletics; outstanding professors and researchers who have a minimum of three years experience in teaching and research; and managers and executives of multinational companies who have been employed as an executive or manager by a qualified entity abroad and the individual is transferred to US to carry out the said entity's business. b) Second preference - applies to professionals holding an advanced university degree and/or having exceptional ability in the sciences, arts, or business. c) Third preference - professionals, skilled or unskilled workers. This category applies to most individuals who obtain green cards through employment based sponsorship. It is divided into two basic classes: 1) people who have a college degree or a minimum of two years experience in the position they intend to work, or 2) unskilled workers who neither have experience nor college degrees in the field they intend to work.
In order to get a green card through employment in the US - with the exception of the first preference priority workers and Schedule A workers (professions in which the US Department of Labor has confirmed there is a shortage) - the employer must obtain a Labor Certification from the Department of Labor. This document certifies that the employer has tried to recruit a US worker for the position, offering normal or prevailing wages, but was not able to find such a qualified US worker.
After the Labor Certification is issued, it is filed with the US Immigration and Naturalization Service (INS) along with other required documents to determine whether the subject foreign national qualifies for one of the above stated categories of sponsorship and the employer has the financial ability to pay the offered wages. Upon approval of the petition by the INS, it is forwarded to the employer as well as the US consulate in the country of the alien's nationality. In the event the employee is in the US (in most cases) he/she may apply to adjust his or her status to that of a permanent resident in US upon payment of the required fees. It should be noted that issuance of a Labor Certification or approval of the employer' s petition by the INS does not entitle the employee to start working in the US. Unless his or her status is adjusted to that of a permanent resident, the alien may not work in the US.
3) Special immigrants: Occasionally US laws allow certain individuals with specific qualifications to be sponsored for permanent residency in the US. Such people are referred to as "special immigrants." These people consist of ministers, religious workers for legitimate religious organizations, retired officers or employees of certain international organizations. It should be noted that all employment based green cards include not only the alien but the alien's spouse and children of under twenty years of age.
4) Refugees and political and religious asylees: US laws allow a certain number of refugees from abroad to come to the US as refugees. In addition, people who are in the US and who can show that they have been persecuted for religious or political reasons in their country of nationality, may apply for asylum in the US. Such refugees and asylees may eventually apply for, and receive, green cards and become US residents.
5) Suspension of deportation: Under US laws, those individuals who have been in the US for a minimum of seven years, have been good citizens, have no criminal record, have established their roots in this country and their return to their home country will cause severe hardship to them or their US citizen or permanent resident children, spouse or parents and, the INS has placed them in deportation proceeding, may apply for suspension of deportation from the immigration judge. At the present time there is no waiting period for a green card for anyone who has been granted suspension of deportation.
6) Investment in US: Anyone who invests a minimum of one million dollars in the US economy and creates at least ten jobs anywhere in the US or, invests half a million dollars and creates at least ten jobs in a specific location identified by the US government may obtain a green card. Such green cards are first issued for a conditional period of two years, and if prior to the expiration of the first two years, the individual shows that his/her investments continue to create job opportunities for US workers, then the said condition will be removed by the INS.
The above description of ways and means of obtaining a green card in the US is intended to give a very brief and simple overview of obtaining permanent residency in the US. However, it should be noted that each category and group involves, at times, complicated procedures which must be satisfied by the applicants. Therefore, this overview by no means addresses all of the ways and means of obtaining a green card and only considers the most popular ways with a brief reference to each category. Anyone wishing to obtain a green card should consult an attorney for a detailed analyses of his/her case.
The US allows permanent residents over the age of 18 to apply for citizenship or "naturalization". You must have been a lawful permanent resident for five years before you are eligible to apply, (three years for spouses), and you must have been physically present in the US for at least one-half of that time (30 months), and you must have resided in the state where you apply for at least six months.
Any break in residence of six to twelve months must be clearly temporary, although these days such absences usually go unchallenged by INS. To meet later evidentiary requirements, however, it is recommended that all passports be kept (even after cancellation) and that travel tickets or a diary be kept concerning all exits from the US (date of departure, date of return, airline/ship traveled).
An absence of greater than twelve months is possible. However, to avoid a break in residence for citizenship purposes, an alien must file a petition and be approved for the absence. Such approval means that the time in residence prior to the lengthy departure will be preserved for purposes of meeting the sixty month residence requirement. This petition is not the same as an application for a Re-entry Permit, a popular misconception among resident aliens. Obviously, as the absence approaches thirty months, the value of a petition filing becomes diminished. However, it can be useful, if an absence of thirty months is followed by a residence of thirty months, as eligibility for citizenship would be possible after the thirty months residence (as long as the prior absence was an approved absence). Otherwise, the person would have to wait the additional period of time for the five year period.
One must be particularly careful in analyzing each individual situation. Filing for citizenship can precipitate a loss of residency and denial of citizenship in certain circumstances. If there has been any absence of greater than twelve months at any time for which a Re-entry Permit was not obtained, an alien is potentially at risk. Many times an alien has returned after more than twelve months absence and gotten away with re-entry. Such a re-entry may be reevaluated by the INS in the context of citizenship application. The application could be denied and deportation proceedings begun on the basis of an allegation of prior abandonment of residence.
Besides the residency qualifications listed above, you must speak English, understand the American form of government, have good moral character and express your allegiance to the principles of the constitution of the United States. To apply for citizenship you have to file a form N-400 with the nearest INS office, along with photographs, fingerprint card and biographical information form. At that time, a Naturalization examiner will interview you and, if he decides you are eligible, a formal petition will be filed in court. You will then be notified of the date of your final hearing.
Since the passage of the Immigration Reform and Control Act of 1986 (lRCA), employers have been subject to important new regulations governing their workforce. The two provisions that most affect employers are employer sanctions and the anti-discrimination provisions.
Employer sanctions, for the first time in US history, penalize employers for hiring undocumented workers. Under this law, the employer must have a completed 1-9 form for each employee hired after November 6, 1996. The 1-9 form is used to verify the employment eligibility and the identity of the employees.
The Anti-discrimination provision was included in the law to ensure that employers, fearful of sanctions, did not refuse to hire or fire foreign-looking or sounding workers. This provision prohibits employment discrimination based on national origin and citizenship status. It requires that employers treat all job applicants equally, regardless of whether they look or sound foreign and regardless of the type of work authorization document. Discrimination is prohibited in hiring, firing, recruiting or referring for a fee. Retaliatory actions on the part of the employer against employees who file a charge of discrimination or participate in the investigation process are also prohibited.
Employers are sometimes put in a difficult position trying to comply with both of these provisions. It is important that both employers and potential employees understand the following guidelines:
An employer is in compliance with the law when he or she:
1) Requires completion of the I-9 form only after hire. The employer should not ask job applicants to show their work authorization and identity document(s) until after they are hired.
2) Lets the employee complete the top half of the 1-9 form.
3) Lets the employee choose which documents they would like to show to establish the employment eligibility and identity. The employer should never specify a particular document or demand to see immigration papers.
4) Verifies that they have seen the documents offered by the employee. The employer need not photocopy the documents. If the document looks genuine and the name corresponds to the individual they should accept it without playing detective.
An employer is guilty of discrimination if he or she:
1) Treats job applicants differently because they look or sound foreign. From the time of initial contact through interviewing, hiring and firing, employees should be judged based on their qualifications for the job.
2) Requires specific documents, rather than permitting the employees to choose the documents that illustrate work authorization and identity. "Green card" only policies are illegal.
3) Refuses to accept valid work authorization because it has a future expiration date. If a work authorization document has an expiration date, this does not mean that the employee will be here illegally after that date, or that he or she will be deported. Many immigrants are simply awaiting the issuance of their green cards or extensions on their authorization to work.
4) Refuses to accept valid work authorization because they are unfamiliar with that type of document. There are dozens of different types of documents that are acceptable and new documents are being issued by the INS all the time.
5) Has a "US citizen only" hiring policy, unless required by law.
6) Demands that employees speak only English on the job.
A new employee must complete the 1-9 form three days from the date of hire. (If the employee is hired for less than three days the I-9 form must be completed at the time of hire.) If the employee has lost or misplaced documents they may show the employer a receipt for application of a replacement during the three day period. They then have 90 business days to present the replacement document. An employer should re-verify employment eligibility by using the same rules that they followed in the initial hiring process. When an employer re-verifies a document that has expired he or she must accept any of the valid documents, including a social security card and drivers license. This is true even if the employee originally showed an INS-issued work authorization card that is currently expired.
The basic list of valid work papers consists of three groupings of documents. Group A: documents that show both your identity and your right to work - US Passport, unexpired Foreign Passport with I-551 stamp or with I-94 form with words "Employment Authorized", Certificate of US Citizenship (N-560 or N-561), Certificate of Naturalization (N-550 or N-570), Alien Registration Receipt Card or Resident Alien Card with photo (I-151 or I-551), Temporary Resident Card (I-688), INS Work Permit (I-688A or I-688B), unexpired Refugee Travel Document (I-571), unexpired Re-entry Permit (I-327). An employee can choose one paper from group A. Group B: documents that show identity - driver's license or state ID with photo or description, School ID with photo, US military ID or draft card, federal/state/or local government ID with photo or description, Native American Tribal ID, Canadian driver's license, voter's registration card. Group C: documents that show your right to work - Social Security Card (unless stamped "not valid for employment"), US Birth Certificate (including Puerto Rico, Guam & US Territories), Certification of Birth Abroad of US Citizen (FS-545 or DS-1350), document from INS with words "Employment Authorized" (for example, 1-94), US Citizen ID (1-94), Resident Citizen Card (I-179), Native American Tribal ID. An employee must choose two papers, one from Group B, that shows who you are, and one from Group C that shows your right to work. For example, a driver's license and a Social Security Card are all you need to show.
While job discrimination based on national origin can be difficult to recognize you should check your impressions against the guide-lines above and seek legal evaluation. IRCA created the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to enforce the anti-discrimination provision. The OSC enforces the law's prohibition of citizenship status discrimination. The OSC also has jurisdiction of national origin discrimination cases when there are 4 - 14 employees in a company. The Equal Employment Opportunity Commission (EEOC) under Title VII covers those companies with 15 or more employees.
To file a complaint call or write to the Office of Special Counsel, US Department of Justice, P.O. Box 65490, Washington, DC 20035-65490, 1-800-255-7688.
Recently, because of some adverse publicity, complaints about work-place discrimination against Muslims have been on the rise. It should be noted that discrimination in the work-place is prohibited by both federal and state statutes. Under these statutes, an employer of fifteen (15) or more employees is prohibited from discriminating against his/her employees on the basis of race, color, national origin, sex, and religion. These laws protect employees and prospective employees from discrimination regarding hiring, firing, recruitment, retaliation, promotions, wages, bonuses, and other terms and conditions of employment. For instance, with respect to discrimination based upon ';national origin," and employer who bases hiring or other job-related decision upon factors such as an individual's accent, "foreign looking" appearance, or other cultural factors may be in violation of law.
While not every work-related decision which may be adverse to an employee is actionable under law, a violation may occur if a complaining party can show that an employer's practice or policy results in disparate or unequal treatment of a national origin group. Proving "disparate treatment" often requires substantial evidence (i.e. documentation). Therefore, a person who believes that he or she has been the victim of employment discrimination should collect and keep a record of the employer's discriminatory conduct in order to support his/her discrimination claims. Some relevant information would include:
1) Your employer's or prospective employer's name, address, telephone number, the name of your immediate supervisor, and the name and position of the individual who committed the discriminatory act.
2) The date and time in which the discriminatory act occurred, the nature of the discriminatory act, and the facts leading up to the discriminatory act.
3) Name(s), address(es), and telephone number(s) of individual(s) who witnessed the discriminatory act.
4) Name(s), address(es) and telephone number(s) of other persons who were treated similarly by the employer in the past or at the present time.
5) Name(s), address(es), and telephone number(s) of employee(s) receiving more favorable treatment, and potential witnesses regarding the employment practices of the employer.
6) All of the attempts that the victim has made to remedy the situation, including unemployment claims, filing grievances with a union, filing charges with the Equal Employment Opportunity commission (EEOC), and filing a complaint with the state employment agency.
7) Whether the individual has mitigated his/her damages by seeking alternative work.
Finally, a person who believes that he/she has been the victim of employment discrimination may pursue his/her legal resources against the wrongdoer by filing an action. However, as employment discrimination cases are highly technical, it is advisable to contact an attorney before proceeding with a legal action in order to determine feasibility of an employment discrimination action against his/her employer.
As Muslims make further advances in the American workforce, the potential for discrimination increases in kind. Discrimination occurs every day when one person is preferred over another. The danger is when one person is considered inferior without sound reason. There are measures that Muslims can take to prevent discrimination or, if it has already occurred, to contest and take action against such discrimination.
There are two major difficulties that often arise when dealing with discrimination: detection and proof. As to detection, much depends upon the discriminating party's conduct. Fortunately, the more blatant the discrimination, the easier it is to detect. Sometimes, an employer or colleague will be forthright in displaying his/her dislike or prejudice for Muslims. However, one cannot always count on such openness. Muslims must train themselves to spot the subtle ways that people may degrade or suppress a Muslim's employment progress. One trait common to all discriminators is that they leave some trail or indicator of their sentiment. The trick is to notice it.
Often times, the indicators are in the form of "code" or "buzz" words, which could imply discrimination. For example, when an employer conducts an employee job appraisal, he may use certain language which may not appear to be partial on its face. However, an average or sub-par evaluation can hurt a worker's chances for advancement. Look for phrases like: "Has difficulty communicating with others". Many Muslims in America are first generation immigrants who still retain strong accents. For a discriminating employer, fluency in English may not matter, if he does not like the accent. He knows that he could justify criticizing someone with an accent because other workers might have to make a greater effort to understand the Muslim worker. But in this country, the law does not even allow for discrimination against someone with a disability. So, if a worker speaks with a lisp, or has a speech impediment, the employer cannot take negative action against that worker. In the same way, although an accent is not a disability, the speaker cannot really control his condition anymore than he could if he had an affliction. In summary, the employer could make accommodations to improve the lines of communications at the workplace.
A second common critique for a Muslim worker to beware of is: "Has difficulty cooperating or getting along with others". Cooperation is another subjective term. It is difficult to know how much an employer expects a worker to tolerate from his/her colleagues. There is no question that personality clashes occur at the workplace that have nothing to do with one's religious beliefs. However, an employer may place the burden of such disputes upon the Muslim worker, as though it must be his/her fault for being the "odd person in the group". Again, this excuse to criticize a Muslim worker's performance is a poor, but effective one. However, the employer can take remedial measures to solve the problem. Usually, uncooperativeness requires more than one person. One should see whether even-handed criticism is present. Secondly, the employer can always conduct private discussion with the alleged uncooperative party to notify him/her of the problem, and to then suggest positive change.
Detection is not the only major problem when dealing with discrimination. A person's case is only as strong as the documented evidence he/she has against the employer. Usually, discrimination is not confined to a single incident, but rather, is a pattern of repeated behavior. Once the worker is able to detect the signs of discrimination, it is critical to document these episodes - when, where, and how they were committed, and by whom. If at all possible, the worker should try to find witnesses to the discriminatory conduct; specifically, these witnesses should be trustworthy, and reliable in case they are called upon to testify on the worker's behalf. This is a difficult situation because other workers don't want to risk retaliation or reprisal by the employer. Nonetheless, one should still search for the complying witness. Secondly, an oppressed worker should keep a written journal or diary recording a day-to-day account of conditions at the workplace. In addition, any paperwork, official or otherwise, and other physical evidence that the worker may receive, such as graffiti or hate mail, should be collected and well stored. There can never be enough documentation of discrimination; it can only benefit any effort to prove the conduct for legal or media situations.
Detection and documentation are the two primary concerns in combating discrimination at the workplace. However, the best option is still prevention. As Muslims, it is particularly important to set a good example in all aspects of our lives. Conducting ourselves in the ways that are prescribed by Islam can help prevent some situations of discrimination. Discrimination decreases if one reduces the number of opportunities for people to take such action. For example, an employer cannot be critical of a worker who never arrives late or leaves early. Cooperation, diplomacy, tolerance, and productivity are virtues mandated by Islam, and are also favored in the workplace. Obviously, irrational prejudice does exist, and all the virtues cannot necessarily prevent someone from being discriminatory. However, if a Muslim worker can do his/her part in not giving people a reason to discriminate, some of this very real problem may be resolved. In fact, a Muslim worker's conduct can serve as a positive example for the entire workforce to follow, leading to increased productivity and understanding for all.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex or national origin. Subsequent amendments prohibit employment discrimination on the basis of pregnancy, childbirth or "related medical conditions". These prohibitions apply to all employers with fifteen (15) or more employees and have been interpreted to apply to the following areas of employment: hiring, classification, compensation, terms or conditions, privileges, discipline, evaluations, promotions, and discharge. These laws afford Muslims the legal right to exercise their religious practices and observances within certain limits. These laws also obligate the employer to make a reasonable accommodation for any employee whose religious practices, observances and beliefs differ from the employer's requirements regarding schedules or other business related employment conditions. The limit that is placed on an employer's duty to make reasonable accommodation is that said accommodation may not place an undue hardship on the conduct of the business. What constitutes an undue hardship is decided on an individual basis.
The one exemption to an employer's obligation to accommodate religious practices exists in Section 702 of Title VII. This section permits religious corporations, religious associations, religious educational institutions or societies to extend employment preferences to members of their religion.
Practically, speaking this means that an employer, who is covered by the Civil Rights Act's Title VII, does not have a right to inquire into your religious beliefs and/or practices when screening candidates for a position. Although an employer may inquire into an applicant's availability for work hours or days, said employer has no rights to inquire into the reason for your unavailability for certain times. One must remember that if the unavailability is due to a religious conflict, said employer had a duty to strive to make a reasonable accommodation. Furthermore, the employer is obligated to find a replacement, reschedule employee' s time and make any other accommodation so long as it does not place an undue burden on said employer. But one must remember that the employer is only obligated to attempt to accommodate the employee's religion. The law does not require that the accommodation be made, only that a sincere effort be made to reach an accommodation.
Muslims should be aware of the fact that if their employer or perspective employer has 15 or more employees, said employer is obligated to make reasonable accommodations for their religious practices and observations. This may include shifting schedules to afford you an opportunity to attend Jumah, Eid Prayer and Festivals, and/or daily salat. Although this obligation has limits an employer has to make sincere effort to satisfy any necessary accommodation. A Muslim should also be aware of the fact that they are under no legal obligation to discuss their religious observances and/or practices during an employment screening interview or performance evaluation. These matters are more appropriately discussed after obtaining the position and with the person who has the authority to execute the employer's duty to reasonably accommodate.
The Equal Employment Opportunity Commission (EEOC) and/or a private attorney skilled in the area of employment discrimination law are excellent sources of information on this subject. Furthermore, most states have an Office of Fair Employment Practices which may also prove a valued resource in this subject area.
On November 16th, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA). The central section of this brief, one page piece of legislation states that the free exercise of religion will be protected as follows:
(a) IN GENERAL - Government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability...
(b) EXCEPTION - Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is: (1) in furtherance of a compelling governmental interest, and (2) the least restrictive means of furthering that compelling governmental interest.
(Public Law 103-141 103d Congress, 42 USC 2000bb-1, Section 3)
The passage of this landmark law was preceded by three and one-half years of effort by the Coalition for the Free Exercise of Religion. This unique alliance of 68 religious and civil liberties organizations was formed in 1990 under the leadership of Oliver Thomas, former General Counsel to the Baptist Joint Committee. The wide variety of groups that came together in this effort underlined the fact that religious freedom is important to all Americans. They worked together in an unprecedented fashion
to restore this high level of protection for religious practice.
It was in the 1990 "Smith Decision" (which refused to make an exception for the religious use of an otherwise prohibited substance) that the Supreme Court virtually nullified the Freedom of Religion Clause in the Bill of Rights by a 5-4 decision declaring that it was no longer necessary for the state to demonstrate a "compelling state interest" before abridging the freedom of religion of American citizens. Over 50 relevant cases heard since the Smith Decision, made clear the erosion of religious freedom of all Americans. In a developing trend cases were being decided against individuals who had tried to make religious claims against government actions. Members of minority religions -- especially large minorities like Muslims who, by the size of their constituency, may be perceived as a threat -- were at the greatest risk. Issues in question included the right to adopt Muslim names or to abstain from pork products and/or wear hijab or khufa in government institutions.
Only by using the power of Congress to reverse the effect of a Supreme Court decision through legislation was the trend initiated by the Smith Decision stopped. This extraordinary measure honored the basic principle that our laws and institutions should not impede or hinder, but rather should protect and preserve fundamental religious liberties. This is a principle of vital importance in a country made up of religious minorities such as our own.
The RFRA act was meant to apply to all citizens. Its application is limited however, to actions taken by governments. Since its passage, this act has been tested a number of times in the courts. The main threats to its continued viability are the possibility of legislative amendments (being considered with regard to the prison population) and three cases, now under appeal, as to the constitutionality of the act. The members of the RFRA coalition have been tracking these developments and feel confident that they can be overcome.
For the complete text of the RFRA act, updates on its application, or a printout of "The Religious Freedom Restoration Act - A report to the Muslim-American Bar Association," by Imad-ad-Dean Ahmad, Ph.D., contact the Legal office of AMC.
It is not unusual for federal agencies to conduct investigations into individuals and organizations that actively oppose United States policy in the Muslim World. The Federal Bureau of Investigation (FBI) is the primary agency responsible for political intelligence gathering of this kind. In the case of non-citizens, these investigations are routinely undertaken in cooperation with the Immigration and Naturalization Service (INS).
Standard FBI procedure is to send one or more agents on an unannounced visit to one's residence or place of business. Sometimes they will dispatch two of them to play "good cop - bad cop" roles, with one agent exhibiting a belligerent, harassing attitude while his colleague assumes a cordial, friendly demeanor. And often, those who refuse to talk to the FBI are subjected to repeat visits and telephone calls designed to intimidate. These tactics should be resisted. Instead, if this happens to you, contact your lawyer for advice. If you do not have a lawyer, notify the Legal Office of AMC and we will help you find one.
You do not have to talk to the FBI, even if you are not a citizen of the United States. Unless they have obtained a search warrant, you are under no obligation to permit them entry into your home or office.
If they tell you they have a warrant, demand to see their identification and the warrant before permitting access, in order to be certain they are who they claim to be. Even if they do have a valid warrant, you should under no circumstances answer any of their questions until your lawyer can be present.
If you do not wish to talk to the FBI, it cannot be held against you. Simply tell them you have nothing to say to them, and send them on their way. This is usually the wisest course of action. If you answer one question, other questions will follow, and it becomes progressively more difficult not to answer. Of course, it is a serious crime to lie or provide false information to the FBI agents.
FBI agents are trained investigators: Do not think you can outsmart them in an attempt to discover their purpose and the nature of information they have already obtained about you.
Do not worry about appearing impolite or uncooperative in declining to be questioned by the FBI. Talking freely and openly out of fear or in an effort to appear cordial is not the best way to behave in the presence of FBI agents. To the contrary, it only encourages them to delve even deeper into your personal affairs and political association.
Do not allow them to intimidate you into agreeing to be questioned on the spot. Your decision about whether to not to talk to them is one you should be able to make free of pressure, after you have thoroughly analyzed the situation in consultation with you lawyer.
If, however, you are considering talking to the FBI, do not, under any circumstances, impulsively invite them inside your home or office to do so at that moment. Instead, ask them for identification and a business card, on which you will find their name, agency, address, and telephone number.
Tell the agent that your lawyer will contact the FBI office to schedule an appointment for you at which he or she can be present. If they ask for the name of your lawyer, simply tell them you do not wish to answer any questions at this time. After they leave, make a written record of the date and time of the visit and of what was said.
The interview should take place at the local FBI headquarters, not in your home, office, or at a public place Allowing the FBI in your home of office might provide them with insights you might not want to share with federal agents, by way of books or papers which might be on display. It may also invite criminal charges on small, widely practiced offenses, such as infringements of copyright laws, for instance, if you happened to have duplicated audio cassettes tapes or similar items within sight. Lastly, if they were intending to investigate you further, it is probable they would take the opportunity to place a listening device somewhere in your home during their visit.
Meeting in a public place is not advisable because it is impossible to know who might be listening in, and because the agent will not be able to tape record your conversation. Instead, he or she will be forced to take notes, and notes are not always accurate. Any interview with the FBI should be tape recorded for your protection, in case you are ever accused of providing false information to agents of the federal government. You might even want to bring your own tape recorder and record the conversation yourself.
Do not under any circumstances, attend an FBI interview without a lawyer present. Your lawyer is there to advise you and protect your rights. The very presence of a lawyer will moderate the behavior of the interviewers, who might otherwise violate your rights or try to intimidate you. They might, for example, ask you questions about your political or religious beliefs, which are clearly none of their business.
Even if you have agreed to be interviewed, you are not required to answer every question. If you do not wish to respond to a particular question simply tell them that you have nothing to say on that subject. You might also want to ask your lawyer to write a letter to the FBI requesting, in advance, a written copy of the questions which are to be asked by the FBI interviewers.
Do not answer any questions concerning the beliefs, activities, or personal lives of your political associates. To do so would be a violations to their privacy, trust, and shared principles, and it could also lead to an FBI decision to investigate them more thoroughly. It is also very likely that the FBI would pass along this type of information to foreign intelligence services that may wish to disrupt your political activities. If you are asked about the affairs of your associates, one of them most common types of questions, simply tell them that you have nothing to say on the subject of anyone other than yourself.
If you are visited by FBI agents, report the contact to our office immediately so that we may document the visit and advise you further on how to proceed.
Hate crimes are amongst the many types of crimes which go under-reported each year, because many of its victims choose to remain silent. The law can effectively protect its citizens only if victims report crimes and follow through with prosecution of offenders. Hate crimes violate the victims' civil rights. The victims may experience fear, degradation, and powerlessness. Individual experiences with hate crimes often have wider implications for the members of the victim's family and community. Unreported incidents of violence that gives expression to unreasoned prejudice can only embolden the perpetrators.
Many acts of hate violence fall under the category of hate crimes and are punishable by law. Any one of the following acts, committed against an individual because of who he/she is or who he/she is perceived to be (i.e. in response to the victim's race, color, religion, ancestry, national origin, sexual orientation, or political affiliation, etc.) could constitute a hate crime:
1) spoken or written threats of intimidation,
2) destruction or vandalism of property, and
3) physical attacks or attempted attacks.
Hate violence is any intimidation, threat or physical violence motivated by prejudice and can include anything from graffiti and name-calling to murder. A hate crime is simply hate violence that is against the penal code. The reason for distinguishing between hate violence and other violence is because of the impact on the victim's community. If, for example, a fight between two people was caused in part because of prejudice and it may increase tensions between the communities represented by the fighters, it should be considered hate violence. Depending on to motivation, women, disabled, and homeless people can be victims of hate violence.
To ensure that the rights guaranteed by the US Constitution and the laws of the various states are protected for all citizens, regardless of any personal characteristics, and to take a proactive role to protect all citizens against hate crimes most local police jurisdictions have established special units to investigate prejudiced-based criminal incidents and support vigorous prosecution of such cases. When you believe you have been a victim of a hate crime you should:
1) Report the crime to your local police station immediately.
2) Write down exactly what was said and/or done to you by the offender so you can tell this to the police.
3) Save any evidence that may assist in prosecuting the person responsible (witnesses, descriptions, car tag number, etc.)
4) Contact a representative of an appropriate community group that can assist you through the legal process.
5) Inquire about a Hate Crimes Unit Hot Line or Data Base and provide them with the information as well.
With sufficient evidence it is possible to prosecute hate crimes through a criminal and /or a civil law suit. When evidence is inconclusive, filing a report and informing community groups puts both the neighborhood and the perpetrator on notice that you know your rights. It can also serve as part of the victim's self-healing process.
Hate crimes can have both immediate and long-term effects on the victim. Initially one may feel numb with shock and disbelief. You can't change your race, ethnicity, or religion. Feelings of anger, fear, helplessness, and anxiety may begin to emerge. This is natural and it is important, at this time, to talk with a supportive person or community group so that you can express your feelings. Taking with a professional counselor can also help to alleviate sustained fears.
Remember, by making a report about the incident you may be preventing others from being harmed in the same way. By taking this step, you are also empowering yourself and taking control of what happens to you.
The following provides a summary of the major legal and business matters that a community should address prior to building community space. Since each state's laws vary this summary is designed to serve as an introduction. Community leaders should seek the appropriate legal advise in their respective states.
1) Business Entities:
There are generally two entities that are suitable for Muslim masjids, schools, or centers. These entities are commonly known as unincorporated associations and non-profit/charitable corporations. Unincorporated associations are groups of two or more people who join together for non-profit/charitable purposes. This entity is similar to a partnership in that the members are personally liable. In contrast to this, non-profit/charitable corporations are legal entities that have limited liability for its shareholders. It should be noted that in order to obtain federal and state tax exemptions a religious community may be required to become incorporated. Corporations afford communities the opportunity to have a more structured, centralized management organization.
It should also be noted that non-profit/charitable corporations have to apply with the federal and state taxing agencies in order to obtain tax exempt status. There is no guarantee that a non-profit/charitable corporation will become exempt from state and/or federal taxes. Be sure you consult an appropriately qualified lawyer and accountant when making decisions concerning business entities.
2) Local Regulators Issues:
There are several municipal, county-wide, and/or state-wide regulatory issues that community leaders should investigate during the planning stages. Most local governments have laws which restrict land use, parking, noise levels, and ect. Most local governments regulate traffic flow which may be generated by the development of a masjid, school or community center. All of these issues may require negotiations and permission from your local governing bodies. Early communication with the wider community can also lead to the development of plans that forestall future problems.
3) Community Security Issues:
Community leaders should be aware of the local governing body's laws on neighborhood and community based policing activities, more commonly known as neighborhood watch programs. A Muslim community should be very concerned about protecting its members and establishing relationships with its neighbors.
1) Islamic Law of Inheritance and Wills:
The information set out in the following is intended to provide an understanding of only the fundamental elements of inheritance law in Islam. The reader is encouraged to do further study and research in this area. As one scholar has said. "[Islamic inheritance law] is enough by itself to form the subject of a life-long study" We will begin by defining the two basic terms that are the subject of this outline:
The term inheritance refers to the property of a deceased person that is distributed among those people and institutions that survive that person. Those who inherit the property of a deceased person are usually called heirs or inheritors. A person to whom something is owed by the deceased is referred to as a creditor. The sum total of everything owned by the deceased that is subject to distribution by a probate court is called an estate.
A will is a document that states how the property of a person is to be distributed when that person dies. A will might also address such matters of importance as burial instructions or the guardianship of surviving minor children. In the United States a properly executed will is required to distribute inheritance in the way a deceased person may have desired. In other words, you cannot exercise your "will" over the distribution of your property after your death, unless you have complied with the law in writing and signing the will document. For a will to have effect, it must be "probated", or submitted to the probate court for administration.
Because the laws of the 50 US states regarding the distribution of undesignated property at the time of death do not agree with the distribution formula required in Islam, a will is a requirement for all Muslims in the United States. By writing a will that complies with the Qur'anic injunctions regarding the distribution of a decedent's estate we can fulfill the requirements of our religious practice. It is essential, therefore, that all Muslims have a properly executed will. Our Holy Prophet Muhammad, (saws), is quoted as saying that "it is the duty of a Muslim who has something which is to be given in bequest not to have it for two nights without having his will written down regarding it."
Under Islamic law, we are required upon death to pass our property along to our surviving heirs. In other words, our property must stay in the family. We can't leave it all to a dog or cat, or the United Way. Strictly speaking, under the vast body of Islamic law we call Shari 'ah, a person could only "will" up to one-third of his or her property. In a Muslim society, the other two-thirds automatically would be distributed to the heirs in accordance with the Qur'anic schedule decreed in surahs 2 and 4. Prophet Muhammad, (saws), is reported to have said that it is permissible to will no more than one-third of one's property to other than family heirs. For our purposes, the entire scheme of distribution must be included in a will because US law will not enforce the Qur'anic formula. Thus, the two-thirds to the heirs identified in Qur'an, and the one-third to anyone else should be spelled out in the will. Of the one-third that can be willed to other than family, it is highly recommended that you remember the needy and perhaps, sadaqat for worthwhile causes and organizations.
Generally speaking, under an American will incorporating the Islamic formula, the estate would be distributed in the following manner:
a) First creditors, funeral expenses, outstanding zakat are paid.
b) Up to one-third of the estate would be distributed as stated in the will. It is not required that one-third be given to non-heirs. The only restriction is that no more than one-third may be given to non-heirs, and many people leave the entire balance of the estate to the Muslim heirs.
c) The balance of the estate is then divided and distributed to specific heirs and in specific amounts as required under Qur'an.
d) An heir entitled to inherit under Qur'an may not be willed any portion of the optional one-third share. Most Shari'ah schools assert that permitting this would upset the balance of distribution.
e) Only Muslims may inherit from the two-thirds; all non-Muslims and Muslims not entitled to inherit under the Qur'anic formula must inherit from the optional one-third portion of the estate. These other "heirs" might include stepchildren, adopted children, brothers and sisters, a non-Muslim spouse or partner, etc.
When considering the issue of shares to females two important general principles in Islamic inheritance law should be recognized. First, a male heir, in most circumstances, receives a portion equal to that of two females in his class. For example, a son receives twice as much as a daughter; a brother twice as much as a sister. Second, men are the protectors of women, and are required to support them from their means. Thus, what at first appears to be unequal materially in favor of the male, turns out to be a great deal more in favor of the female when Islam is actually practiced. The male is required to use all of his share of the inheritance to support his female kin, to pay a dowry, to care for his wife and children, and to support the community. The woman' s inheritance belongs only to her with no duty to care for the men of the family. Under American law, the woman is on her own after she receives her equal share of an inheritance
2) Unresolved Issues:
Living under non-Islamic legal systems, such as those in the United States, poses special problems for Muslims desiring to comply with Shari'ah principles of inheritance. For example, under Shari'ah, only 1/3 of a Muslim's estate may be left to non-Muslims, the other 2/3 (if there are no Muslim relatives) would go to the state or government. This rule of law poses special concerns for Muslims whose spouse and children are non-Muslim. Does this mean that we must leave only 1/3 to our non-Muslim spouse and children and leave the rest to an "Islamic organization." Who will care for our Christian or Jewish family members afterwards? The legal team does not have answers to these questions at this time. It maybe helpful, however, to investigate with an attorney the option of establishing other alternatives for disposition of
property while living (i.e. joint accounts, joint tenancy, and "living gifts").
Some of the special problems we face present moral dilemmas that each individual must resolve in good conscience, with logic, and good intentions. Other issues that are unresolved are as follows:
a) Shares of estate that may be left to heirs with special needs, such as the handicapped or very young. Is it OK to leave them more than what is prescribed under the Shari'ah?
b) How should a child or other relative be treated who does not practice Islam, although he or she was born and raised as a Muslim? Can that son, for instance, be expected to care for female relatives with his double share of the inheritance as he is expected to under our religion? Can we leave him less?
c) How should jointly owned property such as the family house be treated under Shari'ah? Under most state law the surviving spouse owns the entire property, but is this idea in conformity with the Shari'ah? Should the surviving spouse's relatives be entitled to inherit the entire house (as it is now), or should there be some way of making sure that the heirs of both the husband and wife share in the house after both parties have died?
d) Who has the right to possession of the deceased's body for burial purposes? The legal team believes that by making a provision in your will for burial, the court would uphold the will, but this issues has not been completely resolved as of yet.
The legal team would welcome the comments of anyone on these questions. It may be that the Shari'ah's provision on inheritance cannot be practiced in full until the community (Ummah) is firmly established and operating as a self-governing unit.
3) Summary of Requirements of an Islamic Will:
a) Required of all adult Muslims who own property of any value.
b) Should include burial instructions that specify an Islamic burial and funeral service.
c) Distribution of the estate should provide that outstanding zakat be paid, as well as all taxes and debts, and that the remainder of the estate be distributed in accordance with the Shari'ah. Note the following points about distribution:
- an unborn child (fetus) inherits as if it were born,
- an Islamically illegitimate person cannot inherit as an heir (children of an Islamic marriage, although not recognized under state law is still "legal" in Islam), and
- a murderer cannot inherit in any manner from his victim.
d) The executor of the estate must be named. The executor is the person responsible for making sure that everything is carried out according to your instructions in the will. The executor can be non-Muslim, but whomever you name should be trustworthy and competent.
e) There must be at least two witnesses to your signing of your will. They will also sign the will. In some states, three witnesses must sign. Make sure that you comply with the state law because a will is not valid unless it is properly witnessed. Witnesses must be adults and should not be heirs. It is recommended that the testator and witnesses have their signatures notarized.
1) Introduction: This very brief discussion of contracts under Islamic Shari'ah and Islam is intended merely to put the reader on notice that there are formalities respecting agreements between Muslims. For more detailed information the reader should conduct additional research or consult with a professional.
2) Law of Contracts Under Shari'ah: Essentially, a contract is a promissory agreement between two or more parties that creates, modifies, or destroys a legal relationship It creates legal obligations between the parties that must be fulfilled. The Arabic word for contract is 'aqd, which literally means an obligation or tie. When two parties or more enter into a contract, it is called in'iqad.
In the Holy Qur'an, we are directed by Almighty Allah, to honor our obligations -- "O you who believe, fulfill all obligations." (Surah 5, Ayat 1). A contract may be oral, bil kalam, or in writing, bil kitabah. We are admonished in Qur'an, however, to reduce our agreements to writing whenever possible. -- "O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing." (Surah 2, Ayat 282).
Al-Bukhari reports an instance when the Prophet Muhammad, (saws), demonstrated how a written contractual agreement should be rendered:
"If both the seller and the buyer explain the good and bad points concerning the transaction and hide nothing and give sincere advice (then they are blessed in their bargain). Al-'Aadda bin Khalid said, "The Prophet, (saws), got his statement written for me: 'This is what Muhammad, Allah's Apostle, bought from 'Abba bin Khalid, as a Muslim sells to another Muslim, and it is neither sick, bad-behaved or stolen." [Sahih Al-Bukhari (Khan translation); Volume 3; Book XXXIV; Sales (bargains); Chapter 20; Page 165].
The requirement that contracts be written is excepted where it would be a hardship. But if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing. But take witnesses whenever ye make a commercial contract; and let neither scribe nor witness suffer harm. (Surah 2, Ayat 282)
3) Elements of a Contract under Shari'ah: Under Shari'ah, certain conditions must exist to form a valid contract. A contract is made only when one party offers something to another party for some consideration (i.e., something of value). and such other party accepts the offer. The offer and acceptance must be made in a free manner. The consideration must be lawful, The parties must also agree upon their rights and duties.
In brief, every contract must involve the following elements: a) an offer, b) an acceptance; c) consideration (value for exchange, such as cash for a product, or work for cash, or a product for a different product), d) legal purpose (not anything criminal, or impermissible--haram), e) parties must be of sound mind, i.e., mentally competent (cannot be made with a minor or anyone mentally incapacitated or feeble), f) witnesses (two, or more, from the circle to which the parties belong).
4) US Contract Law: In general, US contract law mimics the elevated principles of contract law under Shari'ah. Under American law, a contract must embody the following elements: a) an offer, b) an acceptance, c) mutual agreement or understanding; c) consideration, d) capacity (of sound mind; not a minor). Additionally, under US law, contracts must be for a legal purpose, not against the public interest, not unconscionable; and witnessed by two additional persons. The parallels between Shari'ah and US contract law are remarkable, especially since Almighty Allah established the foundation of Islamic business law more than one thousand years before Euro-American contract law even began.
5) Combining Elements of Shari'ah and US Contract Law: Writing contracts can be extremely complex during this technological age. In many cases, only an attorney should be drafting your contract. If you insist on doing it yourself, it is prudent to have a professional review it for you, before you sign. For less complicated matters, there are all types of do-it- yourself form books on the market that provide quick and easy contacts for commercial activities. Whether writing your own contract, or retaining a lawyer to do it for you, make sure that your agreement embodies the essential elements required under Shari'ah, as set out above. In addition, it is appropriate to include traditional Islamic phrases in the beginning and end of the contract. It is best to provide English translations of such phrases in the agreement, if you desire to include them in Arabic.
6) Arbitration: Finally, under Shari'ah, an arbitration clause or contract, called tahkim in Arabic, has long been recognized as a means of settling disagreements. Arbitration and alternative dispute resolution is only now beginning to enjoy widespread popularity in the West. To avoid costly and protracted litigation, an arbitration clause in most contracts is advisable. Such a clause would provide that in the case of a dispute in the terms of the contract, the matter will be settled through an arbitrator, hakam, who will be mutually selected by the parties.
7) Qur'anic References to Contracts, Business, and Writing: The following cites are provided for further research on the topics and importance of contracts, business, and writing. Many of these cites are not applicable to contract law, per se. All English renderings of Qur'an cited in this piece are to those of A. Yusuf Ali. contract(s): 2:235, 2:282; 19:78 business: 2:282 (writing commercial transitions), 10:61, 15:57, 24: 62, 38:24, 62:9 writing: 3:145, 5:86, 6:7, 17:58, 18:109, 24:33, 31:27, 33:6, 52:41, 68:1, 68;47, 82:11
8) Conclusion: There is much more information about contract law under Shari'ah that might be shared with you regarding the types of contracts, the termination of contracts, and the many issues involved in marriage contracts. This short discussion, however, is merely intended to introduce the reader to the importance of reducing agreements to writing, whenever possible, and to the essential elements of a contract under Islamic and US law. In sha Allah, this was accomplished. This discussion is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher and author are not engaged in rendering legal, or other advice. If legal or other expert advice is required, the services of a competent professional should be sought.