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Angelo Paparelli on Dysfunctional Government

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  1. The Immigration Law of Contract: Musings on E-Verify

    by , 02-19-2009 at 10:07 PM (Angelo Paparelli on Dysfunctional Government)
    E-Verify -- the Web 2.0 system created by the Department of Homeland Security (DHS) for PC-based verification of employment eligibility ("PC" in this case means "personal computer" and perhaps not "political correctness") -- is a creature of contract. The contract in question, an agreement known as a Memorandum of Understanding (MOU), is a take-it-or-leave-it, non-negotiable "understanding" that in law meets the classic definition of an adhesion contract.
    Some employers voluntarily participate in E-Verify; others are dragooned into participating under mandate of state law or consent decree to forestall criminal sanctions. In the future, federal contractors and their subs (unless exempted) will also be required to participate if the Obama Administration allows the Bush-era Federal Acquisition Regulations to become effective in May, 2009.
    If the MOU is a contract, it is a strange one indeed, differing in many ways from traditional contracts. I'll offer just a few examples.
    The MOU expresses in its initial section the claimed "points of agreement" between DHS and a participating employer, but also sets out the responsibilities of the Social Security Administration. Under the MOU, the SSA is required to provide the employer with "available information that allows the Employer to confirm the accuracy of Social Security Numbers provided by all employees verified under [the] MOU and the employment authorization of U.S. citizens". SSA must also give the employer "appropriate assistance with operational problems that may arise". These obligations of SSA to the employer are extended in the MOU although no SSA official signs the "contract." (Apparently, an unpublished agreement between SSA and DHS is all the assurance the employer receives from DHS that SSA will live up to its unsigned commitments.)
    The MOU apparently prohibits an employer - once the document is signed - from seeking advice from an attorney concerning the scope of the employer's legal obligations under the MOU or under federal law. The MOU provides:

    The Employer agrees that it will use the information it receives from SSA or DHS pursuant to E-Verify and this MOU only to confirm the employment eligibility of employees as authorized by this MOU. The Employer agrees that it will safeguard this information, . . . to ensure that it is not used for any other purpose and as necessary to protect its confidentiality, including ensuring that it is not disseminated to any person other than employees of the Employer who are authorized to perform the Employer's responsibilities under this MOU, except for such dissemination as may be authorized in advance by SSA or DHS for legitimate purposes. [Emphasis added.]
    Unlike any contracts this blogger has seen, the MOU purports to grant an immunity breathtaking in scope:

    [N]o person or entity participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith based on information provided through the confirmation system.
    Yet what the MOU gives, it also takes away. The document mandates that an employer engage in discriminatory conduct prohibited as "document abuse" under Immigration and Nationality Act (INA) § 274B(a)(6). Why so?
    The MOU requires an employer to refuse to accept for E-Verify purposes a document of identity that is otherwise acceptable as a Form I-9 List B document if it lacks a photograph. A U.S. voter registration is a valid List B document even if it lacks a photograph. An employer cannot reject a voter registration card for purposes of I-9 compliance even if the card bears no photograph. If the U.S. citizen also presents a List C unrestricted Social Security card (one not restricting employment), the employer may not request more or different documents or refuse to employ that individual. Such conduct is prohibited under INA § 274B(a)(6), which provides:

    A person's or other entity's request, for purposes of satisfying the requirements of section 274A(b) [the section imposing the duty of employment eligibility verification], for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).
    Under the cited "paragraph (1)" [prohibited under INA § 274B(a)(1)], a U.S. citizen is a protected individual for purposes of the prohibition outlawing citizenship discrimination. So if the U.S. citizen refuses to provide a List B document with a photograph, can the employer refuse to hire that person - who, after all, never signed the MOU - because under the MOU the employer cannot comply with the E-Verify photo ID requirement?
    A plaintiff's lawyer, or perhaps the Office of Special Counsel for Unfair Immigration-Related Employment Discrimination -- a unit of the U.S. Department of Justice (which also is not a signatory to the MOU) -- might just take a different view. If either should sue the employer, the employer must solely bear the costs of litigation and any damages. On this point, the MOU provides:

    Each party shall be solely responsible for defending any claim or action against it arising out of or related to E-Verify or this MOU, whether civil or criminal, and for any liability wherefrom [sic] . . .
    So the employer who apparently would be a document abuser under INA § 274B(a)(6) is liable even though complying scrupulously with the contractual requirements of the non-negotiable MOU.  This would be the outcome unless the MOU's contractual immunity provisions quoted above are found by a court to prevail over federal immigration law.
    In any case, the hapless employer must apparently be unrepresented in the citizen's discrimination suit, because (as noted above) the employer cannot consult legal counsel, given that the employer is banned by the MOU from "disseminating any information to any person"!
    I don't envy the courts when they inevitably will be required to sort out the bizarre contract law principles reflected in the MOU.
  2. Immigration and "the Better Angels of Our Nature"

    by , 02-12-2009 at 07:48 PM (Angelo Paparelli on Dysfunctional Government)
    The bicentennial of Abraham Lincoln's birth is a fitting moment to ponder the state of our fractious and fractured nation of immigrants.  Ending his First Inaugural Address, President Lincoln spoke prophetically in words that could well describe the path America must pursue if the deep divide over immigration policy is ever to be bridged:

    We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.
    The hate speech and hate crimes, the demonization of immigrants by some, cannot be allowed to represent to the world the values that America holds dear.  The hypocrisy and prejudice of non-native nativists, whose forebears displaced the indigenous peoples of North America, cannot be permitted to stanch the lifeblood of this country, its ever-vibrant tradition of renewal and reinvention through immigration. 
    The justifiable fears of many Americans about an economy run amok ought not blind us to the manifold contributions to our prosperity that immigrants have always made and, if permitted, will continue to make.  Shekhar Gupta, editor of The Indian Express put the point eloquently to New York Times columnist, Thomas Friedman:

    Dear America, please remember how you got to be the wealthiest country in history. It wasn't through protectionism, or state-owned banks or fearing free trade. No, the formula was very simple: build this really flexible, really open economy, tolerate creative destruction so dead capital is quickly redeployed to better ideas and companies, pour into it the most diverse, smart and energetic immigrants from every corner of the world and then stir and repeat, stir and repeat, stir and repeat, stir and repeat.
    Others among our better celestial spirits, the Interfaith Immigration Coalition, held a press conference with Members of Congress on Feb. 11 to announce the launch of the campaign for "Prayer, Renewal and Action on Immigration" and to publish its Interfaith Platform on Humane Immigration Reform.  Serendipitously, the secular Migration Policy Institute just released a scholarly report and 36 recommendations on how our broken immigration system can be repaired and made to function.
    Whether the motivation be a hard-nosed pragmatism founded on dollars and sense, a faith-based commitment (reflected in Bruce and Judy Hake's article, The Scriptural Foundations Of An Open Immigration Policy, and Rev. Joan M. Maruskin's accompanying compilation of passages from the Koran), or the studied views of respected immigration policy experts, the time is now to vivify President Lincoln's profoundly humane and practical vision for America. 
    Immigration reform cannot wait for a more appropriate day.  With courage in Congress, the White House and among the American people, comprehensive immigration reform will sooner than later be enacted, so that we can "yet swell the chorus of the Union, when again touched, as surely [we] will be, by the better angels of our nature."
  3. A Pox on Quotidian Immigration Quotas

    by , 02-05-2009 at 06:52 PM (Angelo Paparelli on Dysfunctional Government)
    You might think from the title of this post that I'm all set to rant about the upcoming April 1 opening of the H-1B filing season -- the period known in the trade as the time of Preparation H. You might think I'm poised to critique the annual government lottery that causes so much employer and foreign-worker hand wringing as they fret about whether the quota will dry up in a day or two, as it has in the recent past. If you thought so, you would be wrong.
    I write instead to decry two other quotas, one alleged and the other well established, both involving the enforcement side of the immigration house.
    The first is described in an Associated Press report. It seems that on Monday the U.S. Border Patrol mounted an investigation of allegations by agents in the Riverside (CA) region. These Border Patrollers complain that their January quota on apprehensions of unauthorized immigrants had jumped to 150 per month from 100 in November and December. A failure to meet the quota, agents allege, would result in some form of unspecified punishment. Reminiscent of arguments over affirmative action, the appointed government spokesperson hinted that the incident may be just one big misunderstanding: It's about "numerical goals," not quotas.
    The second enforcement quota, dubbed Operation Endgame and developed in stealth by the Bush Administration, was initially intended to target foreign fugitives from our criminal justice system who presented clear and present dangers to national security or public safety. As the Migration Policy Institute recently reported, however, somewhere along the way that quota-driven strategy lost its raison d'être. Endgame's denouement proved a mission too creepy. The agents began targeting run-of-the-mill immigration status violators instead.
    With both of these benighted quotas, the drive to "make the numbers" seems to have blinded the quota cops from a clear sight of their statutory mission. The quest apparently became a daily numbers game. It should never be just about the numbers, although they do look impressive in an ICE press release, or in an appearance before Congress or Lou Dobbs. If foreign-born criminals or terrorists can't be found, then pinching a visa overstayer instead will apparently just have to do.
    I sense that the jig may soon be up, however, given this recent directive from Janet Napolitano, the new Secretary of Homeland Security:


    Fugitive Operation Teams. Please provide the current metrics of fugitive apprehension and removal (clearly differentiate the number of fugitives that are actually removed versus those aliens unlawfully present who are simply encountered by the teams while on assignment). How can fugitives be more effectively prioritized for these purposes and what steps can be taken to expedite removal? [Bolding in original.]

    In just over two weeks, on Feb. 20, "relevant components and offices of the department" must respond to her politely phrased request (she did say "[p]lease"). Stay tuned for the answer, even if it only distracts us temporarily from the painful season of Preparation H.
  4. Federal Contractors Get a Break from Immigration Stess: E-Verify Postponed

    by , 01-30-2009 at 04:59 AM (Angelo Paparelli on Dysfunctional Government)
    Federal contractors, Congress and the Obama administration have yet another respite, this time until May 21, 2009, to decide what to do about E-Verify.  In a notice to be published today in the Federal Register, contractors and subs who enter into covered agreements with the federal government need not enroll for now in E-Verify. 
    Meantime, Congress needs to decide the fate of this controversial Web 2.0 method, jointly developed by the Social Security Administration and the Homeland Security Department, for employers to determine the right of new hires and some current employees of federal contractors to work in the United States.  Although embraced by many in federal and state government, E-Verify is technically on life support; its enabling legislation sunsets in the first week in March.  Yet House proponents of the program have slipped into that chamber's version of the economic stimulus bill racing to the President's desk a requirement that every private employer receiving stimulus money enroll in E-Verify.
    E-Verify still sports an unacceptably high rejection rate of roughly four percent, disqualifying a sizable component of the workforce from the jobs for which they may be authorized.  It also requires a substantial investment of employer staff time and lost opportunity costs to manage the strict deadlines to resolve the feared TNCs (in bureaucratese, "tentative non-confirmations").  The TNCs are issued by federal cyber-cops to allow authorized workers to fight the government's claim that they lack the right to work.
    How does diversion of employer staff and mistaken, autopilot rejection of workers promote economic rejuvenation?  The country is already moving quickly toward government control of the economy, with nationalization of banks and auto companies a real possibility.  Can we afford to let the same government department that suffers the deaths of immigrants in detention stifle the national economy with a not-ready-for-prime-time program of authorized-worker rejection?
  5. Fast and Slow Immigration Change

    by , 01-23-2009 at 04:10 AM (Angelo Paparelli on Dysfunctional Government)
    The first days of the Obama administration have already witnessed a new form of alternative energy.  Long pent-up momentum has been released in the forward movement of rallying cries for comprehensive immigration reform. With no time to wait or patience, the President's campaign supporters urge quick action.  Others urge action on backlog reduction at USCIS and the Labor Department.
    In the yin and yang of immigration, however, immigration advocates are heartened by the negative energy of just-in-time scrutiny of the Bush administration's twilight adoption of immigration regulations. The new President's Chief of Staff has issued a memo that urges the Executive Branch department heads to review for 60 days all new and proposed regulations.  The memo makes exceptions for national security and the public welfare.  But it also raises fresh hopes that ill-advised initiatives like the federal contractor E-Verify mandate might be reconsidered or put on ice until the error-prone system is improved.
    Like a gyroscope spinning in perfect balance, the Obama administration must channel the positive energy of reform.  It must also rethink the failed Bush late-term policy of enforcement-only.
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