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By Bruce Buchanan, Sebelist Buchanan Law
The Department of Justice (DOJ) has issued a Notice of Proposed Rulemaking for the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Comments are being accepted for 30 days.
The most significant proposed revision is to incorporate into a regulation the OSC’s definition of the intent requirement to discriminate as set forth in U.S. v. Life Generations Healthcare LLC, 11 OCAHO no. 1227 (2014), where OCAHO stated the discriminatory intent inquiry under 8 U.S.C § 1324b (a)(b) involves “ask[ing] the question whether the outcome would have been different if the groups [U.S. citizens versus non-U.S. citizens] had been reversed.” Thus, just the request for more or different documents because of an individual’s citizenship status or national origin constitutes intentional discrimination even if the employee was completely unaware of the prohibition against discrimination in the I-9 process.
An interesting revision is a change in the name of the agency to Immigrant and Employee Rights Section. It would remain in the Civil Rights Division of DOJ. This change is understandable given the current lengthy name for the agency.
Another potentially significant revision is replacement of the term “documentation abuses” with the term “unfair documentary practices”. Previously, to prove document abuse, one had to prove intent. But “unfair documentary practices” suggests no intent is needed to prove something is unfair.
Other revisions include:
Definition of the term “citizenship status” to include refugees and asylees, which is consistent with OSC’s current practice;Clarification of the term “discrimination” to be consistent with 8 U.S.C. 1324b - the act of intentionally treating an individual differently, regardless of the explanation for the discrimination and regardless of whether it is because of animus or hostility;Definition of the statutory phrase – “more or different documents than required under such section to be consisted of OCAHO case law;Definition of the term “charge” to make it broader as to what is acceptable;Define the term “hire”;Define how the Special Counsel’s office counts full-time and part-time employees to determine jurisdiction of national origin discrimination allegations; andClarification that Special Counsel is not bound by the 90-day statutory time limit on filing a complaint that is applicable to individuals filing actions.
Overall, a few of these proposed changes are significant while others amount to housekeeping. Since the period for comment is open, if you feel strongly about one or more of the revisions, I invite you to submit your comments.
By: Bruce Buchanan, Sebelist Buchanan Law
The U.S. Department of Justice published a rule on June 30 that will increase penalties for unlawfully employing immigrants, and unfair employment practices tied to immigration, and “so-called paperwork violations” for I-9 forms, effective August 1, 2016.
The DOJ regulation will “increase “paperwork violations” related to I-9 forms from a maximum of $1,100 to $2,156. The minimum penalty per violation increases from $110 to $216.
Under the rule, the minimum penalty for the unlawful employment of immigrants will jump from $375 to $539, while the maximum will go from $3,200 to $4,313. And that’s just for a first order. Employees who receive three or more orders will be facing a new maximum penalty of $21,563 for unlawfully employing immigrants.
And as for unfair immigration-related employment practices, a first order could cost a new top penalty of $3,563 per person discriminated against, up from $3,200. The minimum penalty increases from $375 to $445.
The new regulation applies to violations that took place after November 2, 2015. I would anticipate the substantial increase in the fines will lead to significantly more OCAHO litigation since historically OCAHO reduces the penalties by between 30 and 45%.
By Bruce Buchanan, Siskind Susser P.C.
The 8th Circuit Court of Appeals in Etenyi v. Lynch upheld the Board of Immigration Appeals’ (“BIA”) decision, wherein it found an individual’s status could not be adjusted because he had falsely claimed that he was a United States citizen on an I-9 form.
Etenyi, a citizen of Kenya, applied for Adjustment of Status. The USCIS denied the adjustment because Etenyi filled out an I-9 form for an employer claiming to be a United States citizen. After being placed into removal proceedings, a hearing was held before an immigration judge (“IJ”). Etenyi testified that the I-9 form had been pre-populated with his personal information. Although he confirmed that his name, address, social security number, and date of birth were correct, he claimed that he did not notice the checked box asserting, under penalty of perjury, that he was a “citizen of the United States.”
The IJ and the BIA held that Etenyi was removable because he had signed the I-9 form and thereby adopted its contents. The evidence at issue, as noted by the IJ, included the I-9 form with the false claim of citizenship, Etenyi’s testimony that he reviewed other information on the form before signing it, Etenyi’s signature, and the fact that Etenyi had a college-level education from an American university.
The Court did not agree with Etenyi’s arguments. First, he argues that an I-9 form cannot serve as the basis for a false claim of citizenship in a removal proceeding. The BIA and the Court have consistently held that the language of 8 U.S.C. § 1324a(b)(5) does not preclude the use of an I-9 form in removal proceedings. Second, Etenyi relies upon Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008), to argue that DHS must present more than the I-9 form to satisfy its burden of proof. However, the Court found the I-9 form discussed in Kirong reflected the format of a prior version of the I-9 form, where an employee could check the box - “I am a citizen or national of the United States.” “This disjunctive phrasing rendered the alien’s statement ambiguous as to whether his ‘attestation involved a claim of citizenship or nationality.’” The box on Etenyi’s I-9 form states only that the applicant is “citizen of the United States.” Because this phrasing is unambiguous, an employee who attests to the validity of the checked “citizen of the United States” box by signing this I-9 form has made an objectively false representation of citizenship.
This decision demonstrates the enormous consequences that falsely claiming U.S. citizenship can have on an immigration case. One can no longer rely upon the ambiguity of marking “U.S. Citizen or U.S. National” if the I-9 form was completed in the last six years. That’s when the USCIS separated the two statuses into separate boxes.