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Chinese Immig. Daily
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By: Bruce Buchanan, Sebelist Buchanan Law
The Executive Office for Immigration Review (EOIR) announced the appointment of James McHenry as an administrative law judge (ALJ) in EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO), effective November 14, 2016. The arrival of ALJ McHenry will provide OCAHO with a permanent ALJ to replace one ALJ, Ellen Thomas, who retired, and another ALJ, who transferred out of OCAHO.
OCAHO adjudicates cases of hiring of undocumented workers, I-9 verification violations, complaints of discrimination based on an individual’s citizenship status or national origin or overdocumentation in the employment eligibility verification process, and allegations of immigration*-related document fraud.
ALJ McHenry earned a Bachelor of Science degree in 1997 from the Georgetown University School of Foreign Service and a Juris Doctor degree in 2003 from Vanderbilt University. Prior to his appointment to OCAHO, Mr. McHenry was an ALJ for the Social Security Administration. Before that, Mr. McHenry served in a variety of capacities with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE) and the U.S. Attorney’s Office.
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.
By Bruce Buchanan, Siskind Susser
Contrary to the assertions of Immigration and Customs Enforcement (ICE), Office of Chief Administrative Hearing Officer (OCAHO) found two companies owned by the same shareholders and with the same officers, could not both be found liable for I-9 form violations. See U.S. v. PM Packaging, Inc and PM Corporate Group, Inc. d/b/a PM Packaging, 11 OCAHO no. 1253 (2015).
ICE served a Notice of Inspection (NOI) on PM Packaging at its one facility in Compton, California. Within a month, PM Packaging closed the facility but ICE continued the case with issuance of a Notice of Suspect Documents and Notice of Intent to Fine. After the parties could not resolve the matter, ICE issued a Complaint against PM Packaging and PM Corporate.
PM Corporate asserted it was a separate entity than PM Packaging because no assets or employees were ever transferred between companies, and they had different premises and purposes. The only connection between the two entities is the same shareholders and officers. OCAHO found common ownership alone was insufficient to pierce the corporate veil. Thus, PM Corporate was not liable for any of PM Packaging’s I-9 form violations.
As for the alleged violations, PM Packaging argued it was not liable for 28 violations, the failure to properly complete Section 2 of the I-9 forms, because they were technical errors. OCAHO found to the contrary, and stated they were substantive errors – failure to print the name of the employer representative who signed Section 2 (and the signatures were illegible) and failure to record the issuing authorities or expiration dates on many of the I-9 forms without retaining legible copies of the documents in question. Thus, penalties must be assessed for these substantive errors.
PM Packaging was successful in reducing the amount of the penalties. ICE sought $53,762.50 in penalties. PM Packaging asserted these penalties were excessive and OCAHO agreed. It found the penalties should be assessed at $500 or $600 each, rather than $1,075.25 each. OCAHO’s reasoning was this level of penalties could not have a deterrent effect because the business had ceased to exist. Furthermore, maximum penalties were reserved for the most egregious violations, of which more than half of the violations in question did not meet the criteria.
By Bruce Buchanan, Siskind Susser P. C.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached an agreement with Abercrombie & Fitch Inc. (Abercrombie), a clothing retailer headquartered in Columbus, Ohio. The agreement resolves a complaint filed with OSC, claiming that the company discriminated against a non-U.S. citizen in violation of the Immigration and Nationality Act (INA).
The investigation found that Abercrombie required a non-U.S. citizen, but not similarly-situated U.S. citizens, to produce her permanent resident card (green card) for the purpose of verifying her employment eligibility. The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship status or national origin when verifying an employee’s employment eligibility.
Under the settlement agreement, Abercrombie will pay $3,661 in back pay to the complainant and a civil penalty of $1100 to the United States; establish a back pay fund of $153,932 to compensate other individuals who may have been harmed; undergo training on the anti-discrimination provision of the INA; revise their employment policies and training materials; and be subject to monitoring of its employment eligibility verification practices for two years.
This settlement agreement is one more legal problem for Abercrombie. Earlier this year, the U.S. Supreme Court decision found against Abercrombie concerning whether it needed to provide a religious accommodation. In that case, a job applicant wore a hijab to a job interview, but did not mention her religion or request an exception to Abercrombie’s dress code. The Court found that a job applicant need only demonstrate that a prospective employer’s desire to avoid providing a religious accommodation was a motivating factor in its decision not to hire, not that the employer actually knew of the need for an accommodation. In an immigration case several years ago, Abercrombie settled a case with Immigration and Customs Enforcement (ICE) for $1 million due to essentially paperwork violations in their electronic I-9 system.
By Bruce Buchanan, Siskind Susser
At a recent FBA Conference in Chicago on Worksite Enforcement, there was a panel discussion on negotiating with Immigration and Customs Enforcement (ICE) during an inspection – hosted by attorneys Sharon Mehlman, Marcine Seid, and Eileen Momblanco. In this article, I will elaborate upon some of the talking points from that discussion and other negotiation strategies.
During an investigation by ICE, after receipt of a Notice of Inspection (NOI)/subpoena, there are several opportunities to negotiate with the agency.
Negotiating Point #1 - Subpoena
The first negotiable is the date by which the I-9 forms must be provided. The NOI states the I-9 forms and other subpoenaed documents must be provided to ICE within three business days of service of the NOI. Often times, however, a short extension of up to 10 days can be obtained if counsel contacts the ICE officer or auditor on the case and provides an appropriate reason for the extension (e.g. small HR staff; thousands of I-9 forms, counsel was just hired, etcetera). The decision to grant an extension is discretionary, and some ICE offices refuse to grant any extensions.
Negotiating Point #2 – Notice of Suspect Documents
If a company receives a Notice of Suspect Documents (NSD), after supplying the I-9 forms, it used to be common practice to negotiate what was a “reasonable” period to resolve the work status of those on the NSD. Now, all NSDs state the employer has 10 days to do so. In a liaison meeting with the American Immigration Lawyers’ Association (AILA), ICE stated that the 10 days is not a national policy although many regions treat it as such. However, in other regions this 10-day period is negotiable if the employer can show the impact that the loss of unauthorized employees will have on U.S. citizen employees and/or the community (e.g. the facility will be forced to shut down due to a lack of employees).
Negotiating Point #3 – Notice to Employees
On some occasions, ICE will negotiate a “roll-out schedule” for notification of employees listed on the NSD. After receipt of the NSD, the employer notifies those employees that ICE has determined their work authorization is invalid, and requests documentation from the employee to rebut ICE’s finding. With a roll-out schedule, the employer does not have to notify all employees on the NSD at the same time.
Negotiating Point #4 – Proposed Penalty Amount
The proposed penalty amount set forth in the Notice of Intent to Fine (NIF) is the most important point to negotiate. Before starting negotiations, counsel must inform ICE in writing that they wish to have a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). If counsel fails to do so, then the NIF will become final in 30 days.
Most ICE attorneys are amenable to negotiating a reduction in the proposed penalties. There are a number of arguments that counsel can make for a reduction, such as:
ICE listed technical error as a substantive error;ICE incorrectly applied the five mitigating/aggravating factors;ICE counted an employee twice in the NIF;for timeliness violations – beyond the five year statute of limitations;the company was not required to have I-9 form because the individual is an owner with substantial control or was hired on November 6, 1986 or beforehand;math errors by ICE; andfor poor financial condition of the company established by financial records (this is a powerful tool for reducing the amount of the penalty and lengthening the time to pay the penalties – sometimes up to five years).
Negotiating Point #5 – Press Release
The last negotiable item is the press release and whether ICE is going to publicize the settlement of the matter. However, in many parts of the United States, ICE never issues a press release for settlements.
It is important to engage immigration compliance counsel as soon as a company is served with an NOI. As shown above, legal counsel can help to lessen an employer’s burden, avoid common pitfalls and negotiate at numerous points during the ICE inspection process.