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  1. ICE v. California – The Battle Continues

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    As any reader of this blog (or casual reader of immigration news) knows, the Trump administration has declared war against the State of California due to the State’s passage of various laws designed to protect undocumented immigrants as well as employers from unwanted federal intrusion into workplaces. Earlier this year, Thomas D. Homan, acting director of Immigration and Customs Enforcement (ICE), has criticized California for their efforts to protect undocumented immigrants and limit law enforcement’s ability to cooperate with immigration officials. Homan recently added “We’ve got to take these sanctuary cities on. We’ve got to take them to court, and we’ve got to start charging some of these politicians with crimes.”

    Upon this backdrop, in early March 2018, the Department of Justice (DOJ) sued California alleging three new state laws designed to protect certain undocumented immigrants from deportation by the federal government are unconstitutional. This article will focus on the employment-related statute - Immigrant Worker Protection Act. The DOJ is seeking preliminary and permanent injunctions that prohibit California from enforcing Immigrant Worker Protection Act against private employers.

    Under the Immigrant Worker Protection Act (AB 450), which became effective January 1, 2018, California has placed restrictions on how private employers in California must respond to ICE efforts to ensure immigration compliance, by requiring ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a Notice of Inspection or provided a judicial warrant. The law also requires employers to provide employees and their authorized representatives, within 72 hours, with copies of written ICE notices providing results of inspections.

    According to the DOJ lawsuit, “These provisions, individually and collectively, have the purpose and effect of interfering with the enforcement of the INA and IRCA’s prohibition on working without authorization. California has no lawful interest in protecting unauthorized workers from detection or in shielding employers who have violated federal immigration law from penalty. These provisions, as applied to private employers, violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement.”

    California officials, including California Attorney General Xavier Becerra, assert they have the constitutional right to govern their state as they see fit because “States and local jurisdictions have the right to determine which policies are best for their communities.”

    “There is real uncertainty about who will win it,” said Ilya Somin, law professor at George Mason University. That's in part because the legal landscape on federal vs. state rights related to immigration is not clear. Lower courts have split on whether it is legal for the federal government to require local law enforcement to hand over immigrants. The lawsuit is a risky endeavor for the Trump administration because if it loses, it will potentially empower other states that want to defy the president to pass similar laws.
    I will keep you updated on this litigation. For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, available at
  2. Letters of the Week: March 19 - March 23

  3. Goodlatte's immigration reform bill has room for compromise. By Nolan Rappaport

    © Greg Nash

    Congressman Bob Goodlatte’s (R-Va.) immigration bill, the Securing America’s Future Act (SAFA) may be the last chance this election year to pass a bill that would help the Dreamers. It needs more support, but he should be able to get it from the Democrats.

    First, however, he needs to overcome the negative impression some Democrats have of him and his bill, which is expressed in this commentthe ACLU made when SAFA was introduced:

    “This bill should be viewed for what it is — an obvious attempt by longtime anti-Dreamer lawmaker Rep. Bob Goodlatte and his allies to derail a legislative solution for Dreamers.

    “The policies in the new legislation are a collection of hardline provisions designed to sabotage, rather than advance, the possibility of a bipartisan breakthrough.”

    The best approach may be to revise SAFA to include a statutory DACAprogram with a legalization program that would not become available until the bill’s enforcement measures are implemented. Also, Goodlatte should remove enforcement measures that are not needed to prevent a recurrence of what happened the last time the Republicans agreed to a legalization program.

    The Immigration Reform and Control Act of 1986 (IRCA) legalized 2.7 million people, but 10 years later, there were 5 million new undocumented aliens. The enforcement measures that were supposed to prevent illegal immigration in the future were never implemented.

    from SAFA:


    Published originally on The Hill.

    About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

  4. Washington Post: Trump Admin. Plans to Destroy USCIS Impartial Decision-Making. Same as With FBI/Russia and CIA/Torture? Roger Algase

    On March 17, former CIA Director John O. Brennan tweeted the following about Donald Trump's latest alleged attempt to interfere with the functioning of the FBI, which is supposed to be an independent law enforcement agency, and force it to support his political agenda - in this case squelching the Robert Mueller investigation into the administration's alleged corruption, and/or collusion with Russia to sway the 2016 election.

    "When the full extent of your venality, moral turpitude and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history."

    It is not necessary to agree with this strong assessment in order to be concerned about Trump's reported attempts to influence or control government agencies which, in theory, are supposed to be independent of the White House and devoted to enforcing the laws as they are written and objectively interpreted - as shown in the administration's vindictive firing of an Andrew McCabe, an FBI official who was under attack by the president, only one or two days before McCabe would have qualified for retirement benefits for his 20-year government service. For more details, see:

    It is a shame that the same John Brennan, instead of also speaking out against the attempt by Trump, who openly supported the use of torture during his presidential campaign, to compromise the independence and integrity of the CIA by picking an alleged torturer, Gina Haspel, as that agency's new chief, instead tried to defend the indefensible in her case.

    See the March 16 article by Vincent Warren, executive director of the Center for Constitutional Rights in The Guardian:

    Gina Haspel should be arrested - not put in charge of the CIA

    But, while the above events clearly do not directly relate to immigration policy, the same pattern of forcing independent government agencies to become agents for Trump's political agenda, and to show "loyalty" to him personally, rather than to the laws and institutions of the United States, may also be affecting the integrity of the USCIS.

    The Washington Post reports that there is a similar battle looming behind the scenes which could, conceivably destroy the independent decision-making powers of the USCIS to determine who is qualified for approval for legal immigration benefits such as work permits and green cards. See, March 16:

    U.S. Immigration agency to more closely monitor caseworkers, documents show

    The Post reports that Trump's new USCIS director, L. Francis Cissna, who only just recently sent an unmistakable warning sign that USCIS might no longer feel obligated to protect the interests of today's mainly non-European immigrants - see my earlier post on this issue

    may now be trying to set up a special unit within that agency to oversee the work of immigration adjudicators who are considered to be too "lax", i.e. too immigrant-friendly, in their decision-making.

    For a direct link to the Post's story, see the following article in The Hill (which also reports a claimed denial of the Post's story by USCIS sources - what a surprise! who could have guessed that the agency would try to deny this story?)!

    If the rule of law gives way to Trump's anti-immigrant agenda to the point that no one can rely any longer on the objectivity or impartiality of USCIS adjudications of applications and petitions for immigration benefits (to the extent that this still exists - openly biased agency denials and RFE's have been around since the Clinton era, as many practitioners in this field can attest), then we might as well not have a legal immigration system at all.

    Roger Algase
    Attorney at Law

    Updated 03-19-2018 at 12:38 PM by ImmigrationLawBlogs

  5. Anti-Immigrant Autocrat and Trump Admirer Victor Orban is Destroying Democracy in Hungary. Will This be a Model for the US? Roger Algase

    The Guardian reports that in a fiery speech this week before thousands of cheering supporters, Hungary's right wing nationalist prime minister, Viktor Orban, who was also one of Donald Trump's earliest supporters among European politicians, and who has made Hungary the first country in the EU to build a border fence against immigrants, blasted African and Muslim immigrants as invaders who were leading to his country's destruction. Among other things, Orban said:

    "The countries that don't stop immigration will be lost."

    A spokesman for Orban also said last week that:

    "We are against the idea that migration is good or that it is a human right."

    These statements clearly correspond to many similar ones that Trump has made about non-European immigrants - calling them "criminals", "rapists" and "terrorists"; claiming that the Africa, Asia and Latin-America friendly diversity visa lottery sends the "worst people" to the US; and stating that that if America continues President Obama's (allegedly liberal) immigration policies, we "won't have a country".

    Not surprisingly, in view of their similar opposition to non-European immigrants and efforts to build border walls to keep them out, Trump and Orban have also expressed warm admiration and support for each other.

    Moreover, not only Stephen Bannon's Breitbart News, but other US right wing media also, have been effusive in their praise of Orban and his regime, even to the point of condemning efforts by Trump's own State Department (under its now ousted head, Rex Tillerson) to help preserve what small vestiges of a free press might still exist in that country.

    And this is the main point. Under Orban, who is not only opposed to non-white immigrants, but whose statements and actions are also causing anxiety among the native-born Jewish population, which well remembers the Nazi extermination of almost all of Hungary's Jews in WW2

    Hungary no longer has a free press, or any other of the workings of a democratic society.

    The New York Times reports, that, soon after taking power as prime minister:

    "...Mr Orban and his lieutenants began a legislative on the Hungarian Constitution, curbing civil society..."


    "First, (Orban) moved simultaneously to curb the Hungarian media and the judiciary. Next came the erosion of the country's checks and balances, which has helped Mr. Orban share the spoils of power with close friends and important businessmen."

    The Times continues:

    "And then, came the electoral process. The restructuring of Hungary's election system, including a redrawing of the electoral map, has helped him remain in power, even has his party has won fewer votes.

    'The election law does not correspond to democratic features,' said Imre Voros, a founding member of the Hungarian constitutional court, 'and Hungary is therefore not a democratic country.'"

    It will not come as any surprise that many readers will see a strong resemblance between the above developments in Hungary and similar ones in Donald Trump's America.

    True, there are some differences. Unlike Trump, Orban has not made "jokes" about becoming president for life, as Trump did in a recent statement (was it really a joke?) about wanting to emulate China's current leader.

    Orban, again unlike Trump, has not yet ordered a North Korean or Soviet-style military parade to be held in his honor. Nor has Orban, so have as is known, appointed a reported torturer as head of his country's main intelligence agency, as Trump has just done. See my March 14 post about Gina Haspel's alleged activities at a CIA "black site" torture prison in Thailand. See also the following NY Times report:

    But the resemblances between the two leaders are clear and unmistakable - enough to show that demonizing, scapegoating, excluding and deporting immigrants en masse because of their skin color and/or religion as a policy is on a collision course with democracy - both in Europe and the United States.

    Roger Algase
    Attorney at Law

    Updated 03-16-2018 at 10:29 AM by ImmigrationLawBlogs

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