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  1. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

    Attachment 1213

    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.

    Updated 08-22-2017 at 11:11 AM by BBuchanan

  2. OCAHO Finds State Employer Had Sovereign Immunity

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    In Ugochi v. North Dakota Dept. of Human Service, 12 OCAHO no. 1304 (July 2017), the Office of Chief Administrative Hearing Officer (OCAHO) dismissed Chiaha Ugochi’s complaint that she was discriminated because of her citizenship status and national origin, the employer retaliated against her and committed document abuse.

    The case began with Ugochi filing a charge against her employer, North Dakota State Hospital, alleging it discriminated against her. Immigrant and Employer Rights Section of the Department of Justice dismissed her case due to insufficient evidence of discrimination or retaliation and referred the national origin claim to the EEOC, who has jurisdiction on national origin claims involving employers with more than 14 employees.

    Thereafter, Ugochi filed a complaint with OCAHO alleging she was fired because her employer asked for excessive documentation in the I-9 and E-Verify process. The employer responded that it was entitled to sovereign immunity under the 11th Amendment and had legitimate, non-discriminatory reasons for her termination - she failed a background check.

    In analyzing the employer’s defenses, OCAHO noted the employer in question is the North Dakota State Hospital, a state agency. Due to the employer being a state agency, one must review the 11th Amendment which states, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Furthermore, the U.S. Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” There are two exceptions to a state’s immunity from suit under the 11th Amendment. The first exception is where Congress has statutorily abrogated such immunity by “clear and unmistakable language.” The second exception exists when the state has expressly waived its immunity.

    OCAHO found sovereign immunity applied to the North Dakota State Hospital, a state agency; thus, it enjoyed immunity from these proceedings pursuant to the 11th Amendment. Neither exception to immunity is present in the instant matter. Accordingly, because Ugochi’s complaint is barred, the Motion to Dismiss was granted.

    On a personal note, last week the immigration bar lost a true advocate for immigrants, Yvette Sebelist, my law partner. May she rest in peace.
  3. Trump's DOJ Went Back to Supreme Court, But Failed, to Bar Muslim Grandparents, Bringing Back Memories of 1936 Nuremberg Laws. Roger Algase

    POLITICO reported in July that Trump's Department of Justice, in an apparent effort to make sure that not one single more Muslim immigrant is allowed to enter the US than absolutely required by the courts, appealed to the Supreme Court from a ruling by a Honolulu federal judge that Muslim grandparents should be considered "close relatives" and therefore exempt from Trump's six Muslim country ban executive order.

    Since grandparents are not in an age group generally associated with the danger of terrorist attacks, and, to the best of my knowledge, there have few if any reports of terror attacks by seniors in America, Europe, or anywhere else in the world, the "national security" pretext for barring Muslim grandparents from the US is so absurd that the whole dispute would verge on comedy - if there were not also a very dark historical precedent for obsession over grandparents in a legal enactment.

    I refer to the 1936 Nazi Nuremberg laws. These laws, which were the prelude to the ultimate goal of total exterminations of the Jewish people, had very precise definitions of who was Jewish, and therefore subject to discrimination and eventual elimination.

    http://www.britannica.com/topic/Nurnberg-Laws

    One of the best known features of that law was determining how many Jewish grandparents a person needed to have in ordered to be considered Jewish.

    This does not in any way imply that the Trump administration is anti-Semitic or supports genocide or extermination in any form. Of course it is not and does not. But using grandparents as means to advance an agenda of discrimination against any targeted minority group, whether German Jews nine decades ago or Muslim immigrants to America today, sets an unfortunate precedent and brings back memories of some of the world's darkest history.

    My respectful suggestion to the president, and to his attorney general, Jeff Sessions, who already raised eyebrows less than three years ago by praising the same US Coolidge-era "Nordics" only 1924 immigration law in Sessions' January, 2015 immigration "Handbook" for Congressional Republicans that Adolf Hitler praised some 90 years earlier in Mein Kampf, would be to let Muslim grandparents well enough alone, and to focus on real national security issues instead.

    The world has already been there about targeting grandparents of unpopular minorities. We do not need to go there again.

    The POLITICO report is at:

    http://www.politico.com/story/2017/0...vel-ban-240543

    Fortunately, on July 19, the Supreme Court rejected the DOJ's appeal and ruled that grandparents and other close relatives of US citizens are exempt from the Trump-Sessions Muslim entry ban.

    http://www.cnn.com/2017/07/19/politi...nts/index.html

    The above month-old story (as of this writing) might seem like ancient history to some readers, but it is still very much relevant as Trump heads to Phoenix later today, August 22.

    He will be leading a rally at which there is widespread fear by supporters of racial equality and justice in America that the president could inflame feelings of animosity and prejudice by his followers even further against another targeted immigrant minority, Latinos, by issuing a pardon to the notorious, anti-immigrant, former Sheriff of Maricopa County, Arizona, Joe Arpaio.

    http://www.politico.com/story/2017/0...-arpaio-241870

    See also:

    https://www.theguardian.com/us-news/...lly-doug-ducey

    Roger Algase
    Attorney at Law


    Updated 08-22-2017 at 05:22 PM by ImmigrationLawBlogs

  4. Congress unlikely to pay for border wall, but Trump has other options. By Nolan Rappaport



    © Getty

    President’s Trump appears willing to risk a government shutdown this fall in order to secure funds for his promised wall on the United States-Mexico border. His prospects are slim, considering Republicans lawmakers need the support of Democrats to pass a bill to fund the government.

    Trump has other options, however.

    If the president is unable to get funding for the wall, he will need another way to improve border security that Congress could agree to fund. An enforcement program to reduce the number of people making illegal crossings is a viable alternative.

    The program should include measures to prevent the removal of aliens who would benefit our national interests if they are allowed to remain. An enforcement-only approach would be counterproductive.

    Mexico certainly won’t pay for the wall. In a leaked phone conversationTrump had earlier this year with Mexican President Enrique Peña Nieto, Nieto said, “I have recognized the right of any government to protect its borders as it deems necessary and convenient. But my position has been and will continue to be very firm saying that Mexico cannot pay for that wall.”

    And Congress may not pay for it either.

    The House recently approved a spending bill that includes $1.6 billion towards building the wall, but it has stalled in the Senate. Senate Republicans apparently want to avoid the very same spending showdown with the Democrats that Trump is willing to cause.

    Read more at
    http://thehill.com/blogs/pundits-blo...rump-has-other

    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.







  5. Congress unlikely to pay for border wall, but Trump has other options. By Nolan Rappaport



    © Getty

    President’s Trump appears willing to risk a government shutdown this fall in order to secure funds for his promised wall on the United States-Mexico border. His prospects are slim, considering Republicans lawmakers need the support of Democrats to pass a bill to fund the government.
    Trump has other options, however.

    If the president is unable to get funding for the wall, he will need another way to improve border security that Congress could agree to fund. An enforcement program to reduce the number of people making illegal crossings is a viable alternative.

    The program should include measures to prevent the removal of aliens who would benefit our national interests if they are allowed to remain. An enforcement-only approach would be counterproductive.
    Mexico certainly won’t pay for the wall. In a leaked phone conversationTrump had earlier this year with Mexican President Enrique Peña Nieto, Nieto said, “I have recognized the right of any government to protect its borders as it deems necessary and convenient. But my position has been and will continue to be very firm saying that Mexico cannot pay for that wall.”
    And Congress may not pay for it either.
    The House recently approved a spending bill that includes $1.6 billion towards building the wall, but it has stalled in the Senate. Senate Republicans apparently want to avoid the very same spending showdown with the Democrats that Trump is willing to cause.

    Read more at
    http://thehill.com/blogs/pundits-blo...rump-has-other

    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.







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