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  1. Employer’s Argument for Electronic Signature Fails

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In U.S. v. Agri-Systems (ASI), 12 OCAHO no. 1301 (Apr. 2017), the Office of Chief Administrative Hearing Officer (OCAHO) found ASI’s argument, that typing in the company name in Section 2 of an I-9 form equaled an electronic signature, was “spirited but contrary to both law and evidence.” However, OCAHO agreed with ASI that a question of whether 23 Form I-9s were timely presented to Immigration and Customs Enforcement (ICE) is a factual dispute, which cannot be decided without a hearing where witnesses will testify concerning the delivery or non-delivery of those I-9 forms.

    This case started almost six years ago with the service of a Notice of Inspection (NOI) by ICE. Thereafter, ASI delivered 159 Form I-9s to ICE. Two years later, ICE served a Notice of Suspect Documents (NSD), Notice of Discrepancies, and Notice of Technical Errors on ASI. As a result, ASI terminated the 46 employees on the NSD and 22 of the 28 employees on the Notice of Discrepancies plus it provided new I-9 forms on the other six employees listed in the Notice of Discrepancies.

    Two and one-half years later, ICE issued a Notice of Intent to Fine (NIF) alleging in Count I – ASI failed to present 23 Form I-9s and failed to prepare five Form I-9s – and Count II – 82 instances of ASI’s failure to ensure Section I was properly completed or failed to properly complete Sections 2 or 3. As a result, ICE sought a penalty of $103,645 for the 110 alleged violations.

    Many of the Section 2 allegations concerned whether an “electronic” signature was utilized by ASI to sign the certification in Section 2. ASI asserted its “signature” was through the use of “word processing” that “efficiently demonstrates the attestation was read as it comes immediately below the attestation itself.” However, what ASI referred to as a signature was in actuality the typed company name and address on some of the I-9 forms.

    OCAHO found ASI’s action did not equal a signature on a paper I-9 form or an electronic I-9 form. ASI conceded it did not use electronic I-9 forms but argued the typing of its name equaled an electronic signature. OCAHO found this assertion was contrary to both law and evidence. As OCAHO stated: “The relevant statute requires a signature in the attestation in Section 2, and merely pre-printing or typing the company’s name is not the equivalent of a signature.” And without a signature, OCAHO stated “the mandated attestation is patently not complete.”

    ASI also argued it did not violate the law concerning many of the allegations because it timely presented 23 Form I-9s, which ICE denied receipt of. Each party presented affidavits, which were in conflict. ASI officials said they mailed the I-9 forms in dispute and the ICE agent denied receipt. Based on a clear dispute on the factual allegations, OCAHO stated it would set the matter for a hearing, where each party could present their witnesses. (This will be a very rare occasion for live testimony in an OCAHO case.)

    OCAHO determined ASI committed 87 of the 110 allegations. However, because 23 allegations were still in dispute, it declined to find the appropriate penalty until after a decision is rendered on the 23 allegations.
  2. "Police" State Comes Closer as Texas Enacts Law Sending Officers to Jail if They Refuse to Honor Federal Immigration Detainers. Roger Algase

    The following has been revised and corrected as of May 8, based on my reading of the actual Texas Law, as opposed to press reports about the law which contained some inaccuracies.

    Specifically, the law as signed does not make it a crime for state or local police officers to fail or refuse to ask about the citizenship or immigration status of anyone detained or arrested, but "only" makes it a crime (punishable by up to a year in jail!) to refuse to honor a federal immigration detainer.

    Even this section of the new Twxas law, SB 4, however, is patently unconstitutional on its face, because there is no federal law making it a crime to refuse to honor detainers. To the contrary, it is entirely voluntary for local officials to honor them or not. Obviously, the federal government has preempted the field of issuing federal detainers for immigrants charged with crimes.

    To argue to the contrary would be absurd.

    However, while there is no criminal penalty in the new law for refusing to ask for the immigration status of persons detained for arrested, police officers who refuse to engage in this form of racial profiling against Latino immigrants and US citizens and lose their jobs, and local governments or colleges which prohibit their own law enforcement personnel from doing so are subject to huge fines.

    The final version of the law also exempts places of worship from its anti-"Sanctuary" provision and prohibits police officers from asking about the citizenship or immigration status of crime victims or witnesses, as opposed to suspects.

    This would appear to assuage a major concern of Democratic members of the Texas legislature that the law would discourage the reporting of crimes in Hispanic or other immigrant communities.

    To be sure, as Nolan Rappaport points out in his comments below, even though the Texas law is clearly intended to, and certainly will cause even greater fear and anxiety in Hispanic and immigrant communities throughout that state, it does not mean that America has as yet become another Nazi Germany.

    It is only one more enactment that is moving us in that direction in the "New Era" (no, I am not saying "New Order", as the Nazis did), of Donald Trump.

    My revised original comment follows:

    In one of the most dramatic and chilling examples yet of how the movement to cut off and reverse Hispanic and other immigration from non-European parts of the world, which has been building for the past 20 years or more, (ever since a Republican-controlled Congress rammed through IIRIRA in 1996 without discussion or debate as part of a larger appropriations bill which President Clinton could not possibly have vetoed without risk of losing his bid for reelection a few weeks later, and which ultimately led to the election of Donald Trump despite losing the popular vote to another Clinton in 2016), is endangering the basic rights and freedoms of American citizens as well as immigrants, Texas governor Greg Abbott has now signed a measure that would send police officers to jail if they refuse to honor federal immigration detainers.

    The measure, S.B. 4, which is highly questionable on constitutional grounds because of its resemblance to Arizona's notorious 2010 S.B. 1070 law, key parts of which were struck down by the Supreme Court, would also impose heavy fines on local jurisdictions and universities which adopt "Sanctuary" policies prohibiting local law enforcement from inquiring into a person's citizenship or immigration status.

    Local law enforcement officers who follow such policies, or who refuse to share the above citizenship or immigration status information with the federal government could also lose their jobs, under the new law.

    Despite the almost laughable statement of the bill's sponsor, State Senator Charles Perry, that the measure would provide "uniform application of the law without prejudice", everyone in Texas, and America, knows that the new measure is directed against Hispanics and will inevitably lead to racial profiling of both immigrants and US citizens who "look" Mexican.

    Since the federal government does not (yet), have a statute imposing fines or penalties on federal law enforcement officers who refuse to ask about a person's immigration status or punishing "Sanctuary" jurisdictions, (other than Trump's executive order cutting off their federal funds which has now been blocked by a federal court) the Texas law is almost certain to be struck down by the federal courts on preemption grounds, just as Arizona's law was, unless the Supreme Court reverses itself and overrules its decision in the Arizona case.

    Until the Texas law is struck down (if and when), it will remain as a chilling warning that the current movement, which has evident support at the highest levels of the Trump administration, to reverse the policies of permitting immigration from all over the world that has been in effect since 1965 and to take America back to the Europeans-only immigration laws of the 1920's, presents a clear and present danger to the basic rights and freedoms of Americans who support immigration (or who may "look like" immigrants) not only to the rights of immigrants themselves.

    The Texas measure, even though it does contain protections for churches and other places of worship, and for crime victims and witnesses, as mentioned above, is still the latest step toward an American "police" state in more ways than one in the "Era" of Donald Trump.
    __________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards, without regard to ethnicity, religion or country of origin. Roger's email address is algaselex@gmail.com

    Updated 05-08-2017 at 10:03 AM by ImmigrationLawBlogs

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