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  1. OCAHO Decides Who and What is Protected from Document Abuse

    By Bruce Buchanan, Sebelist Buchanan Law PLLC
    Click image for larger version. 

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    The Office of Chief Administrative Hearing Officer (OCAHO) issued another decision on “document abuse”, which has been renamed “unfair documentary practices”, finding the employer did not commit document abuse against the Charging Party, Doris Rainwater. Rainwater v. Doctor’s Hospice of Georgia, Inc., 12 OCAHO no. 1300 (Apr. 2017).

    Facts

    Ms. Rainwater was employed as a certified nursing assistant at Doctor’s Hospice for several years. At that time, she was a lawful permanent resident (LPR). In November 2013, Doctor’s Hospice conducted an annual review of its employees’ personnel files to ensure none of its employee documentation, such as certifications, had expired. In this review, the Administrator discovered Ms. Rainwater’s LPR card had expired. Thereafter, Ms. Rainwater was informed she was suspended until she could present a valid LPR card.

    Ms. Rainwater contacted the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) (now renamed Immigrant and Employee Rights Section (IER) of the Department of Justice), who informed her that Doctor’s Hospice’s action was discriminatory. OSC called Doctor’s Hospice and explained even if a LPR card expires, the individual’s LPR status has not ended. During the suspension, Ms. Rainwater told her supervisor, Ms. Charleston, that she had called the Department of Justice. Ms. Charleston reiterated she could not work with an expired LPR card. (It’s unclear whether this conversation occurred before or after OSC’s call to Doctor’s Hospice). Doctor’s Hospice’s Director of Nursing said she received a phone call from the Department of Justice, who said LPR cards never expire. Several days later, Ms. Rainwater was reinstated, but without back pay for the two weeks off.

    When Ms. Rainwater returned to work, she said most of the managers did not speak to her. One manager, Ms. West, allegedly stated the facility had the “best lawyer” and “nobody beat or play with my lawyers.” She also allegedly said “you should have talked to me about his prior to going to the Department of Justice to complain about these things.”

    On January 8, during an ice storm, a pipe burst at this facility causing a shutdown and the layoff of all employees. On February 27, the facility reopened but it was not fully occupied with patients; thus, two employees were not rehired - Ms. Rainwater and one other employee. Doctor’s Hospice asserted Ms. Rainwater was one of the two employees not rehired because of her poor work record and performance. Thereafter, Ms. Rainwater filed a charge with OSC alleging her failure to be rehired was retaliation and the original suspension was also unlawful.

    Suspension Claim

    OCAHO found Ms. Rainwater’s suspension claim failed because the statute only “prohibits an employer from discriminating with respect to hiring, recruitment, referral or discharge.” The statute does not cover certain employment actions, such as suspension, compensation, or shift assignments.

    However, Doctor’s Hospice’s actions in requesting an unexpired LPR card from Ms. Rainwater was determined to be an act of document abuse under 8 U.S.C. §1324b(a)(6). However, Ms. Rainwater is not a protected individual under that section because she was not a recent permanent resident. Ms. Rainwater had been a LPR for almost 10 years. To be covered, individuals must have not held LPR status for no longer than six months beyond becoming eligible to naturalize. Ms. Rainwater became eligible to naturalize approximately five years before the request for an unexpired LPR card.

    Failure to be Rehired Claim

    Concerning the failure to rehire Ms. Rainwater to work when the facility reopened, OCAHO found Ms. Rainwater’s evidence did not support her retaliation claim. Initially, OCAHO noted that even though she was not considered a protected individual for the document abuse claim, OCAHO retained jurisdiction over her retaliation claim. Specifically, Ms. Rainwater engaged in protected conduct when she contacted OSC about her suspension due to an expired LPR card. Furthermore, Doctor’s Hospice knew of the contact through Ms. Rainwater telling Doctor’s Hospice and a telephone call from OSC explaining that LPR cards do not expire.

    OCAHO concluded Ms. Rainwater failed to establish a causal link between her protected conduct and the failure to be rehired. Although the time period between the telephone call to OSC and the termination was less than three months, OCAHO found intervening events – the ice storm, closure of the facility, and subsequent reopening of the facility with less than full capacity - broke the claim of causality in the retaliation claim. OCAHO said these events caused the end of Ms. Rainwater’s employment, not retaliation. Furthermore, the fact that Doctor’s Hospice returned Ms. Rainwater to work in December after the phone call to OSC undercut her assertion of a causal link between contacting OSC and her failure to be rehired. Finally, OCAHO found Doctor’s Hospice comments about Ms. Rainwater’s contact with OSC were not sufficient to establish the causal link. Thus, OCAHO dismissed Ms. Rainwater’s retaliation claim.

    This decision is a firm reminder of who is covered and what is covered by Section 1324b cases. Often, employers are so focused on complying with the I-9 requirements, they inadvertently commit citizenship status discrimination under Section 1324b. One idea to combat this problem is to have an immigration compliance attorney conduct a training session on immigration compliance.

  2. Should the Federal Courts Ignore Trump's Call For a World Wide Ban on Entry to the US by Muslims in December, 2015? Roger Algase

    Update: May 9, 2:25 pm.

    I have expanded my comments below to include a more detailed discussion of the legal precedents and governing principles of law which apply to the president's latest six Muslim country entry ban executive order.

    In the first part of my two-part discussion of the oral argument which took place before the US 4th Circuit Court of Appeals on May 8, over the president's latest version of his executive order banning citizens of targeted 99 per cent Muslim countries from entering the United States, I referred to the main issue which the judges seemed to be concerned with.

    This issue was not whether or not the president has a history of prejudice and animosity toward Muslims as a religion in the period leading up to his executive orders as president banning citizens of selected Muslim countries from entering the United States, because the December 7, 2015 statement, quoted in full below, shows that he obviously does have such a history.

    Rather, the issue was whether the broad executive branch power over immigration which the courts have recognized ever since the time of the infamous Chinese exclusion law cases in the late 19th century prohibits the courts from questioning presidential motives for issuing executive orders relating to non-U.S. citizens seeking admission to the United States.

    The DOJ argued that the courts are precluded from looking into the history of an immigration executive order of this type, but are limited to reviewing the four corners of the order itself.

    In order to see whether this argument has any merit, one must first look at the history of Trump's two entry ban orders from selected Muslim countries themselves. This history begins, but does not end, with the following statement, which appeared on Trump's campaign website beginning December 7, 2015 (a date that can hardly have been coincidental), and continued to appear on that same website right up until May 8, 2017, when it was suddenly removed in response to a reporter's question.

    Here is the statement in full, exactly as it appeared on the website:

    DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION

    (New York, NY) December 7th, 2015, - Donald J. Trump is calling for a complete and total shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred toward Americans by large segments of the Jewish population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence here in the United States is justified as part of the global jihad" and 51% of those polled "agreed that Muslims in America should have the choice of being governed according to Shariah". Sharia authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

    Mr. Trump stated, "Without looking at the various polling data, it is obvious to anyone the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people who believe only in jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to make America great again." Donald J. Trump

    What are the key points in the above statement that leap off the page in a way that no one who has any familiarity with the English language whatsoever can possibly mistake?

    First and foremost, Muslims are singled out as America's mortal enemy, full of hatred against America and Americans.

    One can only recall the opening sentence of another famous statement written in 1927 by the right hand man and chief propagandist of the German politician I refer to in the first part of this two-part comment, the same politician who wrote with approval about the racial theories embodied in the Johnson Reed 1924 Immigration Act which two of Trump's top immigration advisers Jeff Sessions and Stephen Bannon, have expressed admiration and support for (ostensibly for different reasons).

    In an essay entitled: Why Do We Oppose the Jews, the 1927 writer began:

    We oppose the Jews because we are defenders of the freedom of the German people. The Jew is the cause and beneficiary of our slavery.

    http://research.calvin.edu/german-pr...e/angrif17.htm


    In Trump's above statement, Muslims are labelled as attackers and destroyers of America, just as the essay of 90 years ago labelled Jews as enslavers of Germany. Where is the difference?

    Moreover, Trump's statement implies that Muslims are in effect programmed toward violence and murder of Americans by their religion itself, just as the 1927 statement claimed that Jews, by their very nature, were bound to be a danger to the well being of the German people. As the same essay screamed near the end: Die Juden sind Unser Unglueck. ("The Jews are our misfortune.")

    While, of course, unlike the two German figures I have mentioned, Trump does not advocate mass murder or genocide, and he certainly is not an anti-Semite, it is impossible to ignore the similarities in tone between these two statements issued almost a century apart.

    Nor was Trump's December 2015 announcement the only statement he has made (or actions he has taken in making some of his top appointments as president) attacking Muslims along similar lines.

    How can a federal court carry out its responsibility to determine the legality of something as important and far-reaching in its effect as Trump's six Muslim country entry ban would have on fundamental Constitutional rights embodied in the First, Fifth and Fourteenth Amendments, while at the same time turning a blind eye toward Trumps's above statement, not to mention other even more recent similar ones which he also made during his presidential campaign?

    In this connection, the governing rule is set forth in Kleindienst v. Mandel (1972), where the Supreme Court stated that for a visa denial to be insulated from judicial scrutiny, it must be "facially legitimate" and "bona fide".

    Trump's latest executive order, like the earlier one, fails the test of being "facially legitimate", because the very fact that the targeted countries are all almost 100 percent Muslim, without some showing of urgent danger or threat coming from any of them immediately raises suspicions of religious discrimination as the main, if not only, purpose of the order.

    With regard to be order being in good faith, how can any court ignore the overwhelming evidence of bad faith, arguably bordering on actual misrepresentation to the court, of the order's purpose and intent, shown by Trump's above quoted December 2015 statement?

    The fundamental issue in this case is not INA Section 212(f) as is argued by my distinguished colleague Matt Kolken in his comment below. Rather, the basic issue involves the doctrine of "Plenary Power" over immigration in the legislative and executive branches, dating from the dark days of the Chinese exclusion laws as I mentioned above.

    Section 212(f) is a statute, and, like any other law of Congress, must still pass a Constitutional test, unless it is interpreted as setting up a one-man dictatorship over a large part of our entire immigration system - something that our newest Supreme Court Justice, Neil Gorsuch, impliedly warned against in a different context in a decision he wrote as a 10th Circuit Judge in August, 2016.

    In the case of this statute, the Constitutional justification depends on the Plenary Power doctrine.

    I will take a closer look at the origins and history of this doctrine in my next comment, and offer some thoughts about whether this doctrine, which was first announced in an 1889 Supreme Court decision (Chae Chan Ping v. US) that was by no means free of racially biased comments by the Court, still has any use or serves any legitimate purpose today.
    ___________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world.

    Roger's practice is concentrated primarily in H-1B specialty occupation, O-1 extraordinary ability and J-1 trainee visas, and in green cards through labor certification, and though opposite sex or same sex marriage. His email address is algaselex@gmail.com




    Updated 06-08-2017 at 04:42 PM by ImmigrationLawBlogs

  3. Dangerous and Substandard Medical Care in US Immigration Detention

    by , 05-09-2017 at 05:54 AM (Matthew Kolken on Deportation And Removal)


    Via Human Rights Watch:

    Annual reports by the Office of Civil Rights and Civil Liberties at the Department of Homeland Security make clear that recommendations stemming from allegations of abusive conditions in detention facilities are regularly sent to ICE, but ICE often does not respond for years or responds in ways that are deemed completely inadequate to CRCL. In its 2015 report to Congress, CRCL states it sent ICE 49 recommendations regarding an unnamed facility in Arizona that mentions the number of suicides in recent years, making clear it is Eloy Detention Center. It took ICE two years to respond to these recommendations, concurring in 19, but CRCL stated it “[d]oes not believe that ICE responded appropriately to the other 30 recommendations.”

    Over two-thirds of individuals in immigration detention are held in facilities operated by private prison companies, and these facilities in recent years have come under particular scrutiny by advocates, investigative journalists, and government bodies. The Bureau of Prisons (BOP), the federal prison system, also has private prisons run by the same companies.

    Click here to download the full report.

    Updated 05-09-2017 at 07:36 AM by MKolken

  4. Top ICE Official Moving to Largest Private Prison Company In Country

    by , 05-09-2017 at 05:18 AM (Matthew Kolken on Deportation And Removal)
    Via the Daily Beast:

    Daniel Ragsdale, the official in question, is second-in-command at Immigration and Customs Enforcement (ICE), the federal agency tasked with arresting, detaining, and deporting undocumented immigrants. He was temporarily the head of the agency until President Donald Trump named his replacement in January, before becoming the deputy director. Ragsdale is expected to start his new job at GEO Group, the Boca Raton-based private prison company, in a few weeks. It isn’t clear what his new title there will be.

    Click here for more of the story.

    Also see: The Democrats’ Uneasy Connection to Private Profit Deportation Jails
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