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  1. OCAHO Says Employee Unprotected

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    In Thompson v. Sanchez Auto Services, LLC
    , 12 OCAHO no. 1302 (May 2017), OCAHO dismissed a complaint filed by a former employee of Sanchez Auto.

    In their decision, the Office of Chief Administrative Hearing Officer (OCAHO) highlighted a couple of key points to remember in the application of whether an employer’s actions violate 8 U.S.C §1324b – the anti-discrimination provisions of the Immigration and Nationality Act (INA). First, the complainant must be a protected individual – meaning a U.S. citizen; a permanent resident, who is not eligible for naturalization or less than six months has occurred since becoming eligible for naturalization; an asylee; or a refugee. In this case, Mr. Thompson became a permanent resident on September 25, 1994 and alleged discrimination between June 2012 and January 2013. Thus, Mr. Thompson was not a protected individual because he had been a permanent resident for about 18 years.

    The second point to be gleaned from this decision is that the statute only covers specific adverse employment actions - hiring, recruitment or firing of employees, retaliation and document abuse. Mr. Thompson alleged the employer failed to pay him proper wages. This is clearly not covered by §1324b.

    Thus, for the above reasons as well as others (which will not be discussed in this article), OCAHO dismissed Mr. Thompson’s complaint.
  2. I Don't Know, I Don't Know, I Don't Know

    If you are an asylum seeker waiting for your interview, repeat these words: I don't know. Again: I don't know. Say them out loud: I don't know. One more time: I don't know. These three words may mark the difference between an asylum grant and a denial, but too few asylum seekers ever utter them.
    "I appear wise because I do not think I know what I do not know" - Socrates. #BeLikeSocrates
    I have previously written about how it is important for lawyers to use these same words, and I might even go as far as saying that if you visit a lawyer and he or she never says "I don't know," you might be better off finding a different lawyer. When we do not know or acknowledge the limits of our own ignorance, we risk giving bad advice.

    Asylum seekers also need to practice their I-don't-knows. If you can learn to master these three little words, you might save yourself a whole lot of trouble. Why? Because too many applicants answer questions where (1) They do not understand the question, (2) They do not know the answer, or (3) They do not remember the answer. And if asylum applicants give an answer when, in fact, they do not know, it starts them on a path that could easily end in a denial.


    Here’s an example from a recent case I worked on. The asylum applicant’s father was prominent in his country’s government, but the applicant did not know much about his father’s position. The Asylum Officer asked for some details about the father’s job, and the applicant answered. But the applicant really did not know the answer. He just made a series of assumptions based on the limited information he did know. It turns out, the assumptions were wrong, and the applicant’s testimony ended up being inconsistent with the testimony of other family members. Fortunately, we had a good Asylum Officer whose questions brought my client's assumptions to light, and so I think the applicant’s credibility was not damaged. Nevertheless, had the applicant just said, “I don’t know” instead of assuming, he would have avoided a potential pitfall (and—more importantly from my point of view—he would have saved his attorney a few unwelcome heart palpitations).


    Having observed many such interactions, I always advise my clients to say that they do not know or do not remember, if that is the case. But most people don't fully grasp the importance of only answering when they know the answer. If you guess—about a date or an event—and you are wrong, you risk creating an inconsistency, meaning that your spoken testimony may end up being different from your written statement or evidence, or different from information that the U.S. government already has about you (from your visa application, for example). The Asylum Officer or Immigration Judge may view inconsistencies as an indicator that you are not telling the truth. The theory (flawed, in my opinion) is that people who tell the truth will present consistent testimony in their oral and written statements, and in all the interviews with the U.S. government. The bottom line is this: If your testimony is inconsistent, the adjudicator may view you as a liar and deny your case on this basis.


    I get that it is not always easy to say that you don’t know. Most applicants understand that it is important to answer the questions; after all, that is why they are at the interview or in court in the first place. And of course, not answering can create other issues (it is common to hear adjudicators ask, “Why can’t you remember?” to applicants trying to recall relatively obscure events from many years in the past). Plus, in the stressful environment of the Asylum Office or Immigration Court, many applicants feel they need to give an answer, even if they are not sure what the answer is.


    Indeed, there are times when saying “I don’t know” can be a real problem for a case. One of my clients was recently asked about his prior political activity. He had no evidence showing his political involvement, and so his testimony took on added importance. In that case, if he were asked about the philosophy of his party or the party’s leadership, the inability to answer might be viewed as evidence that he was not active in the party. Fortunately, in our case, the client knew the basic beliefs of the party and the names of its leaders. He was also able to describe in detail his political activities. His involvement in the party was years ago, but I suspect that if he had told the Judge that he did not remember or did not know, it would have negatively affected his case (maybe it’s a topic for another day, but the fact is, many political activists do not know much about their parties—they have joined because a parent or sibling was a member, or due to ethnic or regional loyalty; the party’s supposed philosophy, its activities, and its leaders are of little concern to them).


    It is preferable to know your case and answer the questions that are asked. So review your affidavit and evidence before your hearing. Practice answering questions with your lawyer or with a friend. Try to remember the dates (at least more or less) of events. Know the names of relevant people and places, and about your political party or religion, or whatever forms the basis of your asylum claim. Try to remember all this, but if you can't, don't be afraid to say "I don't know." As we have seen, not knowing can be a problem. But not knowing and guessing can be a disaster.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. Prosecutors Protect Immigrants From Deportation For Minor Crimes

    by , 06-01-2017 at 10:01 AM (Matthew Kolken on Deportation And Removal)

    Via NPR:

    Prosecutors have wide latitude when negotiating plea deals. It typically depends on the facts of each case. In several U.S. cities now, prosecutors are using their discretion to protect defendants who are immigrants. They want to ensure that immigrants, whether here illegally or seeking citizenship, don't get deported for minor crimes. NPR's Richard Gonzales reports.
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