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  1. Year in Review: 2016 OCAHO Decisions

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    No employer wants to receive the dreaded “Notice of Intent to Fine” (NIF) in connection with an audit of their I-9 forms. Dealing with an I-9 inspection alone is a costly affair, but the NIF can be downright crippling – particularly for small businesses. Fortunately, employers can appeal an adverse I-9 decision by requesting a hearing with the Office of Chief Administrative Hearing Officer (OCAHO), an administrative court that reviews employer sanctions cases under §274A of the Immigration and Nationality Act.

    Although OCAHO decisions adjudicating I-9 penalties have leveled off in the past few years, it is anticipated there will be many more decisions in future years as the number of Form I-9 inspections is on the rise in the Trump administration and, as shown below, employers continue to obtain significant decreases of I-9 penalties at OCAHO.

    In calendar year 2016, OCAHO issued 16 substantive decisions against employers in I-9 penalty cases. For a few employers, there were two or more decisions concerning substantive issues before the court reached a decision on the amount of the I-9 penalties. The number of cases is a slight increase from 2015, when there were 13 decisions but still much lower than the 30 decisions issued in 2013.
    For remainder of article go to LawLogix website where full article is published - https://www.lawlogix.com/the-year-in...sions-in-2016/.
  2. Does Trump's Alleged Obstruction of Justice in the Comey Firing Undermine His Muslim Ban Legal Defense? Roger Algase

    Does the bombshell testimony of James Comey on June 8 about the pressure that the president allegedly put on him prior to firing him in order to influence the FBI investigation of alleged illegal ties to Russia have anything to do with with the administration's attempt to defend the legality of the president's "Travel Ban" order (to use his own tweeted description of his order barring almost 200 million citizens of six almost 100 per cent Muslim countries from entering the United States)?

    For a summary of Comey's devastating testimony concerning possible obstruction of justice by Trump in trying to impede or influence the FBI investigation of his top aides, (discussed in more detail below) see:

    http://www.politico.com/story/2017/0...ictment-239310

    According to the distinguished young legal scholar Joshua Matz, a former Harvard Law Review editor, law clerk to Supreme Court Justice Anthony Kennedy, and author of an amicus brief that was filed with the 4th Circuit on behalf of a group of Constitutional law scholars, the Comey firing could have everything to do with the Muslim Ban (which is the most accurate term of all - how could banning 200 million Muslims for whatever reason be anything other than a "Muslim Ban"?) litigation.

    Why is this so? Matz explains in a May 9 article in The Guardian commenting on the president's "National Security" argument in favor of the ban as follows:

    "It's true, of course, that the president typically enjoys a judicial presumption of good faith and regularity. But surely there comes a point where reliance on this rule amounts to judicial abdication - and Trump's continuing bad faith and irregularity suggest we have crossed that Rubicon. Even if we haven't, the nature of presumptions is that they can be rebutted, and here the evidence of Trump's bad faith toward American Muslims is overwhelming."

    http://www.theguardian.com/commentis...slative-branch

    However, it is one thing to make a finding of presidential bad faith which is directly connected to the subject of litigation actually before the court.

    But could alleged presidential bad faith in an unrelated matter, in this case the firing of James Comey in order to stop or impede an FBI investigation into possible illegal ties with Russia by the president and/or his top officials, also be relevant to the question of whether the president acted in good faith in the Muslim ban case which is now before the Supreme Court?

    Matz, in another article written the day after the one quoted above, argues that it could be relevant.

    In a May 10 article entitled:

    Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban


    https://takecareblog.com/blog/our-on...e-comey-firing

    Matz writes:

    "Having fired the man in charge of significant national security and intelligence policies - and having done that while that man led a criminal investigation involving foreign influence at the highest levels of the U.S. government - Trump has unquestionably forfeited any claim to a presumption of regularity or good faith.

    I expect that the judges of the Fourth Circuit Court of Appeals, and their law clerks, are paying close attention to these events. Norms of judicial rhetoric likely wouldn't permit any mention of Comey in an opinion. But it's inconceivable to me that the Comey firing won't frame their reactions to Trump's insistence that presumptions of deference compel them to uphold his Muslim ban."


    At the time when Matz wrote the above, the Muslim Ban case was still under review by the 4th Circuit, and James Comey had not yet issued his devastating Congressional testimony about Trump's overt and blatant attempt to interfere with the FBI investigation even though he did not expressly order Comey to halt it.

    A reading of the relevant statute shows why it will not be an easy task for the president and his defenders to make the words "Obstruction of Justice" disappear from the discussion of his firing of James Comey, not as a political phrase, but as a legal one.

    18 U.S.C. Section 1503 provides in relevant part:

    (a) Whoever...by any threatening letter or communication, influences, obstructs or impedes, or endeavors to influence, obstruct or impede, the due administration of justice, shall be punished as provided in subsection (b).

    The above makes it obvious that the statute does not require that someone actually impedes an investigation, such as by ordering the head of the FBI to drop the matter, but only that that the person "endeavors to influence" it.

    No one who has the slightest familiarity with the plain words of the English language can argue with the obvious fact that if James Comey's June 8 testimony is to be believed, the president's alleged statements to him in Oval Office conversations were, at the very minimum, attempts to influence the FBI investigation.

    As Matz's above quoted statements make clear, the heart of the administration's arguments in defense of the Muslim ban is the presumption of regularity based on the theory that the president is carrying out the normal responsibilities of his office, not only with regard to a particular alleged "National Security" finding in an immigration-related matter, but also, in his oath of office, to follow and obey the laws of this country in general, including the criminal laws of the United States.

    If the Supreme Court is faced with evidence raising very serious doubts about whether the president is in fact carrying out the above responsibilities of his office in a matter as important as this one, even if it is not directly related to the immediate issue at hand, how can the Court be expected to give the president the benefit of any presumption of regularity or good faith that normally might come with the high office that he now occupies, no matter what the subject of the litigation in question might be?

    This is not to say that the Supreme Court should refuse to consider Trump's asserted "National Security" justification for the Muslim ban on the merits, for whatever they may be worth.

    But, in the light of the Comey firing and the very serious questions of obstruction of justice by the president which it presents, any claim that the president comes into the High Court with a halo of infallibility, also known as a presumption of regularity or good faith, concerning the Muslim ban or any other matter involving presidential discretion, merely by virtue of the office which he holds, and without any regard to whether he is in fact conducting himself according to the requirements of law which govern that office, has, very arguably, been completely demolished.
    _________________________________
    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 receive work visas and green cards without to ethnicity, religion or national origin, in the true spirit of American fairness and equality which is now under intense attack from the Trump administration.

    Roger's practice is concentrated primarily in H-1B specialty and O-1 extraordinary ability work visas; and in green cards though Labor Certification and through marriage or other immediate family relationship with U.S. citizens. His email address is algaselex@gmail.com

    Updated 06-09-2017 at 10:55 AM by ImmigrationLawBlogs

  3. DOL ANNOUNCES HEIGHTENED ENFORCEMENT

    by , 06-08-2017 at 04:40 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Maria Schneider

    Secretary Acosta has determined it is the policy of the DOL to vigorously and actively enforce laws governing visa programs. The DOL actions for enforcement include:

    -The DOL Wage and Hour Division will conduct more civil investigations and site visits.

    -The DOL Employment and Training Administration will develop and propose changes to the LCA (Labor Condition Application) as well as other forms to better identify violations and fraud. Among other things, the DOL will be looking at how to better monitor LCA filings for violations and prevent fraud with regard to the:


    • exemptions for H-1B dependent employers where the employee has a master’s degree or greater or makes $60,000/year or more;
    • the rate of pay listed on the LCA; and
    • the worksite location(s) listed on the LCA.


    -The DOL will actively coordinate with and refer cases to the Inspector General and Attorney General in cases of criminal fraud, which is outside the DOL’s jurisdiction.

    -There will be additional training of DOL Officers to detect civil and criminal fraud.

    - The DOL will continue to work with the US Department of Justice and US Department of Homeland Security to investigate, detect, and prevent fraud in all visa programs.

    The DOL Office of the Inspector General has posted some recent cases on its website.


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  4. "Us Versus Them" in Immigration Court

    There’s a quote attributed to legendary DC-lawyer Jake Stein that has helped define my practice as an attorney: “I’ve never litigated a case where I wasn't better friends with my opposing counsel at the end of the case than at the beginning.”
    Though it may be satisfying, beating up opposing counsel probably violates the Rules of Professional Conduct.
    His philosophy may be Old School and--in these days, where being nice to someone you disagree with has become all too rare--almost radical, but I’ve taken it to heart. I try to maintain a congenial and trusting relationship with the DHS attorneys who sit across from me in court. As a result, I believe my clients are better off—and so am I.


    The former President of the DC Bar, Tim Webster, touched on this issue last year in an article about the “Balkanization of Lawyers.” What he meant was that we lawyers tend to fall into opposing camps, Us versus Them, and never the twain shall meet. In Immigration World, that means attorneys who represent immigrants and asylum seekers, on the one hand, and government attorneys, on the other.


    Mr. Webster laments the division of our profession in this manner, and points out that it is often bad for our clients, who benefit when lawyers are able to “work cooperatively with opposing counsel towards a consensual resolution” of their cases. Perhaps Mr. Webster’s observation is more applicable to civil cases, where a negotiated monetary settlement is the norm, but I think it also applies in Immigration Court. When we have a cooperative relationship with DHS, we are often able to reach better resolutions for our clients. DHS attorneys are more likely to give us the benefit of the doubt, and more likely to stipulate to part (or sometimes all) of a case.


    Mr. Webster also argues that the idea of us-versus-them stands in opposition to our core values as attorneys. Under the Rules of Professional Conduct, we are required to be honest and fair--to the client, to other attorneys, and to the tribunal (and also to other people we encounter in the course of our work). When we view opposing counsel or Judges as “the enemy,” it becomes easier to justify behavior that risks violating our obligations under the Rules, which can harm our clients (and land us in hot water).


    Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.


    Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.


    All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.


    With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.


    While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers--the immigration bar and DHS--should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country's leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. "First They Came For the Mexicans": Trump's Attacks on Immigrants Put Democracy in Danger. Roger Algase

    The United States Holocaust Museum contains a famous poem written by the anti-Nazi pastor Martin Niemoeller (1892-1984) which reads as follows:

    "First they came for the Socialists, and I did not speak out -
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out -
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out -
    Because I was not a Jew.

    Then they came for me - and there was no one left to speak for me."

    There is another famous poem, by Emma Lazarus - one which, more than any other, defines America as the land of Freedom and Equality for all - a poem which has made and still makes America incomparably greater than any presidential campaign slogan on a baseball cap could ever possibly do - enshrined at the base of the Statue of Liberty.

    Will that poem one day before too long be "repealed and replaced" by one which reads as follows?

    "First they expelled the Mexican immigrants - and I did not speak out - Because I was not a Mexican.

    Then they banned the Muslim immigrants - and I did not speak out -
    Because I was not a Muslim.

    Then they went after the high-skilled H-1B immigrants from Asia - and I did not speak out - Because I was not an Asian high-skilled immigrant.

    Then they took away our democracy - and there was no one left who was allowed to speak out.

    Admittedly, our immigration laws give the president and the executive branch which the president controls a great deal of quasi-authoritarian power over immigration policy and enforcement.

    Even though the courts do not normally relish discussing this at any great length in their judicial opinions, the origins of this power date from the time of legislation intended to keep a different unpopular minority of that period out of the United States.

    I refer to the infamous Chinese exclusion laws, as upheld in a series of Supreme Court decisions of which the most notorious, Chae Chan Ping (1889) will forever be as much of a stain on American history as the much better known 1857 Dred Scott decision.

    This doctrine, known as the Plenary Power of the "political branches" of the government - the Executive and Congress - over immigration, is still with us today, In addition to putting decisions about whether to admit foreign citizens to the US largely, if not entirely, beyond the power of the courts to interfere with - see Kleindienst v. Mandel (1972) and Kerry v. Din (2015) it underpins broad authoritarian statues such as INA Section 212(f) which, read literally, gives the president the absolute power of a dictator over the admission of immigrants.

    The same authoritarian thinking also led to another broad statute, INA Section 274, which, again read literally, gives the federal government the power to prosecute and throw into prison anyone who resists or otherwise interferes with a policy of mass expulsion of Latino, Asian and Middle Eastern immigrants, or whatever other "enforcement" measures the president, as head of the executive branch, may choose to institute.

    In the past, in keeping with the spirit of democracy, these extremely broad, authoritarian powers have been used sparingly, with self-imposed limitations, by previous presidents.

    But this is no longer the case under our current president and his (ironically now embattled) chief immigration enforcer, Attorney General Jeff Sessions. Under this administration, the full authoritarian powers of these laws, especially regarding Section 212(f) are being tested. Increasingly, the courts are being called on to decide whether, with regard to immigration, America will continued to be governed by democratic principles, or whether this critically important area of our law and society will be run as a one-man dictatorship by executive order.

    This question is at the heart of what is at stake in the IRAP Muslim ban (because that is exactly what it is - we now have the president's own tweeted statement to confirm this) which is now before the Supreme Court.

    But this leads to a larger and even more important question. If America accepts the principle of one-man dictatorship over immigration, is there any way that authoritarian government can be kept inside this particular bottle, or, like the genie in the world famous Arab epic story Alf Laila wa Laila ("Thousand and One Nights") will the authoritarianism that pervades every aspect of the current presidency (see James Comey's June 9 testimony before Congress relating to what to all appearances amounts to obstruction of justice by the president), not to mention the president's attacks on the courts, the press, Democratic members of Congress whom he has just barred from receiving information from federal agencies, individual critics, and anyone else who stands in his way on immigration or any other issue) escape from the bottle and engulf the rest of our government and society, resulting in America's no longer being counted among the democratic countries of this world?

    Roger Algase
    Attorney at Law

    Updated 06-08-2017 at 07:10 PM by ImmigrationLawBlogs

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