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  1. 5th Circuit Overrules OCAHO Decision Concerning $226,000 Penalty

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    The Fifth Circuit Court of Appeals in Employer Solutions Staffing Group II, LLC v. OCAHO (August 11, 2016) reversed an OCAHO decision concerning the issue of personal versus corporate attestation of employee’s documents in Section 2 of the I-9 form; thus, it vacated the $226,000 civil penalty.

    ESSG is a staffing company based in Edina, Minnesota. It contracted with Larsen Manufacturing Co. in El Paso, Texas to provide employees. Then ESSG subcontracted with Flexicorps, Inc. to make all the hiring decisions for temporary employees at the Larsen facility.

    In so doing, ESSG had Flexicorps supervise the completion of Section 1 of the I-9 forms by employees and examine original documents presented by the employees for Section 2. However, instead of Flexicorps completing the employer certification at that time, ESSG had Flexicorps make color copies of the documents and send the I-9 forms and color copies of the documents to ESSG’s corporate headquarters. At that point, an ESSG employee examined the photocopies and completed Section 2, including the signed attestation that the employer examined the documents and they appeared to be genuine.

    In 2011, Immigration and Customs Enforcement (ICE) served a Notice of Inspection on ESSG for the Larsen facility and thereafter determined ESSG’s procedure in signing the certification was contrary to the law. After a hearing before an Administrative Law Judge (ALJ) of OCAHO, OCAHO agreed with ICE, found 242 violations and assessed a penalty of over $226,000.

    The 5th Circuit analyzed the statute, the Immigration and Nationality Act (INA), the accompanying regulations, and any applicable case law. The INA states a “person or entity must attest… on a form” that it has verified the employee’s document(s). See § 1324a (b)(1)(A). Thus, ESSG argued corporate attestation is consistent with the INA.

    The regulations state “an employer, his or her agent, or anyone acting directly or indirectly in the interest thereof, must” complete Section 2 on the I-9 form and sign the attestation. § 274a.2(b)(1)(ii)(B). The Court said it did not read this regulation to require the same person who met the hired employee and examined the original documents to be the one to sign the attestation.

    The Court then reviewed whether ESSG had fair warning of OCAHO’s reading of the statute and regulations. It found it did not, especially given the fact there were no prior OCAHO decisions on the matter and the ALJ only cited “commonsense” for her ruling, not any statute, regulation or case law. Thus, given the language of the INA and its regulations, the Court found ESSG lacked fair notice of OCAHO’s position.

    The Court concluded a “reasonable interpretation” permits corporate attestation due to the language of the INA. Thus, the Court concluded ESSG did not violate the INA. However, before employers celebrate the victory, it must be noted the Court went on to state their holding “does not address whether ICE can lawfully prohibit corporate attestations”; only that ESSG was not given fair notice.

    Since this is a Court of Appeals decision, it does not change ICE’s and OCAHO’s position and they are free to clarify whether corporate attestation is prohibited.

    An interesting question is whether this decision may provide an avenue to resolve the remote hire issue where the employer does not view the original documents. Obviously, it will depend on ICE’s and OCAHO’s position on this issue going forward
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  2. Billion Dollar Deal to Jail Central American Mothers and Children

    by , 08-15-2016 at 06:19 AM (Matthew Kolken on Deportation And Removal)
    Via the Washington Post:

    "As Central Americans surged across the U.S. border two years ago, the Obama administration skipped the standard public bidding process and agreed to a deal that offered generous terms to Corrections Corporation of America, the nation’s largest prison company, to build a massive detention facility for women and children seeking asylum.

    The four-year, $1 billion contract — details of which have not been previously disclosed — has been a boon for CCA, which, in an unusual arrangement, gets the money regardless of how many people are detained at the facility. Critics say the government’s policy has been expensive but ineffective. Arrivals of Central American families at the border have continued unabated while court rulings have forced the administration to step back from its original approach to the border surge."

    Click here for the rest of the story.
  3. Trump Says Immigrants Hurt US Workers, But His Plan Only Helps Rich. Roger Algase

    No one seriously disputes that a major part of Trump's campaign appeal has been in his promises to better the lives of middle and lower income American working families who have been "left behind" by globalization and who believe that their jobs and livelihoods are threatened by immigration.

    Trump's speeches blaming immigrants, both legal and illegal, for American job losses and lower salaries are typical of his scapegoating tactics: Here is a typical quote, this one from his July 21 acceptance speech for the GOP nomination (pages 16 and 17 - official text from his campaign website)

    "Decades of record immigration have produced lower wages and higher unemployment for our citizens, especially for African-American and Latino workers.

    Some commentators have praised Trump for "backing up" his speech with some 242 different footnotes, but let us take a moment to look at the footnotes that he cites for the above quoted statement: (Footnotes 193 to 197):

    Footnote 193 is from a publication by a Senate Subcommittee chaired by Trump supporter Sen. Jeff Sessions (R-AL), arguably the most anti-immigrant ideologue in Congress and a strong Trump supporter. So much for any vestige of objectivity about that one.

    Footnotes 194 and 195 are from the notoriously biased anti-immigrant organization Center for Immigration Studies - forget about any objectivity there.

    Footnote 196 simply cites the "U.S. Census Bureau." It doesn't say what US Census Bureau report it refers to or what is in that report.

    Finally, Footnote 197 to Trump's speech refers to a Pew Research report. OK, now finally Trump has given us a footnote from an objective and respected source. But what is the title of the Pew Research report, according to Trump's own footnote? It is:

    "Latinos Increasingly Confident in Personal Finances, See Better Economic Times Ahead"

    How does that footnote support Trump's gloomy assessment of "higher unemployment and lower wages" among American citizen Latinos?

    Few if, any, observers have the slightest doubt that this kind of demagogic anti-immigrant economic populism has played a major role in Trump's winning the Republican nomination.

    And Trump hasn't been content with just blaming immigrants for allegedly taking away American jobs, he has also promised action, including the mass expulsion of 12 million mainly Latino and Asian immigrants, and the elimination of two of the most important, if not the two most important, legal immigration programs, including H-1B visas and labor certification green cards, as I have written about in detail, with appropriate references and citations, in previous comments on this site.

    In keeping with his economic populism, Trump has also pledged to rein in the power of wealthy groups such as investment bankers and hedge fund managers.

    But how much would Trump's economic proposals actually do to help ordinary American working people, as opposed to benefiting the same wealthy moguls whom he has criticized in his campaign speeches?

    First, look at the people whom Trump has picked as his economic advisors. They are mainly a group of billionaire investment bankers and hedge fund managers, as explained in a Reuters article called:

    Trump's economic advisory group clashes with populist image

    See:

    http://www.reuters.com/article/us-us...-idUSKCN10G2iO

    As the Reuters article points out, these are the same people whom Trump has been railing against, almost as much as he has been bashing immigrants, in his campaign rhetoric. What an insult to the ordinary working people of America whom Trump professes so much concern for every time he lets loose more invective against minority immigrants.

    And what about the substance of Trump's latest tax proposals? Who benefits most? You guessed it - the same wealthy special interests, not average American working people.

    See an article by Robert Frank on cnbc.com August 9:

    Tax loophole in Trump's plan would create windfall for the rich

    http://www.cnbc.com/2016/08/09/tax-l...-the-rich.html

    and also:

    POLITICO, August 9:

    Trump's backdoor tax cut for the rich

    http://www.politico.com/agenda/story...he-rich-000185

    When it comes to improving the conditions of the ordinary working people of America, including those in the "Rust Belt" states who may be struggling to keep up with changes brought on by the global economy, it seems that Trump is very generous in offering them speeches scapegoating minority immigrants.

    But in terms of real economic benefits, it seems that Trump's main interest is in providing tax cuts for his fellow billionaires and other wealthy friends, rather than doing anything concrete to raise wages or the standard of living for average middle class or working class Americans.
    ______________________________
    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 card. Roger's email address is algaselex@gmail.com

    Updated 08-15-2016 at 11:21 AM by ImmigrationLawBlogs

  4. Could Trump's Anti-Muslim Rhetoric Lead To More Hate Crimes? Roger Algase

    Reuters reports that a Muslim Imam , Maulama Akonjee, and a second man were fatally shot on August 13 while walking home from afternoon prayers in Ozone Park, Queens, NY. Both men were wearing religious garb at the time.

    The report does not have any information concerning the shooter's identity or motives, but witnesses say that they saw a lone gunman.

    It is not known whether there is any evidence of a hate crime, but Reuters says that residents are feeling increased fear and uncertainty in that largely Muslim neighborhood.

    See:

    http://www.reuters.com/article/us-ne...-idUSKCN10O0X4

    The New York Daily News identifies the second victim as Thara Uddin, and reports that the Imam was an immigrant from Bangladesh from Bangladesh who arrived in Queens two years ago and was a respected religious leader in his community.

    While it is must be emphasized that no motive is known for the crime and the news reports do not say anything about any suspect having been caught, there was no doubt in the mind of at least one resident about who was responsible, according to the Daily News:

    "'That's not what America is about,' said local resident Khairul Islam, 33. 'We blame Donald Trump for this...Trump and his drama have created Islamophobia.'"


    See:

    http://www.nydailynews.com/new-york/...901?cid?=bitly

    Meanwhile, in an unrelated development, Reuters also reports that another Muslim immigrant, Itemid Al-Matar, a 32-year old student from Saudi Arabia, has brought a federal civil rights lawsuit against six Chicago police officers for alleged abuse and harassment in connection with her arrest while she was entering a busy downtown Chicago train station on July 4, 2015.

    Her lawsuit claims that in the incident, police threw her to the ground and ripped off her hijab head scarf and niqab face veil.

    According to the Reuters report, the police thought that Al-Matar might have been a suicide bomber because she was allegedly clutching a backpack; but, according to a spokesman for Chicago's Council on American-Islamic Relations, which is representing her in the lawsuit, nothing dangerous was found in her backpack and she was doing nothing illegal.

    Her lawsuit alleges use of excessive force, false arrest, unlawful search, malicious prosecution and violation of her right to freedom of religious expression.

    See:

    http://www.reuters.com/article/us-ch...orefromreuters

    No one could rationally claim that Donald Trump bears responsibility for either of these two incidents, based on what is known so far. The Chicago arrest took place only about three weeks after Trump formally entered the presidential race last year, and at least five months before he unleashed his notorious Muslim immigrant ban proposal in December, 2015.

    In the case of the Queens NY shooting, neither the identity nor the motive of the shooter is known, and they most likely will never be. There could be other explanations than a hate crime, such as possible attempted robbery, as mentioned in the NY Daily News story.

    But whether Donald Trump was responsible for either of these two incidents, and there is no evidence whatsoever that he was, is not the issue.

    The issue is whether, in a climate where fear and prejudice against Muslim immigrants and US citizens is on the increase, Donald Trump's ongoing attempts to pour gasoline on the flames of hatred by demonizing all Muslims as potential terrorists could lead to more incidents of violence and harassment against the millions of Muslim immigrants and US citizens who are living in this country legally and peacefully.

    There is every reason for concern that Donald Trump's inflammatory anti-Muslim rhetoric, combined with a general atmosphere of support for violence and threats to hang or shoot political opponents such as Hillary Clinton at his rallies; and his vague but dangerous and irresponsible hints of violence by "Second Amendment people", could lead to more incidents of violence and hate crimes against Muslims in America, as well as against minority immigrants in general.
    _________________________________
    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. Roger's email address is algaselex@gmail.com

    Updated 08-14-2016 at 11:46 AM by ImmigrationLawBlogs

  5. Legal Scholars Blast Trump In NY Times. Trump Hopes Paper Will Close. Roger Algase

    Update, August 15, 1:33 am:

    On August 14, Trump tweeted his own interpretation of what freedom of the press means, as quoted in The Hill:

    "it is not 'freedom of the press' when newspapers and others are allowed to say and write whatever they want even if it is completely false."

    See:

    http://thehill.com/blogs/ballot-box/...-writing-false

    In other words, freedom of the press means the freedom to print or say anything that Donald Trump agrees with.

    Trump seems to be very attached to the 2nd Amendment to the US Constitution, as evidenced by his recent statement hinting that "2nd Amendment people" might wish to use their guns in some undefined way if they don't like his opponent's choice of Supreme Court Justices, but he appears to have overlooked the 1st Amendment to that same Constitution.

    As Trump might have been able to learn from Attorney Khizr Khan if Trump had not been so busy insulting this Gold Star parent and his Gold Star wife because of their religion, the 1st Amendment guarantees freedom of speech to everyone even if the person at the head of the government doesn't like what the speaker or writer says.

    Most likely, Trump's tweet, which was reportedly in reaction to a negative New York Times story about the state of his campaign, was directed toward his stated objective of "expanding" the libel laws so he could intimidate his opponents through lawsuits. But there are disturbing implications to his statement that go well beyond libel law issues.

    Trump's definition of freedom of speech would be perfectly acceptable in North Korea today, as well as in the Russia of Vladimir Putin, for whom Trump has had such kind words.

    This definition would also have been well understood in Nazi Germany and fascist Italy, as well as many other dictatorships around the world past and present.

    But Donald Trump's definition of "freedom of the press" has no place in the United States of America.

    And what could Trump's definition of "freedom of the press" mean for discussion of immigration policy? Here is a hypothetical example.

    The truth according to Donald Trump is that Mexican immigrants are mainly criminals and rapists and that many, if not all, Muslim immigrants are potential terrorists who are filled with hatred for America.

    Suppose a newspaper prints an article about a (hypothetical) study showing that Mexican immigrants have lower crime rates than American citizens, or about the 3 or 4 million Muslims who are living in the US peacefully with no known terrorist sympathies or affiliations.

    Since such an article would most likely be considered to be "false" according to Donald Trump, the publication, according to his interpretation of "freedom of the press" could be closed down and the writer jailed (perhaps to be tried by a military commission at Guantanamo).

    Or suppose that a scholarly journal publishes a study showing that H-1B immigrants bring skills and innovation to America that boost our economy and create more jobs for American workers (and such studies do exist).

    But Donald Trump is on record for saying that H-1B visas (for which he has sponsored more than 1,000 workers himself, and which his own wife used in order to work in the US), are bad for American workers.

    Ergo, the scholarly study supporting H-1B visas must be false and therefore unprotected by the 1st amendment according to Trump. What guarantee is there that the editors of the publication in question might not one day find themselves arrested by President Trump's special "1st Amendment task force" and hauled off to prison (or Guantanamo) or publishing something that our Leader-in Chief decides is against the public interest (or, as they say in totalitarian regimes, against the "interests of the state")?

    In that case, we would have a different system of government in America from the one we have now. It would not be one that could be called democracy.

    Update, August 14, 10:50 am:

    In another example of why so many legal scholars are worried about what would happen to America's democracy under a Donald Trump presidency, Trump is now showing that there is one more feature of this form of government, in addition to free speech and separation of powers, that he doesn't like very much.

    It is called elections - that is, unless Trump has a chance to intimidate voters with "election observers" that can only remind one of his promise to create a mass deportation "task force" (which his leading primary opponent, Senator Ted Cruz, R-Texas, once compared to fascist "jackboots"),

    See:

    https://www.theguardian.com/us-news/...midation-fears

    My original post appears below:

    On June 4, the New York Times published an article describing in great detail the ways on which numerous legal scholars, including even law professor John Yoo, who became notorious for trying to justify the use of torture as a Bush administration official, are critical of Donald Trump (whose own support for torture is so well documented that no citation is necessary), for threatening the rule of law in America.

    See:

    http://www.nytimes.com/2016/06/04/us...ower.html?_r=3

    Not surprisingly, Trump who has been lashing out at the "crooked media" during the course of his campaign, is now threatening to retaliate against the Times, (although over a different story).

    Specifically, Trump is threatening to revoke the paper's press credentials to cover his campaign, and he has even suggested that the paper is "gonna be out of business very soon".

    See:

    http://www.thehill.com/blogs/ballot-...ia-not-clinton

    If one looks in detail at the reasons why many legal experts, both liberal and conservative, are condemning Trump because of his lack of adherence to America's democratic values, one could ask how long the New York Times or any other paper that says anything critical of him will be allowed to keep on publishing.

    If he becomes president, will Trump have his own version of the National Socialist Volkischer Beobachter or Soviet Pravda as America's only permitted news source?

    Will we be reading the Trump Times instead of the New York Times, Washington Post or any other paper that says something which America's Leader-in-Chief doesn't like?

    In Part 2 of these comments, I will take a closer look at why so many legal authorities on both sides of the political fence are worried about the future of our democracy under a Donald Trump presidency.

    To be continued in Part 2.
    _________________________________
    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. Roger's email address is algaselex@gmail.com



    Updated 08-15-2016 at 06:22 AM by ImmigrationLawBlogs

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