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  1. Could US Sanctuary Cities Be The Last Outposts Of Democracy? Or Could Their Mayors and Police Chiefs Be Sent to Prison? Part 1. Roger Algase

    Update: November 28, 12:00 pm:

    If a president of the United States can suddenly pull a statement out of thin air with no facts whatsoever to back it up claiming that 3 million people who voted against him did so illegally (as appears in almost every major media headline as this is written), what kind of confidence can anyone put in his post election statement that he will seek to deport "only" 3 million(!) unauthorized "criminal aliens", instead of all 11 or 12 million immigrants who are in the US without legal status?

    Doubts about how much the incoming president can be trusted about any immigration-related statement he has made or may make in the future are not assuaged by the fact that no evidence that there are anywhere near 3 million unauthorized immigrants in the US with criminal records has been produced by him or anyone else.

    The prospect of having a president of the United States who may be making immigration policy based on his own fantasies, rather than anything even remotely resembling actual fact, would make it all the more important to rely on Sanctuary Cities as an antidote to this kind of departure from reality.

    The following post has been revised as of 9:00 am on November 28.

    Many immigrants and immigration advocates are concerned over the possibility that our incoming president, Donald Trump, who was legitimately elected under our Constitution despite having lost the popular vote to his opponent, Hillary Clinton, by more than two million votes, may launch police raids and dragnets throughout the US in order to catch, lock up and deport what he claims are up to "3 million" unauthorized "criminal aliens" in the United States (a claim for which Trump has produced no more evidence than he has for the wild claim which he made on November 27 claiming that he would have "won" the popular vote if 3 million people hadn't allegedly voted "illegally" - something that goes far beyond even the attempts of his advisor and potential pick to head America's immigration system as DHS chief, Kris Kobach, to prevent minority US citizens, including those living in immigrant communities, from being able to vote through the voter ID laws he has drafted in a number of states - laws which, along with many of the state laws he has drafted for the purpose of creating fear and terror in immigrant communities, have largely been struck down by the courts).

    This concern is fueled by news reports that the author of the main legal precedent for this reign of terror in immigrant communities, Arizona's notorious S.B. 1070 (much of which was subsequently held unconstitutional by the US Supreme Court in Arizona v. US, 2012), Kansas Secretary of State Kris Kobach, is being considered for the post of Secretary of the Department of Homeland Security.

    As everyone concerned about immigration remembers, Kobach was largely responsible for drafting this law, which required local police to stop and check the papers of virtually anyone who looked Hispanic, and led to mass roundups and incarceration of minority immigrants in desert tents where Maricopa County Sheriff Joe Arpaio (who has now been defeated for reelection - could be one day soon be the new head of ICE?) limited his inmates to 2 meals a day.

    An even harsher law which Kobach also drafted and was enacted in Alabama was also responsible for creating fear among minority school children and their immigrant parents until it was also struck down by the Supreme Court.

    Under the new Trump administration, could America turn into a country where police on every street corner in the entire nation, not just in states such as Arizona or Alabama, can stop anyone who "looks" Latino, Asian, Middle Eastern or African/Caribbean, demand to see proof of legal status and immediately send them to jail if they don't have the right papers?

    Could America become a country where millions of immigrants coast to coast are afraid to send their children to school, to seek medical attention, to report domestic abuse and other crimes to the police, to ride in cars or even to remain in their own homes? Could millions of American citizens be sent to jail for "harboring" or "assisting" unauthorized immigrants, including their own husbands, wives or parents, under 8 U.S.C. Section 1324 (INA Section 274 - see below)?

    The last bulwark against America's becoming this kind of country may well be the movement toward Sanctuary Cities, whose officials have announced that to varying extents, depending on the jurisdiction in question, they will not cooperate with federal immigration authorities in rounding up and deporting "illegal aliens".

    A May 31, 2016 Deportment of Justice Memorandum entitled: Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. Section 1373 by Grant Recipients that

    "...there are over 300 'sanctuary' jurisdictions that refuse to comply with US Immigration and Customs Enforcement [ICE] detainers or otherwise impede information sharing with federal immigration officials."

    These jurisdictions include America's three largest cities, New York, Los Angeles and Chicago, and many smaller ones throughout the country.

    There are three main federal statutes on which the argument that local officials are required to cooperate with federal officials in immigration enforcement are based: 8 U.S.C. Section 1373, 8. U.S.C. 1644 and 8 U.S.C. 1324.

    The first two deal with the kinds of immigration information that state and local officials are required to share with federal immigration officials, and they do not carry criminal penalties for violation.

    The third, which is a general statute that applies to everyone, not just government officials, makes it a crime to "harbor" or "assist" someone who enters or remains in the United States without legal permission.

    Each of these statutes will be examined in detail in forthcoming parts of this series. This detailed discussion will show that an official "don't ask, don't tell" policy toward people who might appear to be foreign citizens for one reason or another (such as, for example, based on a standard that Maricopa County, AZ sheriff Joe Arpaio was widely accused of using - failure to maintain white skin color) concerning whether they have legal status in this country or not, would not be a violation of any of the above statutes.

    However, knowingly refusing to maintain or share information with federal immigration officials that a state or local government official already has about the immigration status of any given person might very likely be a violation of one or more of the above provisions, as I will show in Part 2 of this series.

    Would the above statutes be a basis for prosecuting and jailing any state or local official who refuses to cooperate with federal immigration authorities with regard to the above information or related matters such as honoring federal detainers on immigrants who are eligible to be released from jail (or not to be jailed at all) under state or local law?

    This question takes on added urgency in view of Trump's appointment of US Senator Jeff Sessions, one of America's most vigorous and vocal opponents of all immigration, both legal and illegal, as the next attorney general, with wide powers to prosecute all alleged immigration-related crimes.

    One anti-immigrant advocate, Matthew Vadun, relying extensively on arguments provided by the well-known restrictionist group FAIR, suggests that Sessions may have the power to prosecute state or local officials who do not give full cooperation to federal authorities who are seeking to arrest or deport unauthorized immigrants. These arguments will be discussed fully in Part 2 of this series.

    However, if Vadum (who is a private commentator, and has no connection with Trump or his administration that I am aware of) is typical of other critics of the Sanctuary Cities movement, the debate over its legality may not necessarily be held on the objective, scholarly level of legal discussion.

    This is what Vadum has to say in an article calling for the arrest of Chicago mayor Rahm Emanuel, who has declared his city to be a Sanctuary City.

    " a strident supporter of the sanctuary city movement that gave illegal aliens permission to rob, rape and murder Americans."

    This can only remind one of the following statement by Joseph Goebbels in 1941 when he complained that despite the Nazi persecutions during the previous 12 years, Berlin, the capital city, still allegedly had too many Jews, in effect becoming something like a "sanctuary" city (even though he did not use that term):

    " began to see Jews on the streets of the west side of Berlin in the company of Gentile foreigners. These Jewish lackeys actually should wear the Jewish star themselves. The excuse they give for their provocative conduct is always the same: the Jews are after all human beings too. We never denied that, just we never denied the humanity of murderers, child rapists, thieves and pimps..."

    See, Joseph Goebbels: Juden sind Schuld ("Jews are guilty", 1941, English translation.)

    In making the above comparison, it is not my intention to attribute any support for anti-semitism or genocide, either to any member of the incoming Trump administration or anyone else who might have authority over US immigration policy. Nothing could be further from the truth.

    But in terms of the tone of discourse used toward a particular ethnic/religious group or groups of people whose presence was or is regarded as undesirable by the authorities, whether Jews in Germany 75 years ago or Latino, Muslim and other non-white immigrants in America today, as well as toward those who support them or accept these "undesirable" group members (gens invisum, to quote Virgil) there are some uncomfortable resemblances.

    As an historical note, while Nazi Germany, of course, had no such thing as a sanctuary city where Jews were officially protected, there was, within Berlin itself, a "sanctuary" Jewish hospital where at least some Jewish doctors, nurses and patients were protected with the tacit approval of their Nazi persecutors.

    Some of the hospital's Jewish staff and patients survived all the way through to the end of the war.

    See, Washington Times: A Jewish haven in Nazi Berlin

    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 from diverse parts of the world obtain work visas and green cards. Roger's email address is

    Updated 11-29-2016 at 10:25 AM by ImmigrationLawBlogs

  2. Likely New DHS Chief Wants to Abolish Presumption of Innocence So He Can Deport "Criminal Aliens" Who Have Not Been Found Guilty. Roger Algase

    Update, November 27, 8:23 pm:

    The incredible, utterly delusional statement that Trump is reported as having made on November 27 that he would have won the popular vote except for "3 million" votes by "illegal" voters (by which he may or may not have meant immigrants, given some of his past statements on this subject) is also far from reassuring to millions of Americans who are concerned, not only about the future of the non-racially discriminatory immigration system that America has enjoyed for the past half century, but also about the closely related issue of whether America will continue to be a democracy, based on free elections, after Trump takes office less than 2 months from now.


    Update, November 27, 2:30 pm:

    Beyond the justified concern that every immigrant and immigration advocate should have about whether our current legal immigration system, which is based on the proposition that qualified immigrants from all over the world are welcome in the United States, regardless of race, color or religion, could survive a possible 1, 2, 3 punch of cabinet members with reputed white supremacist ties or sympathies such as Jeff Sessions as AG, Kris Kobach as DHS chief (if appointed) and Rudy Giuliani as Secretary of State (if appointed), there is the related question whether America's democracy can survive Donald Trump. In this regard, Slates's November 27 article:

    The slow-motion decline: Resisting the gradual erosion of democratic institutions under President Trump.

    is well worth reading.

    The only question one might ask about this article is how slow the erosion might be - maybe not so slow as this article suggests, given some of Trump's campaign statements and post campaign appointments.

    Update, November 26, 12:55 pm

    The comments in my original post below about Kris Kobach, who is a member of Donald Trump's transition team and is reportedly being considered to become the head of the Department of Homeland Security, should not be regarded as identifying the only threat he poses to America's current immigration system and to our democracy, both of which are based on the principle of racial equality embedded in America's Constitution.

    Despite attempts in the media to sanitize Kobach's record of drafting state racial profiling immigration laws aimed at creating a climate of fear in immigrant communities, and voter ID laws aimed at keeping non-white voters away from the polls, by presenting him as merely an immigration "hardliner" would enhance enforcement of existing laws against illegal immigration, Kobach's record includes much more than that.


    Far more than being just an avid proponent of immigration enforcement, Kobach is, very arguably, one of America's leading architects of a white supremacist immigration and voting system that could destroy America's democracy.

    To be continued in a forthcoming Immigration Daily blog post.

    My original post follows below:

    2,000 years ago, a young Roman poet, Marcus Annaeus Lucanus, wrote the following in the introduction to his great epic poem: De Bello Civili ("The Civil War"):

    Iusque datum sceleri canimus ("I sing of evil made into law.")

    He also wrote a few lines further on:

    Certatum totis concussi viribus orbis/In commune nefas

    ("All the people of a shaken world [were] forced into a common infamy.")

    Of course, Lucan (who was later ordered to commit suicide at the age of 25 by the emperor Nero) was not writing about American immigration law in the 21st Century AD.

    He was writing about the wars of the century before his which tore Rome apart and ended its Republic - the ones between Julius Caesar and Gnaeus Pompeus (Pompey); and between Marcus Antonius (Mark Anthony) and Octavian (later to become known, though never officially during his lifetime, as Emperor Augustus Caesar), which most Americans only know about through Shakespeare.

    But if Lucan had had a chance, 2,000 years later, to see a document concerning deportation policy that, according to The Hill, Kansas Secretary of State Kris Kobach, the author of Arizona's notorious S.B. 1070 immigration law which was in large part held unconstitutional by the US Supreme Court, and who is reportedly under consideration for DHS chief (which would qualify him as one of the Four Horsemen of the Immigration Apocalypse mentioned in my November 22 Immigration Daily blog) was carrying with him to a meeting with President-elect Donald Trump, he might have written the same words as quoted above to describe it.

    The Hill reports on November 24, that Kobach was photographed outside that meeting on Sunday, November 20, holding a document with the title:

    "Department of Homeland Security Kobach Proposal for First 365 Days"

    According to the same report, the visible part of the document included a proposal to redefine the term "criminal alien" as follows for deportation purposes:

    "...'criminal alien' as any alien arrested for any crime, and any gang member"


    Wait a moment: Just being arrested makes someone a criminal?!!

    If Mr. Kobach knows so little about American law that he has never heard of the doctrine that a person is innocent until proven guilty, i.e. convicted of a crime, not merely arrested for or charged with one, then it is easy to understand why so many of the other state immigrant "crackdown" laws and voter suppression laws intended to keep minority US citizens away from the polls which he has drafted have also been struck down by the courts.

    This might come as a surprise to Kris Kobach, but the doctrine that someone charged with a crime is considered innocent until proven guilty is so old that it goes back almost to the time of the above quoted poet Lucan.

    In the landmark US Supreme Court case of Coffin v. United States, 156 U.S. 432 (1895), which once and for all determined that the presumption of innocence until proven guilty is part of this country's law, Justice Edward Douglas White, writing for the majority, related the following reported incident from classical Roman history at the time of the emperor Julian, r. A.D. 361-363 ("Julian the Apostate", who tried to restore paganism as the Roman state religion in place of Christianity).

    "Ammianus Marcellinus relates an anecdote of the emperor Julian which illustrates the enforcement of this principle in Roman law. Numerius, the Governor of Narbonensis was on trial before the emperor...Numerius contented himself with denying his guilt, and there was not sufficient proof against him."

    Justice White's opinion continues:

    "His adversary, Delphidius, 'a passionate man' seeing that the failure of the accusation was inevitable, could not restrain himself and exclaimed: 'Oh, illustrious Caesar, if it sufficient to deny, what hereafter will become of the guilty?' to which Julian replied: 'If it suffices to accuse, what will become of the innocent?'"

    (156 U.S. at 455)

    Of course, neither Kris Kobach (if he actually is appointed as DHS secretary, which is, of course, by no means certain at the time off this writing) nor even Donald Trump himself (no matter how "imperial" his presidency might or might not turn out to be) has the power single-handedly to decide what crimes will constitute deportable offenses, since these crimes are fixed by the statutes relating to "crimes of moral turpitude", "aggravated felonies" and other sections of the INA specifying which specific crimes are grounds for removal.

    Changing these laws would clearly require an act of Congress

    Nor does even Donald Trump have the legal authority on his own to "deport" the almost (if not even more than) two millennia-old principle of innocence before being proved guilty from our law, where it has been solidly embedded ever since the above Coffin decision, if not earlier.

    But, as the above news story makes clear, that is not Kobach's purpose. Kobach, evidently, is not talking about what kind of crimes are deportable offenses under our law, or what standard of proof might be required to convict someone of these crimes.

    He is, apparently, according to the above report, interested in expanding the population of already deportable immigrants, i.e. those who are in the country without legal status, which is a removable offense but not a criminal one, who can be targeted as priorities for deportation according to Trump's promise to deport "2 or 3 million" "criminal aliens".

    Trump's problem is that even though he has promised to deport that number of immigrants who are already illegal and subject to deportation, either because they entered without inspection (which is a crime) or they overstayed their visas (which is not), available statistics do not seem to indicate that there are actually 2 or 3 million immigrants in the US who have been convicted of crimes that would constitute deportable offenses under current law.

    Since there is no possible way of suddenly convicting hundreds of thousands, or more than a million, unauthorized immigrants of crimes (assuming there are that many who have even committed any crime at all) without violating the due process guarantees of the constitution, in order to enable Trump to throw out 2 to 3 million "criminal aliens" almost immediately as he has promised, Kobach's plan, presumably, is to redefine "criminal" so that there will in fact be enough "criminal aliens" in the United States, who are already subject to deportation as overstays or EWI's, so that Trump can prioritize them for deportation in order to meet his announced target.

    Since there are an estimated 11 to 12 million immigrants in the US without legal status, if Trump is able to label 3 or 3 million of these as "criminals" without giving them a trial, then, under his own guidelines, he will be able to deport them without actually convicting them of any crime, since they are already subject to deportation anyway for other, non-criminal, reasons.

    That way, he can claim that he deported the above large number of "criminal" immigrants even though, under our law, they are innocent since not proven guilty.

    This raises some interesting questions. Suppose someone is arrested and charged with a crime, but the charges are subsequently dropped or dismissed by the court, or the person is acquitted after a trial. Everything in our entire legal tradition and history, and in that of every country on earth with the slightest adherence to democratic principles, says that the person is innocent.

    Now, if the above news story is accurate, it appears that Kris Kobach, who if appointed DHS chief, would have control over virtually our entire immigration system, is proposing to redefine the definition of who is a criminal in order to turn even people who have been adjudged innocent by the courts to be "criminals", if they have ever been arrested.

    As I have mentioned above, Kobach would not have any power to deport legal immigrants, much less US citizens, based on this new definition, because not every crime is a deportable offence; and because our immigration laws make clear that no crime is a deportable offence unless the person was actually convicted of it, not merely arrested for it.

    But eroding the 2,000 year old principle in Western law that a person charged with crime is innocent until proven guilty for any purpose, even that of prioritizing certain immigrants for deportation who would be deportable anyway for other, non-criminal reasons, is a dangerous precedent.

    This could, before too long, lead to undermining or abolishing the due process rights of legal immigrants and US citizens who might be arrested or charged with a crime in the future, and could signal the beginning of the end of America's democracy and rule of law.

    In the above quote, Lucan condemns Ius datum sceleri - making evil (or crime, another meaning of the same Latin word scelus, sceleris, sceleri. etc.) into law.

    What would Lucan have said about scelus datus innocentiae - making innocence (or at least the presumption of innocence) into crime?

    That is a discussion that he might well have wanted to engage in, or perhaps actually might have engaged in during his short life, with the Kris Kobachs of the Rome of his time. I am sure that they must have been in no short supply.

    Donald Trump might also want to have a serious conversation with himself and some the more moderate leaders in his party who care about preserving the basic civil rights guarantees of our law and our democracy, and ask himself whether handing the Department of Homeland Security, with its enormous power over immigration to someone with Kris Kobach's willingness to undermine one of the most basic protections in our entire legal system, namely the presumption of innocence until proven guilty, merely as a ruse to prioritize more people for removal action, is the best way to "unite" and "heal" our nation as promised in Trump's Thanksgiving address.

    To the contrary, putting someone with Kobach's reported willingness to play games with one of the most sacred legal rights in our entire legal system so that he can throw Latino, Asian and other non-white immigrants out of the country faster or in greater numbers would be indeed an example of Iusque datum sceleri - evil made into law, just as Lucan wrote 2,000 years ago.
    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, based on their merits and qualifications, without regard to ethnicity, religion or national origin. Roger's email address is

    Updated 12-24-2016 at 08:11 PM by ImmigrationLawBlogs

  3. The key to successful immigration enforcement may be to let the Labor Department handle it.

    By Nolan Rappaport and Prakash Khatri


    Most of the immigrants who enter the United States unlawfully or overstay temporary visas come here to find employment. The shorthand description of this situation is that they are drawn here by the “job magnet.” On November 3, 2016, Pew Research Center estimated that in FY2014, there were 8 million undocumented immigrants in the United States who were working or looking for work.

    The significance of the job magnet was recognized by the congressmen who negotiated the last comprehensive immigration reform bill 30 years ago, the Immigration Reform and Control Act of 1986 (IRCA). The Democrats were insisting on a legalization program to grant lawful status to the undocumented immigrants who were already in the United States. The Republicans were willing to accept a legalization program but only if the Democrats agreed to an interior enforcement program that would stop illegal immigration and prevent a new group of undocumented immigrants from taking the place of the ones being legalized. It was thought that this could be accomplished by establishing sanctions to punish employers who hire immigrants who are not authorized to work in the United States, which would reduce the power of the job magnet.

    IRCA established section 274A of the Immigration and Nationality Act, which prohibits employers from employing immigrants they know are not authorized to work. An employer found to have engaged in hiring, recruiting, referring, or employing violations may be subject to a cease and desist order and to fines, as follows:

    1. For a first offense, not less than $375 and not more than $3,200 for each unauthorized immigrant with respect to whom the offense occurred;
    2. For a second offense, not less than $3,200 and not more than $6,500 for each unauthorized immigrant with respect to whom the offense occurred; and
    3. For more than two offenses, not less than $4,300 and not more than $16,000 for each unauthorized immigrant with respect to whom the third or subsequent offense occurred.

    Section 274A also imposes criminal penalties. Employers convicted of having engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized immigrants may face criminal fines and/or imprisonment. They may be fined not more than $3,000 for each unauthorized immigrant with respect to whom the violation occurred and/or imprisoned for not more than six months for the entire pattern or practice.

    The plan made sense. But section 274A has never been fully implemented. Consequently, employers have had little incentive to screen job applicants’ immigration status and reject those who are not authorized to work. The following table of final orders and administrative fines makes this very clear:

    The highest number of fines was 642 in FY2014, the year when 8 million undocumented persons were working or looking for work in the United States. It is time to consider a different approach.

    We propose focusing on a different magnet, the fact that it is so easy for American employers to exploit undocumented foreign workers. They are among the most vulnerable members of the workforce. That’s what draws unscrupulous employers to unauthorized workers. A 2007 paper by Georgetown University’s Institute for the Study of International Migration describes a category of employers that “knowingly hire[s] unauthorized workers to exploit their labor.” According to the paper, “such employers may pay salaries in cash, failing to pay their share of social security taxes; and they may seek unauthorized workers because they are less likely to complain about ill treatment.”

    The Department of Labor (DOL) can address this problem purely as a labor issue. DOL has authority to enforce federal labor laws that were enacted to curb such abuses, such as the Fair Labor Standards Act which established a minimum wage, overtime pay, youth employment, and other standards. The Wage and Hour Division(WHD) of the DOL Employment Standards Administration administers and enforces these provisions. WHD’s compliance activities in low-wage industries may be particularly relevant to efforts to reduce unauthorized employment. These industries tend to employ significant numbers of undocumented immigrants. As the chart below indicates, this is a more aggressive program than the one for fining employers who hire undocumented immigrants. In FY2014, WHD collected $79.1 million in back wages for Fair Labor Standards Act overtime and minimum wage violations for 109,261 employees.

    With additional funding, WHD could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants. This approach would have an immediate and chilling effect on not only the abuse of low wage workers but also herald a new era of enforcement of the laws already on the books against employers who are exploiting workers. On the immigration side, this focused attention on these abusive employers would result in fewer unauthorized workers being hired and dramatically reduce the power of the “job magnet”.

    Published initially on Huffington Post.

    About authors.

    Prakash Khatri has a national Immigration Law practice, Khatri Law Firm, LLC ( in MD. He is a nationally recognized expert on Immigration law, process and policy. From July 2003 until March 2008, Mr. Khatri served as the first Citizenship and Immigration Services Ombudsman at the Department of Homeland Security. Prior to that, he managed the Immigration Compliance Dept. for Walt Disney World in Florida from 1998 to 2003. In 1984, at the age of 22, he was the youngest attorney admitted to the Florida Bar.

    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

    Updated 11-24-2016 at 12:27 AM by ImmigrationLawBlogs

  4. OSC Files Lawsuit Against Two Washington Companies Alleging Discrimination

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.

    According to the complaint filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (LPRs). Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.

    The companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.

    Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.

    This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
  5. Notes from the Immigration Underground

    Within hours of Donald Trump's election, tens of thousands (literally) of lawyer across the country began organizing to oppose his anticipated policies, whatever those may be. Groups are forming on Facebook and meetings are being scheduled. It's all very preliminary, but it's quite clear that if Mr. Trump's policies equal his harsh campaign rhetoric, attorneys across the U.S. will be prepared to contest those policies in court.
    Lawyers are ready to fight for our clients.
    Of course, one key area of concern is immigration. Mr. Trump has vowed to build a wall, return Syrian refugees, deport criminal aliens, subject Muslim immigrants and visitors to "extreme vetting," and end "catch and release" at the border.

    At this point, it is quite unclear to me what he (1) will do, and (2) can do. Some actions against non-citizens are easier than others. For example, Mr. Trump can enact certain changes without Congressional involvement (diverting resources away from the asylum system, charging a (limited) fee for asylum, eliminating work permits for asylum applicants, and--to a large extent--restricting the definition of particular social group). Other changes require Congressional action (modifying the burden of proof on asylum seekers, blocking asylum seekers who came to the U.S. by passing through a third country, and reducing the one-year time period aliens have to file for asylum after they've entered the country). Finally, some changes would require a Constitutional amendment (eliminating due process for non-citizens). So where do lawyers come in? What can we do?

    The way I see it, there are three broad areas where lawyers can help: Litigation, lobbying, and public relations. Let's take a look at each:

    : This is what (many) lawyers do. We represent our clients in court. As it stands now, most non-citizens in Immigration Court do not have an attorney. If deportation cases are stepped up, it's unclear whether the Immigration Courts can handle the volume (currently, there are about 11,000,000 illegal aliens in the U.S. In FY 2015, the country's Immigration Judge's completed almost 200,000 cases. At that rate, it would take over 55 years to resolve the cases of everyone here unlawfully).

    It's well-established that aliens who have an attorney are more likely to win their cases. Indeed, unrepresented asylum seekers win their cases only about 9% of the time. Represented asylum seekers win nearly 50% of their cases. So hopefully, some of our organizational energy will go towards increasing the percentage of represented aliens by providing more pro bono and low bono services--currently, only about 2% of people in Immigration Court have pro bono representation. Perhaps we can also volunteer to present more know-your-rights presentations, so that aliens without lawyers can at least get some help with their cases.

    Another benefit of more aliens actively fighting their cases is that it will require more government resources--and time--to deport them. This will slow the system down and prevent the government from deporting more people (normally, I would not consider "slowing the system down" as a "benefit," but in these times, perhaps it is).

    On a higher level is impact litigation--lawsuits to challenge policies that affect many immigrants. I imagine the national organizations, such as AILA, AIC, and the ACLU, among others, will take the lead here. They have the resources and the expertise. By supporting such organizations with our time and our donations, we aid their efforts to block egregious changes to our immigration system.

    : Lawyers can be effective lobbyists. We know the law, and we know how the law affects non-citizens and their families at the ground level. This type of hands-on experience allows us to talk to law-makers, at the national level, and also at the state and local levels.

    Opponents of immigration and refugee admissions are known for their active and passionate lobbying, and we lawyers need to participate with pro-immigration groups to present the other side of the story. I am convinced that when lawmakers hear from real people--people like our clients and their family members--they can be moved. Indeed, before he was a candidate, Donald Trump met with Dream Act activists and told them, "You convinced me." If such stories can impact Mr. Trump (at least temporarily), they may be able to affect our country’s legislators.

    Public Relations
    : I've written about this before, but over the past 20+ years, there has been a growing disconnect between the development of the immigration law, on the one hand, and the "will of the People," on the other. Through litigation and presidential action, laws have been expanded to benefit more and more aliens--victims of FGM and domestic violence, Dream Act immigrants, unaccompanied minors--without input from "the People" (i.e., Congress).

    As one who represents non-citizens, I certainly will not apologize for helping my clients. That is my duty as an attorney. However, I feel that we as immigration advocates need to work harder to build support for more pro-immigrant policies. This involves making our case directly to the American people. If our countrymen had a better idea about who our clients are, why they come here, and how they benefit our nation, I believe that many of them would favor a more open policy towards immigrants.

    As I said in the beginning, all this is a quite preliminary. Although Mr. Trump's rhetoric--and some of his cabinet choices--seem ominous, we really do not know his plans. Nevertheless, it makes sense to start organizing now, so we are prepared for any eventuality.

    In his play Henry the Sixth, Shakespeare's character Dick the Butcher famously intones, "The first thing we do, let's kill all the lawyers." The context of that quote is often forgotten. Dick is a follower of Jack Cade, a pretender to the throne of England and a populist. For Jack to take control, law and order must be subverted, and this requires getting the lawyers out of the way. In our own time too, we attorneys stand between a populist and his possible victims, but judging by the early organizing efforts, I have little doubt that we will stand firm.

    Originally posted on the Asylumist:
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