Advertise on ILW
Connect to us
Make us Homepage
The leadingimmigration lawpublisher - over50000 pages offree
Copyright© 1995-ILW.COM,AmericanImmigration LLC.
By Bruce Buchanan, Siskind Susser
In deciding a procedural issue, the Office of Chief Administrative Hearing Officer (OCAHO) in U.S. v. Quickstuff, LLC, Maria Castillo, and A & C Staffing, LLC, 11 OCAHO no. 1265 (Nov. 20, 2015), found the employers engaged in 4964 Form I-9 violations. That may be a record.
In mid-2015, Immigrant & Customs Enforcement (ICE) issued a Notice of Intent to Fine against Quickstuff, Castillo and A & C (Respondents) seeking in excess of $5 million in penalties. Therefore, Respondents requested a hearing. On July 9, 2015, ICE issued a complaint against Respondent with an answer due by August 12, 2015. However, no answer was filed nor a request for additional time to do so. Thereafter, on September 1, 2015, OCAHO filed an order to show cause as to why no answer was filed. On the same date, ICE filed a Motion for Entry of Default. No response was filed in response to the motion.
On September 9, OCAHO received copies of bankruptcy notices for Quickstuff and A & C. On September 16, OCAHO received a letter, from Respondentsí counsel of record, wherein he explained their failure to respond to the complaint ďwas due to a mistaken belief that the automatic stay under the Bankruptcy Code would apply.Ē He acknowledged that he now was aware such a stay does not apply to an action by a governmental unit enforcing its police or regulatory powers. 11 U.S.C. 362 (a)(1). But, the letter did not offer an answer to the complaint; rather, counsel requested it to be given to a later date to file such.
OCAHO discussed applicable case law which found the failure to file a timely answer puts the employer in default and may be deemed to constitute a waiver of the right to contest the allegations. When a party makes an untimely request for an extension to answer, it must establish good cause and excusable neglect. Furthermore, a formal motion must be made for the request.
OCAHO found counselís letter did not constitute an answer, which it noted could ďhave been drafted in considerably less time than it took to prepare the three-page single-spaced letter asking for additional time.Ē Moreover, Respondentsí counsel failed to use due diligence in making some effort to file an answer or request an extension of time. Furthermore, an attorneyís ignorance of the law is not considered ďeither good cause or excusable neglect.Ē As OCAHO stated, ďthe attorneyís ignorance of readily ascertainable law simply cannot be characterized as good cause for failing to file an answer.Ē
In conclusion, OCAHO found Respondentsí response failed to show cause why their request for a hearing should not be deemed abandoned. Therefore, ICEís Notice of Intent to Fine is the final agency decision in this matter.
As all employers should know, the failure to answer a complaint has serious consequences. In this case, 5 million of them. Furthermore, this decision demonstrates the importance of hiring counsel who is well-versed in immigration compliance law.
Donald Trump's controversial call to ban all Muslims from entering the US has drawn criticism from legal experts, according to a December 8 NBC News article. See:
First, let us make clear exactly who would be covered by this ban. According to a related NBC News article, dated December 7, Trump campaign spokesperson Hope Hicks was asked whether Trump's proposed ban on entry by Muslims would also apply to those who are American citizens. She replied: "Mr. Trump says 'everyone'."
Whether electing someone as president who cares so little for the Constitution that he would ban US citizens from entering their own country on purely religious grounds is consistent with this country's ability to continue as a democracy is an issue that concerns Americans of every religious faith, or none at all. Barring American citizens from entry would amount to religious discrimination that goes far beyond just immigration policy.
If American citizens can be barred from entering their own country purely on the basis of their religion, what would prevent the government from taking citizenship away from Muslims entirely? This was done in another country only 80 years ago, in 1935, against a different religious group in a legislative package known as the Nuremberg Laws.
However even if Trump's proposal is taken as applying only to entry by non-US citizens, legal experts still see serious Constitutional problems with it. It is true, that as decided in the notorious 19th Century Supreme Court Chinese exclusion cases, there is no such thing as a Constitutional right by a non-citizen to enter the US.
Whether this doctrine should continue to be recognized in the United States, given its origin in Supreme Court decisions which were no less racially motivated in their approach toward Asian immigrants than the infamous Dred Scott decision was toward African-Americans, is a question well worth examining.
But even accepting the doctrine that there is no such thing as a Constitutional right by a non-US citizen to enter the US, there can be cases where this doctrine conflicts with unquestioned Constitutional rights that apply to all persons, not only US citizens. There include, of course, the due process and equal protection clauses.
They also include the First Amendment's guarantee of free exercise of religion and its prohibition against an establishment of religion.
To be continued in Part 2 of this series.
Roger Algase is 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 many different parts of the world and religious backgrounds obtain work visas and green cards.
Roger believes that allowing prejudice or discrimination against any group of immigrants to influence our laws endangers the rights of all other immigrants as well. It can also undermine the democracy which all Americans hold sacred. Roger's email address is email@example.com
Updated 12-19-2015 at 04:32 PM by ImmigrationLawBlogs
On December 16, it was announced that members of Congress had finalized a 2,009-page budget bill. The bill is expected to be approved and signed by President Obama before the end of the year.
The bill contains a number of immigration law changes, each of which is listed below:
H-1B and L-1 Filing Fees - Additional filing fees will be imposed on companies which employ 50 or more workers in the US, and whose workforce consists more than 50% of H-1B and L-1 employees. The additional fees amount to $4,000 per H-1B petition and $4,500 for each L-1 petition. These fees will also apply to extensions as well as to first-time petitions. These fees will remain in effect until September 30, 2025.
EB-5, Conrad 30, E-Verify and Non-Ministerial Religious Workers Ė Each of these programs will be extended to September 30, 2016 without any material changes. Changes to the EB-5 program are essential. It is anticipated that Congress will amend the EB-5 investor program sometime in 2016. H-2B Workers Ė Returning workers who were counted against the 66,000 cap in fiscal years 2013-15 will not be subject to the fiscal year 2016 cap. Employers will be required to pay workers at the prevailing wage or the actual wage, whichever is higher. Visa Waiver Program (VWP) Ė The rules will be tightened on this program which allows tens of millions of people from 38 countries to enter the US as visitors without visas each year. For example, persons who visited Syria, Iraq, Iran, Sudan (or any country designated by DHS) since March 2011 will be barred from visiting the US without a visa. These immigration law changes are meant to promote security and increase "vetting" of foreign visitors to the United States.
Refugees--especially Muslim refugees--are big news these days. Are they a threat? Should we ban them from our country? Can they ever integrate into American society?
"A refugee from Palestine with his wife and child? They must be terrorists!"
Despite our collective amnesia on this point, the fact is, we've been asking these same questions about refugees for at least a hundred years. And I suspect that people around the world have been asking such questions ever since the first stranger arrived at a door seeking shelter. Since it's almost Christmas, I thought it might be a good time to look back at one of the world's oldest refugee stories--of Joseph, Mary, and Jesus, who fled from Palestine to Egypt.
Mathew tells us that around the time of Jesus's birth, three wise men came from the East. They went to King Herod and asked, "Where is he that is born King of the Jews?" Herod was "troubled" by the question. Who was this child who was king of the Jews, and thus a threat to Herod's throne?
Herod consulted his prophets, who predicted that the baby would be found in Bethlehem. The wily king told the three wise men. He also ordered the men to tell him when they found Jesus, so he (Herod) could "worship" the new king. Of course, this was a ploy--Herod wanted to find Jesus in order to kill him and eliminate the threat to his throne. The wise men (being wise) understood Herod's plan. They found Jesus, but never told the king.
Because the wise men foiled his plan, Herod was unable to locate the newborn Jesus. He still wanted to protect himself from the perceived threat, so he ordered all the babies born in Bethlehem murdered. This event became known as the Massacre of the Innocents.
Luckily for Jesus and his family, an angel came to his father Joseph and warned him about the danger. Joseph took the family and fled to Egypt, where they received asylum. The family remained in Egypt until Herod died a few years later. They then moved to a different part of Palestine (Nazareth), to avoid living under the rule of Herod's son, who was no better than his father.
The Book of Mathew contains nothing about Jesus's time in Egypt, but there are many interesting Coptic traditions associated with this period (the Coptic church originated in Egypt). In many parts of Egypt, it is possible to visit places where Jesus and his family sojourned. There are churches and other holy sites, like healing springs, caves, and sacred trees. One tree was possessed by an evil spirit, but when Jesus approached, the spirit fled. The tree then bent down to worship him.
Another ancient story says that as Jesus and his family entered Heliopolis, "the noise of a rushing mighty wind was heard, the earth trembled [and] the idols crashed from their pedestals."
There is also a legend about how the Holy Family was traveling down the Nile River in a boat. At one point, they were sailing past a mountain when a large boulder appeared ready to fall on their boat. Jesus extended his hand and prevented the boulder from falling. The imprint of his hand appeared on the rock.
Another story tells of two robbers who surprised Jesus's family on the road and tried to steal Joseph's donkey. One of the robbers saw the baby Jesus and was astonished by his unusual beauty. He said, "If God were to take upon Himself the flesh of man, He would not be more beautiful than this child!" The robber then ordered his companions to take nothing from the travelers. Filled with gratitude toward this generous robber, Mary told him, "Know that this child will repay you because you protected him today." Thirty-three years later, this same thief hung on the cross for his crimes, crucified on the right side of Jesus's cross. His name was Dismas. On the cross, he repented for all the evil of his life and declared that Jesus was innocent and wrongly crucified. The Gospel of Luke records that Dismas was the wise thief. The man who spared Jesus in his childhood was granted entry into paradise.
Coptic tradition holds that "Egyptian conversion to Christianity two thousand years ago can be attributed to the historic visit of the Christ Child" and that "Egypt was chosen by God as a place of refuge; truly the people abiding there were richly blessed." The people of Egypt were blessed because they offered refuge to Jesus and his family when they fled persecution. Perhaps this should remind us of our moral responsibility to help one another, and that the helper often receives as much (or more) of a benefit than the person who is helped.
Originally posted on the Asylumist: www.Asylumist.com.
In what appears to be a widely under-reported announcement, according to a December 16 Al Jazeera and Reuters report, FBI Director James Comey has now stated that the couple who carried out the horrific San Bernardino attack, Syed Rizwan Farook and his wife, Tashfeen Malik, were not part of an organized cell, had no contact with overseas terror groups and, contrary to widespread reports, did not pledge allegiance to ISIS or its leader, or express support for jihad on social media.
I cannot find a direct link. But see:
According to the above report, the killers did express support for violent ideology in their private communications. However, based on Comey's above statement, it would appear that the San Bernardino attack, terrible as it was, had more in common with the "lone wolf" gun violence of the Sandy Hook variety that is now all too common in the US than it did with any organized terrorist attack.
Despite the total absence of evidence that ISIS or any other terrorist group was responsible for the San Bernardino attack, and the fact that the killer suspects were both of Pakistani origin and were neither Syrians nor refugees, hysteria and xenophobia against Syrian Muslim refugees is continuing to grow in the wake of San Bernardino, spurred on by the media and demagogic politicians.
Fox News, which earlier falsely reported that one or more of the Paris attackers entered Europe as Syrian refugees, even though no officials have produced any credible evidence of this (see my previous post on this topic), is now suggesting that America is in danger from the 100,000 Syrian immigrants whom it states have entered the US with legal visas or green cards since 2012. See:
Fox quotes Jessica Vaughan, a spokesperson for the Center for Immigration Studies (CIS), which has long been on record as wanting to restrict and reduce all immigration to the US, as follows:
"The sheer number of people [Syrians] arriving on all kinds of visas and with green cards, and possibly US citizenship, makes it impossible for our counterterrorism authorities to keep track of them all, much less prevent them from carrying out attacks or belatedly trying to deport them."
Try to deport them? Law abiding legal immigrants and even US citizens? For what reason? On what legal grounds?
Another long-standing anti-immigrant group, Federation for Immigration Reform (FAIR), chimed in though its spokesman Ira Mehlman that it was:
"highly unlikely that the 102,213 Syrians who were admitted over the past three years were effectively vetted."
In addition to its wild suggestion that Syrians already in the United States legally, including possibly US citizens, should be deported, the Fox article warns about the possibility that Syrians might try to enter the US through Canada, as it claims that 1,229 have done legally since 2011. Its article also warns that eight Syrians were apprehended by the Border Patrol attempting to cross in the US from Canada illegally in 2014.
Clearly, America must be vigilant against this huge influx of Syrians from our neighbor to the north!
What is also obvious from the Fox News article is that not a single one of the more than 100,000 Syrians who have been admitted to the US in the last three or four years has been involved in a terror attack. If that had the case, we can be sure that Fox News would not have failed to mention it.
Nor can the San Bernardino killings provide any justification for the draconian restrictions on admitting Syrian refugees contained in two bills that are still reportedly under consideration in Congress. One of these, the less restrictive of the two, but which is still intended to make the admissions process more difficult, time-consuming and complicated, has already been passed by the House.
The other bill, which has been introduced in the Senate and is supported, among others, by Alabama Republican Jeff Sessions, who opposes almost all immigration just as fiercely as a former governor of his state, George Wallace, opposed racial integration 50 years ago, would, in effect, impose an indefinite moratorium on all admissions of Syrian refugees.
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 many different parts of the world and religious backgrounds obtain work visas and green cards. Roger's email address is firstname.lastname@example.org
Updated 12-18-2015 at 10:59 AM by ImmigrationLawBlogs