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  1. Former DHS Chief Napolitano Will Not Cooperate With Any DHS Attempts to Deport University of California Students Who Lack Legal Status. Roger Algase

    Update, December 3, 2016 at 7:51 pm:

    Evidently not all university officials or instructors are as willing to protect unauthorized immigrant students from the threat of ICE deportation action as former DHS chief Janet Napolitano has stated she is (see below).

    Huffington Post reports that a University of Instructor teacher, David Buch, warned students that his classroom is not a "safe space" and that he would turn students in to immigration authorities of he suspects they are in the country illegally.

    However, after a campus uproar, Buch tried to walk back his comments, saying:

    "I'm extremely sorry for the comments. I know how hurtful they are to many of you...I have never, nor will I ever, create a classroom of hate or intolerance."

    One can only hope that America will not become a country of hate and intolerance toward immigrants in the wake of last month's election results.

    The Huffpost story is at:

    My original post follows:

    In an LA Times story which, surprisingly, appears to be under-reported elsewhere, Janet Napolitano, former Governor of Arizona, who was head of the Department of Homeland Security under the Obama administration from 2009 to 2013 and is now president of the University of California, announced on November 30 that, unless ordered to do so by the courts, she will refuse to cooperate with the DHS or any other federal agents seeking immigration information about US students, or information about their race, national origin or religion.

    In her statement, she said the following:

    "While we still do not know what policies and practices the incoming federal administration may adopt, given the many public pronouncements made during the presidential campaign and its aftermath, we felt it necessary to reaffirm that US will act upon its deeply held conviction that all members of our community have the right to work, study, and live safely at all UC locations."

    According to her announcement, the new UC principles are as follows:

    * Campus police will not assist local, state or federal agents to investigate, detain or arrest students for violations of federal immigration law.

    * Police will also be told not to contact, detain, question or arrest individuals only on suspicion of immigration violations.

    * No confidential student records will be released without a judicial warrant, subpoena or court order.

    * UC will continue to admit all eligible students without regard to immigration status and take the same stance in treatment of patients at its medical centers.

    Janet Napolitano is not exactly a stranger to the deportation process. Pew Research statistics show that during her tenure at DHS deportations reached a record high of approximately 400,000 per year.

    Nor are accusations that she engaged in "massive ethnic cleansing against immigrants" by overseeing deportations at DHS entirely unknown.

    Is Janet Napolitano a hypocrite, or is she trying to warn America that even though she herself was responsible for bringing deportation numbers to all time high, there could be much, much worse to come? In terms of deporting non-white immigrants, will Barack Obama's legacy turn out be that of a "John the Baptist" for Donald Trump?

    And if America sees the spectacle of a new DHS Secretary, whoever it may be, taking a previous DHS Secretary to court for not being sufficiently zealous about deporting Latino, Asian, Middle Eastern or black immigrant students, could it also be possible that the new Attorney General, who is no friend of immigration, could be bringing criminal charges against university officials who, like Napolitano, are trying to protect their students from deportation, for "harboring" or "assisting" immigrants wo are in this country illegally under INA Section 274?

    Janet Napolitano's own deportation record is unlikely to result in engraving her name at the base of the Statue of Liberty. But we may not be hearing very much about that statue during the coming administration.

    With one of the fiercest opponents of all forms of immigration in the entire US Congress about to take over the federal criminal justice system as Attorney General; and the author of numerous state immigration repression and minority voter suppression laws (many of which have been struck down by the courts) reportedly being considered to become the new DHS Secretary; not to mention Trump's November 29 threat to take away the US citizenship of Americans who exercise their constitutionally protected right to express their opposition to his policies by using the US flag as a symbol, it may be more than enough of a challenge to maintain the rights and liberties, not only of millions of minority immigrants in America, but of millions more American citizens who support these immigrants and stand up for their rights.

    Roger Algase
    Attorney at Law

    Updated 12-03-2016 at 10:15 PM by ImmigrationLawBlogs

  2. OCAHO Finds Employees’ TWIC Cards Grounds to Reduce Employer’s Penalties

    By Bruce Buchanan, Sebelist Buchanan Law

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    A trucking company, Ideal Transportation, significantly reduced its penalties for I-9 violations due to its truck drivers possessing “Transportation Worker Identification Credential” (TWIC) cards, which were issued by the Transportations Security Administration (TSA). See U.S. v. Ideal Transportation Co., Inc., 12 OCAHO no. 1290 (2016).

    Ideal Transportation operates a small intermodal carrier transporting international ocean containers between several ports in the northeast. Its drivers must have TWIC cards because they have unescorted access to secure areas of port facilities and certain vessels at the ports. In order to obtain a TWIC card, an individual must provide biometrics and pass a “security threat assessment” conducted by TSA. Furthermore, one must be a U.S. Citizen or be lawfully in the U.S. In this case, all of Ideal’s truck drivers possessed TWIC cards.

    After Ideal was served with a Notice of Inspection, it reviewed its employees’ I-9 forms and determined they were “soiled, torn and illegible and the information was outdated”; thus, all new I-9 forms were completed. Furthermore, Ideal shredded the existing “soiled” I-9 forms.

    Based upon this background, Immigration and Customs Enforcement (ICE) found 12 violations because the I-9 forms were not timely completed. ICE proposed a penalty of $11,220 based upon a baseline penalty of $935 per violation. In its filing with the Office of Chief Administrative Hearing Officer (OCAHO), Ideal asserted its drivers had TWIC cards, were U.S. citizens and had completed I-9 forms when initially hired. Thus, it asserted it did not violate the law.

    OCAHO found Ideal’s argument, that the timely prepared I-9 forms and subsequent destruction because they were damaged, was not a valid defense to liability. Although OCAHO recognizes “impossibility” as an affirmative defense to the failure to present I-9 forms when the I-9 forms were unavailable through no fault of the employer, those facts were not presented in this case. Rather, the destruction of the original I-9 forms was attributable to the company’s own actions. Thus, OCAHO found Ideal liable for 12 Form I-9 violations.

    However, OCAHO stated the TWIC cards demonstrated the employees were authorized to work, which undercuts ICE’s argument that Ideal was “at high risk to hire employees that may not be authorized to work.” Furthermore, the TWIC cards demonstrated the lack of seriousness of the violations as well as the company’s good faith.

    OCAHO also found due to Ideal’s very small size, the general public policy of leniency to small business entities should be considered in determining the appropriate penalty. Based upon these factors, OCAHO determined a penalty of $2700 was appropriate.
    Although Ideal greatly reduced its penalty, the lesson to be learned here is not to destroy the original I-9 forms even if you determine the I-9 forms need to be re-done. Instead, attach the original I-9 forms to the new I-9 forms even if they are soiled or torn.
  3. Can Americans Lose Their Citizenship for Engaging in Constitutionally Protected Expression of Opinion? Part 1. Roger Algase

    In a disturbing reminder of the fact that our immigration laws affect not only questions of immigration status, but also the right to hold US citizenship, President-elect Donald Trump tweeted the following on November 29:

    "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail."

    This raises the question whether an American citizen, including native-born Americans can legally be deprived of US citizenship for engaging in conduct that is constitutionally protected by the first amendment's guarantee of free speech.

    In two landmark US Supreme Court cases, Texas v. Johnson 491 U.S. 397 (1989) and United States v. Eichman 496 U.S. 310 (1990), the Court held that flag burning is a form of expression that is protected under the constitution.

    In Johnson, the defendant was convicted under a Texas statute for burning an American flag during the 1984 Republican convention in Dallas as a protest against certain policies of the Reagan administration to which he objected. The state of Texas argued, among other things that it had the right to protect the flag from desecration as a venerated symbol of national unity.

    The Supreme Court, in a 5-4 decision in which one of its most conservative Justices, the late Justice Scalia, joined the majority, held that, absent any indication that the defendant's conduct was likely to cause a disturbance or breach of of the peace, his flag-burning was a constitutionally-protected expression of political opinion.

    To be continued.

    Updated 11-30-2016 at 04:07 AM by ImmigrationLawBlogs

  4. Could Mass Deportation Lead to Reversing 50 Years of Progress toward Racial Equality and Freedom for All Americans? Roger Algase

    Anyone who thinks that immigration policy exists in a vacuum affecting foreign citizens only, unrelated to larger issues of racial equality and democracy for Americans as well, should pay attention to the warning implicit in Donald Trump's two latest chilling comments affecting the voting and citizenship rights of American citizens.

    The first, as has now been reported by every major news media in America, is his totally unfounded statement, unsupported by a single shred of evidence, that he would have won the popular vote in the presidential election if there had not been 3 million "illegal" votes against him.

    Trump did not say who these "illegal" voters might have been, but during the campaign, he suggested that illegal immigrants could be coming into the country to vote against him.

    Statements such as these suggest a lack of acceptance, if not outright hostility, not only toward immigrants, but for the foundation of America's entire democracy, which depends on free and fair elections, undistorted by wild claims that if a candidate loses, it only be the fault of alleged "voting" by illegal immigrants.


    An even more chilling statement, which should cause the highest level of concern to everyone who cares about preserving our democracy, was Trump's November 29 statement that anyone engaging in flag burning should be subject to losing his or her US citizenship.

    Our next president might need to be respectfully reminded that the late Justice Scalia himself, whom Trump has expressed great admiration for, wrote the majority opinion in a 1989 Supreme Court decision upholding the Constitutionality of flag burning as a permissible form of free speech.

    Justice Scalia later said (in 2015):

    "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag...But I am not king."

    Certainly, even the anti-immigrant extremists whom Trump has either already appointed to his cabinet as the next attorney general, Jeff Sessions, or is reportedly considering for appointment as DHS chief, Kris Kobach, will not have the power summarily to deprive any US citizens of the 14th Amendment right to American citizenship for exercising the 1st Amendment right to free speech.

    America is not yet at the end of that road. But, arguably, America could already be on the road that leads in that direction.

    Sessions will have, if confirmed, enormous power, not only to harass and prosecute minority immigrants and their American citizen family members, employers, friends and supporters for a variety of immigration-related criminal offenses, including but not limited to "harboring" or "assisting" illegal immigrants under INA Section 274, but he will also be able to prosecute voter registration organizations for helping black and Hispanic Americans gain access to the polls as they are guaranteed under our Constitution.

    He will also have the power to put the federal government on the side of gutting, rather than enforcing, whatever protections still remain under the landmark Voting Rights Act of 1964.

    Fifty years of progress in guaranteeing the right to vote to minority Americans could be, and very probably will be, reversed.

    Taking away the voting rights of minority Americans will almost certainly by mirrored in taking away or restricting the due process rights of Latino, Asian, Middle Eastern and black immigrants fighting deportation. As POLITICO points out, Sessions will have complete control over the immigration courts and the BIA.

    In addition Kobach, who as mentioned above, is reportedly being considered for DHS chief, has arguably done more than anyone else in America to draft and support draconian racial profiling immigration laws such as Arizona's notorious S.B. 1070 and its even more severe counterpart in Alabama, most parts of which statutes have been struck down by the Supreme Court and other federal courts. See:

    At the same time, no one in America has tried harder and more persistently (or less successfully, according to numerous federal court decisions which have struck down state voter ID and other voter suppression laws which he has written or inspired) than Kobach to stop black, Latino and other minority Americans from voting. See:

    A half century of progress toward racial equality in our immigration system, ever since the immigration reform law of 1965 ended 80 or more years of legal white supremacy in this country's immigration policies, could be set back or wiped out completely.

    What is President-elect Trump trying to tell America by posting his latest tweets implying that when he loses an election (such as the presidential popular vote, which he lost to Hillary Clinton by over 2 million votes) it can only be because of "illegal" voters, and threatening to deprive Americans of their Constitutionally guaranteed citizenship for exercising their Constitutionally protected free speech rights?

    What is Trump trying to tell America by appointing anti-immigrant zealots such as Jeff Sessions as Attorney General and Kris Kobach to his transition team?

    These actions could very likely mean that 50 years of progress toward racial equality and equal justice for all, for immigrants and Americans alike, and basic voting and free speech rights without which America cannot continue to call itself a democracy, may come under intense, savage, attack in Donald Trump's America.
    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 and ethnic/religious backgrounds obtain work visas and green cards.

    Roger has consistently fought for the rights of immigrants to fundamental fairness and justice under our laws and regulations. His email address is

    Updated 11-29-2016 at 05:10 PM by ImmigrationLawBlogs

  5. Letters of the Week: November 28 - December 4

    Please email your letters to or post them directly as a comment below.
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