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By: Bruce Buchanan, Siskind Susser
In United States v. 7-Eleven, 11 OCAHO no. 1258 (September 2015), the Office of Chief Administrative Hearing Officer (OCAHO) found a 7-Eleven franchisee had committed numerous serious I-9 violations but reduced the proposed penalties by about 55%.
After service of a Notice of Inspection (NOI), Immigrations and Customs Enforcement (ICE) determined 7-Eleven had a 100% error rate on its I-9 forms. Specifically, ICE alleged 7-Eleven failed to timely prepare or present 27 I-9 forms and failed to ensure proper completion of eight I-9 forms. ICE sought a penalty of $34,408 based on a baseline penalty of $935 plus 5% enhancement for lack of good faith – backdating many I-9 forms. 7-Eleven, who was not represented by counsel, raised 19 affirmative defenses, almost all of which had no basis under the law.
The 27 I-9 forms that were not timely prepared or presented varied in their substantial defects: two employees did not have an I-9 form at all; five I-9 forms were backdated using the 2013 I-9 form for employees hired in 2012; 11 Form I-9s were not timely completed as they used the 2013 I-9 form and listed hire dates between 2010 and 2012; and nine other I-9 forms had numerous substantive errors, such as missing page 2, unsigned by employer and/or employee, and missing other pertinent data.
One of 7-Eleven’s principal defenses was that the employees hired were authorized for employment because the franchisee was required by 7-Eleven to submit information and data concerning new hires into a centralized information system, which determined employee’s work eligibility. This defense was found to be without merit. As OCAHO stated, “no other scheme or system an employer wishes to use to circumvent or replace the form I-9 completion and retention requirements…”
One issue which appears frequently in OCAHO litigation is whether the backdating of I-9 forms is evidence of bad faith. Although at first blush it might appear so, OCAHO has repeatedly stated that absent an indication that ICE instructed the employer not to backdate the I-9 forms, the government fails to prove bad faith and the 5% enhancement. In this case, ICE failed to offer any such proof; thus, the 5% enhancement failed.
Concerning the penalties, even though most of the violations were considered serious, 7-Eleven was substantially aided by the franchisee being a small employer. As OCAHO has repeatedly found, an employer’s small business status under the Small Business Regulatory Enforcement Fairness Act provides for leniency in penalties. Thus, OCAHO reduced the penalties from $34,408 to $15,450.
From Syracuse University's TRAC Immigration:
There were nearly a half million individual deportation cases (456,644) pending before the judges in the nation's clearly overwhelmed Immigration Courts at the end of August, according to the very latest information obtained from the U.S. Department of Justice and analyzed by the Transactional Records Access Clearinghouse (TRAC). This backlog has been rising steadily for nearly a decade and has reached yet another new all-time high.
As a result, the average wait time for an individual in the Immigration Court's pending cases list has also reached an all-time high of 635 calendar days. But this average wait time only measures how long these individuals have already been waiting, not how much longer they will have to wait before their cases are resolved.
The severity of the rapidly growing crisis was revealed last January, when the court issued thousands of letters notifying individuals that their cases would be delayed for nearly five years more — until November 29, 2019.
Figure 1. Number of Cases Pending in Immigration Court
TRAC determined that the immigration court backlog increased by more than 100,000 cases from the 344,230 that were pending at the beginning of FY 2014.
For more details see TRAC's Immigration Court Backlog tool, updated monthly.
Please email your letters to firstname.lastname@example.org or post them directly as a comment below.
In the light of widespread hostility to Syrian, other Middle Eastern and African refugees in Europe and America today, it is instructive to remember that mass migration and refugee movements used to involve mainly people from Europe. For example, Hungary, even though it has closed its borders completely against Syrian refugees now, was once the source of one of the biggest refugee outflows anywhere within the past 60 years.
IOM (International Organization for Migration) reminds us that it helped resettle nearly 200,000 Hungarian refugees who fled to nearby European countries after the Soviet invasion of 1956. It reports that by 1970, it had assisted over 2 million migrants, most of them from Europe.
"...reminding Hungary and other Europeans of their own history as desperate migrants and refugees is sometimes casually dismissed...but the main compelling reason why yesteryear and today's refugees and migrants are desperately migrating in numbers remains the same. Self preservation."
The US was also more generous in taking in Hungarian refugees at the time of the Soviet invasion than it is now with regard to the Syrian refugee crisis. According to a declassified 1958 CIA study: Report on Hungarian Refugees, by Guy E. Coriden, 35,000 Hungarian refugees were relocated to Camp Kilmer, NJ, for processing and eventual resettlement in the US.
The CIA report welcomed the fact that so many of the refugees were young men who would be able to contribute to American society (and hopefully provide valuable intelligence), even though it also recognized that some of them might be Soviet agents assigned to report on the activities of genuine refugees.
Anyone who thinks for a moment that that time, nearly 60 years ago, was less dangerous for America and the world than the present time, or that vigilance toward refugees for security reasons was any less necessary then than it is now, knows nothing about the cold war, one of the most dangerous periods in our entire history.
That fact that times were "different" in the 1950's from the present is not sufficient to explain the contrasting receptions given to European refugees from Russian domination and Communism then, and Syrian refugees from a Russian-backed dictatorship and Islamist extremism now.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping mainly skilled and professional immigrants obtain work visas, green cards and US citizenship. His email is email@example.com
Updated 09-21-2015 at 10:28 AM by ImmigrationLawBlogs
In the wake of what is being called the worst humanitarian crisis since WW2, the US has admitted on a tiny trickle of the estimated 4 million refugees who have fled Syria since the start of the civil war there 4 years ago: 1,500 per year according to Justin Salhani, writing in ThinkProgress on September 9. See: Security Concerns, Islamophobia Preventing U.S. from Pitching In On Syrian Refugee Crisis
Now, according to the above article, sentiment to admit more Syrians is growing in the US, fueled in part by the tragic photo of a drowned Syrian toddler which was widely circulated this month. Also according to this article, no less than Donald Trump himself has spoken out in favor of admitting more Syrian refugees.
Using his typical eloquence and stirring words of inspiration, Trump was quoted in the above article as saying the following to Fox News' Bill O'Reilly on September 8 about the "unbelievable humanitarian problem" of the Syrian refugees:
"I hate the concept of it, but on a humanitarian basis, with what's happening, you have to."
What is stopping America from admitting a realistic number of refugees from Assad's barrel bombs and chemical weapons on the one hand, or ISIS beheadings and crucifixions, on the other?
Of course, Americans are conditioned by the media, not to mention some of our leading politicians, to think "terror" every time we hear the word "Muslim", just as we think "ebola" whenever we hear about West Africa, or "drugs" and "gangs" whenever Mexico is mentioned.
This is not to say that that security considerations are not extremely important, especially with regard to admitting immigrants from the Middle East. But is it really impossible to do meaningful security checks on Syrian refugees, a large proportion of whom are women and young children? Or is there also a chance that security considerations are being overblown for political reasons?
Salhani points out that security clearances are hardly being overlooked with regard to Syrian refugees:
"While security concerns are natural, refugees are heavily vetted by groups like the United Nations who use iris scanning technology. American intelligence agencies also coordinate with their Middle Eastern counterparts to weed out any Syrians who may have links to extremists groups. Furthermore, each refugee is thoroughly vetted by American officials before they are granted resettlement.
'They check people so thoroughly before they arrive,' Daniel Grisgraber, a Senior Advocate at Refugees International, told ThinkProgress shortly after the hearing [by a House subcommittee dealing with Syrian refugees last June].'Everyone understands security concerns but we can't let worries over terrorism or counterterrorism overrule international law or humanitarian commitments.'"
The above caveat is especially appropriate in the case of politicians such as Rep. Michael McCaul (R-Tex), who has been exceptionally vocal about the alleged security risks of letting in Syrian refugees, while having a solid, across the board, anti-immigrant record himself on everything from border fences to mass deportation.
Security is too important, too vital to the welfare and safety of the American people, to be used as a political tool by people who may have an ideological ax to grind against immigration in general.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For the past 30 years, he had been helping mainly skilled and professional immigrants obtain work visas, green cards, and US citizenship. His email is firstname.lastname@example.org
Updated 09-19-2015 at 04:16 PM by ImmigrationLawBlogs