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  1. OCAHO Reduces Restaurant’s Penalty

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In one of its last decisions of 2016, the Office of Chief Administrative Hearing Officer (OCAHO) reduced the penalty of a restaurant from $96,398 to $58,850 for 107 violations. See U.S. v. Pegasus Family Restaurant, Inc.,12 OCAHO no. 1293 (Dec. 2016).

    This case stated almost three years ago – in December 2013 – when Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on Pegasus, a small restaurant in Hamburg, New York. Pegasus provided approximately 81 Form I-9s. Thereafter, ICE filed a Notice of Intent to Fine (NIF) alleging Pegasus failed to prepare and/or present 31 Form I-9s and failed to properly complete 76 Form I-9s - it failed to record any documents in section 2, only recorded a List B document, a driver’s license or state ID card, or failed to ensure the completion of Section 1 with a signature or attesting to the employee’s status, U.S. citizen, permanent resident, etc. Pegasus admitted liability on all the I-9 violations. Thus, the only issue before OCAHO was the amount of the penalty.

    In seeking a penalty of $96,398, ICE used a baseline penalty of $935 per violation due to Pegasus having a violation rate of over 90%. ICE found Pegasus’s small size and the individuals in Count I as eligible for employment to be mitigating factors while the seriousness of the violations to be an aggravating factor. The remaining statutory factors of history of violations and good faith were considered neutral.

    Pegasus asserts its lack of history of violations and no conclusive evidence that any of the employees were unauthorized to work were mitigating factors. Furthermore, it asserts the following non-statutory factors warrant mitigation – general public policy of leniency toward small businesses, company’s high turnover rate, its cooperation with ICE during the investigation, including enrollment in E-Verify, and its inability to pay the proposed penalty.

    OCAHO agreed with Pegasus that the government failed to prove any of the employees were unauthorized to work. In an unusual finding, OCAHO stated this was a mitigation factor, rather than a neutral factor, although it recognized that it could have been accepted as a neutral factor. However, OCAHO declined to find the lack of a history of I-9 violations as a mitigating factor.

    Concerning its inability to pay, OCAHO found it failed to show it could not pay the penalty, but found the proposed penalty was “unduly punitive.” Thus, OCAHO considered the company’s financial situation.

    Although OCAHO found an employer’s post – inspection remedial measures may support mitigation, it declined to final such in this case. Furthermore, it declined to view a high turnover rate as a mitigating factor.

    In conclusion, OCAHO found the penalty should be reduced from between $888 and $935 per violation to $550 per violation. Thus, this total penalty was $58,850. As the facts demonstrate, if Pegasus would have performed an internal I-9 audit before ICE arrived with the NOI, many of the I-9 violations could have been corrected and not subject to a penalty.
  2. Identity of Immigration Judges Subject to Complaints of Misconduct Revealed

    by , 01-17-2017 at 08:57 AM (Matthew Kolken on Deportation And Removal)
    The following was originally published by immigration lawyer Bryan Johnson on January 16, 2017:

    The Department of Justice (“DOJ”) has aggressively concealed the identities of Immigration Judges in connection with complaints of misconduct made against them for several years.

    Until today.

    In response to a FOIA from the American Immigration Lawyers Association (AILA), the DOJ released over 14,000 pages of documents in connection to 770 complaints made against immigration judges between 2008 and 2013. The lawsuit is still pending, and DOJ has yet to reveal any of the identities of the Immigration Judges.

    This past weekend, I discovered that a significant portion of the documents released by the DOJ were not, in fact, redacted.

    Using the information gleaned from the un-redacted documents, I identified 58 immigration judges with 443 complaints. In other words, over half of the complaints are now matched with the immigration judge whom the complaint was made against.

    Here is a modified key, which you can use to identify complaints in AILA’s database linked to above with the corresponding Immigration Judge.

    Here are additional documents I have already combined for the general public’s use:

    IJ Vomacka Complaints

    IJ Hom Complaints
    IJ Cassidy Complaints
    IJ Wilson Complaints
    IJ Nugent Complaints
    IJ Ford Complaints
    IJ Pelletier Complaints
  3. With Obama's immigration legacy, Trump inherits 'home free magnet' by Nolan Rappaport

    © Getty

    President Barack Obama focused his immigration enforcement program on aliens who have been convicted of crimes in the United States, aliens who have been caught near the border after making an illegal entry, and aliens who have returned unlawfully after being deported.

    This was eminently sensible, but the way he implemented this policy is another matter.


    Published originally by The Hill.

    About the Author
    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 01-17-2017 at 07:43 PM by ImmigrationLawBlogs

  4. Letters of the Week: January 16 - January 22

  5. Could America Turn Back Toward the Coolidge Era "Nordics-Only" 1924 Act Immigration Quotas in the Coming Years? Roger Algase

    Update: January 20, 1:13 pm:

    This is from President Trump's nationalistic, "America First" inaugural speech:

    "We will follow two simple rules: Buy American and Hire American."

    What does mean for the future of legal immigration in Donald Trump's America?

    Will "Hire American" become a cover slogan for "Make America White"?

    See my comment below about the support by Jeff Sessions, Trump's Attorney Genral designate, for bringing back shameful "Nordics-Only" immigration quotas of the 1920's in the name of protecting American workers.

    My original comment appears below:

    This comment will continue and expand on a topic I introduced in my January 4 comment: How secure will the future of employment-based immigration be under Jeff Sessions as the new Attorney General?

    In my previous comment, I referred to an immigration "Handbook" that Senator Jeff Sessions (R-Alabama), now to become the new Attorney General, prepared and distributed to his fellow Congressional Republicans in January, 2015, outlining his views on immigration policy objectives which he believed should be given priority. See:

    On page 10 of his "Handbook", Sessions made reference to a 1920's Coolidge era law which, ostensibly, had its main purpose as tightening the labor market in order to boost wages of American workers that had been driven down by too large an influx of immigrant workers.

    The reality is, that as anyone who has the slightest knowledge of US immigration history knows full well, the main purpose of that law, the Johnson-Reed Immigration Act of 1924, was to exclude most, if not all, immigrants who were not from the "Nordic" countries of Western Europe, in pursuit of openly racial goals.

    No one could possibly know the background and history of that law better than Attorney-General designate Sessions himself, who, according to virtually all media reports, is one of Trump's closest advisers on immigration and who, as Attorney General, will have enormous power over America's immigration system.

    First, let us look at Sessions' own statement in his "Handbook", possibly one of the most disingenuous statements made about a major piece of immigration legislation by any politician or other public figure in modern times:

    On page 10 of the Handbook, Sessions states:

    "There had been a great wave of immigration in the four decades leading up to the Coolidge administration. This substantial increase in the labor pool had created a loose labor market that tilted the balance of power to large employers over everyday workers."

    Let us pause at this point and ask whether Sessions, who claims to be so concerned about whether immigration has "tilted the balance of power to large companies over everyday workers" , has ever supported legislation protecting the rights of everyday workers in dealing with employers of any size, such as the right to join labor unions.

    The answer is a resounding no, according to the AFL-CIO:

    Sessions continues (on page 10 of his Handbook) as follows:

    "Coolidge believed it was rational and sensible to swing the pendulum back toward the average wage-earning American."

    Certainly Coolidge "swung the pendulum back". But it was not swung back toward raising the wages or living standards of American workers. There is little if any historical evidence that this was a genuine concern for Coolidge, who had become famous for his union busting tactics against the Boston police in 1919 as Governor of Massachusetts.

    The "pendulum" that Sessions is talking about in his above statement was instead swung back toward orienting America's immigration system back toward northern Europe and putting an end to or reversing the great wave of Italian, Jewish and eastern European immigration which had taken place during the previous four decades, beginning in the 1890's.

    This is why, as shown in more detail below, the "national origins" immigration quotas imposed under the 1924 law were based on the relative ethnic origins of America's population, not in 1920, the most recent census year before the law was passed, but in 1890 (!) 30 years earlier and before the big increase in Catholic and Jewish immigration from southern and eastern Europe had begun.

    After signing the Johnson-Reed Immigration Act of 1924 (more details about which appear below), Coolidge issued a proclamation. (See note 1, below) fixing the annual immigration quotas for immigrants who were born in the various countries of the world (other than "Western Hemisphere" countries, which were not affected by the quotas and did not account for a high percentage of US immigration at that time) according to the following typical examples:

    a) Germany: 51,227
    b) India: 100
    c) Great Britain and Northern Ireland: 34, 007
    d) China: 100
    e) Sweden: 9.561
    f) Japan: 100
    g) Norway: 6,443
    h) South Africa: 100

    Of course, as everyone knows, including, without the slightest possible doubt, Sessions himself, these obviously racially "tilted" quotas were not only biased against immigrants from Asia and Africa - they also almost entirely excluded immigrants from eastern Europe, with its large Jewish population and from mainly Catholic Southern Europe.

    The annual quota for Catholic Italy, for example was 3,845, about one tenth of the quota for Great Britain and Northern Ireland, and the annual quota for Russia, home to many Jews, was only 2,248, about 4 percent of the annual quota for Germany.

    (One can safely guess that immigration policies toward Russia may be considerably more generous under our new president than they were under President Coolidge!)

    Most of the smaller countries of southern and eastern Europe were also limited to law's minimum per country quota of 100 immigrants to the US per year.

    Why was there such an enormous bias in favor of the "Nordic" countries of Western Europe? As is beyond any serious dispute, and as Attorney-General designate Sessions cannot possibly be unaware, this was because of the racial thinking which was so prevalent in America of Coolidge's time.

    This is explained succinctly, and at the same time in great detail, in an article by Tanya Kateri Hernandez of Fordham Law School in 76 Oregon Law Review 731 (1997) with an extremely lengthy title beginning as follows:

    Construction of Race and Class Buffers in the Structure of Immigration Controls and Laws...

    For the abstract, see:

    Hernandez writes: (76 Or. L Rev. at 740):

    "The Immigration Act of 1924 restricted immigration on the basis of national origin and set quotas which favored immigrants from northern and western Europe. The legislation was tied to the rise of the pseudo-science of eugenics.

    During the House hearings on the Act, genetic theories concerning the superiority of White Nordic persons and the inferiority of all others were the prominent arguments for selective immigration. Representative Robert Allen of West Virginia stated: 'The primary restriction for the alien stream, however, is the necessity for purifying and keeping pure the blood of America.'"

    What does this have to do with Sessions' baseless and unsubstantiated claim that the main reason for passing the 1924 immigration act was to boost the wages of American workers?

    My next post will show how Trump, if he decides to do so, already has the power under INA Section 212(f) to reinstate the 1924 racial "national origin" immigration quotas, or impose a system resembling it, simply by presidential proclamation.

    This would effectively gut the 1965 immigration reform law which abolished the whites-only immigration regime of a century ago, a reform law which Trump indirectly criticized himself in his August 31 2016 Arizona immigration speech.

    Roger Algase
    Attorney at Law

    Updated 01-20-2017 at 12:17 PM by ImmigrationLawBlogs

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