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  1. Sheriff Arpaio’s Unlawful Actions Lead Court to Find Frimmel Has No Liability

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC




    Just when you thought Sheriff Joe Arpaio could not cause further trouble because he’s out of office, he strikes again in an immigration case.

    This case centers on a Notice of Inspection (NOI) that was delivered to Frimmel Management after Sheriff Arpaio’s police force, Maricopa County Sheriff’s Office (MCSO), conducted raids of two Uncle Sam’s restaurants and the owner’s home. MCSO seized employment records based on suspicion that the restaurants’ workers committed identity theft and forgery. During the State of Arizona’s prosecution of Frimmel, the state court found the affidavits supporting the search warrant for the raids were “unreasonable and reckless.” Therefore, the Court dismissed the charges against Frimmel.

    One day after MCSO’s raids, MCSO sent a memorandum to ICE summarizing the results of the unlawful raid. Thereafter, MCSO issued press releases publicizing their raids and stated some of the workers had been put on ICE holds.

    About two and one-half weeks after the raids, ICE served a NOI/subpoena on Frimmel. After Frimmel timely produced the restaurants’ I-9 forms, ICE issued a Notice of Intent to fine (NIF) and a complaint for the case to be heard by an OCAHO Administrative Law Judge.

    In response to Frimmel’s objections, this ALJ found that how Frimmel had come to the attention of ICE was “irrelevant” to the OCAHO case. Frimmel also argued the I-9 forms must be suppressed under the fruit of the poisonous tree doctrine. The ALJ disagreed and found ICE had not relied on any “evidence directly obtained from MCSO’s unlawful conduct.” Since the primary goal of suppressing evidence based on illegal conduct is to deter future unlawful police conduct, this was not a factor in question in the ICE’s NOI of Frimmel. Thus, the ALJ upheld the $347,000 penalty.

    On appeal to the 9th Circuit Court of Appeals, the Court initially reviewed MCSO’s conduct. It found that MCSO’s omissions and distortions in the affidavits for the search warrant were “reckless and immaterial.” Thus, this finding led the 9th Circuit to find the raids violated the 4th Amendment to the Constitution.
    Furthermore, the Count found MCSO’s conduct to be egregious.

    Despite those findings, DHS argued the “ICE investigation was too attenuated from MCSO’s illegal conduct” Under the attenuation doctrine, evidence is admissible when “the connection between the illegality and challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.”

    The Court rejected that argument and found there was a causal connection between MCSO’s unlawful search and the ICE audit. The identity evidence – Frimmell and his restaurants – resulted from MCSO’s raid, which “significantly directed the subsequent ICE investigation.” Thus, the I-9 forms which ICE seized were fruit of MCSO’s illegal search.

    In conclusion, the 9th Circuit found for Frimmel because ICE used the fruit of the poisonous tree – the I-9 forms. Thus, Frimmell did not owe the $347,000 that OCAHO had found as penalties.

    Although very few cases get litigated to the Court of Appeals, companies continue to have some success in appeals to the Courts of Appeal. Several years ago, the 5th Circuit Court of Appeals reversed OCAHO’s $227,000 penalty against Employer Solutions Staffing Group II, LLC.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. Cancer of Trump's Racist Agenda Spreads From "National Security" Muslim Ban to "Public Charge" Ban Against Millions of Brown Immigrants. Roger Algase

    Those who warned that Donald Trump's first Muslim Ban executive order issued almost immediately on becoming president 18 months ago was only the curtain-raiser to world-wide exclusion of non-white legal immigrants are now being proven right, as the fake "national security" pretext for the Muslim ban is now morphing into an even more phony "public charge" ban which could affect millions of Mexican and other non-European immigrants, as opposed to some 200 thousand caught up in the Muslim ban.

    The only difference is that the initial Muslim ban caused widespread outrage among the American people leading to court action and the ultimate withdrawal of the order.

    Now, a Trump adminnistration plan to impose a much wider ban based on absurdly inflated and distorted "public charge" grounds - which themselves had their origin in attempts to keep out Chinese, Jewish and other immigrants considered "racially undesirable" by the bigots of a century ago or more ago - and could affect many more immigrants than the Muslim ban, has caused hardly a murmur among the public and our politicians, and no lawsuit plans to date that I am aware of.

    This increasing public acceptance of escalating authoritarian outrages against targeted minority groups is the way that a society loses its democracy, as the example of Germany in 1933 shows.

    In the latest outrage involving the Trump administration's expanded use of the Public Charge exclusion grounds against legal immigrants who are totally self-supporting and have always been in compliance with our immigration laws down to the last comma, dotted "i" and crossed "t", the Houston Chronicle reports that a Mexican woman with a steady job and career in her country and a legal visitor visa, and who has made numerous trips to the US to visit her US citizen daughter and never overstayed by even a single day, was denied entry at the airport by CBP officers, had her visa cancelled and was barred from returning to the US for five years mainly on "Public Charge" grounds - because she used a legal US government program to help pay for a medical emergency on a previous visit.

    Apparently as an afterthought, with no evidence other than the fact that she had made a number of legal visits to see her American family and always left on time, CBP also determined that she was inadmissible to the US as an "intending immigrant".

    https://www.houstonchronicle.com/new...r-13139345.php

    The Trump/Miller/Sessions message to immigrants, not only from Mexico, but from every part of the world, is becoming clearer and clearer with every new assault on the basic dignity and human rights of immigrants seeking to enter the United States in full compliance with our laws as written by Congress in accordance with our democratic system of government - not as unilaterally rewritten by the above triumvirate themselves.

    This message is, obviously:

    "We don't care what type of visa or other legal permission you may have. Don't even think of entering the United States unless you are 'Intending' - to be white."
    __________________________
    Roger Algase is a New York attorney and graduate of Harvard College and Harvard Law School who has been practicing immigration law for 40 years. He concentrates mainly in the areas of skilled and professional work visas (H-1B); extraordinary ability business, scientific and artist visas (O-1); and green cards through PERM Labor Certification and family relationships. He also represents F-1 students who are beginning their business or professional careers.

    Roger represents immigrants from diverse parts of the world. He believes that respecting the fundamental American values of racial equality and basic human rights in our immigration system is essential to maintaining our democracy - which is threatened today as rarely, if ever, before in this country's history.

    Roger's email address is algaselex@gmail.com


    Updated 08-15-2018 at 09:23 AM by ImmigrationLawBlogs

  3. ACLU’s lawsuit may force Trump to stop granting asylum applications. By Nolan Rappaport





    The American Civil Liberties Union (ACLU) is suing Attorney General Jeff Sessions to prevent his domestic abuse decision from being used for credible fear determinations in expedited removal proceedings.

    Sessions is trying to eliminate the need for asylum hearings on applications that are based on improper persecution claims. These meritless cases are contributing to an immigration court backlog crisis. If he is prevented from doing this by issuing precedent decisions to provide guidance on how asylum cases are supposed to be handled, the administration will resort to more extreme measures.

    The United States does not have to grant any asylum applications. Asylum is discretionary, and the Supreme Court has held that the president can suspend the entry of aliens into the United States when he finds that their entry “would be detrimental to the interests of the United States.”

    The court declined to decide whether “some form of inquiry into the persuasiveness of a president’s finding is appropriate.” It seems unlikely, however, that the court would reject a president’s finding that discretionary asylum grants should be suspended until the immigration court backlog crisis is brought under control because allowing the backlog to continue is detrimental to the interests of the United States.

    This would not leave asylum seekers without a way to avoid persecution. Withholding of removal is available too and it is mandatory when eligibility has been established. The main difference in eligibility requirements is that asylum just requires a well-founded fear of persecution, and withholding requires the applicant to establish that it is more likely than not that he will be persecuted.

    But withholding does not entitle aliens to remain in the United States. It just prevents them from being deported to a country where they will be persecuted.

    The backlog crisis.

    Read more at
    http://thehill.com/opinion/immigrati...m-applications

    Published originally on The Hill.

    Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an 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 20 years.











    Updated 08-13-2018 at 04:22 PM by ImmigrationLawBlogs

  4. PERM Book Practice Tip - Maintenance of Status in PERM Cases By Joel Stewart, Editor PERM Book III

    by , 08-13-2018 at 03:24 PM (Joel Stewart on PERM Labor Certification)
    Before beginning a PERM case, an employer must always check the immigration history of the foreign national to confirm that he or she is eligible to receive permanent residency, and whether the applicant may expect to apply by Adjustment of Status or by Consular Processing.
    Focus must be placed on determining that the foreign national has always maintained status in the United States – whether it by as a temporary visitor for pleasure, business, as a student or in an authorized category of work.
    In addition to the Resume and Diplomas of the foreign worker, it is recommended to ask the worker to provide a time line to prove maintenance of status.
    This can be done by establishing an unbroken line of authorized stay and status in the US, and by confirming that the applicant has not worked without authorization by proving the monthly income from the time of first entering the United States.
    The issue of maintenance of status is more acute for visitors and students who rely entirely on funds from abroad. They should be prepared to provide all their income during stays in the United States – whether by credit cards from abroad, bank transfers, cash brought legally into the US, gifts, or other lawful receipts of valuable goods or services.
    While the word “work” is not defined in the Immigration and Nationality Act and is only obliquely referred to in the regulations and other guidance, it should be construed to mean an exchange of services for valuable consideration.
    There are nuances such as persons paid abroad while on business trips to the US or entrepreneurs who may be on US soil managing their business abroad by phone or internet. These persons would not be “working” without authorization in the US, but, even so, they may be violating their status. Examples of these nuanced situations are abundant. The one that comes to mind is the Hong Kong Tailor who may enter the US as a visitor to take measurements but may not sew or manufacture the clothing in the US.
    If the applicant is found to be ineligible for adjustment of status, an interview for permanent residency should be held in the US Consulate abroad. It is not a basis for ineligibility to have failed to maintain status in the US, however, it untruthful statements regarding same in connection with an adjustment of status application would create a new ground of ineligibility in the category of fraud or misrepresentation.
    For someone in student status, there are two lines of inquiry to determine eligibility for adjustment of status:

    1. Has the individual been studying full-time, the whole time? This is determined by creating a time line of documents in chronological order. The schools use form I-20 to show that the student is in status. The I-20’s have start and end dates, and the dates of all the I-20’s should be uninterrupted back to back. Furthermore, the time in student status had to be full-time. Granted, the schools are allowed some flexibility to define “full-time.” It’s usually a number of hours per week or a number of credits per semester. The student must provide us with this documentation to prove that she has maintained her student status.
    2. The second line of inquiry is whether the student has supported herself with her own funds, or whether she is working illegally. When someone is here from a country which has a bad exchange rate with the US, and the student has been here a long time, it is natural for the examiner to imagine that illegal work may be involved. The way to prove legal source of support, a monthly budget should be prepared. After establishing the budget, it is then necessary to show where the funds came from each month to pay for the expenses in the budget.


    In summary, if the foreign worker is not eligible for adjustment of status, he or she should still be able to apply for permanent residency by asking for an interview in the US Consulate abroad, since unauthorized employment and other kinds of failure to maintain status cause the applicant to be statutorily ineligible to adjust status in the USA.
  5. Letters of the Week: August 13 - August 17

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