by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely.  It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers.  These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.”  She wrote:

[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011.  One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer.  We have always felt pride in our nation’s ways, and pride isn’t all bad.  But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.

Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of "American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet).  The construct of the federal courts that I’m about to describe rests on tottering and false assumptions.  These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation.

(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion.  Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president.  Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.)

The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous.  As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous.  Thus, the courts are under orders to let the agencies call the shots.

So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws?  My 30-plus years as an immigration lawyer compel me to shout a “NO” answer.

Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA).  The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws.  DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS).  The converse is also true, as USCIS readily admits.

Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws.  Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization.  These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]).

As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies.  Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies.

Lately, seasoned immigration observers have noticed a kind of Hatfields-and-McCoys détente in which interagency MOUs proliferate (as illustrated by the DOL-DHS MOU, the USCIS-OSC MOU, the DHS-State Department MOU and the impossible-to-exit and falsely promoted ICE Secure Communities MOU). Close readings of these MOUs reflect a desire by the various agencies to seek reciprocal non-molestation pacts and avoid tripping over one another, or to gull state and local authorities, rather than to provide harmony and transparency in the interpretation of the immigration laws.

These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law.  They are an affront to Congressional power and a testament to legislative lassitude over immigration.  Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere.  As Peggy Noonan concluded in her op-ed:

The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.

And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them.

We have work to do at home, on our culture and in our country.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

On April 6, 2011, The Commissioner of the Social Security Administration announced that SSA would resume sending “no-match” letters. Two I-9 compliance mavens, John Fay and Kevin Lashus, have adequately commented on this new development, and I will not go into the technicalities of the specifics of such a letter. This post analyzes whether an employer who receives such a letter from the SSA – indicating that its employee’s number does not correspond with an account at the agency - has constructive knowledge that he or she is employing an unauthorized worker in violation of the law.

While INA §274A(a)(1)(A) clearly makes it unlawful to hire “an alien knowing (emphasis added) the alien is an unauthorized alien,” an employer cannot bury his or her head in the sand in the ground like an ostrich, and ignore telltale signs that the person may indeed not be authorized. The regulations at 8 C.F.R. §274a.1(l)(1) defining “knowing” includes “constructive knowledge” and defines the term as follows:

The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer:

(i) Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9;

(ii) Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or

(iii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.

2) Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.

Yet, not all courts or administrative tribunals have found that an employer had knowledge that an alien was unauthorized to work in the US. In Collins Food International, Inc. v. INS, 948 F.2d 549 (9th Cir. 1991), a seminal case involving the application of constructive knowledge, an employer was sanctioned for knowingly hiring an alien as he made a job offer prior to checking the alien’s documents and because the employer did not verify the back of the social security card. The Ninth Circuit rejected the government’s charges under both the factual circumstances. First, there was nothing in the law or regulations that required an employer to verify documents at the time of the job offer and prior to the hire of the alien. In fact, pre-employment questioning concerning the prospective employee’s national origin, race or citizenship would expose the employer to charges of discrimination under Title Seven. Regarding the employer’s failure to properly verify the back of the social security card, the Ninth Circuit held that under INA §274A(b)(1)(A) an employer will have satisfied its verification obligation by examining a document which “reasonably appears on its face to be genuine.” There was also nothing in the statute that required the employer to compare the employee’s social security card with the example in the handbook of the Immigration and Naturalization Service, and the “card that Rodriguez presented was not so different from the example that it necessarily would have alerted a reasonable person to its falsity.” Finally, the Ninth Circuit was concerned that if the doctrine of constructive knowledge was applied so broadly, the employer may be tempted to avoid hiring anyone with appearance of alienage to avoid liability.

Similarly, even if 8 C.F.R. §274a.1(c)(1)(iii)(A) attributes an employer with constructive knowledge if the employee requests sponsorship through a labor certification, it should not be automatically assumed that the individual is not authorized to work in the US. Such an employee could possess a valid employment authorization as one who has been granted withholding of removal or temporary protected status, which without a sponsorship through the employer, may not provide him or her with any opportunity to obtain permanent residence.

The facts in Collins Food International ought to be contrasted with situations where an employer has been notified by the government after a visit to its premises that certain employees are suspected to be unlawful aliens and is asked to take corrective action. Thus, in US v. El Rey Sausage, 1 OCAHO no. 66 1989, aff’d, 925 F.2d 1153 (9th Cir. 1991), where the INS found several employees using improper or borrowed alien registration numbers, and the INS warned in a letter that unless these individuals provide valid employment authorization they will be considered unauthorized aliens, and the employer simply accepted the word of the aliens as to their legal status, the Ninth Circuit found constructive knowledge. Therefore, it is one thing when an employee who is untrained accepts a false document, as in Collins Food International, and quite another when an employer receives notice from ICE that certain employees may not have proper work authorization.

With regards to a social security “no-match” letter, the issue of whether the employer is deemed to have constructive knowledge continues to remain fuzzy. The employer's receipt of a no-match letter does not fall squarely within the facts of Collins Food International, yet such a letter still does not constitute a direct indication, as in US v. El Ray Sausage, that the worker is unauthorized. The DHS promulgated a rule in 2007 that would have imputed constructive knowledge to an employer who received either a “no-match” letter from the Social Security Administration (SSA) or a DHS notice. 72 Fed. Reg. 45611 (August 15, 2007). The rule would have provided a safe harbor to an employer if it took the following steps to remedy the no-match within 90 days. The employer first checks its own records to determine whether there is a typographical error or similar clerical error. If it’s not the employer’s error, the employer asks the employee to confirm the information. If the employee says that the information is incorrect, the employer must correct its records and send the correct information to the SSA. If the employee insists that the information he or she gave to the employer is correct, the employer must request the employee to resolve the discrepancy with the SSA. If the employer is unable to verify with the SSA that the erroneous information has been corrected within 90 days, the employer must allow the employee to present new verification documents without relying on the documents that created the mismatch. The regulation was stayed as a result of a challenge in federal court, and the rule was finally rescinded.

In light of the vacuum resulting in the rescinding of this regulation, what guidance can employers rely on? Paul Virtue, former General Counsel of the INS, issued a letter stating that a no-match letter from the SSA did not, standing on its own, provide notice to the employer that the employee is not working without authorization in the US. Letter, Virtue, General Counsel, INS HQCOU 90/10.15-C (Apr. 12, 1999), available on AILA InfoNet at Doc. No. 01061431 (posted on June 14, 2001). However, in the same letter, Mr. Virtue stated that a subsequent action or inaction by the employer, after receipt of such a letter, would be viewed under the “totality of circumstances” in determining whether the employer possessed constructive knowledge of whether the employee was authorized or not in the US. Notwithstanding, employers must not be too hasty in terminating employees if they receive no match letters.

A recent decision on the precise issue of no-match letters, Aramark Facility Services v. Service Employees International, 530 F.3d 817 (9th Cir. 2008), sheds more clarity on whether the employer has constructive knowledge. There, the employer upon receiving no-match letters from the SSA gave its affected employees three days from the post mark of its letter to either get a new social security card or a receipt from the SSA that it has obtained a new one, and if the employee produced a receipt, the employee had 90 days to submit the new card. Those employees who could not comply with this demand were fired, but were told that they could be rehired if they obtained the correct document. Moreover, the employer did not have any specific basis to believe that the employees who were the subject of the no match letters were not authorized to work, and each of these employees had properly complied with the I-9 verification requirements at the time of their hire. The Ninth Circuit had to decide whether to set aside an arbitrator’s award under a narrow exception that the award violated public policy in ordering back pay and reinstatement as the firings were without cause. Aramark’s main argument under the public policy exception was that if it continued to employ these workers it would be sanctioned for knowing that they were not authorized to work in the US. The Ninth Circuit disagreed with the district court’s decision setting aside the arbitrator’s award and held that the mere receipt of no-match letters from the SSA without more did not put Aramark on constructive notice, and forcefully stated that by its own admission the SSA has acknowledged that “17.8 million of the 430 million entries in its database (called “NUMIDENT”) contain errors, including about 3.3 million entries that mis-classify foreign-born U.S.citizens as aliens.” The Ninth Circuit, which relied on Collins Food International, further noted that employers do not face any penalty from SSA, which lacks an enforcement arm, for ignoring a no-match letter. Furthermore, the Ninth Circuit also gave short shrift to Aramark’s second argument that the employee’s reaction to the notification to take corrective action imputed constructive knowledge on the ground that the arbitrator found no proof of any employee having undocumented status as well as to the fact that the employer’s demand to take corrective action was even more demanding than the DHS’s proposed 2007 regulations. Finally, the Ninth Circuit refused to upset the arbitrator’s award in failing to consider that Aramark had offered to rehire the workers if they came back with the corrected document even after the time frame that it had stipulated in its notification to its employees.

The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do's and don'ts for employers on Social Security Number "no-match" letters, which provide useful nuggets on what one can do and one cannot do when an employer receives a no-match letter.

DO:

• Recognize that name/SSN no-matches can result because of simple administrative errors.
• Check the reported no-match information against your personnel records.
• Inform the employee of the no-match notice.
• Ask the employee to confirm his/her name/SSN reflected in your personnel records.
• Advise the employee to contact the SSA to correct and/or update his or her SSA records.
• Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
• Follow the same procedures for all employees regardless of citizenship status or national origin.
• Periodically meet with or otherwise contact the employee to learn and document the status of the employee's efforts to address and resolve the no-match.
• Submit any employer or employee corrections to the SSA.

DON'T:

• Assume the no-match conveys information regarding the employee's immigration status or actual work authority.
• Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
• Attempt to immediately re-verify the employee's employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
• Follow different procedures for different classes of employees based on national origin or citizenship status.
• Require the employee to produce specific documents to address the no-match.
• Ask the employee to provide a written report of SSA verification.

In conclusion, an employer walks on thin ice upon receiving an SSA no-match letter, and is also caught within the cross currents of the conflicting policies of two agencies. While ICE may require an employer to take action upon receiving a "no match" letter, leading to the employee's termination, the DOJ's Office for Special Counsel may find that the employer has engaged in discriminatory practices. It is thus incumbent upon an employer in such a situation to consult with experienced immigration counsel to safely navigate through such murky waters by designing employer policies that would be consistently applied each time the employer receives a no-match letter.

Substantial portions in this blog post have been extracted from KEEPING TRACK: SELECT ISSUES IN EMPLOYER SANCTIONS AND IMMIGRATION COMPLIANCE by Gary Endelman and Cyrus D. Mehta.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR § 274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedential value beyond the plaintiff in the case, it is nevertheless extremely significant as it provides the stepping stone for other courts to also be similarly persuaded.

The Department of Homeland Security, and the former Immigration and Naturalization Service, have always taken the position that being authorized to work in the US is not the same thing as being in a lawful status. Moreover, the benefits granting agency within the DHS, the United States Citizenship and Immigration Services, has long drawn a distinction between maintaining lawful status and being lawfully present in the United States, See Unlawful Presence v. Out of Status. For example, an applicant for adjustment of status, whose underlying nonimmigrant L or H status has expired, will not be considered unlawfully present for purposes of triggering the 3 and 10 year bars under INA § 212(a)(9)(B) but will still not be considered to be in lawful status even though this applicant is authorized to work. This unfortunate individual might even be amenable to removal as a deportable alien pursuant to INA §237(a)(1)(C), see USCIS Consolidated Guidance on Unlawful Presence.

The holding in El Badrawi is narrow, and has been rendered in the context of a claim against the government for a false arrest of an employee while he was seeking an extension of his H-1B visa status. In dismissing the government’s motion for summary judgment, the court reaffirmed its prior holding in Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008) (El Badrawi 1), where the plaintiff claimed he was falsely arrested while an extension to extend H-1B status filed by his employer, University of Connecticut, was pending. . The court in El Badrawi 1 found the government’s position “bewildering” that the plaintiff was entitled to work in the United States pursuant to 8 CFR § 274a.12(b)(20) but not entitled to be physically present in the United States. In its most recent holding, which we will refer to as El Badrawi II, the court came down more strongly in favor of the plaintiff. The court’s opinion revolves around the meaning of 8 CFR § 274a.12(b)(20), which the court aptly summarized as follows:

A nonimmigrant alien [who was admitted under one of various forms of work-based visas, including an H-1B visa] whose status has expired but who has filed a timely application for an extension of such stay….[is] authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.

The government contended that this regulation only applied to an alien’s authorization to work in the US but it did not extend to the alien’s authorization to remain in the US. The government also asserted that it always had the discretion to arrest, detain and remove such an alien. However, Judge Janet C. Hall, who wrote the opinion, gave short shrift to the government’s interpretation of this regulation. Although a government agency is entitled to its interpretation of its own regulation, such deference can be set aside if it is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). According to Judge Hall, “[t]he fact that section 274a.12(b) pertains solely to aliens whose immigration status is based and conditioned upon their need to work in the country strongly indicates that the two rights go together here. An extension of only the right to work, without the right to remain in the country, is at odds with the nature and purpose of the affected work-based visa programs.”

In the absence of any policy guidance from the government on this issue, Judge Hall also relied on a USCIS “Customer Guide” pamphlet, which clearly advised the public that if the application for an extension is received before one’s status has expired, “you may continue your previously approved activities in the United States (including previously authorized work) for a maximum period of 240 days.” This permission, according to Judge Hall, was not just limited to work but also to all “previously approved activities,” such as being present and temporarily residing in the US.

More significantly, the court also held that the government’s proposed interpretation raised “grave” due process concerns. The fact that the DHS could arrest a law abiding alien who was complying with the rules was tantamount to a deprivation of liberty without due process under the Fifth Amendment. Here, the plaintiff, a Lebanese national, was arrested and detained from October 29, 2004 until December 22, 2004, when he was escorted out of the country after receiving a voluntary departure order from an Immigration Judge. Moreover, here there was no pre-enforcement notice provided to the plaintiff, and if there was any notice through the USCIS Customer Guide, it “plainly supports and fosters the expectation that aliens in El Badrawi’s position may remain in the country while awaiting a determination on their timely filed extension applications.” Judge Hall also noted the amicus brief of the American Immigration Council and the American Immigration Lawyers, which “highlights the substantial interest that employers have in the administration of the H-1B visa program, the lack of notice provided by the regulation at issue, and the hardship that the government’s proposed interpretation would impose upon them.”

While El Badrawi II may only apply to the plaintiff and is also limited to the circumstances of one in H-1B visa status timely applying for an extension of his or her status through the same employer, it does not mean that other persons in similar unfortunate circumstances as Mr. El Badrawi cannot use the same arguments in other administrative or litigation forums. After all, 8 CFR §274a.12(b)(20) provides the same work authorization rights to other nonimmigrant visa holders who are seeking extensions of their L-1, O, and TN statuses, to name a few. Also, if a person files an I-485 application for adjustment of status to permanent residence, he or she is also entitled to work authorization under a different regulatory provision, 8 CFR § 274a.12(c)(9), and if work authorization has been applied for and granted, the regulation states that such an alien will not be deemed to be an “unauthorized alien.”

How about an H-1B worker who is seeking an extension of H-1B status through a new employer? While the regulatory provision, 8 CFR §274a.12(b)(2), no longer applies, this person can invoke the protection of something much stronger – the statute itself. INA § 214(n) permits such a person the ability to “port” to a new employer upon the filing by the prospective employer of a new H-1B petition. While the H-1B petition is pending, such a person can accept employment with the new employer who filed the H-1B petition. This person too if arrested, detained and placed in removal can make similar arguments, which is that INA § 214(n) authorizes him or her to work in the US during the pendency of the petition. Such a person may “port” even if there was a gap in H-1B status, and could make the claim that the ability remain employed in the US also allows him the right to remain here, see H-1B Portability When There Is A Gap In Status.

And why should the logic of El Badrawi I and II only hold when the affected alien is authorized to work under a regulatory or statutory provision? There are several situations where a person can legitimately extend or change status even if there is no authorization to work. Thus, a person in B-1 status can apply for an extension of that status. Or an F-1 student can apply for a change to H-1B status, or one who is previously in H-1B status may change to H-4 status because she may have a spouse in H-1B status and has taken a break in her work because she has just given birth to a baby. Why should a new mother who is legitimately changing status from H-1B to H-4 be susceptible to arrest, detention and removal just because there is no provision authorizing her to work in the US? Indeed, this mother is changing status to H-4 dependent precisely because she does not choose to work during this stage in her life, but the H-4 status will still enable her to lawfully reside in the US with her spouse and her child. Providing the government with unbridled discretion to arrest, detain and remove her while she has filed an application to change status would also gravely offend the Fifth Amendment’s Due Process Clause.

A forceful due process argument can be made that if there is an established statutory or regulatory procedure to change or extend status, the government should not be permitted to deprive the person of his or her liberty during this interim period when it would be unable to do so prior to the status expiring or after the new status has been granted. The court in El Badrawi II relied on Zadvydas v. Davis, 533 U.S. 678 (2001), which has held that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.” In Zadvydas v. Davis, the Supreme Court further held that indefinite detention is unconstitutional following a removal order beyond 6 months six months of detention because “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that Clause protects.” Also, take note of these powerful words from the Supreme Court in Bridges v. Wixon, 326 U.S. 135, 164 (1945), “The impact of deportation…is often as great if not greater than the imposition of a criminal sentence. A deported alien may lose his family, his friends and his livelihood forever. Return to his native land may result in poverty, persecution and even death.”

Finally, the INA never defines “status,” and it may be worth advocating for a unified definition of status. One needs to be in status to avoid removal, but also to apply for other benefits such as adjustment of status. In Bokhari v. Holder, 622 F.3d 357 (5th Cir. 2010), which Judge Hall distinguished, the issue was whether a person who had applied for an extension of his L-1A status, triggering 8 CFR §274a.12(b)(2), would be eligible to file an I-485 adjustment of status application. Mr. Bokhari was not facing removal; rather he argued that he should have been considered to have been maintaining status in order for him to be eligible to file an I-485 application. The regulation in question in Bokhari v. Holder was 8 CFR § 245.1(d)(1)(ii), which seemed to preclude Mr. Bokhari from demonstrating that he was maintaining status. 8 CFR § 245.1(d)(1)(ii) defines “lawful immigration status” for purposes of I-485 eligibility as an alien “whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter 1.” Hence, one whose status had not been extended, such as Mr. Bokhari’s, was not in lawful immigration status. In a prior blog post, The Enigma of Bokhari v. Holder: Work Authorization Is Not Status, http://cyrusmehta.blogspot.com/2010/10/enigma-of-bokhari-v-holder-work.html, Gary Endelman and this writer argue that 8 CFR § 245.1(d)(1)(ii) may be ultra vires the statute, INA §245(c), as it does not allow persons who are in the process of seeking an extension of their status to demonstrate that they are not in “unlawful immigration status.” Just as persons like Mr. El Badrawi should not fear arrest, detention and removal while they have applied for an extension of their H-1B status, so should they be able to demonstrate eligibility for filing an I-485 application for adjustment of status.

Such a unified theme can be left for another day, but at least for the present after the victory in El Badrawi II, it is heartening that the many thousands of H-1B visa holders who legitimately apply for extensions of their status have a good argument to make in the event of an arrest or being placed in removal proceedings.

by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

It's been desiccation junction everywhere in the nation of immigrants. Week-long fears of a government shutdown (averted nearly at the witching hour, midnight on April 8) seemed to suck the air and the attention spans out of official Washington.  A volunteer army of lawyers, descending on the Capitol for a National Day of Action to fix America's broken immigration system, heard most legislators, Administration officials, and their staffs dampen expectations: There would likely be no let-up in detentions, removals and worksite enforcement, and no legislative action or administrative relief on comprehensive immigration reform until after the 2012 elections.

To accentuate the point, Immigration and Customs Enforcement (ICE) served a notice to appear for a removal hearing on Prerna Lal, an outspoken DREAMer, just as she blogged that "Obama Issues A Gag Order On 'Stop the Deportation' Campaigns."  Heaven forfend that the President be called to account for his broken promises on immigration as he seeks Latino help to secure a new lease on the Oval Office.  Ironically, the State Department in its release this week of its Annual Country Reports on Human Rights Practices, although referring to the actions of foreign governtments, aptly described what happened to Prerna: "[H]uman rights defenders are singled out for particularly harsh treatment."

The week also signaled continued frailty in the economy as U.S. Citizenship and Immigration Services (USCIS) announced that it had received just over 10,000 H-1B visa petitions for foreign workers in specialty occupations (about 5,900 petitions counting toward the 65,000 cap, and roughly 4,500 petitions toward the 20,000 cap for holders of advanced U.S. degrees). The H-1B visa quota has been an accurate lodestar for the health of the economy, rapidly depleted when the good times would roll, and slow to run out when times are less robust. [See this Jan. 2011  GAO Report, Page 15, Figure 6: Time to Reach Annual Cap and Cap Level, Regular and Master’s Cap, FY 2000–FY 2010.]  Apparently even an upsurge in high-tech hiring did little to move the H-1B needle.

Meantime, journalists reported that the nation's immigration judges are facing burnout and compassion fatigue (with at least one judge on antidepressants and seeking psychological help) as the system of assembly-line injustice acts like a wood chipper on overdrive, grinding up citizens and immigrants with equal disdain.

Maybe it will take another way of understanding the facts. Perhaps a documentary film can touch the heart and the head when pleading and logic fail. Neither inflammatory nor melodramatic, or one-sided, this film Undocumented depicts real people whose lives are in torment by Washington's failure to fix the eminently fixable immigration laws.

If not film, then possibly prayer from the psuedonymous patriarch in Undocumented:

My Lord, bring peace to this country.

They are putting [in] many strict laws.

Not just against Hispanics but against all.

My Father, I pray you soften the hearts of these lawmakers.

Soften their hearts and make them sensible, my Lord.

Make them see, we are human, just like them.

And they need not attack us, and destroy families.

The children are the future of this country.

Change their minds and transform them.

And one day they will come to know your true love.

We pray for Austin [Texas] my Lord.

We ask for you, Father, to transform them.

And we ask for your blessings and guidance.

Oh, and another noteworthy thing happened this week.  On April 8, Sidney Lumet, film director with a social conscience, passed away.  He immortalized the line, which just as well might have been referring to immigration, "I'm as mad as hell and I'm not going to take this anymore!"  He also wrote:

[The] kind of film in which I believe goes one step further [than mere entertainment].  It compels the spectator to examine one facet or another of his own conscience. It stimulates thought and sets the mental juices flowing.

In the best Lumetian tradition, let's hope that Undocumented does just that.

by Charles Kuck, ABIL President
Musings on Immigration

This week both branches of the Georgia State Legislature have been busy in trying to pass anti-immigration legislation. The curious part of their efforts is what appears to be a complete lack of communication between the branches and what their specific purposes are.

THE GEORGIA HOUSE DISSES THE GEORGIA SENATE

On Monday, the Georgia House completely eviserated the Senate version of the anti-immigration legislation by substituting, in whole, for the entire SB 40, with what it was HB 87. Unfortunately, the committee chair and the bill's sponsor were not completely truthful with the public, or with their committee members about the actual content of the "new" SB 40, better known now at HB 87 "Heavy." Sections 1 through 9 of HB 87 and HB 87 Heavy are identical. Section 11 through 18, and Sections 20 through 22 also are identical. BUT, there are two significant and otherwise unnoticed changes in Section 10, and in Section 19.

First, in Section 10, the House has added an entire new section of the Georgia Code, to be known as 16-11-203. You will find this language in the last paragraph of Section 10:

The testimony of a witness with knowledge of any officer, employee, or agent of the federal government having confirmed that a person is an illegal alien shall be admissible to prove that the federal government has verified such person to be present in the United States in violation of federal immigration law. Verification that a person is present in the United States in violation of federal immigration law may also be established by any document authorized by law to be recorded or filed and in fact recorded or filed in a public office where items of this nature are kept.

What does this mean? For those lawyers out there the meaning is clear. Hearsay evidence can now be used to put people in state prison for fifteen years! For potential criminal defendants, you no longer have the right to face your accuser! No right to prove to the person who said you were in violation of federal immigration law that they are wrong. And, we all know about how wrong the federal databases can be, about how complicated immigration law is, and how difficult it is to ascertain whether someone is "illegal" in the United States. Obviously, the Georgia State Bar should get immediately involved, as should the criminal defense bar, to stop what is a wholesale sellout of the criminal justice system.

To give you an example as to how broad this language could be: E-Verify is a government database. E-Verify determines employment eligibity, but since it ties into the USCIS database, it is arguably a database that can be relied on to verify status. An employer who enrolls in E-Verify, has an agreement with DHS, and is thus an "agent" of ICE (read the MOU). Can the Georgia court rely on the testimony of an E-Verify employer about a person's non-eligiblity for work to convict someone of transporting, harboring, or inducing an alien? Clearly, that is what the House is hoping for if this language remains in the bill. Or did they have other motives? We do not know, becuase Chairman Golick and Rep. Ramsey did not allow any questioning or review of the bill or public testimony on it before it was passed summarily out of the House Judiciary Committee!

Section 19 of HB 87 Heavy is also different from HB 87. In the addition of Section 50-36-2 to the Georgia Code, subsection (e) is amended to add a new sub-subsection (8) and push the prior sub-subection (8) down to sub-subsection (9). The new sub-section (8) reads, refering to who this code section does NOT apply to:

Paragraph (2) of subsection (a) of Code Section 40-5-21 or paragraph (2) of subsection (a) of Code Section 40-5-21.1;

What the heck does that mean? The first part refers to this language within the statute governing who are exempt from carrying a Georgia driver's licenses:

(2) A nonresident who is at least 16 years of age and who has in his or her immediate possession a valid license issued to him or her in his or her home state or country; provided, however, that any restrictions which would apply to a Georgia driveŕs license as a matter of law would apply to the privilege afforded to the out-of-state license;

The second reference is to this language allowing FOR a grant of a driver's license to specific people who present evidence of their specific immigration status:

2) A pending or approved application for asylum in the United States;

Now, that is quite interesting. People who have a pending or approved asylum application, or who have a foreign license are now NOT subject to the provisions of Secure and Verifiable Identity Document Act? I guess that everyone who is undocumented in Georgia should not apply for asylum? Or, if I am undocumented person from Zimbabwe, and I manage to get a Zimbabwean Driver's License, I do not have to produce any other id? Or if I move to Utah, get a Utah Driver's Privilege Card, and then "visit" Georgia, I am also not subject to this Act? Really? And, how are the police to know where the person actually lives? Why would Representatives Ramsey and Golick make these changes? Under pressure from the "KIA Go Home" folks? Again, no one knows, since there was no public hearing, and they both said there were no changes to the bill from HB 87 to HB 87 Heavy. So, they either lied about the changes, or someone snuck them in without them knowing about them. Curious minds would love to know who!

Nonetheless, my other comments about the bill remain the same. Parts of it are blatantly unconstitutional, others are legal but bad public policy. In a blog I hope to have up tomorrow, I will go through the Constitutional arguments in detail, but suffice it to say, that if HB 87 becomes law, it will see the inside of a courtroom before it sees the light of day.

THE GEORGIA SENATE TAKES A SMALL STEP BACK FROM THE BRINK (NOT REALLY)

On Wednesday, at a hearing of the Senate Judiciary Committee which FAILED TO PROVIDE NOTICE OF THE CONSIDERATION OF HB 87, the Judiciary Committee voted 4 to 4 to not pass HB 87 out of committee. But wait! To the rescue (for the anti-immigration forces), rode in State Senator Jeff Mullis, who is NOT a member of the Judiciary COmmittee, and who is not even an Ex-Officio member of the Judiciary Committee, and cast a 5th and deciding vote FOR passing HB 87 out of committee for consideration by the full Senate. Wow! Is that legal ? (Probably not, but legality appears to be the least of the problems here).

The Senate Judiciary Committee, apparently, not taking too kindly to being dissed House Judiciary Committee, in turn also submitted a substitute bill for HB 87. Let's call this one HB 87 "Light." HB 87 Light takes it basic sections from SB 40. HB 87 Light has a significant number of changes to the House passed version of HB 87, but not enough to make it a bill any legitimate politician should be proud to be a part of.

Section 2 of the HB 87 Light is taken from Section 1 of the Senate passed SB 40 (by adding a new Section 1 with the misleading title of the "Illegal Immigration Reform and Enforcement Act of 2011." Is someone reforming illegal immigration?). There are no effective changes in Section 2 of HB 87 Light from SB 40.

Section 3 HB 87 Light is likewise identical to Section 2 of SB 40.

The real changes occur in Section 4. Section 4 is actually the language found in Section 7 of HB 87 Heavy, creating the NEW crime of Aggravated Identity Fraud (College kids making up an ID to get a job at a bar). (That is what it is for, no?). Similarly, Section 5 of HB 87 Light is identical to Section 8 of HB 87 Heavy, which creates a 15 year state criminal sentence and a $250,000 fine for anyone using a fake id to get employment. Unfortunately, I did not find the budget appropropiation that appears to be needed to accompany this bill, which is necessary to build more prisons to hold all the people that will be convicted under it. Finally, Section 9 of HB 87 Light is identical to SEction 9 of HB 87 Heavy, and creates exempetions to the crime created in Section 4.

Section 7 of HB 87 Light is virtually identical to Section 10 of HB 87 Heavy, and is the Section which creates the crimes of harboring, transporting and inducing of undocumented immigrants in Georgia. Apparently, no one bothered to tell the Senate that the House Judiciary Committee had added that new section 16-11-203 to their version of the bill, and thus, the sections are not identical. Perhaps, the Senate just felt it was not necessary to eviserate 200 years of jurisprudence and allow hearsay evidence to convict people and send them to prison for 15 years?

Actually, we do not know what the Senate Judiciary Committee thought about this bill, because they had NO debate on it, no consideration of these changes, no public testimony about the bill, and basically railroaded it through to the vote in about five minutes. Remind anyone of Wisconsin?

Okay, back to the Bill. Section 8, 9, 10, and 11 of HB 87 Light are identical to Section 11, 12, 13, and 14 of HB 87 Heavy. Of course, section 8 of HB 87 Light is Section 11 of HB 87 Heavy, and is the section that forces local police to abandon its policy of community policy and having the public trust police officers, by making "peace" officers (a more broad term than the police), run immigration background checks on persons he or she stops to investigate for crimes (including traffic offenses, such as having to darkly tinted windows). The counter argument from the anti-immigration people is that this is not unconstitutional because they have prohibited profiling. As my kids would say: "whatever." More to follow on that in my next blog.

These Sections also still deal with the fiction that counties are not cooporating with ICE enough, and they must be told to do so again (even though Secrure Communities will be fully online in Georgia within 18 months).

A small substantive changes to HB 87 Heavy occurs in Section 12 of HB 87 Light. In section 12 of HB 87 Light, which takes its structure from Section 17 of HB 87 Heavy, the Georgia Senate has decided to adopt in full the language from HB 87 Heavy that requires that before a business of more than 4 employees obtains a business licnese, they must prove that they have enrolled in E-Verify. The whole debate supporting agriculture, apparently was ignored now by the Senate, which apparently no longer cares that it will effectively destroy large parts of Georgia's largest business. One, difference in Section 12, is key, however. The Senate version does NOT have subsection (d) which requires government entities to send a report to the Department of Audits each year confirming they are complying with the new requirements. Other sections within HB 87 Light are simply re-lettered and reordered, but are not effectively changed in any way.

Section 13 of HB 87 Light is identical to Section 15 of HB 87 Heavy, and still requires that individuals detained by the local law enforcement check the immigration status of detainees. This is already being done in most of Georgia. Section 14 of HB 87 Light is identical to HB 87 Heavy.

Section 15 of HB 87 LIght 15 merely adds the term "agency head" to a preexisting list of public officials and businesses that can be fined for violations of Georgia's Code of Ethics. I could not find a similar section in HB 87 Heavy.

Section 16 of HB 87 Light is adopted from Section 2 of HB 87 Heavy, but makes some substantial changes. As you may recall HB 87 Heavy, under pressure from D.A. King, has created a private right of action against local governments, to allow him to sue to enforce the requirements that local governments enroll in E-Verify, use the SAVE System for benefits, and to not create a Sanctuary Policy, even though all of these things are already being done by the local governments, and no place in Georgia has a sanctuary policy. Section 16 eliminates that private right of action, and simply makes the Attorney General responsible for enforcing complaints of non-compliance brought by citizens. Frankly, this is a much more sensible approach to this non-issue.

Section 17 of HB 87 Light has no related section in HB 87 Heavy. This section disallows deductions for wages or labor services for state income tax purposes unless the individual is an unauthorized employee. It has some HUGE exceptions.

1. It does not apply to an employee hired before January 1, 2012.
2. It does not apply to persons who are not directly compensated (contractors); and
3. It does not aply to folks who have a Georgia Driver's License.

Frankly, it seems like it does not apply at all!! While some would say that this is the carrot approach to urging businesses to use E-Verify, all it really does is create situations where "independent contractors" are used, rather than employees. This, of course, creates other issues, but is, nonetheless a loophole large enough to drive a semi-tractor trailer through.

Section 18 of HB 87 Light also has no related section in HB 87 Heavy. This section merely creates the definition of "Agency Head," which apparently never existed previously, and which is a BROAD defintiion designed to capture as many public officials and employees within its grasp as possible, in the context of accepting "affdivaits of residence" for benefits in Georgia.

Section 19 of HB 87 Light is also without a counterpart in HB 87 Heavy. It merely changes some wording of an existing statute related to the affidavit of lawful presence currently required for receiving public benefits in Georgia.

Along the same vein Section 20 of HB 87 Light (with no HB 87 Heavy counterpart), creates a new crime/sanction category for "Agency Heads" who fail to abide by the requirements of accepting this Affidavit of Residence. I have heard of no evidence to suggest that this is an issue anywhere in Georgia, but who said the legislature actually need to facts to supports it actions!

Section 21 of HB 87 Light is almost identical to Section 19 of HB 87 Heavy, and creates the "Secure and Verifable Identity Document Act." Again, much like the changes that the House Judiciary Committee made in Section 10 of HB 87 Heavy that were not communicated to the Senate, no one told the Senate that the House had added a new provision in this Section, excempting asylum applicants, asylees, and folks with foreign and other state's driver's licenses from the effects of this bill.

Section 22, 23, and 24 in HB 87 Light are identical to HB 87 Heavy, in that they contain a severability clause and effective dates. Good thing, becuase that severability clause will come in handy when parts of this bill are found unconstitutional!

The bottom line on the actions by the Senate in creating HB 87 Light--

It is kinder to local governments;
It is not any kinder to businesses;
It does not mean that Georgia business will compy with E-Verify;
It still is designed to scare immigrants of all kinds out of Georgia;
And,
It still says that Georgia is the Arizona of the South.

Let's tell the Senate that these cosmetic differences CANNOT change the simple fact that this bill is a failure. It will not accomplish what they want it to accomplish, but what it will do is drive jobs out of Georgia, create a climate of fear in ALL immigrant communities, regardless of status, and will give Georgia a national black eye that will linger for a long time in the eyes of America. Georgia should follow the lead of Colorado, Mississippi, Kentucky, Kansas, and Nebraska and stop this legislation before it is too late. True reform lies only in Washington, D.C., and these legislators should better spend their time convincing our Congressman to act, rather than passing illegal and bad public policy.