Archive for the ‘Legal Topics’ Category

Sanctuary Cities: the legal battle

Saturday, February 25th, 2017

Does the Trump administration have the legal power to withhold federal funds from sanctuary cities? Below is an analysis of the legal battle. In sum, the battle is partly over whether sanctuary cities are in violation of federal statute for failing to detain persons arrested  (San Francisco says no), and whether all federal funds or only a very small segment of them is at risk.

The details:

On January 25, President Trump said, “And finally, at long last, cracking down on Sanctuary Cities. It’s time to restore the civil rights of Americans to protect their jobs, their hopes, and their dreams for a much better future. Congress passed these laws to serve our citizens. It is about time those laws were properly enforced. They are not enforced.”

A law suit by San Francisco filed on January 31, in response to a Trump Administration executive order signed on January 25 sets out the legal parameters of the sanctuary city issue. The suit says that the Executive Order threatens the loss of $1.2 billion in Federal funds, 13% of the city’s annual budget.

“Sanctuary city” is an informal term with no legal meaning The SF suit describes what local orders generally do: “They specifically prohibit local law enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer requests, which are voluntary, and limit when local law enforcement officers may give ICE advance notice of a person’s release from local jail.” SF is referring to its Administrative Code, Chapters 12H and 12I. A detainer request is a request by the federal government that a city detain in custody persons who have been arrested.

The Executive order says that sanctuary cites are in violation of Title 8, Section 1373 of the United States Code, “which provides that local governments may not prohibit or restrict any government entity or official from “sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual.”

The SF suit says that it and other sanctuary cities are not in violation of this law. It cites a May 31, 2016 report by the Inspector General of the Justice Department on what constitutes a violation of Section 1373. The IG’s report includes examples of sanctuary city ordinances. It suggests that violation of Section 1373 puts at risk State Criminal Alien Assistance Program (SCAAP), which for the top ten sanctuary jurisdictions came to $342 million in 2015.

The SF suit says that Section 1373 does not require cities to respond to requests by the federal government to detain persons. Further it says that “No federal funds received by San Francisco have statutory conditions specifically requiring compliance with Section 1373.”


Trump re-setting expectations about unauthorized population

Sunday, February 19th, 2017

The Trump administration appears to have a strategy to change public expectations about the future of the 11 million unauthorized persons in the country.

Coming into 2017, the public appears to strongly favor a policy of eventual citizenship for these persons, based on a poll published in the Atlantic. Such a policy is apparently supported even by conservative Republicans. Thus, the default position of Americans has been light on deportation and heavy on normalization, with an expectation that legalization is the assumed solution.

The Trump administration is trying to reverse the expectations, to induce the public to expect mounting deportation as the default approach, with legalization being the exception.

An Executive Order on January 25 basically criminalizes the eight million illegal workers, the vast majority of whom do not have a felony or major misdemeanor record, for abuse of social security card identification.

The arrest in Phoenix on February 8 and deportation of Guadalupe Garcia de Rayos marks the start of what I expect to be a pattern of strict enforcement of this Executive Order. De Rayos, who illegally entered in the 1990s with her parents when she was 14, was convicted in 2009 for felony criminal impersonation – using another person’s social security card. Federal felony categories are here. De Rayos’ conviction was a Level 6 felony in Arizona – the mildest in the state’s categories.

In 2013 she was the subject of a removal order, but she also was the subject of court-ordered supervision, which meant she wouldn’t be immediately deported. De Rayos is the mother of two children born in the United States.

Daniel Ramirez Medina, a 23-year-old man who arrived in the U.S. at age 7 and had DREAMER (DACA) permission to stay in the country, was arrested who authorities say he violated DACA standards due to his being a gang member. DACA deferment is not allowed for those who “have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.”

Department of Homeland Security and the Justice Department will, I expect, repeat many times these kinds of arrest and deportation, first taking on cases that allow for immediate deportation without chance of a check by a court.

It will then probably expand the scope of its arrests to include those for whom a check by a court is possible. The January 25 EO (“Enhancing Public Safety in the Interior of the United States”) included persons with criminal charges, persons who “committed acts that constitute a chargeable criminal offense, persons who “ have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency”, and person who “have abused any program related to receipt of public benefits.”


Trump Administration greatly expands scope of unauthorized persons to be targeted.

Sunday, January 29th, 2017

With so many initiatives by the Trump Administration since January 25, one has to be selective about which to focus on. Here I describe an order which in effect increases the number of unauthorized persons in a priority status for deportation from about 820,000 to at least 4 million, and probably several million more out of a total of 11 million.

The NY Times addressed it. David A. Martin principal deputy general counsel of the Department of Homeland Security from January 2009 to December 2010 analyzes the Order here.

The order is Executive Order: Enhancing Public Safety in the Interior of the United States.

The January 25 order greatly expanded the criteria to include:

(b) Have been charged with any criminal offense, where such charge has not been resolved [thus not yet brought to trial]

(c) Have committed acts that constitute a chargeable criminal offense [thus not even indicted]

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency [thus using borrowed or stolen social security number. About half of the 8 million unauthorized workers in regular employment. Almost by definition these 4 million meet this criterion.]

(e) Have abused any program related to receipt of public benefits [very broad, may include school lunch and other food aid programs]

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States [this suggests that cases under appeal will be included]

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Re-activation of Section 287(g)

The order brings back this section which “authorize[s] State and local law enforcement officials to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.”

How will police departments respond to more aggressive deportation?

Saturday, November 26th, 2016

Charlotte, North Carolina, provides an example of the issues facing police departments, which may conflict with local sheriffs and corrections departments.

According to the Charlotte Observer, “In the summer of 2015, then-Charlotte police chief Rodney Monroe told City Council that enforcing federal immigration law was not part of CMPD’s [Charlotte-Mecklenburg Police Dept.] mission.”

It goes on:

Monroe was discussing a civil rights resolution, which stated that CMPD officers would not ask about a suspect’s immigration status during routine police work. The resolution went further: During the course of an investigation, an officer might be told or learn a person is in the country illegally. CMPD’s position was to refrain from reporting them to U.S. Immigration and Customs Enforcement, except in cases of a gang or terrorism.

The department’s policy – which was approved by the City Council – led some to designate Charlotte a “sanctuary city,” a moniker the city disputed.

At the time, Monroe said it was important for people to feel comfortable talking with police as witnesses or people with information. Kerr Putney, the current chief, also agreed with that approach. Monroe said it wasn’t CMPD’s job to enforce federal tax laws, and he said it wasn’t the department’s job to enforce immigration laws either.

CMPD’s more lenient position differs from that of the Mecklenburg Sheriff’s Office, which administers the county’s jail. Ten years ago, the sheriff’s office became the first law enforcement agency east of Phoenix to participate in the Department of Homeland Security’s 287(g) program, in which all non-U.S. born arrestees are checked for being a “potentially removable alien.” Four other N.C. counties have similar agreements with ICE – Wake, Cabarrus, Gaston and Henderson counties. “We have no reason to believe there will be any changes to the 287(g) program in the short term,” said Mecklenburg Sheriff Irwin Carmichael in a statement last week. “We will have to wait and see how the Trump administration impacts 287(g).”

Thanks to David for pointing this out.


A graph showing the Obama administration’s enforcement of immigration law

Monday, September 19th, 2016

If anyone thinks with Donald Trump that the administration has been lax in enforcing the laws, this page shows that enforcement is so high that there is a backlog of a half million cases at immigration courts.

More details:

The number of judges continue to prove insufficient to handle the growing backlog in the Immigration Courts. The problems are particularly acute for handling even priority cases like those involving unaccompanied children and women with children according to the latest court data updated through the end of August 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

The backlog of pending cases involving unaccompanied children reached 73,649 at the August 2016, while the backlog of cases involving women with children is even larger and rose to 83,949 last month. Together they now account for nearly one third (31%) of the court’s overall backlog of a record 512,190 cases.

Pew Research Center reported in August, 2016, that The Obama administration deported 414,481 unauthorized immigrants in fiscal year 2014, a drop of about 20,000 (or 5%) from the prior year, newly released Department of Homeland Security data show. A total 2.4 million were deported under the administration from fiscal 2009 to 2014, including a record 435,000 in 2013, according to a Pew Research Center analysis of the data. 2014 is the latest year for summary statistics, apparently.

The Bush Administration averaged somewhat over 200,000 deportations per year.


Supreme Court: key provision in Arizona immigration law is OK

Friday, May 27th, 2011

Yesterday 5/26 the U.S. Supreme Court upheld Arizona’s 2010 immigration law, SB 1070, in particular the provision under which businesses are penalized for hiring illegal workers. (The Court did not rule on the most publicized part of the law, which is to authorize police officers to inquire about immigration status.) This ruling will likely accelerate state initiatives to create their own immigration law enforcement programs.
The case is Chamber of Commerce of America vs. Whiting et al. Here is the key passage from the decision:
The [Federal] Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio- late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2).
IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsi- bility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.
Against this stautory background, everal States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.
The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspension and revocation provisions were both expressly and impliedly pre- empted by federal immigration law, and that the mandatory use of E- Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit affirmed.
Held: The judgment is affirmed.
Justice Breyer’s minority opinion says, “Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. (excepting professional licenses, and water and environ- mental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s pre- emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful work- ers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.”
According to the New York Times, “The decision on Thursday turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who” recruit or hire “unauthorized aliens.”
The question was whether Arizona was entitled to supplement the penalties in the 1986 federal law with much tougher ones of its own. The state argued that the phrase in parentheses — “other than through licensing and similar laws” — allowed it to suspend or revoke the business licenses of repeat offenders. Critics called that provision of the state law a “business death penalty.”


workers comp benefits for injured illegal workers: where are we?

Tuesday, January 18th, 2011

In yet another informative article on WorkCompCentral (subscription required), the legal status of illegal immigrants in the 50 states’ workers compensation systems is reviewed, with a case study from the District of Columbia. The article summaries the current situation, nationwide:
“Currently, Wyoming is the only state that expressly denies workers’ compensation benefits for injured workers. Lawmakers in Ohio talked earlier this year about passing legislation that would also prohibit illegals from participating in the workers’ compensation system. Bills have been introduced in Arizona in each of the past two legislative sessions, but failed to win approval. Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin are silent on the issues, while the remaining states expressly include illegal aliens in their work comp statutes. Courts in Oregon, California and Nebraska have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.”
Court: Illegal Alien Eligible for Total Temporary Disability Benefits
By Greg Jones, reporter
Palemon Casarrubia Gonzalez can’t legally work in the U.S., but an appellate court in Washington, D.C., ruled last week that he is entitled to temporary total disability benefits from the period he was injured until he was medically cleared to return to work.
The decision marks the first time a District of Columbia court has expressly stated that undocumented workers are entitled to participate in the workers’ compensation system, according to attorney Manuel Rivera, the Virginia attorney who represented Gonzalez. The decision addressed only Gonzalez’s entitlement to temporary disability benefits.
“It’s a very important decision for D.C. because this is the first time the D.C. court expressed itself about the rights of undocumented aliens to workers’ compensation,” Rivera said. “It’s a great decision and I think it is going to be cited again.”
The case is Asylum Co. et al. v. District of Columbia Department of Employment Services et al., 08-AA-1158, published Dec. 23.
Gonzalez was working as a bus boy for a bar owned by Asylum Co. on June 30, 2005, when a customer threw a bottle that struck him in the eye. Gonzalez suffered a dislocated lens in his right eye that required immediate medical treatment and later needed surgery. He initially suffered from 100% total loss of vision in his right eye, and from blurry vision and increased pressure in his eye while he was recovering.
Gonzalez attempted to return to work in a part-time position at Asylum July 17, 2005. He was told the company learned he was an undocumented alien and could not rehire him.
During the trial, the company said Gonzalez applied for the position under the name of Armando Casarrubias. The company did not learn of his immigration status until it received hospital bills for Gonzalez rather than Casarrubias.
Gonzalez filed for workers’ compensation benefits Aug. 15, 2005. Asylum neither started paying benefits nor filed a notice of controversion.


Web of Mass. employer abuses of immigrant worker rights

Monday, December 13th, 2010

The Boston Globe has reported on the shoddy practices of a Massachusetts pizza restaurant chain, focusing on a case involving a Brazilian worker (eastern Massachusetts has a very high number of Brazilian immigrants. Here is the story:
Upper Crust said to face probe by AG
By Jenn Abelson Globe Staff / December 10, 2010
The Upper Crust pizza chain is coming under scrutiny by the Massachusetts attorney general’s office for potential violations of the state’s minimum-wage and other workplace laws, according to an official briefed on the matter.
This inquiry comes days after the Globe reported allegations from former Upper Crust employees that the Boston pizzeria exploited Brazilian immigrant workers as it rapidly expanded over the past decade. Former employees have accused Upper Crust and owner Jordan Tobins of taking back thousands of dollars in overtime payments that were ordered by the Department of Labor and failing to pay minimum wage.
“We have nothing to hide. We welcome any investigation,’’ said George Regan, a spokesman for Upper Crust.
“The violations in this case are particularly egregious, and we are pleased to see another agency looking into this as well,’’ said Shannon Liss-Riordan, one of the lawyers representing former workers who filed a lawsuit in July against Upper Crust.


Illegal worker awarded workers comp benefits in legal twist

Wednesday, January 27th, 2010

Work injuries sustained by an illegal worker often lead into a legal labyrinth ending up, usually, with the worker being granted some or all the benefits allowed by a state’s workers compensation system. This Florida case fits the mold.
As reported by WorkCompCentral (subscription required) Angel Miranda was injured in July 2008. His employer paid him under the table for his disability.
When the employer stopped its payments, he filed a workers compensation claim. Only problem: he had no formal record of having earned a wage, presumably he had been paid in cash, and to award disability benefits a worker has to show evidence of what he was paid. Miranda tried to remedy the situation by filing in April 2009 a tax return for 2008. A workers compensation judge awarded Miranda disability benefits; the decision was upheld of appeal.
Whether he was later deported or not the news article did not say.
The article:
Illegal Alien’s Tax Return Entitled Him to Benefits:
An illegal alien’s filing of a tax return with the Internal Revenue Service entitled him to workers’ compensation benefits, Florida’s 1st District Court of Appeal ruled.
Case: JBD Brother’s and Masonry Inc., et al. v. Miranda, No. 1D09-3402, 1/25/10, published.
Facts: Angel Miranda was an illegal alien from Mexico who has lived in the United States since 2000. In 2008, he began working as a forklift driver and laborer for JBD Brother’s and Masonry. Miranda was injured in July 2008, when he fell from a scaffold at the employer’s job site in Miami.
The employer failed to immediately report the accident to its workers’ compensation carrier, and instead, agreed to make “under the table” payments for Miranda’s medical care and lost time until he recuperated. When the employer halted the payments in September 2008, Miranda retained an attorney and filed a petition for benefits.
The employer responded by reporting the accident to its carrier, which accepted the accident and injury as compensable. However, the carrier denied indemnity benefits because there was no record of Miranda ever having reported his wages to the Internal Revenue Service.
In April 2009, Miranda and his attorney filed forms reporting his 2008 income to the IRS, and seeking an individual taxpayer identification number.
Procedural History: The parties stipulated that Miranda’s reported income equated to an average weekly wage of $480. However, the employer argued that because Miranda failed to file the correct forms with complete information to the IRS, he failed to properly report his income and therefore failed to establish his wages for purposes of calculating an AWW.
The judge of compensation claims rejected this argument, and awarded temporary total disability benefits.
The appellate judges concluded that Miranda was entitled to workers’ compensation benefits despite the allegation that his tax return may have had some technical flaws. The court based this upon another Jan. 25, 2010, decision, which is named Rene Stone Work Corp. v. Gonzalez.
In that decision, the court concluded that an employee simply needs to report his or her income to the IRS to become entitled to benefits, and rejected arguments that the tax return needs to be technically precise.
Source: WorkCompCentral

Global Workers Defender Network

Wednesday, September 16th, 2009

New from the Global Workers Justice Alliance (press release):
The Global Workers Defender Network is comprised of human rights organizations and individual advocates, in the migrant sending countries, who facilitate employment law cases for migrant workers in partnership with advocates in the countries of employment. The Defenders also identify cases of migrants who have suffered labor exploitation and educate migrants on their labor rights.
The Defender Network was launched in April 2008 in Chiapas, Mexico when the first group convened for an intensive training. Through the training program, the Defenders learned about U.S. employment-related law, human trafficking, U.S. civil procedure, and international law. For more information and photos from the training, click here.
Currently, the Global Workers Defender Network is operational in Mexico and Guatemala. Over time, the Network will expand within Mexico and Guatemala as well as to additional countries.