Saturday, March 5, 2016

Federal Court Says TPS Beneficiaries Who Entered Without Inspection Are Eligible To Adjust Status

Aliens who enter the United States without inspection are nonetheless able to obtain temporary protected status ("TPS") based upon conditions found to exist in their native country. TPS status allows an otherwise inadmissible alien to remain lawfully in the United States, obtain work authorization and avoid removal from the United States because they entered the country without admission. The question often arises whether a TPS beneficiary who entered the country without inspection can apply for adjustment of status based upon the petition of a qualifying relative. A district court in Minnesota answers that question in the affirmative.

In Bonilla v. Johnson, an alien from El Salvador seeking to adjust status in the United States, originally entered the country without inspection in 1991. Ten years later, the U.S. Attorney General declared residents of El Salvador eligible for temporary protected status within the U.S. because of three devastating earthquakes in the country. The plaintiff timely filed her application for TPS, disclosing the fact she entered without inspection in 1991. Plaintiff's TPS status was continuously renewed. In 2014, Plaintiff's daughter, a U.S. citizen over the age of 21, applied to adjust her status to lawful permanent resident. USCIS approved the daughter's petition for her mother, but it the mother's application for adjustment of status because of her failure to show she had been lawfully admitted or paroled into the United States.

The district court reversed the decision of USCIS denying Plaintiff's application for adjustment of status, holding that the plain language of 8 U.S.C. §1254(a)(f)(4) makes clear that when an alien is granted TPS, it satisfies the threshold requirement of inspection and admission to the United States under 8 U.S.C. § 1255(a) for purposes of becoming eligible for adjustment to LPR status. A word of caution is in order. There are Court of Appeals decision that are at odds with this district court opinion so a different outcome could occur with a case in the Seventh Circuit where Indiana is located. Additionally, TPS beneficiaries often avoid this problem by obtaining advance parole to leave and re-enter the country before applying to adjust status, thereby qualifying based on their paroled status into the U.S. following the granting of their TPS status. 

Monday, February 29, 2016

Federal Judge Blocks Indiana's Attempt To Halt Syrian Refugee Resettlement

U.S. District Court Judge Tanya Walton-Pratt rebuked Gov. Mike Pence in his efforts to halt the resettlement of Syrian refugees in Indiana until federal officials are able to assure state officials that its capable of conducting background investigations of intending refugees to protect against individuals with known terrorist ties from entering the country. Exodus Refugees, a nonprofit agency with whom the State Department contracts to provide resettlement services to refugees, brought suit against the Pence administration, contending the governor violated the equal protection rights of Syrian refugees by singling them out for discriminatory action. Judge Walton-Pratt's decision grants a preliminary injunction enjoining Gov. Pence from carrying out his executive action, having concluded the likelihood of the plaintiff succeeding on the merits of its claim against the state.

Judge Walton-Pratt concluded that Pence's policy directive unlawfully discriminated against Syrian refugees based on their national origin. Although Judge Walton-Pratt agreed that the state had a compelling interest in the enforcement of Gov. Pence's executive action--the safety of Indiana residents--the administration's plan to withhold federal funds from groups like Exodus Refugees to provide social services to Syrian refugees resettled in Indiana "in no way furthers the State's interest in the safety of Indiana residents."

State officials had relied upon a Supreme Court decision last year authored by the late Justice Antonin Scalia in support of its primary contention that the federal Refugee Act conferred no private right of action on Exodus Refugees as a service provider to sue Gov. Pence. A fair reading of the majority opinion in Armstrong v. Exceptional Child Center, Inc. would tend to support the state's contention that only the federal government had standing to compel Gov. Pence not to withhold federal grant money from refugee resettlement providers like Exodus Refugees. In Armstrong, a 5-4 majority found that Medicaid service providers in the state of Idaho had no private right of action to sue the state over the rate of reimbursement provided under a state Medicaid program. Scalia's untimely death could lead to a different outcome in future such cases. Judge Walton-Pratt dismissed the state's argument, distinguishing the case at hand from Armstrong as a straight-up anti-discrimination case.

Gov. Mike Pence has asked Attorney General Greg Zoeller to seek an immediate stay and appeal of today's decision. "As governor I have no higher priority than the safety and security of the people of Indiana," Pence said in a statement released by his office. "During these uncertain times, we must always err on the side of caution. For that reason, following the terrorist attack in Paris and the acknowledgment by the Director of the FBI that there are gaps in the screening for Syrian refugees, I suspended participation by the State of Indiana in the Syrian refugee resettlement program and I stand by that decision." "So long as the Obama administration continues to refuse to address gaps in the screening of Syrian refugees acknowledged by the FBI and a bipartisan majority in Congress, Hoosiers can be assured that my administration will continue to use every legal means available to suspend this program in Indiana unless and until federal officials take steps to ensure the safety and security of our citizens."

The Indiana Law Blog has posted a copy of today's order online, which you can access here.

Tuesday, February 16, 2016

Chicago Law Firm Files RICO Case Against Indiana Packers For Suppressing Wages By Employing Undocumented Aliens

A Chicago law firm filed has filed a lawsuit against Indiana Packers Corp., a Delphi-based pork processing plant, accusing the company of hiring hundreds of undocumented aliens in order to suppress wages paid to its workers. According to the Indianapolis Star, the lawsuit is being brought under the federal civil RICO statute and seeks class action status. The lawsuit accuses the company of employing undocumented aliens it knows possess false documents in order to work. Indiana Packers, which is jointly-owned by Mitsubishi and Itoham Foods, Inc., is Carroll County's largest employer.

Starting hourly wages at the meat packing plant are about $10.50 an hour according to the lawsuit. When the company's HR department received completed I-9 form from prospective employees to establish a worker's authorization to accept employment in the United States, the lawsuit alleges the company turned a blind eye towards the use of false documents by the new hires to pass a check on E-Verify, an online database the federal government offers employers to check the legal status of a prospective employee. "You’re required to use it in good faith," Chicago lawyer Howard Foster said of E-Verify. "If you believe that the documents relate to somebody else, you’re supposed to ask questions about the person, which they don’t do. They don’t ask any questions."

The Star notes that Indiana Packers recently announced a $40.6 million expansion of its Delphi plant, which was expected to create an additional 91 jobs. The Indiana Economic Development Corporation offered Delph up to $475,000 in tax credits and $28,000 in training grants if it fulfills its hiring requirements. Gov. Mike Pence made that announcement with Mitsubishi and Indiana Packers officials in Tokyo last September.

Under current Indiana law, employers face sanctions for employing undocumented aliens. The Indiana Department of Revenue is permitted to eliminate deductions employers take on their Indiana income tax returns for expenses related to the employment of undocumented aliens. In addition, employers can lose economic development incentives awarded to them if they are employing undocumented aliens. That law, however, foregoes sanctions against the employers if they rely on E-Verify to determine the legal status of their workers. That current law was sponsored by Sen. Mike Delph (R-Carmel), who tried unsuccessfully to enact legislation this year that would bar employers who employ undocumented aliens from doing business with the state. Although those sanction in SB 285 failed to pass, the Senate has approved a commission to study the impact undocumented workers have on Indiana's economy, which will be headed up by Sen. Delph.

Friday, January 22, 2016

DHS Implementing New Visa Waiver Restrictions

The Department of Homeland Security ("DHS") announced the implementation of new visa waiver restrictions resulting from the passage of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. Under the new restrictions, travelers in the following categories will no longer be able to travel to the U.S. under the visa waiver program:
  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
Persons falling within these categories are not blocked entirely from entering the United States. They may still apply for a tourist visa to enter the United States through the normal process that applies for travelers from countries which are not part of the visa waiver program. The more severe restriction applies to persons from Iran, Iraq, Sudan and Syria who hold dual nationality and are currently qualified for the Electronic System for Travel Authorizations ("ESTA"). Persons who fall within this category will have to apply for a waiver on a case-by-case basis if DHS determines that such a waiver is in the law enforcement or national security interests of the United States.  As a general matter, the following categories are eligible for a waiver:
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and subnational governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business related purposes.

Saturday, January 9, 2016

State Legislation Aimed At Punishing Employers Who Hire Undocumented Aliens

Sen. Mike Delph (R-Carmel) has introduced SB 285 in an effort to block some employers in Indiana which employ undocumented aliens from doing business within the state. I say some employers because the bill expressly exempts the following employers: public utilities; hospitals; nonprofit corporations; and ambulance providers. An employer may be barred from doing business in the state if it: (1) transacts business in Indiana; (2) has a license issued by an Indiana agency; and (3) employs one or more individuals who perform services in Indiana. So if you can operate a business without the need to obtain a license from the state, you are exempt from it as well.

The enforcement provisions of this law make its constitutionality suspect. The U.S. Constitution empowers only Congress to regulate immigration, although the U.S. Supreme Court upheld the constitutionality of a similar Arizona law. Delph's legislation makes Indiana's attorney general responsible for enforcing the law based on complaints it receives. If the attorney general's investigation of a complaint determines an employer violated the law, he is required to notify the following: USCIS; local law enforcement agencies; and the prosecuting attorney's office. The legislation says the prosecuting attorney may bring a civil action requesting a hearing be conducted to determine if the employer broke the law. The permissive nature of this enforcement mechanism suggests to me that many prosecuting attorneys would elect against bringing enforcement actions, thereby creating a disparity across the state in prosecuting violations under the law.

A court hearing an enforcement action that finds against an employer can: (1) order the employer to terminate the employment of all unauthorized aliens; (2) place the employer on probation for a 3-year period during which it is required to file quarterly reports showing compliance with the order with the attorney general; and require the employer to sign a sworn affidavit within 30 days of the order stating it has complied with the order. If an employer is found to have violated the law a second chance, a court can place it on probation for a period of up to 10 years. Get caught a third time and the court can order the appropriate state agencies to revoke the employer's license or licences to conduct business in Indiana. Businesses that use E-Verify to verify their employees' status would be immune from prosecution under the law.

The proposed law would clearly put Indiana law in conflict with current enforcement guidelines of federal agencies responsible for enforcement of immigration laws adopted by the Obama administration, which send very mixed signals to employers. Employers would run the risk of either complying with the state law or face the wrath of the federal government for discriminating against alien workers. Not surprisingly, the Indiana Chamber of Commerce tells the Indianapolis Star it vehemently opposes the legislation. Indiana already has a law that permits the state to deny tax breaks to employers which employ undocumented aliens, although I'm unaware of any employers who have been sanctioned under that law.

Speaking of immigration, I had the opportunity to view the oral argument in a case I previously discussed, Escamilla v. Shiel Sexton Co., a case involving an undocumented employee of a subcontractor working on one of the general contractor's work sites who sustained a permanent injury while on the job. As general contractor, Shiel Sexton assumed responsibility for all employee's safety who worked at the job site. It wants to offer evidence of Escamilla's immigration status to limit any potential recovery he might have for lost wages, assuming he is ever ordered removed to Mexico where his potential earning capacity would be much less than if he remained in the U.S. permanently. Escamilla's attorneys believe allowing the jury to hear his evidence of his immigration status would be prejudicial, and a public policy argument against rewarding employers who knowingly employ undocumented workers.

Attorneys for Shiel Sexton indicated that Escamilla had provided only a Mexican driver's license and a social security number belonging to someone else when he started working for its subcontractor. The facts presented by Escamilla's attorney indicated a strong likelihood that he is on a path to legalized status. He was brought to this country when he was only 14 years old, is married to a U.S. citizen and has three U.S. citizen children. Escamilla's immigration attorney had presented evidence that his wife has filed to sponsor him for an immigration benefit. Escamilla had not yet obtained work authorization. The Obama administration has administratively permitted certain early childhood arrivals like Escamilla to obtain work authorization under a program known as Deferred Action for Childhood Arrivals ("DACA"). It wasn't clear from the discussion whether Escamilla was eligible for that program, or whether he just didn't want to spend the money to pay the filing fee for work authorization.

I was a bit confused by the evidence, which claimed his attorney had a pending I-485 adjustment of status petition on file for him. Based on these facts, Escamilla would not be eligible to file an I-485 and adjust status within the U.S.; rather, his wife could file an I-130 immigrant petition to sponsor him, and upon approval of that petition, he could file for a provisional hardship waiver on a Form I-601(A) that would permit him to apply to immigrate to this country, notwithstanding his unauthorized entry and period of stay in the U.S. Once his hardship waiver is approved, which is more than likely under these circumstance, he would be eligible to file an immigrant visa application (Form DS-260) for consular processing. Escamilla would be required to exit the country for his immigrant visa interview and then be allowed to re-enter the country lawfully as a permanent resident if his application is approved.

It's difficult to predict how the Court of Appeals will rule. It didn't sound like either Judge May or Judge Bradford were very sympathetic to Escamilla's arguments. Judge Baker seemed more receptive to his attorney's arguments. If they don't rule in favor of Escamilla, there will be an anomaly in Indiana law where his immigration status for purposes of calculating the extent of his damages would be deemed prejudicial in a personal injury action and kept from the jury but not in a work-related injury case where the employer would seem to get its cake and eat it too.

Tuesday, December 1, 2015

Office Of Refugee Resettlement Sends Warning Letter To State's Governors On Syrian Refugees

The Obama administration recently announced the United States would be accepting approximately 10,000 refugees from Syria over the next year. In the wake of the terrorist attacks in Paris, France, a majority of the state's governors announced they would take steps to halt the resettlement of refugees from Syria in their respective states. Indiana's Gov. Mike Pence is among the governors calling for a halt to refugees, an announcement that triggered the filing of a lawsuit by Exodus Refugees and the American Civil Liberties Union of Indiana against Gov. Pence and the state's Family & Social Services Administration, the state agency designated to administer federal programs benefitting refugees.

Director Robert Carey of the Office of Refugee Resettlement sent a letter to the states this past week warning them that federal does not allow states to refuse to accept refugees from Syria. The Refugee Act of 1980, according to Carey's letter, requires states to provide "assistance and services . . . to refugees without regard to race, religion, nationality, sex or political opinion. 8 U.S.C. 1522(a)(5). ORR helps in the resettlement of refugees in the respective states through a state plan process.

Federal funding for state plans are tied to certifications by the states that they are in compliance with Section 1522(a)(5) under federal regulations. 45 C.F.R. 400.4. Carey's letter warns the states that their state plans cannot categorically deny ORR-funded benefits and services to refugees from Syria. States which deny ORR-funded benefits and services face suspension or termination according to Carey's letter. His letter further warns the states that they are not permitted to deny Medicaid or TANF benefits under Section 2000(d) of the Civil Rights Act of 1964 to Syrian refugees in their states as well.

Wednesday, September 23, 2015

Indiana Senate Democrats Proposing State Law Changes To Benefit Undocumented Aliens

Indiana Senate Democrats announced several state law changes they propose making during the 2016 legislative session related to education, driver's licenses and health care for the benefit of undocumented aliens. Among the items to be considered are the following:

  • Permitting undocumented aliens who qualify for the federal Deferred Action for Childhood Arrivals ("DACA") benefit to receive in-state tuition rates at state universities after three years of continuous attendance;
  • Allowing the Bureau of Motor Vehicles to issue driver's licenses to anyone regardless of their citizenship status or legal status in this country as 10 other states, including neighboring Illinois already do; and
  • Providing undocumented aliens access to kidney dialysis care through the state's Medicaid program instead of waiting for end-stage renal disease to take hold before qualifying for assistance.