Civil & Criminal Federal Case Update
This article discusses federal criminal and civil cases that bear on, but which may or may not be directly related to, PERM applications. To my knowledge, there haven't been any reported cases challenging the PERM regulations themselves. Still, the cases I'll be discussing are noteworthy in how they may influence not only the preparation of labor certification applications, but also the practice of business immigration law in general. I'll first be talking about criminal cases. Then I'll go through some interesting civil cases. So, let's get to it.
To establish a RICO claim, the court noted that a plaintiff must satisfy four elements of proof, which are: a) conduct b) of an enterprise c) through a pattern d) of racketeering activity. In civil RICO cases, the plaintiff must also show: 1) the requisite injury to "business or property" and 2) that such injury was "by reason of" the substantive RICO violation. The court held that plaintiffs' complaint sufficiently alleged facts to establish each of the above elements.
The fact is that there are many employers out there that, to put it mildly, turn a blind eye to the fact that their workforce contains undocumented workers. Some employers do far worse than simply ignore their workers' lack of proper work authorization. Some use contractors whose immigration compliance procedures leave much to be desired. Some rely on third party employment services whose practices are no less stellar. Some turn to recruiters, whose practices the employers choose not to ask about.
Other employers engage in churning, a term which means that they constantly replace workers whose paperwork is found lacking with other workers-and sometimes the same workers-whose paperwork will eventually be found to be equally suspect.
In short, it's a bloody mess out there, particularly in industries having lots of unskilled labor needs. Since the government has been relatively lax in enforcing the immigration laws, private enforcement has a place, and plaintiffs are using the RICO statutes accordingly. Treble damages and awards of attorney fees are a powerful incentive and the costs of defending RICO class actions may lead employers to settle prematurely, so I'd expect to see these claims persist.
Added to all this is the fact that RICO claims sometimes begin with (or follow) criminal investigations and agency enforcement actions. In Commercial Cleaning Services, for example, the defendant paid somewhere on the order of $1 million in agency fines for substantive hiring and paperwork violations. Tyson Foods was indicted and some of its managers, though not the company itself, were convicted. Wal-Mart, which faces a civil RICO claim as we speak, recently paid $11 million in fines; one of its subcontractors paid, as I recall, about $4 million in criminal fines. And just think of all the negative press.
In short, employers need to consider the policies and practices as they relate to the employment of undocumented workers. The consequences of illegally employing undocumented workers can be very grave.
In Liberty Fund, Inc. v. Chao, Civil Action No. 04-0915 (JDB) (D.D.C. Sep. 30, 2005), the U.S. District Court for the District of Columbia denied Liberty Fund's Petition for a Writ of Mandamus. The Court found that DOL had a duty to adjudicate labor certifications in a reasonable time. However, it found that delays of up to four years were not unreasonable given the agency's efforts to reduce its backlogs, its budgetary restrictions and its competing priorities. The court's decision is in accord with the decisions of other courts in the D.C. district and the Southern District of Texas denying mandamus relief to employers waiting for labor certification decisions.
One should note that the D.C. Circuit in Ramirez v. Reich, 156 F.3d 1273 (D.C. Cir. 1998) found, in the context of a challenge by alien beneficiaries, that the employer is an indispensable party in labor certification cases. In addition, there has been some success at obtaining mandamus relief outside the labor certification context.
I would not give up hope for judicial assistance in reducing DOL's backlog, however. Should PERM and the agency's backlog reduction efforts not begin to show results as quickly as DOL anticipates, the courts' reasoning will begin to weigh more strongly in favor of granting mandamus. Also, we ought to consider the effect of priority date backlogs on these cases, as well.
Continuances in Removal Cases
Respondents in removal proceedings often need to wait for a labor certification application to be approved before their employer can file an immigrant petition for them, based on the approval of which they hope to seek adjustment of status, often based on INA 245(i), as relief from removal. To gain time for the labor certification application to be approved, many respondents request continuances from immigration judges. Often, immigration judges deny these continuances and order removal. The BIA ordinarily upholds the IJs' decisions. So do the Circuit Courts. Sidikhouya v. Gonzalez, 407 F.3d 950 (8th Cir. 2005) (no jurisdiction to review AG's discretionary decision to grant a continuance to respondent); Zafar v. U.S. Attorney General, 2005 U.S. App. LEXIS 20932 (11th Cir. 2005) (AG did not abuse his discretion in denying a continuance); Sukhera v. Attorney General, 139 Fed. Appx. 153 (11th Cir. 2005) (same); Grass v. Gonzalez, 418 F.3d 876 (8th Cir. 2005) (no jurisdiction and no visa immediately available); Navarro v. Gonzalez, 125 Fed. Appx. 875 (9th Cir. 2005) (no abuse of discretion); Faustino v. Gonzalez, 140 Fed. Appx. 346 (3d Cir. 2005) (no abuse of discretion since respondent failed to establish eligibility for adjustment of status and no denial of due process either, for the same reason).
One major exception to this was the Seventh Circuit's decision in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). The Court there found that it had jurisdiction to hear the case (a conclusion placed somewhat in doubt by the passage of the REAL ID Act) and that Congress could not have intended for immigration judges to deny brief continuances with impunity where removal would sound the death knell for 245(i) cases. Specifically, the Court found that the IJ and BIA violated 8 U.S.C. 1255(i) when they denied Subhan a continuance without giving a reason consistent with the statute (or, without giving any reason at all).
Remands in Removal Cases
Two cases have dealt with remands for the purpose of seeking adjustment based on labor certification and immigrant visa petition approvals. In Mykhailo v. Ashcroft, 396 F.3d 272 (3d Cir. 2005) the Third Circuit granted a Petition for Review, finding that the BIA abused its discretion in not remanding where the IJ lacked substantial evidence for that petitioner participated in criminal activities abroad. Significantly, the petitioner had requested a remand from the BIA. In Matskiv v. Ashcroft, 106 Fed. Appx. 10 (10th Cir. 2004), the Tenth Circuit refused to remand the case for possible reopening by the BIA to pursue adjustment of status. The Court reasoned that, upon approval of his labor certification and immigrant visa petition, the proper procedure would be for the alien to move the BIA to reopen and remand the proceedings. Of course, the petitioner would have a hard time doing this in light of his voluntary departure period since he'd probably have to remain beyond that period, which would make him ineligible for adjustment of status.
In Olvera Morales v. Sterling Onions, Inc., 322 F.Supp.2d 211 (N.D.N.Y. 2004), the plaintiff in this case filed a Title VII action on behalf of herself and all others similarly situated for sex discrimination, alleging that the defendants steered her and other women into H-2B nonagricultural jobs while reserving better paying H-2A agricultural jobs for men, even though she and the other women were qualified and had applied for the agricultural jobs. The defendants sought summary judgment, asserting that plaintiff was not "qualified for employment," an element required to make out a Title VII claim, as an agricultural worker since she lacked H-2A status at the time she applied for agricultural jobs.
The district court denied the defendants' summary judgment motion. It reasoned that the defendants had anticipated that their employees would obtain the appropriate work authorization as part of the application and hiring process. While the court declined to rule specifically that the timing of the visa application would deprive the plaintiff of all protection against discriminatory hiring practices, it observed that a categorical ruling like that in two pre-Hoffman decisions in the Fourth Circuit that a foreign national has no protection from discriminatory hiring practices simply because she applied to work in the U.S. before receiving work authorization has the potential to invite abuse by employers and to undermine the purposes of Title VII.
R. Blake Chisam practices exclusively in the area of Immigration and Nationality Law as a partner in the firm of Chisam & Majid. He advises organizations with respect to immigration-related policy, employment, civil rights, and health care law matters, including related white-collar criminal and regulatory compliance issues. Mr. Chisam is an active member of the American Immigration Lawyers Association ("AILA"), for which he currently serves on its Business Litigation committee, and the American Bar Association ("ABA"). In October 2000, Mr. Chisam and his partner Jasmine A. Majid were, awarded the prestigious Meritorious Public Service Award from the Director of the U.S. Department of Justice’s Executive Office for Immigration Review, which was presented by then-Attorney General Janet Reno, in recognition of their "tireless and distinguished pro bono efforts on behalf of unrepresented aliens detained by the … Immigration and Naturalization Service." Mr. Chisam has lectured on immigration law to law students at universities across the U.S., and he is a frequent author and lecturer to professional associations, academic symposia and community groups. He is admitted to practice in New York, Maryland, Pennsylvania and a host of federal courts.
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