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Civil & Criminal Federal Case Update

by R. Blake Chisam

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.

Criminal Cases

United States v. Ramirez, 420 F.3d 134 (2d Cir. 2005) and
United States v. Ramirez, 2005 U.S. App. LEXIS 18080 (2d Cir. 2005) (unpublished).

Defendant Vitug, an endocrinologist, and her co-defendant, Ramirez, an immigration lawyer, engaged in a scheme to obtain fraudulent H-1B visas and labor certifications for Ramirez's clients. Vitug would sign petitions and applications for jobs that did not exist for workers she did not intend to employ. The government charged them with conspiracy to commit mail fraud, visa fraud, making false statements to a federal agency, along with the substantive offenses of mail fraud, visa fraud and making false statements. The defendants were tried together and convicted.

In addition to some fascinating discussions of the propriety of the venue in which the government elected to try the defendants in, the court held that there was ample evidence adduced at trial for the jury to find that real jobs did not exist for Ramirez's clients and that defendant Vitug never intended to deliver Ramirez's clients the jobs she claimed for them in the immigration documents. As such, the court filed that the clients would have suffered harm and the evidence more than sufficient to find beyond a reasonable doubt that Vitug had the specific intent to defraud them.

While I'm sure the vast majority of immigration lawyers would never engage in a scheme such as this, this case does point to the need for immigration lawyers and employers to be diligent about the existence of the jobs they are seeking to fill. Of particular note in this case was a statement by a defendant that the placement of an advertisement was a mere technicality on the way to obtaining labor certification and that she would find ways to disqualify any applicants that responded to the advertisement.

Employers must interview applicants in good faith who reply to advertisements placed for labor certification applications. The failure to do so can lead to, as we see here, to some nasty consequences. In addition, practitioners should recall that U.S. workers who are rejected unlawfully for jobs advertised in connection with labor certification applications might have grounds to claim that the failure to consider them resulted from unlawful citizenship or national origin discrimination.

In United States v. Ryan-Webster, 353 F.3d 353 (4th Cir. 2003), defendant, an immigration lawyer in the Washington, DC, area, prepared and filed numerous labor certification applications and immigrant visa petitions on which she'd forged the employers' signatures. A Grand Jury indicted her on five felony counts of conspiracy to defraud the U.S., knowingly subscribing as true any false statement of a material fact on an application required by the immigration laws or regulations, and knowingly uttering, using or possessing a document proscribed for entry into or as evidence of authorized stay or employment in the U.S. knowing it to be forged, counterfeited, altered or falsely made. A jury found her guilty and the district court sentenced her to 60 and 72-month sentences, which were to run concurrently.

The Fourth Circuit, applying a causal analysis, found that labor certification applications and immigrant visa petitions are necessary preconditions to the issuance of an employment-based visa. It determined that Congress intended the statute to be broadly construed regarding the types of documents prescribed by the statute. Thus, the Court held that both labor certification applications and immigrant visa petitions are "documents" prescribed by the immigration laws for both entry and as evidence of stay and work authorization.

Thus, immigration practitioners must be careful to ensure that the information contained in labor certification applications and petitions to the immigration service is true. It would be wise to require clients, in writing, to verify the information in all applications and petitions to be filed with the government. It would be unwise to play fast and loose, or to trust your clients too much, in this regard.

In United States v. Kim, 193 F.3d 567 (2d Cir. 1999), defendant Kim acquired Sewing Master's, Inc., a New York City garment-manufacturing business, in 1995. He devised a scheme in which illegal alien employees would change their names for I-9 and payroll purposes whenever questions arose about their work authorization. This permitted defendant to retain the employees rather than churning new, inexperienced employees to avoid documentation problems. A jury found defendant guilty of one count of harboring (18 U.S.C. 1324(a)(1)(A)(iii) (1994)) and the district court sentenced him to three months in jail followed by two years' supervised release.

On appeal, defendant argued that the government should have charged him with a pattern or practice violation under 8 U.S.C. 1324a since, by its terms, that statute applies only to employers. It also has a lower potential punishment than does the harboring statute. He also claimed that the evidence at trial was insufficient to find him guilty of harboring.

The Second Circuit affirmed defendant's convictions. It reasoned that while sections 1324 and 1324a overlap or enjoy a partial redundancy, they are not coextensive and may coexist. The IRCA, in amending section 1324 eliminated the "Texas proviso," which provided that employment could not be deemed to constitute harboring. Thus, the court held, employers may harbor illegal aliens by conduct that tends substantially to facilitate an alien's remaining in the U.S. illegally and to prevent the alien's discovery or detection by government authorities. The court found the evidence sufficient to support the jury's verdict.

With the serious backlogs in employment-based immigrant visas, employers may be tempted to be less than observant regarding the work authorization of their employees. If they do this, however, they run the risk of committing offenses related to harboring, as well as pattern or practice violations. In addition, this type of conduct could expose an employer to liability under the federal civil (and criminal) RICO statutes.

Civil Cases

Racketeering Influenced Corrupt Organizations (RICO) Act

As with the anti-discrimination laws, there is a mechanism by which private litigants may seek to enforce our nation's immigration laws. That law is the Racketeering Influenced Corrupt Organizations Act.

It should come as no surprise to any of us that, with ten or so million less-than-perfectly documented immigrants running around, many employers hire illegal alien workers. It should also not surprise us to discover that there are those who think that the hiring of undocumented workers does grievous injury to the wages and working conditions of U.S. workers, a term which includes U.S. citizens, green card holders, asylees, refugees and certain others admitted temporarily under a previous amnesty program. It probably wouldn't surprise most of us to find out that some businesses also think that their competitors' hiring of illegal workers gives their competitors a leg up-that is, a competitive advantage.

And yet, worksite enforcement, by which I mean situations in which the immigration authorities actually enforce the laws prohibiting the employment of undocumented workers, is, on the whole, incredibly lax. This is to say that worksite enforcement actions happen, but not often. Which leads us to RICO.

In 1996, Congress expanded the reach of the federal RICO statutes to cover predicate offenses-that is, underlying racketeering activities-involving certain immigration-related offenses. Today, private litigants whose business or property interests have been harmed may sue those whose hiring practices violate certain provisions of the immigration laws. These private attorneys general may collect three times the amount of their damages, plus attorney fees.

While the details of a civil RICO claim are beyond our scope here, you should know that there have been five reported cases in the Courts of Appeal that have dealt with immigration-related federal RICO claims. In all but one of those cases, the courts have permitted the plaintiffs to get beyond the pleading stage successfully. Not surprisingly, the one exception is the Seventh Circuit and the author of the opinion in that case was Judge Easterbrook, an icon of the law and economics school.

The five cases are:

  1. Williams v. Mohawk Industries, Inc., 411 F.3d 1252 (11th Cir. 2005)
  2. Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004)
  3. Baker v. IBP, Inc., 357 F.3d 685 (7th Cir. 2004)
  4. Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002)
  5. Commercial Cleaning Services, LLC v. Colin Service Systems, Inc., 271 F.3d 374 (2d Cir. 2001)
In Williams v. Mohawk Industries, Inc., the plaintiffs filed a class action complaint alleging that Mohawk's widespread and knowing employment and harboring of illegal aliens allowed Mohawk to reduce its labor costs by depressing wages for its hourly employees and discouraging workers' compensation claims, in violation of federal and Georgia RICO statutes. Mohawk filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), which the district court denied. The district court, however, did grant the motion with respect to an unjust enrichment claim filed under state law. The parties took an interlocutory appeal to the Eleventh Circuit, which held that the plaintiffs' complaint had alleged sufficient facts to make out a federal civil RICO claim.

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.

Mandamus

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.

Title VII

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.


About The Author

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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