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Immigration Daily

The leading
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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
March 28, 2002
Previous Issues

Editor's Comments

In Hoffman Plastic Compounds, Inc. v. NLRB, No. 00-1595 (Mar. 27, 2002), the Court held that federal immigration policy as expressed by Congress in the Immigration Reform and Control Act of 1986 forecloses the National Labor Relations Board from awarding back pay to an undocumented alien who has never been legally authorized to work in the US. Petitioner Hoffman Plastics laid off an employee who had been involved in union organizing activities. The National Labor Relations Board (NLRB)found that Hoffman had improperly laid off the employee, and as part of the remedy ordered reinstatement and backpay. At a hearing before an Administrative Law Judge to determine the amount of backpay the employee in question admitted that he had been born in Mexico, had never been admitted to the United States, and had used a birth certificate borrowed from a friend to obtain a driver's license and as proof of being authorized to work in the US. The NLRB determined that he was entitled to backpay for the period until his use of fraudulent documents became known. The court of appeals upheld the NLRB's decision and Hoffman Plastics appealed to the Supreme Court.

Chief Justice Rehnquist joined by Justices O'Connor, Scalia, Kennedy and Thomas delivered the opinion of the Court. The majority rejected that contention of the NLRB put forth in its brief and at oral arguments that it was not precluded from awarding appropriately limited backpay for unlawfully discharged undocumented aliens physically present in the US, and that this limited aware of backpay reasonably accommodated both National Relations Act (NLRA) and the Immigration Reform and Control Act (IRCA). The Chief Justice concluded that

to allow the NLRB "to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of immigration laws, and encourage future violations.
Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, dissented finding that nothing in either the statutory language of immigration law nor its purpose warrant taking from the NLRB the power to award backpay in this situation. Further, the dissent argued, the Court was bound to uphold the determination of the NLRB because the NLRB had acted "with a discriminating awareness of the consequences of its action" on immigration law.

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ILW.COM Featured Article of the Day

Explaining Mohamed Atta's M-1 Approval: A Very Embarrassed INS and Angry Politicians
Jose Latour write that the arrival of change of status notices foe hijackers on the six-month anniversary of their attack happened because "immigration" is a "Size XXXX" issue in this country and the Congress is giving the agency in charge of said issue a "Petite" budget.

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Immigration News

Supreme Court Denies Back Pay to Undocumented Workers
In Hoffman Plastic Compounds, Inc. v. NLRB, No. 00-1595 (Mar. 27, 2002), the Court held that federal immigration policy as expressed by Congress in the Immigration Reform and Control Act of 1986 forecloses the National Labor Relations Board from awarding back pay to an undocumented alien who has never been legally authorized to work in the US.

Aggravated Felony is Not Element of Offense
The court in US v. Soto, No. 01-2781 (3rd Cir. Mar. 27, 2002), held that defendant's prior aggravated felony conviction could be used to enhance his sentence even though it was not charged in the indictment.

Effects of Defendant's Alienage Must be Articulated to Grant Downward Departure
In US v. Gallo-Vasquez, No. 01-2708 & 01-2937 (7th Cir. Mar. 27, 2002), the court held that the district court abused its discretion when it decided to grant a downward departure on the basis of the defendant's alienage without articulating how the conditions of the defendant's confinement would differ as a result of his alienage and whether those differences would have made the defendant's sentence more onerous than was contemplated by the framers of the Sentencing Guidelines.

No Benefits for Unknown Alien
The court in Gipson v. INS, No. 01-2185 (8th Cir. Mar. 27, 2002), upheld a grant of summary judgment in favor of the Board of Immigration Appeals' (BIA) denial of an preference petition where the Beneficiary had produced contradictory evidence as to his true identity. The court has made available the Appellee's brief.

INS to Transfer Tanzanian Boys to Foster Care
The INS will transfer four Tanzanian nationals under the age of 18 from a juvenile shelter care facility to a foster home.

More Terrorists Organizations under INA
The Department of State has designated the Al-Aqsa Martyrs Brigade also known as the Al-Aqsa Martyrs Battalion Asbat al-Ansar and the Salafist Group for Call and Combat also known as the Salafist Group for Preaching and Combat also known as GSPC also known as Groupe Salafiste pour la Predication et le Combat as terrorists organizations under section 219 of the Immigration and Nationality Act.

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Immigration in the Press

Judge Orders Details Released on Sept.11 Detainees
According to Reuters a New Jersey Superior Court Judge has ruled that information on people held in two New Jersey jails after the September 11 attacks must be disclosed, including their names and the reasons why they were detained.

INS Paper Trail
National Public Radio traces the path of the applications for change of status for Mohamed Atta and Marwan Alshehhi as they made their way through the INS.

Letters to the Editor

Dear Editor:

I am an Immigration attorney with a real story to tell if you are interested. On my OWN petition for my pregnant wife, the MSC has taken nealy 150 days to approve a K-3 (normal processing "15-22 days") because they have lost photos, documents, rejected in error.... The Asst. Officer in Charge (M. Sanders) personally "walked it through" after a media threat, only to have the WRONG visa type approved.

My child will now be born in Mexico, my step-son was taken out of private school because we were sure the visa would be approved by January, I have been unable to file taxes thinking my wife would have a social security number.... This is unust and inexcusable neglect and ought to be subject to public discussion.

Sean Lewis

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"WHAT GOES UP, MUST COME DOWN!" A Business Immigration Seminar specifically designed for Corporate Immigration Personnel and Immigration Attorneys. Thursday, April 11, 2002, from 9:30 a.m. - 4:00 p.m. Cadence Design Systems, Inc. - The Pebble Beach Room 2655 Seely Avenue (near River Oak Drive), Bldg. #5, San Jose, CA. For details and registration form click here.

The Midwest Legal Immigration Project is continuing its endeavor to provide basic immigration legal training to attorneys and paralegals practicing immigration law, or who wish to begin the practice of immigration law. Our next intensive week long basic legal immigration training seminar is scheduled for May 13-17, 2002, at the Marriott Hotel in downtown Des Moines. The seminar is co-sponsored by the Immigration Legal Resource Center of San Francisco. Successful graduates will receive assistance in applying for BIA accreditation if they wish. The seminar is accredited for 30 hours of CLE and 2 hours ethics for attorneys. The Marriott Hotel is offering sharply discounted rooms for $49/night plus tax. Call 1-800-228-9290 for room reservations and mention the immigration legal training seminar. For more information, call Jim Benzoni at 515-271-5730; fax 515-271-5757; or e-mail

An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Correspondence to Letters may be edited and may be published and otherwise used in any medium.
Editorial Advisory Board
Marc Ellis, Gary Endelman

Copyright 2002 American Immigration LLC, ILW.COM