Other Immigration Law Services
Employers are faced with the often difficult-to-harmonize goals of avoiding any possible civil rights action stemming from illegal discrimination against foreign-born or foreign-looking employees, and avoiding criminal sanctions for using undocumented workers, either as employees or employees of subcontractors. Therefore, an employer must have a comprehensive policy on fulfilling verification requirements for workers on its job sites. Through these other immigration law services, we provide the help and guidance they need.
Tips for Employer I-9 Compliance
- Employers are faced with the often difficult-to-harmonize goals of avoiding any possible civil rights action stemming from illegal discrimination against foreign-born or foreign-looking employees, and avoiding criminal sanctions for using undocumented workers, either as employees or employees of subcontractors. Therefore, an employer must have a comprehensive policy on fulfilling verification requirements for workers on its job sites
- Supervisors and management must be trained in the law of documenting workers and the responsibility for completing the I-9’s.
Every employer should have an explicit policy prohibiting the use of undocumented workers, and such notices should be prominently placed on every job site
- Subcontractors must be put on notice and sign off on a policy that requires properly documented workers. Following the highly publicized case of Wal-Mart when the company settled an $11 million fine in 2005 with ICE, Wal-Mart not only requires a signed agreement with subcontractors, but further requires the certification of an immigration practitioner as to the subcontractors’ I-9 practices. While this may be more than is common for smaller employers, it obviously provides an extra layer of protection for the employer. In extreme cases it is recommended that before hiring a subcontractor, that the subcontractor provide your company with a letter from an attorney who has recently audited that subcontractor’s files
- The employer must train management and supervisors to use common sense and, according to the circumstances, attend to the suspected use of undocumented workers by a subcontractor. This does not mean that an employer must interrogate every subcontractor employee; on the other hand, if a supervisor observes subcontractor employees hiding underneath trucks or bushes whenever a police car passes, further inquiry of the subcontractor is appropriate. Failure by the subcontractor to take appropriate follow-up steps to address the employment eligibility of its employees in a circumstance like this should result in termination of the subcontractor’s services. This duty may also extend to situations involving high-skilled contractors when an employer has reason to believe that the employees of the contractor are not in the United States on the correct visa
- Employers should consult with immigration counsel if there are any questions or situations that need clarification. The stakes are now much higher than they used to be, and the personal exposure of company personnel is much higher than it used to be. These times call for the highest standards of conduct, and employer clients should be advised to use particular caution in subcontractor settings
- Perform quarterly or annual self-audits
Any individual who is physically present in the United States, irrespective of status, may receive asylum in the exercise of discretion, provided that he or she timely files an application and qualifies as a refugee, INA §101(a)(42)(A) and INA §208.
Any individual who is physically present in the United States, irrespective of status, may receive asylum in the exercise of discretion, provided that he or she timely files an application and qualifies as a refugee, INA §101(a)(42)(A) and INA §208. The applicant has the burden of proving that he or she is statutorily eligible for asylum under 8 CFR §208.13(207).
The applicant meets the definition of a refugee if he or she proves that he or she is a person outside his or her country of nationality who is unable or unwilling to return to, and is unable or unwilling to avail him or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of:
- membership in any particular social group or political opinion
- Political (These are protected grounds where the applicant must establish a “reasonable possibility” of persecution in his or her country of nationality)INA §§ 208(b)(1)
An applicant who demonstrates past persecution creates a formidable presumption that he or she has a well-founded fear of persecution, 8 CFR §208.13(b)(1). In addition, the applicant’s fear of persecution must be country-wide.
Finally, the applicant must demonstrate that he or she is eligible for asylum as a matter of discretion, 8 CFR §208.13(b)(1)(i).
Section I. – Timeliness
The applicant must establish by clear and convincing evidence that he or she filed his or her asylum application within one year of arrival in the United States, 8 CFR §208.4(a)(2)(2007). The applicant is considered ‘filed’ on the date it is received.
Section II. – Credibility
When assessing an applicant’s asylum credibility, the Immigration Court attaches significant weight to the applicant’s credibility, Matter of O-D, 21 I&N Dec. 1079, 1081 (BIA 1998). The court determines an applicant’s credibility by considering the totality of the circumstances and all relevant factors. These factors include:
- The applicant’s demeanor
- consistency on direct and cross-examination
- consistency with the written application
- The absence of embellishment
Matter of B, 21 I&N Dec. 66, 70 (BIA 1995). The court generally does not consider testimony credible when it is inconsistent and contradictory with the current country conditions, or inherently improbable or implausible, Matter of S-M-J, 21 I&N Dec. 722, 728-29 (BIA 1997)
An asylum applicant’s testimony can satisfy the burden or proof without additional corroboration if the testimony is “believable, consistent and sufficiently detailed to provide a plausible and coherent account on the basis of his (or her) alleged fear”, Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989).
However, an adverse credibility finding alone may suffice to support the court’s denial of an applicant’s asylum claim, especially if the applicant failed to produce corroborating evidence.
Section III. Past Persecution
To establish asylum based on past persecution, the applicant must show that he or she was persecuted on account of a protected ground. Persecution is the “infliction of suffering or harm upon an individual to punish him or her for possessing a belief or characteristic a persecutor seeks to overcome.” Matter of Acosta, 19 I&N Dec. 211, 223 (BIA 1985), modified on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
Persecution is an extreme concept that requires “more than a few isolated incidents of verbal harassment or intimidation.” However, harassment or intimidation accompanied by physical punishment, infliction of harm, or serious depravation of liberty could rise to the level of persecution, Mikhailevitch v. INS, 146 F3d 385, 390 (6th Cir. 1998).
In determining whether or not the applicant suffered persecution, the court must consider the cumulative effect of the allegedly persecutory incidents.
When he or she establishes that he or she has suffered persecution, the applicant must then show that the persecution was on account of race, religion, nationality, membership in a particular social group, or political opinion, INA § 101, 8 CFR §1208.13(b).
Persecution can be imputed, rather than actual, protected grounds to satisfy the refugee definition. See Matter of T-M-B, 21 I&N Dec. 775, 777 (BIA 1997), stating that the applicant must produce evidence from which it is reasonable to believe that harm was motivated, at least in part, by an actual imputed protective ground.
a. Regarding ‘any particular social group’, in Matter of Acosta the board interpreted membership in a ‘particular social group’ to mean:
An individual is a member of a group of persons, all of whom share a common, immutable characteristic. A shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be shared past experience such as former military leadership or land ownership. A particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.
See Acosta at 19 I&N Dec. 223(I)(b) “On account of” requirement. In addition to establishing membership in a particular social group, an asylum applicant must provide “specific detailed facts” that provide an applicant has a good reason to fear that he or she will be singled out for persecution on account of the protective ground. The applicant’s proof may be in the form of direct or circumstantial evidence. The applicant need not show that persecution was solely motivated by the protective ground. Instead, the applicant can establish asylum eligibility so long as the persecution was motivated “at least in part” by the protective ground.
IV. State Action Required
To establish eligibility for asylum, the applicant must demonstrate that the persecution he or she experiences or fears was inflicted by the government or by an entity the government is unable or unwilling to control. See Acosta, 19 I&N Dec. 222.
In examining whether a government is unwilling or unable to protect an applicant, the court generally considers it fatal to the asylum claim if the applicant has failed to report persecution to the local authorities. However, the board has excused an applicant’s failure to report where the applicant convincingly establishes that the authorities would have been unable or unwilling to protect him or her, and for that reason, he or she could not rely on the authorities, Matter of S-A, 22 I&N Dec. 1328, 1335 (BIA 2000). This can be shown sometimes by U.S. State Department Country Reports, and reports from other agencies.
V. Well-founded Fear of Persecution
Once an asylum applicant establishes past persecution on account of a protected ground, the burden shifts to DHS to provide, with a preponderance of evidence, that the applicant no longer has a well-founded fear of persecution because of a fundamental change in circumstances, or that the applicant could avoid future persecution by relocating to another part of the country, 8 CFR § 208.13(p)(1)(i)-(ii).
Suing the Government for Agency Delay Increasingly, immigration practitioners and foreign nationals seeking benefits from U.S. Citizenship and Immigration Services (USCIS) face long delays in application processing. In some instances these delays become unreasonable and can add up to years over the advised processing times quoted by USCIS. In the case of an unreasonable delay, it may ultimately be necessary to bring a civil action against government agencies. Before seeking redress by federal court, however, there are other means to seek redress.
Use expedite procedures offered by USCIS:
- Contact a congressional liaison to inquire on the applicant’s behalf
- Contact USCIS to check your case status
It is important that these steps are followed before bringing an action in federal court, as a plaintiff may be required to prove he or she has exhausted all administrative remedies before seeking redress from the courts. Documented proof that the above steps have been taken will serve as evidence that plaintiff has exhausted all administrative remedies and is thus eligible for relief from the court.
If administrative remedies prove inadequate or ineffective, it may be necessary to bring suit in federal court. To bring a suit in federal court, a plaintiff must file a complaint in the correct district. In the complaint, the plaintiff must outline:
- Why the venue plaintiff has chosen is appropriate
- Why the court they are addressing has jurisdiction.
- Parties against whom the claim is brought
- What relief the plaintiff is requesting from the court
Venue refers to the district in which the case is brought. Venue is always proper against government agencies or officials in the judicial district where plaintiff resides. However, the plaintiff’s district may not be convenient, or the district may have case law that is not advantageous to the plaintiff’s position. It may be necessary, then, to bring the suit in another district where the government defendants “reside.” Plausibly, the government defendants reside anywhere there is any district office. However, courts usually require that the district office engaged in substantial part of the activity complained of in the plaintiff’s complaint.
Jurisdiction refers to the courtÕs authority to make a decision on a plaintiffÕs case. In immigration matters involving unreasonable delay, the source of jurisdiction differs depending on whether plaintiff filed an application for adjustment of status or for naturalization.
Adjustment of Status
In cases involving unreasonable delay in adjudicating an application for adjustment of status, jurisdiction is most commonly found in the Mandamus statute and the Administrative Procedure Act (APA).
The Mandamus Act is found in 28 USC ¤1361 and gives federal district courts the power to compel an agency to act where the agency has failed to perform its duty. ¤1361 states: ÒThe district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” To bring a successful mandamus claim, you must first determine if the delay is “unreasonable.” Plaintiffs can show unreasonableness by proving that they have exhausted all administrative remedies before suing. Evidence of failed attempts to resolve the delay administratively gives strength to the argument that delay is unreasonable and that judicial action is the last and only resort.
Administrative Procedure Act (APA)
The APA is found in 5 U.S.C. ¤706 and provides that courts have the authority to “compel agency action unlawfully withheld or unreasonably delayed.” However, the APA does not provide an independent ground of jurisdiction and can only be used in conjunction with another statute for jurisdictional purposes. This usually is easily done if used in conjunction with the federal question doctrine, which states, “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” For instance, if a plaintiffÕs application is waiting on a pending FBI name check, the applicant may assert jurisdiction based on several provisions of the INA and statutes requiring the FBI to report records to federal agencies.
In the context of APA cases, exhaustion of alternative remedies is required only where mandated by statute or regulation and where there is no provision for staying the administrative decision during a pending administrative appeal. When USCIS simply fails to act on a petition or application there is rarely any other regulatory or statutory remedy available, so in theory, little needs to be done before bringing an appeal to federal court under the APA. However, judges may look more favorably upon a plaintiffÕs case if the plaintiff still attempted to resolve the delay through USCIS before filing suit. Letters to the agency informing officials of a possible suit in federal court, or a letter to the U.S. Attorney’s office can serve this purpose.
For unreasonable delays in adjudicating naturalization applications, jurisdiction can be found under the Mandamus Act and the APA, as with adjustment of status cases discussed above. In addition, 8 U.S.C. ¤1447(b) specifically states “If there is a failure to make a determination [on the naturalization application] before the end of the 120-day period after the date on which the examination is conducted…the applicant may apply to the United States district court for the district in which the applicants resides for a hearing on the matter.” While the relevant statutes provide a specific timeline for the agency to act, judges may nonetheless look to the reasonableness of the delay in fashioning a remedy. It is still important, then, to exhaust all administrative remedies before bringing an action in federal court.
There has been some disagreement among jurisdictions as to what the “examination” entails. Government defendants always assert that the “examination” includes not only the interview, but also the completion of the FBI name check. They argue then, that plaintiffs do not have standing to bring suits because 120 days have not passed from the completion of the examination since the examination has yet to conclude. A majority of courts, including one in the Southern District of Ohio, however, have ruled that the “examination” consists only of the interview. Therefore, most cases that have been pending for more than 120 days after the date of the applicant’s interview are reviewable by a federal district court.
Other problems arise if the unreasonable delay in a naturalization case arises before the interview is conducted. In these situations, the government tends to argue that they have discretion as to when to schedule an interview on a naturalization application, and thus APA arguments would be null in these situations. However, the naturalization statute appears to mandate a decision on an application, which would imply a timely scheduling of an interview and decision on the matter. In addition, regulations implementing the naturalization statute contain mandatory language indicating that the agency must act on an application. The regulations provide that a decision on the application must be made when it says at 8 CFR ¤335.3 “The applicant shall be notified that the application has been granted or denied.”
Parties to the Suit
It is usually better to err on the side of suing more officials, since defendants can always be dropped from the suit but it may be difficult to amend a complaint to join additional defendants. A petitioner should, then, name the following officials when filing a mandamus or APA action challenging immigration adjudication delays:
- Secretary of Department of Homeland Security (DHS)
- Director of USCIS
- Director of the service center where the application or petition is located
- District director of the local USCIS office with jurisdiction over the plaintiff.
- Director of the FBI (if delay is a result of a pending FBI name check) Some may also name the U.S. attorney general, but it is not necessary because the Homeland Security Act of 2002 vests immigration as a function of DHS.
Plaintiffs should ask for the following relief:
- Compel USCIS to adjudicate the application within 60 days
- Compel the FBI to issue the results of a criminal background and/or name check relating to plaintiff to USCIS and the court within 60 days
- Award attorney’s fees to the plaintiff if he or she is the prevailing party