Tuesday, January 26, 2016
As Kevin noted earlier, two different purported class action lawsuits were filed against Disney on Monday. Florida attorney Sara Blackwell represents the plaintiffs in both actions: Leo Perrero and Dena Moore.
The complaints seem hurried and are not readily understandable. Here's my best effort at explaining them, and assessing their viability.
Civil Rico. Plaintiffs argue that the two outsourcing companies are liable under civil RICO, 18 U.S.C. § 1962. Civil RICO requires establishing: (1) conduct, (2) of an enterprise, (3) through a pattern, of (4) racketeering activity. Racketeering activity is defined by 18 U.S.C. § 1961, and it includes violations of 18 U.S.C. § 1546 (Fraud and misuse of visas, permits, and other documents). The argument is that HCL and Cognizant violated § 1546 because, as H1B dependent employers (which, for the sake of this post I'm assuming they are), the companies had to attest that their hiring practices would not cause "displacement" of U.S. workers. Yet U.S. workers at Disney were displaced when Disney outsourced their jobs to HCL and Cognizant.
There are potential problems with this claim.
First, the H1B workers did not displace workers at either HCL or Cognizant. At best, they displaced workers at Disney. Perhaps the theory is one of "secondary displacement." Under 20 C.F.R. § 655.738(d), an H1B dependent employer cannot place H1B workers "with another employer where there are indicia of an employment relationship between the nonimmigrant and that other employer (thus possibly affecting the jobs of U.S. workers employed by that other employer), unless and until the H1B employer makes certain inquiries and/or has certain information concerning that other employer's displacement of similarly employed U.S. workers in its workforce." Disney, to be sure, will argue that there was no "indicia of an employment relationship" with the HCL/Cognizent workers.
Second, neither HCL nor Cognizent had to make the attestations that the complaints place such emphasis on. When H1B workers are paid at or above $60,000, such attestations are not required. 20 C.F.R. § 655.737. Based on reporting, it appears that the HCL and Cognizent workers may have been paid around $61,984. That means they were under no obligation to make the attestation in the first place.
RICO Conspiracy. The second cause of action raised against HCL/Cognizent and Disney is conspiracy to engage in a RICO violation under 18 U.S.C. § 1962(d). Obviously, if there is no RICO claim against HCL or Cognizent, there will be no RICO Conspiracy claim against Disney. Moreover, Disney will argue that it had nothing to do with filing, seeking, processing, or approving of H1B applications for HCL or Cognizent. As Disney spokeswoman Kim Prunty said in 2015: “External support firms are responsible for complying with all applicable employment laws for their employees.”
Common Law Conspiracy: The Hail Mary pass comes in count three, which alleges common law conspiracy under Florida law for agreeing "to do an unlawful act." Plaintiffs argue that HCL/Cognizent had an agreement with Disney "to make false and fraudulent representations of material fact." I don't see how that is going to fly when Disney had nothing to do with the H1B applications.
As I said a few months back, it's upsetting when anyone loses their job. And it's all the more upsetting when Disney is the visible bad guy. The company not only has a special place in many hearts but it's a company whose innovative and effective management are touted worldwide.
But that doesn't make them civilly liable to these plaintiffs.
Cesar Cuauhtémoc García Hernández’s CrImmigration.com blog recently posted a helpful analysis of United States v. Mathis, a categorical approach case for which the Supreme Court recently granted cert. Nicholas Anderson and Linus Chan at the University of Minnesota write in the post that although Mathis is a case involving the application of the sentencing enhancement provisions of the Armed Career Criminal Act (ACCA), the case also has direct implications for the application of the categorical approach in cases involving noncitizens facing the immigration consequences of criminal convictions. “Despite not featuring an immigrant or even immigration law directly,” write Anderson and Chan, the case “will have a significant impact on anyone facing removal from the United States based on a criminal conviction.”
The case involves how the courts should interpret “means” and “elements” when applying the categorical approach. The distinction between means and elements ultimately affects whether courts should be permitted to apply the “modified categorical approach” – in other words, whether adjudicators may examine the record of conviction in a particular case to determine whether immigration consequences or sentencing enhancements are triggered – when a pure statutory analysis does not yield the full answer. By way of background, the Supreme Court’s decision in Descamps v. United States, 133 S.Ct. 2276 (2013) explains the relationship between elements, means, divisibility, and the modified categorical approach, but did not fully clarify what it means for a statute to contain an “element” versus a “means” to violate a criminal statute.”
As Anderson and Chan note, the Ninth Circuit, Fourth Circuit, and BIA have already addressed the question of means versus elements, but the Eighth Circuit (the same Circuit whose categorical approach analysis was overturned by the Supreme Court in Mellouli v. Lynch, 575 U.S. __ (2015) decided last term), came to a different conclusion.
In particular, the Ninth Circuit’s recent en banc opinion in Almanza-Arenas v. Lynch, Nos. 09-71415, 10-73715 (9th Cir. Dec. 28, 2015) contains an extensive analysis of the elements-means distinction. There, the Court found that California Vehicle Code 10851(a) (vehicle theft) is an indivisible statute, not a crime involving moral turpitude and not subject to the modified categorical approach. Section 10851(a) criminalized conduct that both would constitute a CIMT (permanently taking a vehicle) and conduct that would not constitute a CIMT (temporarily taking a vehicle). Thus, under state law, the “two forms of intent are alternative means of accomplishing the same crime rather than two separate crimes.” (For a video that explains means and elements, see Maureen Sweeney’s excellent online description of this topic).
I hope that Supreme Court will follow the Ninth Circuit’s lead in its consideration of the means-elements distinction. But the concurring opinion (written by Judges Owens, Tallman, Bybee and Callahan) in Almanza-Arenas is also worth reading, both because its biting criticism of the categorical approach illustrates the contentiousness of the categorical approach’s contours in the federal judiciary, and because its broader critique of the statutory framework giving rise to categorical approach litigation raises a broader point with which many advocates will agree. The concurrence warns that “[t]he bedeviling ‘modified categorical approach’ will continue to spit out intra- and inter-circuit splits and confusion,” and that “a better mousetrap is long overdue.” Despite its arguably unwarranted critique of the majority’s approach, the concurrence makes the valid point that “we instead should look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed from our country.”
Rebecca Sharpless has similarly argued for a “bright-line trigger” for deportation. In Clear and Simple Deportation Rules for Crimes: Why We Need Them and Why It’s Hard to Get Them, 91 Denv. U. L. Rev. 933 (2015), she advocates for the current complex framework governing the immigration consequences of crime to be replaced with a rule in which the litmus test for deportation is the existence of a prior conviction for which an individual has been imprisoned for five years or more.
Southern California Public Radio (KPCC) has aired a neat segment as part of their Emerging Communities desk entitled, "Is Los Angeles an Emerging Hot Sauce Capital?" The piece acknowledges the role of immigration in the changing palates of Americans, especially in Southern California, and the increasing diversity of hot sauce flavors in our food. As someone who learned early in life -- long before the rise of the Kogi taco -- that kimchi can go on almost everything (turkey sandwiches, pizza, spaghetti, etc.), the piece was a familiar reminder of the many benefits of migration and diversity.
For more on the relationship between immigration and food, check out Ernesto Hernandez Lopez's Seton Hall Law Review article, Sriracha Shutdown: Hot Sauce Lessons on Local Privilege and Race, which examines the legal battle surrounding the production of Sriracha in Irwindale, California.
The New York Times reports that two employees laid off by Disney have filed lawsuits in federal court against Disney and two global consulting companies alleging that the employer brought in foreign workers to replace them. "They claim the companies colluded to break the law by using temporary H-1B visas to bring in immigrant workers, knowing that Americans would be displaced."
Two similar but separate lawsuits were filed. Here is the complaint in one of the suits. The suits are putative class actions and the plaintiffs seek to represent other laid off employees.
Layoffs last January brought to light other episodes in which American workers, mainly in technology but also in accounting and administration, claimed to have lost jobs to foreigners on H-1B visas. The foreign workers, mostly from India, were provided by outsourcing companies.
The Labor Department has open investigations of outsourcing companies — the direct employers of the temporary immigrants — at Disney and at Southern California Edison, a utility that laid off hundreds of American workers in 2014. A number of former Disney workers also filed complaints alleging discrimination with the Equal Employment Opportunity Commission.
H-1B visas bring foreign workers with special skills into the country. The Department of Labor must certify that the workers' employment “will not adversely affect the working conditions of U.S. workers similarly employed.”
Gunar Olsen on the Huffington Post summarizes the supreme Court decisions, including Terry v. Ohio (1968), United States v. Brignoni-Ponce (1975), and Whren v. United States (1996), which helped make racial profiling commonplace in criminal and immigration enforcement. "Today, although no law explicitly allows for racial profiling by law enforcement, it still happens at an institutional level. What's often left out of the discussion about why racial profiling happens is that the highest court in the country has approved it ‒ in more than one case." Olsen quotes from my article How Racial Profiling Became the Law of the Land in the Georgetown Law Journal.
Monday, January 25, 2016
273 Organizations Send Letter Seeking Temporary Relief for El Salvador, Honduras and Guatemalan Migrants
273 organizations have sent President Obama a letter seeking Temporary Protected Status for nationals of El Salvador, Honduras and Guatemala. The letter describes the humanitarian concerns and country conditions that warrant a grant of TPS, as well as the statutory authority for making the designation.
A copy of the press release, from the National Immigrant Justice Center, is below:
From Lois Lorentzen, University of San Francisco
I’m writing to share an exciting opportunity that may be of immediate interest to your students who are hoping to attain an advanced degree. The College of Arts and Sciences of the University of San Francisco is offering a new Master in Migration Studies program.
This unique graduate program, with the cooperation of the Universidad Iberoamericana in Mexico City, is held in the heart of two of the world´s great areas of migration. The Master in Migration Studies program provides students the opportunity to analyze immigration from multiple disciplinary perspectives and benefit from direct experience with scholars, service providers, and migrants. The program prepares professionals and leaders to better the lives of migrants and refugees around the world.
Currently, we have openings in our graduate program for the incoming fall 2016 class. We welcome members of your institution´s community to apply.
For more information about the program, please contact us at firstname.lastname@example.org. You can also learn more about our program by reviewing the enclosed brochure or visiting our website: www.usfca.edu/migrationstudies.
We greatly appreciate your help sharing this unique and timely opportunity. We welcome your questions or requests for more information. Please don’t hesitate to contact us.
Thanks in advance,
Lois Ann Lorentzen
Master in Migration Studies
College of Arts and Sciences
University of San Francisco
Abstract: Many immigrants’ rights advocates and scholars have recognized the undocumented worker exploitation that takes place when immigration restrictions enter the workplace, which create incentives for employer misconduct and increase the vulnerability of workers without status. However, little has been discussed about the broader implications of the currently expansive immigration enforcement regime for a general theory of free labor rights, which is derived from the 13th Amendment and other labor and employment laws. Historically, the advancement of free labor (and the prevention of illegitimate coerced labor) relied on legal interventions that prohibited servitude and promoted workplace protections to ameliorate power inequities between the employer and worker. Although these protections theoretically apply regardless of citizenship status, due to their illegality under immigration laws, undocumented workers often accept substandard conditions out of fear of the alternative — deportation.
This Article suggests that when workplace alternatives are constrained to this degree, a free labor problem arises. Drawing from scholarship addressing free labor theory and research at the intersection of immigration law and workplace rights, this Article highlights the structurally coercive effects of immigration restrictions in the workplace. Coercion persists in the undocumented workplace, not because of inadequate employment and labor protections, but because immigration policies have created a criminal class of workers, who are denied remedies for workplace exploitation because their illegality renders them consensual in the workplace exploitation. This contract-based conception of undocumented labor perceives undocumented workers as engaging in a collusive relationship with their employers, in which they freely comply with substandard working conditions and voluntarily remain in the U.S. without legal status. The notion that these workers willingly accept their exploitation nullifies their coercion claims, fueling the law’s continued preference of immigration enforcement over labor rights and rendering the assertion of labor rights ineffective. Free labor rights seek to correct coercion in the workplace. Yet, the illegality of undocumented workers places them beyond coercion or outside the protection of free labor remedies.
From the Immigrant Legal Resource Center
Making Sense of Immigration Law - Seminar by Donald Ungar
This six-week training is intended for attorneys with some experience in, and would like to develop a more complete understanding of, immigration law. This seminar does not just provide a case-by-case review; we will delve into why the law is what it is, why it doesn’t always make sense, and how the myriad pieces of the Immigration and Nationality Act fit together. Conducted by Donald Ungar, known for his novel and imaginative approach to immigration law for half a century, the seminar is limited to 15 participants in order to foster an active discussion of all substantive aspects of immigration law, including: Constitutional issues to grounds of exclusion and removal, waivers and relief from removal, refugees and asylum, marriage and other frauds, and immigrant classifications and preferences. The maximum capacity is 15 registrants on a first-come, first-served basis. March 9, 16, 23, 30 and April 6, 13
Click here for more information.
Sunday, January 24, 2016
Saturday, January 23, 2016
Immigration advocates have long known that undocumented immigrants often fear accessing social services, even in the wake of public emergencies. As yet another example of this dynamic, Think Progress has an interesting piece on how a number of undocumented immigrants in Flint, Michigan fear going to water distribution centers set up in the wake of the town’s water pollution crisis due to their lack of immigration status and state IDs. In light of the undocumented community’s fear of mainstream services, the article describes how some local churches have taken a role in distributing water to the town’s residents.
This CBS news link contains a brief collection of photographs from Ellis Island that, CBS News explains, have been recently digitized and made publicly available by the New York Public Library. The photographs come from the collection of William Williams, the Commissioner of Immigration at Ellis Island from the early 1900s, and were taken by Augustus Sherman and Edwin Levick.
As one of the slide show frames notes, “Looking into the eyes in the mostly somber portraits, one sees everything from trepidation, hope and confusion.”
From the Bookshelves: The Law and Higher Education: Cases and Materials on Colleges in Court, Fourth Edition by Michael A. Olivas and Amy Gajda
The Law and Higher Education: Cases and Materials on Colleges in Court, Fourth Edition by Michael A. Olivas and Amy Gajda
Now in its fourth edition, this book reflects the extraordinary growth in the law of higher education and the accompanying rise in scholarship and commentary on higher education law and governance. The case selection reflects major themes and issues. To this end, cases with interesting facts, news accounts of fascinating developments, and insights and articles from scholars and practitioners have also been used. The result is a unique book on a rapidly growing area of law and society. It is the most established and widely adopted casebook in the field. Updated with recent court cases and statutes, it can be used in law schools, in colleges of education, or in professional courses.
Michael Olivas, one of the so-authors, also is an influential immigration law scholar.
For film, immigration, and political junkies, this film festival is for you. It kicked off on Thursday in Des Moines, Iowa.
The Define American Film Festival focuses on the issue of immigration and will screen immigration-related films ahead of the Iowa Caucuses. The festival will show six feature-length films. The films all explore different immigrant experiences.
The festival also brought Oscar nominees to Iowa, including:
Christopher Weitz is currently writing the upcoming film “Rogue One: A Star Wars Story.” He's best known for his work on the film "About a Boy," which he co-directed and was nominated for an Oscar.
Demián Bichir is a Mexican actor who is best known in the United States for his role in the FX drama “The Bridge.” He was most recently in Quentin Tarantino's “The Hateful Eight” and was nominated for an Academy Award for best actor for the 2011 film “A Better Life.”
The festival was organized by Jose Antonio Vargas, a Pulitzer prize-winning journalist, filmmaker and the founder of Define American, a non-profit organization that seeks to elevate the conversation around immigration and citizenship in America.
Ahead of Iowa's Feb. 1st Caucuses, the Define American Film Festival will provide voters and the media with diverse perspectives about immigration and American identity.
The six feature-length narrative and documentary films to be shown at the festival are:
A Better Life (2011)
The Joy Luck Club (1993)
Mother of George (2013)
Don't Tell Anyone (2015)
The Muslims are Coming! (2013)
Friday, January 22, 2016
The commentary on United States v. Texas continues to fill the blogosphere.
A President’s Constitutional and Faithful Execution of Immigration Law by Shoba Sivaprasad Wadhia, Penn State Law
Politics Masquerading as Law: Why Texas’ Immigration Lawsuit Should be Dismissed by Eric J. Segall, Georgia State University College of Law
The President and States in a Partisan Battle Over Immigration Policy by Pratheepan Gulasekaram, Santa Clara University.
The Supreme Court Adds ‘Take Care Clause’ to the DAPA Debate by Leticia M. Saucedo, UC Davis School of Law
The film Brooklyn, immigration theme and all, has been nominated for three Academy Awards, including the much-coveted Best Picture Award. Here is the synopsis: An Irish immigrant lands in 1950s Brooklyn, where she quickly falls into a romance with a local. When her past catches up with her, however, she must choose between two countries and the lives that exist within.
TRAC Immigration reports that the latest available data show that during November 2015 the government reported 4,861 new immigration prosecutions. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is down 13.2 percent over the previous month.
When monthly 2015 prosecutions of this type are compared with those of the same period in the previous year, the number of filings was down 22.3 percent.
Prosecutions over the past year are still much lower than they were five years ago. Overall, the data show that prosecutions of this type are down 15.1 percent from levels reported in 2010.
This New York Times Magazine article offers a glimpse of the many challenges facing Syrian refugees seeking sanctuary in the United States. The head of the International Rescue Committee is quoted: ‘‘It’s extremely difficult to get into the United States as a refugee — the odds of winning the Powerball are probably better.’’
Of the 4.5 million people who have fled the Syrian war, only 2,647 have been admitted as refugees by the United States.