Sunday, June 29, 2014
California Supreme Court Finds that Labor Protections for Undocumented Workers not Preempted by Federal Law
Earlier this week, in Salas v. Sierra Chemical Co, the California Supreme Court addressed an importrant question concerning the legal right sof undocumented workers. For a discussion of the case, see Bryan Schwartz Law.
The Court settled the question whether the doctrines of unclean hands and after-acquired evidence, which focus on employee misconduct to limit employer relief, stand as a complete bar to relief for undocumented workers who bring claims under California’s employment and labor laws. The plaintiff, Vicente Salas, was a seasonal worker for the defendant. He was injured while stacking crates in defendant’s production line and had to be taken to the hospital on two separate occasions. After filing a Worker’s Compensation claim, he was laid off and not re-hired because of his disability, in violation of the Fair Employment and Housing Act (FEHA). After Salas brought claims for failure to accommodate and retaliation, the defendant moved for summary judgment. The trial court denied summary judgment, but the Court of Appeal reversed, reasoning that plaintiff’s undocumented status barred him from relief under the doctrines of unclean hands and after-acquired evidence.
The history and applicability of the unclean hands and after-acquired evidence doctrines in California date back to a Supreme Court ruling in McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352 (the unclean hands doctrine does not apply where a private suit serves important private purposes, but after-acquired evidence doctrine provides a partial defense for backpay). A subsequent California Court of Appeal decision misapplied the McKcennon rule. See Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal. App. 4th 620 (unclean hands and after-acquired evidence doctrines are a complete defense). The California Legislature stepped in, in 2002, by enacting Senate Bill 1818, which extended employment and labor protections to all workers regardless of immigration status.
The California Supreme Court, in an opinion by (retired) Justice Kennard (and joined by Chief Justice Cantil-Sakauye and Justices Werdegar, Corrigan, and Liu) held that that Senate Bill 1818, which extends state law protections and remedies to all workers “regardless of immigration status,” is not preempted by the federal Immigration Reform and Control Act of 1986 except to the extent it authorizes an award of lost pay damages for any period after the employer discovers the employee’s inability to work in the United States. The Court further held that that the unclean hands and after-acquired evidence doctrines are not complete defenses to a worker’s claims under the FEHA, though they do affect the availability of remedies.
Concluding that much of the state law was preempted, Justice Baxter, joined by Justice Chin, concurred in part and dissented in part.
Julia Preston of the New York Times on Saturday broke the story that President Obama will ask Congress to provide more than $2 billion in new funds to control the surge of Central American migrants at the South Texas border, and to grant broader powers for immigration officials to speed deportations of children caught crossing without their parents Obama will send a letter on Monday to alert Congress that he will seek an emergency appropriation for rapidly expanding border enforcement actions and humanitarian assistance programs.
In testimony by before the U.S. House of Representatives Committee on the Judiciary on June 25, James R. Slikenat, President of the American Bar Association offers some views on the much-publicized spike in unaccomapnied minors from Central America coming to the United States:
"The reasons that children immigrate to the United States are often complex and multifaceted. Children express both push and pull factors that cause them to leave their home countries and seek protection, opportunity, and family reunification in the United States. Reasons include escaping from abuse and very real threats by powerful and violent street gangs, including the 18th Street gang and the Mara Salvatrucha gang. These gangs frequently engage in forced recruitment of teenage boys, sexual slavery of teenage girls, and targeted extortion efforts, often focusing on children with parents and extended family members in the United States. The gangs are terrifying and relentless in their efforts to exact compliance. A more recent phenomenon, children are fleeing these countries due to threats by multinational drug trafficking organizations, demanding that children act as drug mules or look-outs for illicit cartel activities. Furthermore, many of the children ProBAR [an ABA project in South Texas] represents have been abandoned, abused, or neglected in their home countries by parents or by extended family members. In most cases involving children, there are multiple factors that fuel the decision to migrate to the United States; however there is no question that the increasing violence and lawlessness in El Salvador, Guatemala, and Honduras is a major cause of the recent influx.
There is no question that the rapid increase in unaccomp anied children entering our country presents many difficult challenges . However, in the rush to address the current crisis, the United States cannot abandon the principles of fairness and due process that make this country a beacon a light and hope for those suffering persecution around the world. Any short - or long - term solutions designed to address the influx of children must bear this ideal firmly in mind."
Chicano by Sheila K. O'Malley
The journey of a lifetime takes a young boy from his home in Naco, Mexico, up the San Pedro River, through the Arizona desert, all the way to Aspen, Colorado and then back to his hometown. It is also his journey of becoming "Chicano."
Saturday, June 28, 2014
In high school, David Martinez learned that he is an undocumented immigrant. Martinez says his friends "couldn't believe that someone like me, who looks so white, could be an undocumented immigrant."
The United States became markedly less stable in 2013, largely thanks to November’s government shutdown. In the annual Fragile States Index — which assesses corruption, factionalism, economic inequality and other factors — the U.S. trailed 19 other countries. The robust democracies of Scandinavia are global leaders, whereas the world’s youngest state, South Sudan, is also its most fragile. Just 17 percent of the global population lives in stable countries, while the rest operate dangerously close to the brink.
Here are the top 10 Most Fragile States:
1 South Sudan
4 Congo (D. R.)
Friday, June 27, 2014
From Bloomberg News:
New York City’s 500,000 undocumented immigrants will be able to open bank accounts, visit libraries and use medical clinics, thanks to an official municipal identification card approved by the City Council.
The measure, backed by Mayor Bill de Blasio, passed in a 43 to 3 vote today with two abstentions. The photo IDs will display the holder’s name, birth date, address and -- at the cardholder’s option -- a self-designated gender.
“It sends a simple and clear message that we are a city that believes in including everyone,” Council Speaker Melissa Mark-Viverito said before the vote. “We don’t accept that some people can be left out because of their immigration status, how they identify their gender or whether they may be homeless.”
In a city where 40 percent of residents were born outside the U.S., politicians may gain support backing legislation that would help undocumented newcomers lease an apartment or apply for school or city services. Democrats outnumber Republicans by more than 6 to 1 , and as much as 20 percent of party voters are Latino, said Jerry Skurnik, a New York-based demographic-political consultant.
“Hispanics who are citizens and voters are pro-immigration; they want their families, friends and countrymen to come here,” Skurnik said in an interview. “And in a liberal city like New York, most people are pro-immigration anyway.” Read more...
Convictions for the petty offense of illegal entry (8 USC 1325) continue to dominate the criminal enforcement of federal immigration laws. During the first six months of fiscal year 2014, according to the case-by-case government records analyzed by the Transactional Records Access Clearinghouse (TRAC), two out of three immigration convictions — 24,647 out of a total of 36,256 criminal convictions — were for this offense. This ratio is little changed from the pattern of the last decade, which is striking given a recent surge in the number of people charged with felony illegal re-entry (8 USC 1326). While there was some year-to-year variation during the previous 10 year period from FY 2004-FY 2013, overall 65 percent of all immigration convictions were for illegal entry. During the first six months of the current fiscal year, 68 percent were convictions for the petty offense of illegal entry, which is punishable by up to six months in jail. Only around one out of every four immigration convictions have been for the more serious charge of illegal re-entry (8 USC 1326), a felony. During the first six months of FY 2014, 9,716 out of the total of 36,256 immigration convictions were for illegal re-entry — or 27 percent. This is little changed from the average of 26 percent during the previous 10 years.
Under the Fourth Amendment, the people of the United States are not supposed to be subject to random and arbitrary stops and searches. But within 100 miles of a U.S. border, these rules don't apply.
Three facts about the Constitution-Free Zone
In the "Constitution-free zone," Border Patrol agents don't need a warrant or probable cause to conduct a "routine search." All travelers crossing a border are assigned a risk assessment score that will be retained for 40 years.
The Border Patrol can put a checkpoint anywhere in the Constitution-free zone (think Fifth Avenue!). "One hundred air miles is still, technically, the border," says Leslie Lawson from the Nogales Border Patrol Station. Everyone at a checkpoint must answer questions about citizenship status.
The Constitution-free zone extends 100 miles from any U.S. border. Two-thirds of the U.S. population (197.4 million in 2008) lives within this zone, which includes nine of the 10 largest metropolitan areas, and the entire populations of: Connecticut, Delaware, Washington, D.C., Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey and Rhode Island; and over 90 percent of: California, Maryland, New York, Vermont and Washington.
Yes, according to How Immigration Reform Died By Seung Min Kim and Carrie Budoff Brown:
"The best chance in three decades to rewrite immigration laws has slipped away just one year after the Senate garnered 68 votes for sweeping reform of the system, 20 months after strong Hispanic turnout for Democrats in the 2012 election sparked a GOP panic, and five years after Obama promised to act."
The Future of the Republican Party? Ann Coulter: "Any growing interest in soccer can only be a sign of the nation's moral decay"
A truly international event for a sport popular world-wide, the World Cup has been in the news and featured prominently on the ImmigrationProf blog. Ever the attention-seeker, conservative political commentator Ann Coulter is taking on the world's sport during the World Cup just as Team USA advanced to the round of the Final 16. On her blog ("AMERICA'S FAVORITE NATIONAL PASTIME: HATING SOCCER"), Coulter shoots point blank at futbol:
"I've held off on writing about soccer for a decade -- or about the length of the average soccer game -- so as not to offend anyone. But enough is enough. Any growing interest in soccer can only be a sign of the nation's moral decay."
The Guardian has an excellent story about migration flows in Europe along with some incredible photography. "Unprecedented numbers are risking their lives to reach Europe, and local authorities in coastal communities where they land are struggling to cope. Lizzy Davies reports from Catania while photographer Massimo Sestini accompanied the Italian navy on its rescue missions earlier this month, offering a rare up-close glimpse of the men, women and children who make the dangerous trip to start a new life."
Thursday, June 26, 2014
9th Annual Homeland Security Law Institute Date: August 21-22, 2014
Sponsor(s): Section of Administrative Law and Regulatory Practice
Co-Sponsors: Commission On Immigration Criminal Justice Section Government and Public Sector Lawyers Division Section of Environment, Energy, and Resources Standing Committee on Law and National Security
Register Now for the 9th Annual Homeland Security Law Institute in Washington! Choose from 21 panels taught by 100+ experts in national security policy and the fight against terrorism Earn 12 Hours of CLE Credit (14 in 50 minute states) Network with attendees from government agencies, the military, private practice and academia
There is a session on Executive Power in Immigration Law.
The essential economy—which encompasses the food services and hospitality industries, construction, agriculture, elder care, and manufacturing—is fundamental to the U.S. economy and society as a whole. Immigrants’ participation in these sectors creates new jobs for native-born workers, contributes to the growth of construction and agriculture, and provides essential care to the United States’ aging population.
This fact sheet—the tenth in the series on immigrants and the economy—details five reasons why immigrants are vital to the success of the essential economy. AS/COA’s Get the Facts series provides key data points and is a resource for journalists, policymakers, business leaders, and others who are looking to better understand the contributions of immigrants to U.S. cities.
Five Ways Immigrants Drive the Essential Economy:
1. Immigrants play a critical role in supporting the food service and hospitality industries by meeting labor market demand and creating jobs as small-business owners. Despite accounting for 13 percent of the U.S. population, immigrants represent 22 percent of workers in the food service industry. In 2010, 37 percent of all restaurant small-business owners were foreign-born.
2. Immigrants are supporting growth of the construction industry, which is expected to create 1.8 million additional jobs by 2020. As of 2011, immigrants represented 22 percent of this essential labor force.
3. Nearly three-fourths of agriculture workers—essential to getting food from our farms to our supermarkets— are foreign-born. A rise in restrictive immigration laws is producing labor shortages and production cutbacks.
4. With a rapidly aging U.S. population, immigrants help to meet the increasing demand for in-home health aids and assisted living for seniors. With the elderly population expected to more than double by 2040, it is projected that the demand for personal care and home health aides will grow by 46 and 50 percent, respectively, between 2008 and 2018.
5. Immigrants play an outsize role in the manufacturing industry, keeping middle-class jobs in the U.S. and helping to revitalize declining economies across the country. In Arizona, a reduction of only 10 percent in the foreign-born manufacturing workforce would result in the loss of up to $100 million in tax revenue and the loss of 12,000 full-time jobs.
Immigration Article of the Day: Laura Murray-Tjan, Raise Your Hand If You Understand Immigration Law: Take Two
Laura Murray-Tjan, Federal Appeals Clinic, Boston College Law School, Raise Your Hand If You Understand Immigration Law: Take Two
Back in February, I wrote about the complexity of immigration law, and described how a federal court conflated immigration provisions in an important case. Now it turns out that immigration law stumps even the Supreme Court. The Court's recent decision in Scialabba v. Cuellar de Osorio is marred by errors that may well have affected its outcome.
Click the link above for more.
NDLON has released a new tool to use in the fight against deportations: A guide on how elected officials can help the lives of their constituents from being disrupted by deportations.
As many of those of us who do this work know, the support of an elected official in a deportation case could be the difference between keeping a family together and watching them be torn apart. Yet, many members of congress still refuse to support, explaining that they are wary about the ethics and legality of intervention, or that they simply do not know how they can help. This guide answers those questions, citing examples of cases we have worked on, sample congressional letters of support, and a guideline on congressional ethics.
Although this tool is directed with members of congress in mind, it was written by community organizers and immigration attorneys, and it is also meant for use by all who are fighting deportations in our communities.
My views on what's happening at the border on Huffington Post:
Republican lawmakers are holding hearings this week on the surge in unaccompanied alien minors reaching our borders. The Obama Administration's response to what was labeled a "humanitarian crisis," has evolved into a surge of its own, sending teams of immigration judges and federal attorneys to expedite deportation hearings for the children and families who are overwhelming most existing federal detention facilities.
The Department of Homeland Security announced that 52,000 unaccompanied children had been detained as of last week, and by year's end DHS expects that number to have increased to as many as 90,000.
The difference with the most recent entrants from those in the past is a spike in the number of girls and of children younger than 13 years of age, including some barely old enough to walk. In the past, approximately 70 percent have been between the ages of 15 and 17. There are also more pregnant and parenting teenmothers arriving.
The sharp increase has generated tremendous media coverage and speculation by elected officials and others about the reasons. However, many of the explanations are overly simplistic. Some say this surge is the result of immigration reform promises or administrative reforms in enforcement that have sent encouraging signals to Central Americans, suggesting that they may enjoy a "de facto amnesty" if they get across the Mexico border. Others say the children are being drawn by rumors about special protections for migrant children by the Administration, and point to the Deferred Action for Childhood Arrivals (DACA) program announced in 2012.
In reality, the problem is enormously complex. The Women's Refugee Commission found through interviews with 151 such youth that their migration arose out of longstanding, complex problems in their home countries - that is, the growing influence of youth gangs and drug cartels, targeting of youth by gangs and police, gender based violence, rising poverty, and continuing unemployment. Over 77 percent of the participants stated violence was the main reason more children were fleeing their countries.
• Violence in home countries. Honduras, where the largest numbers of unaccompanied minors are coming from, has become one of the most dangerous countries in the world. In 2011, Honduras became the country with the highest murder rate in the world. Homicide rates in El Salvador are only marginally lower than in Honduras, with 66 individuals killed for every 10,000 inhabitants.
• Children are at a greater risk of gang violence. Collaboration between drug cartels and gangs has led to a significant increase in violence, with children and teens being the primary targets. According the University of Democracy, Peace and Security, 920 Honduran children were murdered between January and March of 2012. In El Salvador, gangs have increasingly targeted children at their schools, resulting in El Salvador having one of the lowest school attendance rates in Latin America.
• Human and drug trafficking: Due to the influence of cartels in Mexico and at the border, the current migratory experience is very much connected with human and drug trafficking. The United Nations High Commissioner for Refugees (UNHCR) reported that organized criminal groups coerce children into prostitution and to work as hit men, lookouts, and drug mules. Drug traffickers may target minors in their home country and force them to traffic drugs across the border and once they are in the United States. Because these youth often travel alone and are escaping death in their home countries, they are often faced with no choice but to carry drugs or work for drug cartels in order to across the border. Gang and drug trafficking in Central America are also increasingly recruiting girls to smuggle and sell drugs in their home countries, using gang rape as a means of forcing them into compliance. Many gangs are targeting younger girls, some as young as nine-years-old, for rape and sexual assault. Gangs also use the threat of rape as a tactic to gain money through extortion and kidnapping.
A recent survey conducted by the Immigrant Legal Resource Center of immigrant youth legal service providers confirmed that there is no simple answer to why these children are migrating to the United States in large numbers. Twenty-five percent of respondents found that youth come to the U.S. based on a combination of four factors: neglect, abuse, or abandonment, gang violence, drug violence, and poverty. This was followed by 19 percent fleeing gang violence and 16 percent fleeing poverty. In particular, many respondents found that these cases involved youth who faced gang recruitment and threats in their home country. These youth also suffered abuse within their families or abandonment by one or both parents and have little to no parental presence.
This is indeed a humanitarian crisis that deserves a humanitarian response. Let's take a deep breath and stop playing politics with children's lives. Some of the youth may qualify for special immigrant juvenile status, asylum or visas for victims of crime. If so, let's live up to our humanitarian responsibilities and act accordingly.