Archive for April 2011


Victory for Equal Justice and the Rule of Law: Court of Appeals Enjoins Enforcement of Arizona’s Anti-Immigrant Law (SB 1070)

April 18th, 2011 — 3:35pm

On April 11, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against key and controversial provisions of Arizona’s SB 1070, the law enacted nearly a year ago that requires police to demand proof of immigration status from anyone who they have a “reasonable suspicion” of being in the country illegally. The court thus denied Arizona’s appeal of a U.S. district court’s July ruling that prevented segments of the law from going into effect because it was likely that the law violated the U.S. Constitution. Moreover, and significantly, the decision signals that the appeals court believes that the Department of Justice (DOJ) is likely to succeed in its challenge to the law’s constitutionality.

SB 1070 is the draconian state immigration law that was signed into law on April 23, 2010, after Arizona state legislators argued that they needed their own immigration enforcement tools to stem the tide of undocumented immigration into the state. Federal efforts, the state argued, were not enough. The law immediately sparked nationwide boycotts and protests as an unconstitutional attempt to usurp the federal government’s right to enact and control immigration law and as a way to set the stage for abusive and illegal police activity, including profiling. DOJ sued and won an injunction on June 29, 2010, the day before the law was originally set to go into effect.

In its ruling, the Ninth Circuit rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws; in fact, the court held that Arizona’s attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law. Congress, the court held, intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General,” which was not the case here. The court also recognized that the SB 1070 has negatively impacted U.S. foreign relations and reflects the dangers of allowing states to enact a patchwork quilt of conflicting laws and regulations. In the immediate aftermath of SB1070’s enactment, a number of states considered or introduced copycat bills, but most states have now backed away from these measures.

While the fate of SB 1070 is likely to be decided by the Supreme Court, for now the court’s decision is a victory not only for the Obama Administration in its ongoing effort to halt the Arizona law, but also for equal justice and the rule of law.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration Policy Center

Connecticut District Court Protects H-1B Employee from Wrongful Arrest; Holds Regulation That Extends Work Authorization Implicitly Extends Authorization to Remain in U.S. During Pendency of Timely Filed Extension Request

April 18th, 2011 — 3:32pm

A federal district court in Connecticut ruled that the government may not arrest an H-1B employee for whom a timely filed extension application remains pending. U.S. District Judge Janet C. Hall in El Badrawi v. United States found that a federal immigration regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that that authorization is part of their authorization to be in the country, not a separate matter. “The government’s proposed interpretation of the work authorization regulation . . . that it extends authorization to work in the country, but not authorization to be in the country,” held Judge Hall, “cannot be squared with the text or purpose of that provision. . . .” Judge Hall also found that the government’s proposed interpretation of the regulation at issue raises grave due process concerns. “The government has argued that. . .an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause.”  Had the government provided clear, advance notice of the risk of detention, the court may have ruled otherwise.

The plaintiff, a medical researcher from Lebanon, was in valid H-1B status when his employer timely filed an H-1B extension. USCIS never adjudicated the petition and refused to respond to requests for information. Nearly seven months later, with the case still pending, Immigration and Customs Enforcement (ICE) agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. He sued the government for false arrest and abuse of process.

The court concluded that permitting the initiation of removal proceedings during this period would thus be unfair.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | I-9, Immigration and Customs Enforcement

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