Protecting The Employment Rights Of Immigrants & Refugees

In response to the Trump Administration’s open hostility toward immigrants and refugees, The Employee Rights Advocacy Institute For Law & Policy has complied the following resources for free distribution to those who seek information about the President’s recent Executive Orders (EOs), have employment-specific questions regarding the rights of immigrants and refugees, or need a referral for additional immigration or refugee assistance.

The Institute thanks all of those on the ground working to defend America’s core values of liberty, freedom, and justice. At a time of uncertainty, anxiety, and disruption, providing people with access to appropriate legal resources is essential. The list below is by no means a comprehensive one. If you know of additional resources that should be added to this list, please email Elizabeth Colman, The Institute’s Paul H. Tobias Attorney Fellow, at ecolman@employeerightsadvocacy.org.

 

Trump Administration Executive Orders, Protecting the Nation From Foreign Terrorist Entry

On January 27, 2017, President Trump signed the Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into The United States” (EO1), which restricts immigrants and refugees from seven predominantly Muslim countries from entering the United States.

On Thursday, February 9, 2017, the United States Court of Appeals for the Ninth Circuit denied the Department of Justice’s emergency motion to stay a temporary restraining order (TRO) placed on EO1 by a federal district court.

On March 6, 2017, President Trump issued a new version of his travel ban, also titled, Protecting The Nation From Foreign Terrorist Entry Into The United States (EO–2). EO–2 closely mirrors EO1. However, there are some important differences:

  • EO–2 placed a 90-day travel restriction on foreign nationals from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) to the United States. The list of countries affected in EO1 also included Iraq.
  • EO–2 was scheduled to go into effect at 12:01 am EST on March 16, 2017, at which time the EO1 would be revoked.
  • Unlike EO1, under the EO–2, green card holders, dual nationals holding a U.S. passport who are traveling from a non-designated country, immigrants who were issued a visa prior to January 27, 2017, and few other select categories of people would not be targeted.
  • EO–2 allows waivers to be granted at the discretion of a consular officer’s or Customs and Border Protection (CBP) officer’s discretion. While suggestions of circumstances where discretion could be appropriate were articulated in Section Three of the Order, EO–2 does not require that any particular factors must be considered by the border agents in making the determination to exercise their discretion. There are also no details on how to apply for a waiver.
  • Under EO–2, Syrian refugees would no longer be indefinitely restricted from entry to the United States. However, all refugees’ admissions would be restricted for 120 days, beginning March 16, 2017. EO–2 also placed a cap on the total number of refugees to be granted admission to the United States at 50,000.

On March 15, 2017, just hours before EO–2 was scheduled to become operative, the United States District Court for the District of Hawaii granted a nationwide Temporary Restraining Order (TRO) enjoining EO–2 from taking effect. The court found that the plaintiffs had a high likelihood of success on their claim that EO–2 violates the Establishment Clause of the First Amendment of the United States Constitution.

As a result of this court order, EO–2 has not been enacted as scheduled, and EO1 has not been revoked as designed. However, because the injunction on EO1 remained in place, neither version of the President’s travel ban was given effect. On March 29, 2017, that same court converted the TRO into a preliminary injunction, which was quickly appealed.

On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit issued its opinion in Int’l Refugee Assistance Project v. Trump. Relying on statutory and constitutional grounds, the lower court in that case had issued a nationwide preliminary injunction preventing Section 2(c) of EO–2, which temporarily banned travel to the United States from six Muslim-majority countries, from going into effect.  The Fourth Circuit heard the case en banc and the majority opinion considered only the constitutional claims alleging EO–2 violated the Establishment Clause.  Applying the standard of review in First Amendment immigration cases established in Kleindiest v.  Mandel, 408 U.S.  753 (1972), the court found that the government’s immigration action was taken in bad faith. Based on that determination, the court then found EO–2 became subject to the three-part test found in Lemon v. Kurtzman, 403 U.S. 602 (1971), which is the normal constitutional tool applied to Establishment Clause challenges. The appellate court found the EO failed the Lemon test’s “purpose” prong and upheld the lower court’s injunction.

On June 1, 2017, the federal government petitioned for certiorari with the United States Supreme Court in Int’l Refugee Assistance Project v. Trump and filed an application for a stay pending appeal in Hawai’i v. Trump. The application for a stay was treated by the Court as a petition for certiorari.

On June 12, 2017, in Hawai’i v. Trump, the U.S. Court of Appeals for the Ninth Circuit issued a per curium opinion mostly upholding a nationwide injunction previously issued by the lower court that prevented Sections 2 and 6 of EO–2 from going into effect. Rooting its decision in the statutory framework established by the Immigration and Nationality Act (INA), but declining to apply Mandel or to review the constitutional issues presented, the Ninth Circuit found that “the President exceeded the scope of the authority delegated to him by Congress” and in other ways strayed from the requirements of the INA. The appellate court found that the scope of the injunction was too broad, though, so it lifted the injunction to the extent that it applied to the President, but not as applied to any other Executive agents and officers tasked with administration or enforcement of EO–2.  The court also lifted the injunction as it pertained to federal internal review of visa issuance procedures.

In their reply brief in opposition to the government’s motion to stay filed June 12, the respondents raised a new issue. Because EO–2, as enacted, specified the order became effective on March 16 for a period of only 90 days, by the text of the EO, the directive was scheduled to expire on June 14, which could render the challenge moot. In an attempt to cure the respondent’s mootness argument, on June 14, the Trump Administration issued a memo altering the effective date of each enjoined provision of EO–2 to become the day on which the injunction(s) on sections 2 and 6, respectively, are lifted or stayed.

On June 26, 2017, the Court granted certiorari, consolidated the two cases, and instructed the parties to address the question of whether challenges to section 2 of EO–2 became moot on June 14, 2017. Simultaneously, the Court granted the government’s application to stay the injunctions, in part, by narrowing their scope. Under the Court’s order, EO–2 may not be enforced “against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.  [However, all] other foreign nationals are subject to the provisions of EO–2.” In the wake of the Court’s ruling, the government sought to enforce the non-enjoined portions of EO–2, beginning on June 29, 2017.

In response to the Supreme Court’s ruling and the government’s seeking to enforce the non-enjoined portions of EO–2 in line with the government’s interpretation of the Supreme Court’s ruling, the State of Hawai’i and Ismail Elshikh filed an Emergency Motion to Clarify the Scope of the Preliminary Injunction in the U.S. District Court for the District of Hawai’i. Specifically, they sought clarification on what constitutes “a credible claim of a bona fide relationship with a person or entity in the United States.” In a July, 6, 2017 Order, the district court declined to attempt to clarify the scope of the injunction, and directed the parties to seek such guidance from the U.S. Supreme Court itself.

On July 7, 2017, the State of Hawai’i and Mr. Elshikh filed an Emergency Motion to Enforce or Modify the Preliminary Injunction U.S. District Court for the District of Hawai’i. In that motion, they asked the district court to bar the government from enforcing EO–2 against (among others) (1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; or (2) refugees who (i) have a formal assurance from a resettlement agency within the United States; (ii) have a bona fide client relationship with a U.S. legal services organization; or (iii) are in the U.S. Refugee Admissions Program (“USRAP”) through the Iraqi Direct Access Program for U.S.-affiliated Iraqis, the Central American Minors Program, or the Lautenberg Program.

In a July 13, 2017 Order, the district court granted the motion in part and denied it in part. The Order enjoined the government from enforcing EO–2 against the categories of families members outlined in the Emergency Motion, as well as against refugees covered by a formal assurance between the government and a USRAP through the Lautenberg Program, while allowing EO–2 to be enforced against other categories of refugees.

The following day, in light of the district court’s ruling, the government bypassed the Ninth Circuit and sought clarification directly from the U.S. Supreme Court of the scope of the Court’s June 26 Order modifying EO–2. On July 19, 2017, the Court denied the government’s motion and stayed the portion of the district court’s July 13 Order addressing the applicability of EO–2 to certain categories of refugees.

The consolidated cases will be argued in the U.S. Supreme Court on Tuesday, October 10, 2017.

 


 

The National Immigration Law Center hosted a webinar on January 26, 2017 on President Trump’s immigration-related executive orders.

The Asian Law Caucus has drafted important Know Your Rights information on the Executive Order.

The Yale Law School Worker And Immigrant Rights Clinic has posted for public use all of the documents filed in Darweesh et al. v. Trump et al. (described below).

The National Immigration Project of the National Lawyers Guild issued a practice advisory, Trump Administration Executive Order Outlining New Enforcement Priorities.

The American Immigration Council’s practice advisory, Challenging President Trump’s Ban on Entry, provides information about how the Executive Order is being implemented, offers resources and practice tips for attorneys whose clients are affected by it, and outlines legal challenges that have been filed to date.

U.S. Customs and Border Enforcement (CBP) posted new FAQs regarding the Executive Order.

The American Immigration Lawyers Association issued an updated practice alert on how the Executive Order is being implemented. Note that it does not yet take into account the CBP FAQs that were just issued (see above).

Refugee Center Online (RCO) provides information that is translatable into over a dozen languages that explain to refugees how the Executive Order will affect them.

The Immigrant Justice Network issued a preliminary summary and analysis regarding changes to interior immigration enforcement.

 

Cases Filed In Opposition To The Executive Order

The list of cases in opposition to the Executive Orders continues to grow. The University of Michigan Law School is currently maintaining a special collection of Civil Rights Challenges to Trump Immigrations/Refugee Orders. The collection operates as a clearinghouse for all known court challenges to the EOs, and provides case names, parties, copies of publicly-available court documents, and case status.

In his first week in office, in addition to the travel ban, President Trump signed two EO’s which have since been the basis for sweeping changes to deportation and immigration law enforcement. The EOs, Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States, expand the number of deportation officers, significantly increase the use of detention centers, and have led to increasingly heavy-handed, heartless tactics to be employed by immigration law enforcement officers. The University of Michigan Law School is also maintaining a legal clearinghouse for Civil Rights Challenges To Trump Immigration Enforcement Orders.

 

Employment Rights Of Immigrants & Refugees

On June 23, 2017, employment attorneys M. Nieves Bolanos, Aaron Johnson, and Bryce Ashby presented “Creative, Cost-Effective Advocacy in Low-Wage, Immigrant, & Undocumented Worker Cases” at the National Employment Lawyers Association’s Annual Convention where they discussed the challenges immigrant workers face in the Trump era, recent changes in the law, and what legal advocates can do to assist them.

Download MP3 File

Creative, Cost-Effective Advocacy In Low-Wage, Immigrant & Undocumented Worker Cases Materials

On July 19, 2017, the National Employment Law Project (NELP), in partnership with the National Immigration Law Center (NILC), published What To Do If Immigration Comes To Your Workplace, a guide for employers on how they can best protect their businesses and employees in case of an immigration raid or I-9 audit. The guide (available in five languages) is an introduction to the most common types of federal immigration enforcement actions that affect employers and their teams. It outlines steps that employers can take to prepare for federal immigration enforcement, employers’ rights and responsibilities in those situations, and what employers can do after they’ve been targeted by immigration authorities.

The Employee Rights Advocacy Institute For Law & Policy offers free of charge the written materials and accompanying audio recordings from its March 2013 seminar entitled, “United We Stand: Effectively Representing Immigrants In Employment Cases.”

The United States Department of Labor has guidance on the laws and regulations concerning immigration and employment.

The United States Department of Justice has published a fact sheet on Employment Rights and Resources for Refugees and Asylees, and has a dedicated webpage for immigrant worker information.

The United States Equal Employment Opportunity Commission has published information on immigrants’ employment rights under federal anti-discrimination laws.

The National Immigration Law Center has many resources focused on immigrant workers’ rights.

Legal Aid At Work (formerly Legal Aid Society – Employment Law Center) offers this fact sheet for undocumented workers.

The Michigan Immigrant Rights Center has a fact sheet on Employment Discrimination Protections for Refugees and Asylees, and provides free access to their extensive Advocate Library.

The Pennsylvania Refugee Resettlement Program has dedicated part of their website to Legal Issues in Refugee Employment.

Mehreen Rasheed, an Associate at Katz, Marshall, & Banks, LLP, in her article, “Federal Agencies Reiterate That Anti-Retaliation Statutes Protect Workers Regardless of Immigration Status,” provides important context for a joint fact sheet by the Equal Employment Opportunity Commission, Department of Labor, and the National Labor Relations Board on January 10, 2017. The publication, “Fact Sheet: Retaliation Based on Exercise of Workplace Rights Is Unlawful” explains, among other things, how even those who lack authorization to work in the United States are still entitled to minimum wage and overtime pay if they do, in fact, perform work and that it is unlawful for an employer to retaliate against those who lack proper documentation when they seek just compensation for their labor.

 

Legal Assistance & Resources For Immigrants & Refugees

American Civil Liberties Union has drafted many Know Your Rights resources germane to immigration rights.

The American Immigration Council issued this Practice Advisory on Inspection, Entry, and Admission (October 2015).

Appleseed Network’s Immigration Collaborative has generated several useful publications, including Getting Off the Assembly Line: Overcoming Immigration Court Obstacles in Individual Cases and Protecting Assets and Child Custody in the Face of Deportation.

The Asian Law Caucus (ALC) provides significant Know Your Rights information on Arab, Middle Eastern, Muslim, and South Asian (AMEMSA) issues. For times of free legal clinics please visit their 100 Days Of Justice website. Resources on the site include the following (some of the resources are specific to California):

  • Deportation Defense Guides:Deportation Defense” guides in English, Spanish, and Chinese.
  • TRUTH Act Pocket Guides: Downloadable pocket guides on the California TRUTH Act, which became effective on January 1, 2017. The TRUTH Act requires that local law enforcement inform immigrants of their right to remain silent prior to any interview by Immigration and Customs Enforcement (ICE). You can also find downloadable pocket guides on the California TRUST Act, which has been law since 2014. The TRUST Act places limits on when local law enforcement can hold immigrants in local jail for extra time for immigration enforcement.
  • Statewide “ICE Out of CA Hotline”: Community members can call the ICE out of CA hotline at 1-844-878-7801 to report a raid in California or if they or a loved one was transferred from a local jail to ICE.
  • California Values Act: This is a pending state bill (2017 legislative cycle) that limits use of state and local resources and personnel for immigration enforcement. A bill analysis can be found on the California Legislative Information website. Creedo has started a petition in support of the bill.
  • Arab, Middle Eastern, Muslim & South Asian (AMEMSA) Resources:
    ALC’s National Security & Civil Rights Program provides free direct legal services to AMEMSA communities.
  • “Know Your Rights” In Person Trainings For AMEMSA Communities: ALC’s National Security & Civil Rights staff can provide you and your community with “Know Your Rights” trainings. ALC has conducted specific trainings for the community at local Mosques, Gurdwaras, community centers, festivals, and other community meetings. Please call Community Advocate Jehan Hakim for more information (Tel: (415) 848-7706).
  • Know Your Rights For AMEMSA Communities When Interacting With The FBI: ALC has materials for AMEMSA communities in English and Arabic on how to be safe when interacting with FBI.
  • Know Your Rights For Children In AMEMSA Communities: In line with ALC’s work to pass the Safe Place to Learn Act (AB 2845), which provides resources to address school bullying for AMEMSA youth in California, the Council on American-Islamic Relations publish guides for youth rights, safety, and bullying at school.
  • The International Rescue Committee, founded at Albert Einstein’s request in the wake of World War II, specializes in ushering refugees to safety.
  • No One Left Behind helps Afghan and Iraqi combat interpreters with Special Immigrant Visas (SIVs) resettle safely in the United States.

Community Activism Law Alliance (CALA) started a helpline where people can call, get a free, confidential immigration screening and advice on whether they have any path to immigration or, if not, ways to prepare and/or protect themselves. Advice is available in English, Spanish, and Arabic. It is a toll-free number and calls are accepted from anywhere in the country. Please visit www.calachicago.org/news/march10helpline for more information.

To defend against ICE raids and community arrests, the Immigrant Defense Project and the Center for Constitutional Rights is freely distributing their ICE Raids Toolkit.

Immigration Law Help may be able to help low-income immigrants find an attorney.

The International Refugee Rights Initiative provides many resources on refugee rights and has compiled a United States of America Pro Bono Directory for those seeking free legal aid.

UnidosUS (formerly known as The National Council of La Raza), which has 267 statewide and local affiliates that directly serve the Latino population across America, offers many Post-Election Resources.

Urban Justice Center – International Refugee Assistance Project provides legal services and protection to refugees in need.

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