News

Nashville Director of Law Says Immigration Ordinance Not Enforceable

An opinion from Metro Nashville’s Director of Law has the mayor asking the council to reconsider a controversial immigration ordinance proposed by the Metro Council, The Tennessean reports. Director of Law Jon Cooper said in an opinion that under state law the Metro Council cannot prevent the Nashville sheriff from cooperating with federal immigration authorities. Mayor Megan Barry said in a statement that the council should rethink the bill, which advanced on first reading last week. The “Nashville Together” ordinance would prohibit Nashville from using local resources to assist in enforcing federal immigration laws.
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Learn About Immigration Law for Employers in Trump Era

A webcast presentation on July 6 from Bruce Buchanan will address how immigration law is undergoing massive changes that will directly affect employers. Some of the areas that will see change include immigration compliance, an increase in ICE audits and a possible return to raids. Visas could also see change, especially H-1B and L visas. Find out more and register here.

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Supreme Court to Consider Travel Ban, Allows Limited Version into Effect

The U.S. Supreme Court will consider President Donald Trump’s travel ban this fall and will allow a limited version to take effect in the meantime, The Washington Post reports. The court made one exception: the ban “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.” The ruling means that the administration may impose a 90-day ban on travelers from six countries and a 120-day ban on all refugees entering the U.S. It will go into effect 72 hours after court approval.
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Court Gives Memphis Man 2nd Chance in Drug, Deportation Case

A Memphis restaurant owner in jail and facing deportation after pleading guilty to a drug charge 7½ years ago will get another chance in court after the U.S. Supreme Court today vacated his conviction on grounds that he had been given bad legal advice, the Commercial Appeal reports. “He was really thankful that someone finally understood the harm that his lawyer’s advice caused him,” said Nashville attorney Patrick McNally, who is part of the legal team that handled the appeal.

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GOP Leaders Ask for AG Review of Metro Immigration Proposal

House Speaker Beth Harwell and state Sen. Jim Tracy are asking Tennessee Attorney General Herbert Slatery to issue an opinion on a proposal before the Nashville Metro Council that they say goes against a state ban on “sanctuary cities” passed in 2009, the Tennessean reports. Council sponsors Bob Mendes and Colby Sledge say that’s not the intent of their measure, which would prevent Metro from using public funds and facilities to enforce federal immigration law. "This bill would have us send a message to our immigrant communities that it is safe to engage with Metropolitan government for all the basic local government services that we provide," Mendes said.

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Nashville Council Advances Immigration Enforcement Ordinance

The Metro Nashville Council voted last night to advance an ordinance that would prevent Metro from using city funds and facilities to enforce federal immigration law, The Tennessean reports. The ordinance would also prevent the Davidson County Sheriff’s Office to honor an immigration-related detention request unless it is accompanied by a warrant issued under the Federal Rules of Criminal Procedure. Critics said the bill would grant “preferential treatment to a criminal class,” while the bill’s sponsor said it would increase public safety, arguing it would encourage immigrants to report crimes to police without fear of deportation. 
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Nashville Council to Debate Immigration Ordinances

Metro Nashville council members will tonight begin debate of proposed ordinances that would prohibit the county jail from holding people on immigration violations alone and bar local law enforcement from sharing information about custody status and court dates with immigration officials, Nashville Public Radio reports. The proposals from Metro Councilman Bob Mendes are at the center of the debate on how much Davidson County should work with immigration officials.

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Court Clears Way for Review of Immigrant Vetting

A federal appeals court decision Monday clears the way for the Trump administration to conduct internal reviews of other countries' vetting procedures for visa applicants while the broader review of the president’s revised travel ban goes to the U.S. Supreme Court, CNN reports. The decision was part of a larger ruling from a 9th Circuit Court of Appeals panel that largely affirmed a lower court's decision to halt the core provisions of President Trump's revised executive order that attempted to limit travel from six predominately Muslim countries and block refugees.

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Nashville Courthouse Arrest Part of National Trend

U.S. Immigration and Customs Enforcement officers appeared at a Nashville courthouse on Thursday to arrest an immigrant for deportation, signaling that a growing national trend has come to Tennessee, The Tennessean reports. Faustino Rodriguez Hernandez, who federal authorities say is a citizen of Honduras, was set to appear before General Sessions Judge Lynda Jones for a driving without a license charge, when he was arrested by ICE agents. Nationally, ICE arrests are up by 38 percent from the same period last year.
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Haslam Signs Bill Authorizing Longer Sentences for Undocumented Immigrants

Gov. Bill Haslam signed a bill into law on Friday that authorizes judges to give undocumented immigrants longer sentences for felony convictions than U.S. citizens, Humphrey on the Hill reports. Senate Minority Leader Lee Harris, D-Memphis, said in a statement that the law could be weak to a challenge in court. “I don’t believe any other state has a law like this currently in place and courts elsewhere have struck down similar efforts when they have been tried,” Harris said.
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Trump Statements Could Hurt Administration’s Legal Defense of Travel Ban

Negative statements made by President Donald Trump today against the revised travel ban could hurt the Justice Department’s legal case to defend it in court, The Washington Post reports. Trump derided the current iteration of the ban as “watered down” and said the DOJ should seek a “much tougher version,” despite the fact that the previous, tougher version was struck down in the courts. The president also confirmed that while “the lawyers and the courts can call it whatever they want,” the executive orders he issued temporarily blocking travel from Muslim-majority countries is indeed a “travel ban.”
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Feds Ask for Dismissal of Tennessee Refugee Suit

The federal government filed a motion to dismiss Tennessee’s lawsuit over refugee resettlement today, The Tennessean reports. In March, Tennessee became the first state to sue the government over refugee resettlement, citing a violation of the 10th amendment. In its motion to dismiss, the federal government argues the state's claims lie outside the jurisdiction of the court and that Tennessee law doesn’t allow the General Assembly to bring the lawsuit on behalf of the state.
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Justice Department Asks SCOTUS to Reinstate Travel Ban

The Justice Department asked the U.S. Supreme Court today to reinstate President Donald Trump’s temporary ban on travel from six Muslim-majority countries, the ABA Journal reports. The DOJ submitted a cert petition asking the Court to reverse a decision from last week by the 4th Circuit Court of Appeals that said the Trump administration’s second attempt at a travel ban “drips with religious intolerance, animus, and discrimination.” The government argues that the ban should not be invalidated based on “speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate.”
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Court Holds Block on Second Trump Travel Ban

The Virginia-based 4th Circuit Court of Appeals has upheld the block on the Trump administration’s executive order restricting travel from six majority-Muslim countries, CNBC reports. This executive order follows an earlier one that was similarly struck down. The revised order was designed to better hold up to legal scrutiny. The ruling stated that the 4th Circuit panel was “unconvinced” that the order “has more to do with national security than it does with effectuating the president’s proposed Muslim ban.”
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Court Holds Block on Second Trump Travel Ban

The Virginia-based 4th Circuit Court of Appeals has upheld the block on the Trump administration’s executive order restricting travel from six majority-Muslim countries, CNBC reports. This executive order follows an earlier one that was similarly struck down. The revised order was designed to better hold up to legal scrutiny. The ruling stated that the 4th Circuit panel was “unconvinced” that the order “has more to do with national security than it does with effectuating the president’s proposed Muslim ban.”
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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

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Immigrant Legal Services Group to Host ‘Food from Inside the Travel Ban’

Justice For Our Neighbors (JFON), which provides legal services to immigrants, will host a fundraiser in Nashville called “Food from Inside the Travel Ban,” and will feature cuisine from Syria, Libya, Yemen, Sudan, Iran and Somalia. The event will be held at Vanderbilt University’s Wyatt Center on June 1 from 6 to 8 p.m. Tickets are available on the JFON website.
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Bill Allows Judges to Consider Immigration Status in Felony Sentencing

A bill passed by the state legislature but awaiting the governor’s approval would require Tennessee judges to consider immigration status as a felony enhancement factor, the Tennessean reports. Judges would be allowed to use their discretion in whether they would apply the enhancement. If Gov. Bill Haslam signs the bill into law, a court battle could ensue, as courts have struck down similar measures in other states. 
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Bill Allows Judges to Consider Immigration Status in Felony Sentencing

A bill passed by the state legislature but awaiting the governor’s approval would require Tennessee judges to consider immigration status as a felony enhancement factor, the Tennessean reports. Judges would be allowed to use their discretion in whether they would apply the enhancement. If Gov. Bill Haslam signs the bill into law, a court battle could ensue, as courts have struck down similar measures in other states. 
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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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DOJ to Ask for Dismissal of State Refugee Suit

The federal government will ask for dismissal of Tennessee’s lawsuit over refugee resettlement, the Tennessean reports. Attorneys for the Department of Justice said the state lacks standing and “their claim is unripe.” DOJ attorneys said they’d like until June 1 to prepare for their request for dismissal. In March, Tennessee became the first state to sue the federal government over refugee resettlement, citing violation of the 10th Amendment.
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ABA Expresses Concerns to DHS of Border Searches of Attorneys’ Electronics

ABA President Linda Klein sent a letter Friday to the Department of Homeland Security (DHS) expressing concerns over standards that permit border patrol officers to search the content of lawyers’ electronic devices at U.S. border crossings without any showing of reasonable suspicion. “Just as border security is fundamental to national security, so too is the principle of client confidentiality fundamental to the American legal system,” Klein wrote.
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Many Pledge to 'Stand Against Racism' at YWCA Event

Several hundred people gathered in Nashville's Public Square Park today for the YWCA's annual Stand Against Racism event. The programming was led by Mayor Megan Barry and featured several lawyers and others speaking on the theme "Women of Color Leading Change." Among the speakers were Ana Escobar, with the Davidson County District Attorney General's Office; civil rights attorney Abby Rubenfeld; and Sharon Roberson, president and CEO of YWCA Nashville & Middle Tennessee. Melody Fowler-Green, with the Metro Human Relations Commission, and Beverly Watts, who serves on the Tennessee Supreme Court Access to Justice Commisson, led the crowd in committing to the pledge. See photos from the event.

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Understanding Automatic EAD Extensions

Effective Jan. 17, 2017, the U.S. Department of Homeland Security amended its regulations related to certain immigrant and highly-skilled non-immigrant workers. The new regulations include a provision for the automatic extension of certain Employment Authorization Documents (EADs) for up to 180 days in cases where a timely-filed EAD renewal is pending. Previously, once an EAD expired, the employee could not work until his or her renewal EAD application was approved. While the new rule provides more security and continuity for both employers and employees, it has created some confusion for employers seeking to ensure I-9 compliance. 

Not all EAD holders qualify for an automatic extension. The new rule allows for automatic extensions of EADs for up to 180 days for individuals who: 1) timely file their renewal applications, 2) apply based on the same employment authorization category as shown on the expiring EAD, and 3) fall into a qualifying employment authorization category. Employers will need to carefully review the expired EAD and pending receipt notice to ensure that all the requirements are met. 

The list of qualifying employment authorization categories are as follows:

  • Aliens admitted as refugees;
  • aliens granted asylum;
  • aliens admitted as parents or dependent children of aliens granted permanent residence under section 101(a)(27)(I) of the INA, 8 U.S.C. 1101(a)(27)(I);
  • aliens admitted to the United States as citizens of the Federated States of Micronesia, the Marshall Islands, or Palau under agreements between the United States and those nations;
  • aliens granted withholding of deportation or removal;
  • aliens granted Temporary Protected Status (TPS);
  • aliens who have properly filed applications for TPS and who have been deemed prima facie eligible for TPS under 8 CFR 244.10(a) and have received an EAD as a “temporary treatment benefit”;
  • aliens who have properly filed applications for asylum or withholding of deportation or removal;
  • aliens who have filed applications for adjustment of status;
  • aliens who have filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal under section 240A of the INA, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996;
  • aliens who have filed applications for creation of record of lawful admission for permanent residence;
  • aliens who have properly filed legalization applications pursuant to section 210 of the INA, 8 U.S.C. 1160;
  • aliens who have properly filed legalization applications pursuant to section 245A of the INA, 8 U.S.C. 1255a;
  • aliens who have filed applications for adjustment of status pursuant to section 1104 of the LIFE Act; and,
  • aliens who are the principal beneficiaries or qualified children of approved VAWA self-petitioners, under the employment authorization category ‘‘(c)(31)’’ in the form instructions to the Application for Employment Authorization (Form I–765).

The expiring EAD combined with a receipt notice is evidence of employment authorization for I-9 purposes. Employers who refuse to hire or terminate employees with 180-day extensions may be in violation of the INA’s antidiscrimination provisions, which prohibit discrimination based on a worker’s citizenship status, immigration status or national origin.  

In light of the fact that the Department of Homeland Security is expected to increase its focus on immigration enforcement and border security efforts in 2017, employers should be prepared for more Immigration and Customs Enforcement (ICE) Notices of Inspection to audit employers’ I-9 forms. The new rule on EAD automatic extensions allows employers to continue employing workers in lawful employment status for a longer period, while maintaining I-9 compliance. 

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Nora Katz is an immigration attorney at Waller Lansden Dortch and Davis, where she prepares immigrant and nonimmigrant filings to help employers grow and maintain competitive workforces. She received her bachelor’s degree from Tufts University and her law degree from the University of Colorado in Boulder. Katz may be reached at (615) 850-8730 or nora.katz@wallerlaw.com.

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