News

TBA to Introduce Legal Document Generation

The TBA will soon launch a new subscription-based product for Tennessee lawyers — automated legal forms. The initiative will use HotDocs, a custom documentation generator that creates form templates and speeds up the preparation process based on client and case data. In order to provide this valuable resource to our members, we hope to obtain your comments and ideas on forms you deem beneficial for replication. With across-the-board participation, we can comprise a substantive, comprehensive database where subscribers will have access to forms submitted by all TBA sections. Please send suggestions and comments to TBA Membership Director Mindy Fulks.

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Last Chance to Register for International Forum

Early bird registration for the TBA's International Law Forum ends on Feb. 16. Three international business panels make up this Feb. 22 Nashville program and include a stacked line-up of speakers. Register now before it's too late!
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Immigrant Rights Group Seeking Volunteers for Feb. 16 Nashville Clinic

The Tennessee Immigrant and Refugee Rights Coalition (TIRRC) will host a clinic offering family preparation plans to the immigrant community to help keep their children safe in the case of deportation or other unexpected event. TIRRC is asking for help at this Power of Attorney Legal Clinic on Feb. 16 from 9:30 a.m. to 1 p.m. at Hillcrest United Methodist Church, 5112 Haywood Lane in Nashville. Register for the clinic at this link.
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ICE Picks Up Man Facing Vehicular Homicide Charges

U.S. Bureau of Immigration and Customs Enforcement agents have picked up a man who faces charges of criminally negligent homicide in a Dec. 29 head-on crash that killed a 22-year-old, Knoxnews reports. Eduardo Franco-Cambrany will remain in detention in Georgia for the time being. Franco-Cambrany had no criminal history — and no driver's license or insurance — and the crash had none of the usual elements of a vehicular homicide prosecution, such as drugs, alcohol or speeding.
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Register Now! International Law Forum on Feb. 22

 
Stay on track earning your CLE credits by attending the International Law Forum on Feb. 22 at the Tennessee Bar Center in Nashville. Early bird registration ends tomorrow, Feb. 16!
 
This program is applicable to a wide variety of practice areas, including business law, corporate counsel, employment law, law tech and immigration. Three international business panels make up this afternoon program and include a stacked line-up of speakers. Topics to be discussed include Government & Private International Manufacturing Perspectives, International Sourcing, Importing & Exporting Perspectives and International Entertainment & Tourism Perspectives.
 
Join us for an evening reception immediately following the program for a chance to network with attendees and speakers. Read more about the panels and register for the program here.
 
Unable to attend the live course? Join us virtually for the live webcast!

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Federal Government Reopens for 3 Weeks

President Trump agreed last week to reopen the federal government for three weeks while negotiations proceeded over how to secure the nation’s southwestern border, The New York Times reports. The decision paved the way for Congress to pass spending bills immediately that Trump will sign to restore normal operations at a series of federal agencies until Feb. 15 and begin paying again the 800,000 federal workers who have been furloughed or forced to work for free for 35 days.
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ICE/HSI Increased I-9 Audits by Over 400% in FY 2018

I-9 Notices of Inspection (NOI)/audits and criminal investigations, by Immigration and Customs Enforcement (ICE) and its Homeland Security Investigations (HSI) special agents increased by leaps and bounds FY 2018 compared to FY 2017. As previously reported, during one week in July 2018, HSI delivered 2738 NOIs, more than all NOIs served in FY 2017. See http://discuss.ilw.com/blogs/bbuchanan/371579-ice-delivers-more-than-5-200-audit-notices-in-2018.

Notices of Inspection – FY 2018 and FY 2017

In fiscal year 2018, HSI initiated 5,981 NOIs compared to 1,360 opened in FY 2017. Furthermore, HIS initiated another 867 worksite investigations, which were not I-9 audits, compared to 361 in FY 2017. Also, HSI made 779 criminal and 1,525 administrative worksite-related arrests in FY 2017 compared to 139 and 172, respectively.

These numbers are supposed to greatly increase again in FY 2019. ICE has developed a plan to conduct between 10,000 to 15,000 I-9 audits a year if it can receive appropriate funding and support from other areas of the Trump administration. ICE/HSI’s Executive Associate Director Derek N. Benner stated one of their goals is to create a "reasonable expectation" among employers that they will be audited.  "This is kind of our vision of creating this culture of compliance," he said.

Millions of Dollars in Fines and Forfeitures - FY 2018 vs. FY 2017

Businesses were ordered to pay more than $10.2 million in judicial fines, forfeitures and restitutions in FY 2018. The largest fine was against Waste Management of Texas, who agreed to a settlement forfeiting more than $5.5 million due to a pattern and practice of hiring undocumented workers at the company’s Houston location. See http://discuss.ilw.com/blogs/bbuchanan/388986-waste-management-to-forfeit-5-5-million-for-hiring-undocumented-workers.  Another company, Seaboard Corporation, an Oklahoma-based agri-business, agreed to a $1 million civil settlement to resolve allegations that it hired and employed unauthorized workers and failed to properly complete I-9 forms. See http://discuss.ilw.com/blogs/bbuchanan/389497-seaboard-corporation-agrees-to-1-million-settlement-with-ice. HSI also levied businesses another $10.2 million in civil penalties in FY 2018.

In FY 2017, there were $97.6 million in judicial forfeitures, fines and restitution, including Asplundh Tree Experts, who forfeited $80 million and paid $15 million in judicial fine, the largest monetary penalty ever levied by ICE in an immigration case. See http://discuss.ilw.com/blogs/bbuchanan/371507-asplundh-tree-experts-agrees-to-pay-95-million-for-illegal-hiring. Additionally, ICE imposed $9.8 million in civil fines FY 2017.

Criminal Indictments and Convictions - FY 2018 vs. FY 2017

Although criminal indictments and convictions remained at a steady level compared to previous years, those numbers are expected to greatly increase as a result of the many ongoing investigations initiated in FY 2018, which can take months to years to fully develop. In fiscal year 2018, HSI caused 72 managers to be indicted compared to 71 in FY 2017, and 49 managers convicted in FY 2018 versus 55 in FY 2017.

Conclusion

In a press release from ICE/HSI, Benner stated  “Employers who use an illegal workforce as part of their business model put businesses that do follow the law at a competitive disadvantage. [Immigration enforcement] laws help protect jobs for U.S. citizens and others who are lawfully employed, reduce the incentive of illegal migration, eliminate unfair competitive advantages for companies that hire an illegal workforce, and ultimately help strengthen public safety and national security.”

Will your company be the next target? My advice is to be prepared through an internal I-9 Audit. An immigration attorney familiar with I-9 forms and worksite enforcement is the perfect person to assist you in an internal I-9 audit.


Bruce E. Buchanan is the founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta, where he represents employers in immigration and employment/labor matters and individuals in immigration matters. He is also “Of Counsel” to Siskind Susser, P.C. on employer immigration compliance matters. Bruce is a 1982 graduate of Vanderbilt University School of Law. He has co-authored a book, I-9 and E-Verify Handbook, 2d ed. (2017) and writes a blog on employer immigration compliance matters located @buchananvisalaw. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.

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Ninth Circuit Defines "Encourage or Induce" in the Immigration Context and Finds Law Overbroad

The Ninth Circuit Court of Appeals recently held in United States v. Sineneng-Smith[i], that a law making it a felony to "encourage or induce" illegal entry or residence in the U.S. was overbroad in violation of the First Amendment. Sineneng-Smith ran a consulting firm in California that catered primarily to clients from the Philippines. She promised to help clients obtain permanent residence through the labor certification process, even though she knew that particular pathway to permanent residence was no longer possible. Sineneng-Smith was indicted on 10 counts, including mail fraud and three counts of violating 8 U.S.C. § 1324(a)(1)(A)(iv).

The subsection at issue in this case permits felony prosecution for "Any person who. . . encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law." 8 U.S.C. § 1324(a)(1)(A)(iv).

Sineneng-Smith's defense began by moving to dismiss the immigration counts of the indictment, arguing that the statute was both overly vague and content-based in violation of the First Amendment. The District Court denied her motion without addressing the First Amendment challenges, a 12-day trial ensued, and Sineneng-Smith was found guilty on all three counts of violating subsection (iv). She then moved for a judgment of acquittal, relying on the same arguments used in her motion to dismiss, and she was acquitted of one count.

On appeal to the Ninth Circuit, Sineneng-Smith relied yet again on her vagueness and content-based arguments. After hearing oral argument, the Ninth Circuit elected to open the issue for further briefing from the parties and interested amici. In outlining issues for briefing, the Ninth Circuit asked whether: (1) the statute was overbroad under the First Amendment and if any limiting instructions could cure the First Amendment problems; (2) the statute was void for vagueness and if any limiting instructions could cure the First Amendment problems; and (3) the statute contains an implicit mens rea element. The government sought the plain error standard of review, arguing that Sineneng-Smith had waived her overbreadth argument. However, the court reviewed the case de novo, claiming that Sineneng-Smith's reliance on First Amendment arguments in the District Court preserved an overbreadth argument.

The Ninth Circuit decided the case on overbreadth ground; and thus, it did not address the vagueness challenges. The Court began its analysis by defining what makes a statute overbroad: "In the First Amendment context . . . a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'"[ii] To determine if the statute was overbroad, the Court laid out a three-step process: (1) construe the statute; (2) ask whether the statute as construed restricts speech, and if so, whether that speech is protected; and (3) weigh the amount of protected speech that the statute restricts against the statute's legitimate sweep.

Defining "Encourage" and "Induce"

To construe the statute and determine what speech and/or conduct was covered, the Court had to determine the meaning of "encourage" and "induce." The government proposed a definition that one encourages or induces when one "knowingly undertakes a non-de-minimis act that could assist a specific alien in violating civil or criminal immigration laws." The Ninth Circuit found that to adopt this proposed definition would require re-writing the statute, a task reserved for the legislature. Instead, the Ninth Circuit adopted a definition of "encourage" and "induce" based on plain language and context. In the Ninth Circuit’s opinion, "encourage" means "to inspire with courage, spirit, or hope . . . to spur on . . . to give help or patronage to."[iii] Induce means "to lead (a person), by persuasion or some influence or motive that acts upon the will . . . to lead on, move, influence, prevail upon (any one) to do something."[iv] These common usage definitions could encompass speech, conduct, or both.

The Court addressed competing interpretations of "encourage" and "induce" by sister circuit courts. The Fourth Circuit found the terms were synonymous with aiding and abetting and that subsection (iv) did not prohibit a substantial amount of protected speech.[v] The Third Circuit read subsection (iv) to prohibit one "from engaging in an affirmative act that substantially encourages or induces an alien" to come, enter, or reside in the U.S. when the person otherwise might not have done so.[vi]

After defining the two critical terms, the Ninth Circuit ultimately paraphrased subsection (iv) as follows:

[T]o violate the subsection, a defendant must knowingly encourage or induce a particular alien – or group of aliens – to come to, enter, or reside in the country, knowing or in reckless disregard of whether doing so would constitute a violation of the criminal or civil immigration laws. As construed, 'encourage or induce' can mean speech, or conduct, or both, and there is no substantiality or causation requirement.[vii]

Subsection (iv) Restricts Protected Speech

In part two of its analysis, the Ninth Circuit explored whether the statute reaches protected speech and if so, whether the statute restricts a substantial amount of that speech.

The government argued the speech at issue was not protected, since it was similar to aiding and abetting. The Ninth Circuit analyzed relevant exceptions to the First Amendment, such as incitement and speech integral to criminal conduct. The Court found those doctrines did not apply to the speech involved with subsection (iv), since incitement generally concerns violence, rioting, and breach of the peace, and since the subsection at issue criminalizes more speech than just that which is integral to violations of immigration law. Further, in contrast to the aiding and abetting statute, subsection (iv) applies to both criminal and civil violations of immigration law. Aiding and abetting requires the accused assist or participate, and subsection (iv) merely requires encouragement. Aiding and abetting also requires the principal actually commit the underlying offense, whereas there is no such requirement in subsection (iv).

Since the differences between the subsection and aiding and abetting section abounded, and since the speech did not fit any exception to the First Amendment, the Ninth Circuit found that subsection (iv) restricts protected speech.

Subsection (iv) Restricts Too Much Protected Speech

After concluding the statute reaches protected speech, the Court went through a string of hypotheticals to determine if the statute reaches a substantial amount of protected speech. Examples of protected speech included a grandmother telling her grandson that she encourages him to stay in the U.S., general pro-immigrant advocacy on social media or to a gathered crowd, and an attorney who tells a client to stay in the U.S. while defending against removal. While the government countered that such instances have not and would not be subject to prosecution, the Court explained: "[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."[viii] Adding that "speech on public issues occupies the highest rung of hierarchy of First Amendment values,"[ix] the Court found subsection (iv) encompassed too much protected speech.  

Summary

In analyzing 8 U.S.C. § 1324(a)(1)(A)(iv), the Ninth Circuit adopted plain language definitions of "encourage" and "induce" and found that one could encourage or induce by either speech or action. The First Amendment protects speech involved in such encouraging or inducing. Because subsection (iv) penalizes a substantial amount of protected speech, it is unconstitutionally overbroad in violation of the First Amendment.


Elizabeth Patton is an Associate Attorney at the Law Offices of Sean Lewis. She is a 2018 graduate of Belmont University College of Law, where she served as the Executive Submissions Editor for the Belmont Law Review. Elizabeth developed her passion for immigration while a student at Samford University, where she studied International Relations and Latin American Studies. Elizabeth may be reached at  epattonlaw@gmail.com.


[i] United States v. Sineneng-Smith, 2018 WL 6314287 (9th Cir. Dec. 4, 2018).

[ii]United States v. Stevens, 559 U.S. 460 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, n. 6 (2008)).

[iii]See United States v. Thum,749 F.3d 1143, 1147 (9th Cir. 2014).

[iv]Induce, Oxford English Dictionary Online(3d ed. 2018).

[v]United States v. Tracy, 456 F. App'x 267, 268 (4th Cir. 2011) (per curiam).

[vi]DelRio-Mocci v. Connolly Props. Inc.,672 F.3d 241, 249 (3d Cir. 2012).

[vii]Sineneng-Smith at 30.

[viii]U.S. v. Stevens, 559 U.S. at 480. 

[ix]Sineneng-Smith at 40 (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011).

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Asylum Law in the Wake of Matter of A-B-

Over the past few months, there have been multiple updates and changes on domestic violence and non-state actor asylum claims. The changes require practitioners to monitor daily federal court litigation as well as Board of Immigration Appeals (“BIA” or “Board”) decisions. This article provides an overview of Matter of A– B–, 27 I&N Dec. 316 (A.G. 2018), the impact of the December 2018 federal court decision in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), and pointers for filing domestic violence and non-state actor asylum claims.

In June 2018, the Attorney General Jeff Sessions (A.G.) issued Matter of A–B–. This case involved A.B., a Salvadoran national, who was in an abusive relationship with her husband for 15 years in marriage. Once, during one of her pregnancies, he threatened to hang her with a rope from the roof of their house. Salvadoran authorities provided no protection, despite A.B. obtaining two restraining orders against her husband as they refused to enforce these orders. Despite leaving her husband and moving to another town two hours away from where they lived together, her husband found A.B. and the abuse continued. A.B. sought a divorce, which only escalated the threats on her life.

Ultimately, A.B. traveled to the United States, where she applied for asylum under the Immigration and Nationality Act (INA) which requires her to demonstrate a well-founded fear of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A).

The Charlotte Immigration Court, through Judge Couch, denied her application for asylum. On appeal, the BIA unanimously reversed the judge’s denial. In its reversal, the BIA relied on the precedent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). In Matter of A-R-C-G-, government counsel stipulated to the existence of a social group comprised of “married women from Guatemala who are unable to leave their relationship,” which resulted in a grant of asylum. This decision held domestic violence victims could receive asylum. The BIA found A.B.’s social group to be similar to that of A-R-C-G.

The BIA referred her case back to the Immigration Court in Charlotte to complete her background check and grant asylum. However, instead, on March 7, 2018, A.G. Sessions referred Matter of A–B– to himself for a decision. The A.G. reversed the BIA’s grant of asylum and overruled Matter of A-R-C-G- as a precedent decision. In the decision, the A.G. stated, in dicta that “generally, claims ... pertaining to domestic violence or gang violence will not qualify for asylum.”  The decision also held the Board in Matter of A-R-C-G- did not properly apply Matter of M-E-V-G- 26 I&N Dec. 227, 242 (BIA 2014) and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), on social distinction and particularity.

The language of Matter of A-B- proposes that non-state actor asylum claims are not viable. Again, this principle is contrary to the INA, Code of Federal Regulations and BIA precedent. See generally, 8 C.F.R. § 1208.13(b)(1);  In Re Kasinga, 21 I&N Dec. 357 (BIA 1996).  Multiple cases have held that individuals fleeing persecution by non-state actors where the government is unable or unwilling to protect them have actionable asylum claims. The decision cites language in a Seventh Circuit case stating that the government “condones” or is helpless to protect victims. Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). Practitioners must be aware of this language, be prepared to address it and rely on Sixth Circuit precedent that specifically on the Board’s long applied principle of government unwillingness or inability to control a non-state actor.

One should note that even though the language of Matter of A-B- intends to foreclose domestic violence and arguably gang related asylum claims, the Refugee Convention, the Immigration and Nationality Act (INA) – which codified the Refugee Convention in 1980, and precedential case law at the Courts of Appeals and BIA continue to support domestic violence and non-state actor asylum claims independently of Matter of A-R-C-G-. The Board, however, has applied Matter of A-B- , and accordingly, attorneys must ensure that they are presenting evidence in a manner that adheres to the Board’s reading of the decision. In vacating A-R-C-G-, attorneys must now ensure they are creating a record and argument in which they are formulating a proper social group while also exploring alternative forms of protected categories under which their client may qualify for asylum. This is a particularly daunting task for cases that have been pending before the courts for multiple years waiting their merits hearing.

In addition, in July 2018, the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) issued clarifying guidance on the impact of A- B- on their agencies – mainly credible fear interviews. In the memo, USCIS stated “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may...pass the ‘significant probability’ test in credible fear screenings.”

On Dec. 14, 2018, the federal district court for the District of Columbia issued a decision in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) citing 8 U.S.C. § 1252(e)(3)(A) as legal authority to review ‘[c]hallenges [to the] validity of the [expedited removal] system.” BIA and immigration judges are generally not bound by the decisions of district courts. Id. In Grace v. Whittaker, the Court prohibited USCIS from applying its July 2018 policy memo on Matter of A-B-.  The court’s decision was based upon the premise that “it is the will of Congress - and not the whims of the Executive - that determines the standard for expedited removal.” Grace, 344 F. Supp. 3d at 96.

On December 19, 2018 (but not released to general public until January 14, 2019 through a FOIA request), the same day of the Grace v. Whitaker decision, the USCIS issued a memorandum setting forth the following guidelines with regard to credible fear processing:

1) There is no general rule against claims involving domestic violence and gang-related violence as a basis for membership in a particular social group;

2) Asylum officers must determine whether the government in the country of feared persecution is “unable or unwilling to control a persecutor,” and cannot use the “condoned” or “complete helplessness” formulation as suggested in Matter of A-B-;

3) There is no general rule that proposed particular social groups whose definitions involve an inability to leave a domestic relationship are circular and therefore not cognizable. While a particular social group cannot be defined exclusively by the claimed persecution, each particular social group should be evaluated on its own merits. See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (BIA 2014). If the proposed social group definition contains characteristics independent from the feared persecution, the group may be valid. Analysis as to whether a proposed particular social group is cognizable should take into account the independent  characteristics presented in each case;

4) In evaluating whether the applicant has established a credible fear of persecution, asylum officers cannot require an applicant to formulate or delineate particular social groups. Asylum officers must consider and evaluate possible formulations of particular social groups; and

5) Asylum officers may not disregard contrary circuit law and may not limit their analysis to the law of the circuit where the alien is located during the credible fear process.

On the same date, EOIR issued a memorandum to all Immigration Judges, who are responsible for conducting credible fear review hearings, stating they may not rely on these aspects of Matter of A-B- as a basis for affirming a negative credible fear determination: (a) general rule against credible fear claims relating to domestic and gang violence, and (b) requirement that an alien whose credible fear claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”

Thus, practitioners may want to argue Grace v. Whitaker should apply to immigration judges holding Master Calendar hearings and to Asylum Officers holding offensive asylum claim interviews because the same issues are present in all of these hearings and interviews. However, immigration judges and asylum officers may narrowly read Grace v. Whittaker to only apply to credible fear interviews and hearings. In litigating social group asylum claims, attorneys must pay close attention to Board and Sixth Circuit precedent at every stage from challenges to credible fear determinations, asylum interviews, and individual hearings before the Memphis Immigration Courts.


The co-authors of this article are Alvaro Manrique Barrenechea, a 2019 LLM Candidate at Vanderbilt University School of Law and Karla McKanders, Clinical Professor of Law and Director of Vanderbilt Immigration Clinic. Alvaro is a 2013 graduate of Universidad de Lima (Peru) Law School. He may be reached at alvaro.a.manrique.barrenechea@vanderbilt.edu. Karla joined the Vanderbilt faculty in 2017 after serving in a similar position at University of Tennessee Law School. Karla is a graduate of Duke University School of Law. She may be reached at karla.mckanders@vanderbilt.edu or (615) 322-3092.

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Letter from the Editor:

Here’s our latest issue of Immigration Law Section’s newsletter. I would like to thank Elizabeth Patton, Alvaro Manrique Barrenechea and Professor Karla McKanders for writing these insightful articles. It pleases me to have new attorneys, such as Elizabeth, and law students, such as Alvaro, contributing to our newsletter. I’m always looking for writers and articles on a variety of topics, including family-based immigration issues, employer-based immigration issues, crimimigration, and immigration court. There’s so much happening these days in immigration law that hopefully you will be inspired to write an article. Please feel free to contact me at bbuchanan@sblimmigration.com or 615-345-0266 concerning writing an article.

– Bruce Buchanan

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Judge Rules Spanish-Language Journalist Will Stay in Immigration Detention

Memphis-based journalist Manuel Duran will likely remain in immigration detention for several more months following a decision today by a judge in Louisiana to deny his release on bond, The Commercial Appeal reports. A native of El Salvador, Duran is well-known in Memphis for his years of appearances on Spanish-language radio stations. More recently, he was running his own news outlet, Memphis Noticias. He was arrested along with several others while covering a protest outside the criminal justice center in Memphis on April 3.
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Judge Blocks Trump Plans to Add Citizenship Question to 2020 Census

A federal judge in New York ruled against the Trump administration's decision to add a citizenship question to the 2020 census, NPR reports. U.S. District Judge Jesse Furman ordered the administration to stop its plans to include the controversial question on forms for the upcoming national head count "without curing the legal defects" the judge identified in his opinion. The district court ruling in New York is expected to be appealed to the 2nd U.S. Circuit Court of Appeals and, ultimately, to the Supreme Court.
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Murfreesboro Mother Banned from Entering U.S.

A Murfreesboro woman who married a U.S. citizen has been banned from ever returning to the U.S., The Daily New Journal reports. Alma Goddard first came to the United States as an illegal immigrant, but married citizen Shane Goddard, started a family, and attempted to gain legal citizenship. After exhausting other resources, Alma Goddard returned to Mexico to attempt to re-enter the country through proper channels. However, as she prepared to depart Juarez to return to Tennessee, she was accused of telling an immigration officer that she was a U.S. citizen, an offense that results in an automatic ban. The Goddards claim that Alma Goddard did no such thing, and now are seeking other means of returning her to the U.S.
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Shelby Sheriff Will Not Follow New State Immigration Enforcement Law

A new Tennessee immigration law aimed at curbing "sanctuary cities" is already facing a challenge from Shelby County officials, who say the new measure is “unenforceable and unconstitutional” because of its “vagueness” and would not be applied locally, The Daily Memphian reports. The Shelby County Sheriff’s Office issued a statement on Jan. 2 that it would not follow the new measure, which calls for local law enforcement throughout the state to comply with U.S. Immigration and Customs Enforcement detainer requests to hold immigrants in the country illegally for deportation. Last year, the sheriff’s office said it stopped holding immigrants past their release dates after the county attorney said the federal immigration detainer requests from ICE would violate the U.S. Constitution. 
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SCOTUS to Consider Hot-Button Issues in 2019

The U.S. Supreme Court’s 2018-2019 term has had a quiet start with only three decisions issued; all unanimous. However, the court is likely to hear a number of high-profile cases that will be more divisive. Issues before the court may include separation of church and state, citizenship questions related to the 2020 Census, power of executive agencies, Deferred Action for Childhood Arrivals, the military ban against transgender individuals and partisan gerrymandering. The Hill and the Economist have more on the cases and possible outcomes.

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New 'Sanctuary' Law Could Affect Policies at Shelby Jail

When a new Tennessee immigration law goes into effect Jan. 1, it could lead to changes at the Shelby County jail, the Commercial Appeal reports. The new law makes it possible to punish cities that adopt “sanctuary policies” regarding immigrants. In Shelby County, the Sheriff’s office has stopped obeying federal immigration detainer requests last year after the county attorney said that doing so would likely violate the U.S. Constitution.

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Bloomberg Exposes “Ghost” Worker Loophole for Major Companies

A Bloomberg News investigation recently exposed a loophole that allows big-name companies, like Target and Walmart, to utilize cheap, undocumented labor through contractors. One such contractor that has been partnered with Target since 2003, Diversified Maintenance Systems LLC, has faced allegations of labor violations in the past, including putting undocumented immigrants to work by utilizing pay cards under assumed names in order to hide the illegal status of the employee. The article profiles Martha Lopez, an illegal immigrant working at a Target in Brentwood, Tenn. who experienced a loss of an entire month’s worth of wages due to the pay card practice. When she confronted her employer regarding the missing pay, she was told no one would listen to her because she did not exist on their system due to her working under an assumed name, like a ghost. Since these contracted employees do not work directly for the large companies, the company is able to benefit from this source of illegal, cheap labor without fear of penalty. Bloomberg inquired with Target regarding Lopez’s case and the labor practices of Diversified; within a couple days Target decided to cancel its contract with the company in the state of Tennessee.

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Join Us Today: LAW TECH

Today's the day! Discover the newest technology for your law practice and law office at this year's Law Tech Blast at the Tennessee Bar Center in Nashville!

The flexible open house format allows you to create your own schedule. You can attend CLE sessions, enter to win prizes, network with attendees, visit with sponsors and interact with speakers. Take as many or as few CLE hours as you need. Only those seeking to be awarded CLE Credit will be charged. The registration desk will be open all day, so you can come and go for the hours you need when it is convenient for you. Attendees can earn up to 6.5 hours of Dual CLE credit.

CLE TOPICS:
  • GDPR, Cloud and Technological Competency
  • The Bill and Phil Tech Show 2019: BEAT THE CLOCK
  • Best Practices: Information Security for Firms
  • Judicial Panel: Technology in the Courtroom
  • Know When to Hold 'Em
  • Digital Evidence – A Technical Life Raft for the Legal Mind
  • Make it Rain: Ethics Guidelines and Practice Essentials

ATTEND TO WIN: Attendees will have a chance to win prizes, including an iPad Pro. The tech prize drawing will be held at the 10:30 a.m. break. Must be present to win.

TAKE A LYFT: TBA has partnered with Lyft to offer attendees a discounted ride.

  • New to Lyft?: Get $5 off 2 rides at http://lyft.com/i/lawtech5 or download the app and enter code LAWTECH5
  • Already Have Lyft?: Save 10% off 2 rides to or from Law Tech Blast with code LAWTECH

THANK YOU TO OUR SPONSORS & EXHIBITORS:


 

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Give the Gift of TBA Membership

Give yourself (or a friend) the gift that keeps giving — one-year of unlimited access to professional development opportunities and a number of programs and services designed to help you become a better practitioner. Founded in 1881, the Tennessee Bar Association is dedicated to enhancing fellowship among members of the state's legal community. Oh, and did we mention some of the benefits? Earn three pre-paid credits to use on any live or online course featured in the 12-days of CLE. Join now!

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State, Federal Judges Call on ICE to End Courthouse Arrests

Dozens of retired state and federal judges this week called on U.S. immigration officials to stop making courthouse arrests of people suspected of being in the country illegally, The Associated Press reports. Nearly 70 former judges from 23 states — including federal judges and state Supreme Court justices — said in a letter sent to Acting U.S. Immigration and Customs Enforcement Director Ronald Vitiello that courthouse arrests are disrupting the criminal justice system. The judges are urging Vitiello to add courthouses to the list of so-called “sensitive locations” that are generally free from immigration enforcement, like schools and places of worship.

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Immigration Group Updates Standards for Detention of Immigrant Children

The ABA’s Commission on Immigration on Friday released updated standards for the detention, care and legal representation of unaccompanied immigrant minors, The ABA Journal reports. The standards, which are meant to offer guidance to federal agencies and contractors that handle immigrants, reflect more than two years of collaboration between the commission and outside advocates. The first set of such standards were published in 2004, and since then the number of migrant children has increased substantially. The custody standards include guidance that there should be a legal presumption against detention and in favor of family reunification, both of which are assumed to be in the best interests of the child. Legal proceedings on the child’s immigration status should be prompt, fair and ideally on a special docket for unaccompanied minors.
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U.S.-Born Citizen Held for Deportation at ICE’s Request

A new lawsuit filed this week in federal court details the case of a Philadelphia-born U.S. citizen who was detained for weeks in Florida at the request of Immigration and Customs Enforcement, The Washington Post reports. The ACLU filed the suit on behalf of Peter Sean Brown, who was told he would be deported to Jamaica, a country that the lawsuit states “he has never lived and knows no one.” Brown was detained in Monroe County, which this year entered a new arrangement with ICE under a “Basic Ordering Agreement.” His ICE detainer form said he was to be deported because of “biometric information.” 
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Private Prisons Using Detainee Labor Face Lawsuits

A recent class-action lawsuit has been filed in federal court against a CoreCivic correctional center located in New Mexico, The Guardian reports. Detainees earned 50 cents or less per hour for various tasks, including cooking and working in the center’s library. CoreCivic and Geo Group are two of the country’s biggest private prison companies, citing combined revenues of $4 billion in 2017. Lawsuits against both companies regarding the practice of using detainee labor have been filed in several states over the past four years; however, they are still working through the courts. Spokespeople for both companies have stated that its work programs are completely voluntary and comply with government-established standards. 

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December CLE in 6 Cities

TBA offers CLE in six locations during December. See offerings in Chattanooga, Knoxville, Memphis, Nashville, Johnson City and Jackson. Find last-minute by the hour through Dec. 31 or take any of the TBA's online CLE packages.
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Federal Judge Blocks Trump Order Refusing Asylum for Immigrants

A federal judge today barred the Trump administration from refusing asylum to immigrants who cross the southern border illegally, Fox News reports. Trump issued a proclamation on Nov. 9 that said anyone who crossed the southern border would be ineligible for asylum. U.S. District Judge Jon S. Tigar issued a temporary restraining order after a request was made by the American Civil Liberties Union and the Center for Constitutional Rights.
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