Denationalization and Economic Hardship as a Form of Persecution

This week the blog takes a look at the law of asylum.  The Immigration and Nationality Act grants refugee status or the permanent right of abode and access to the labor market to foreign nationals that have a well founded fear of persecution on the basis of race, religion, nationality, political opinion or membership in a social group. 

On May 20, 2011 the US Court of Appeal for the Sixth Circuit in Cincinnati, Ohio released its opinion in Stserba v. Holder.  In its decision, the court reversed and remanded the Stserba family’s asylum applications to the Board of Immigration Appeals (BIA).  On remand, the Court asked the BIA to address the whether denationalization and loss of professional credentials on account of ethnicity constitutes persecution that may serve as the basis for a grant of asylum.

In 1940, the Soviet Army occupied Estonia to defend it from the advancing German Army.  At the end of World War II, the Soviet Union annexed Estonia.  In 1991, Estonia regained its independence from the Soviet Union.   Free of their Soviet overlords, the Estonian government passed a series of measures aimed at the ethnic Russian living in Estonia.  These measures included a statute that denationalized all ethnic Russians that has no ancestors residing in Estonia in 1940.  Additionally, in 1998, Estonia withdrew from the Estonian-Russian agreement regarding educational degrees.  Russian diplomas are not valid in Estonia.

In 2003, Lilia Stserba, a citizen of Estonia and ethnic Russian, and Igor Pabo, a Russian citizen entered the United States as visitors.  They settled in Cincinnati, Ohio and filed for asylum.  In their asylum application Lilia Stserba complained that as an ethnic Russian living in Estonia, she was persecuted by Estonia’s denationalization statute and was effectively stateless.  Additionally, Lilia Stserba was trained as a pediatrician in Leningrad.  She complained that Estonia’s unilateral withdrawal from the agreement recognizing Russian educational degrees deprived her of the ability to practice her chosen profession.  Additionally Both Dr. Stserba and Mr. Pabo complained of substandard and the withholding of medical care from the government run medical system and of receiving racial epitaphs and minor physical assaults at the hands the local populace in Estonia as a result of their Russian ethnicity.

The USCIS’ Asylum Office and Immigration Court denied the Stserba family’s asylum application.  At their deportation hearing, the Immigration Judge (IJ) found that the invalidation of Dr. Stserba’s medical credentials was not persecution because Dr. Stserba found work after the invalidation of her credentials.  Dr. Stserba found employment as a baby sitter and as a pediatrician at a Russian school willing to overlook the fact that her credentials were invalid.  Additionally, the IJ held that the invalidation of Dr. Stserba’s medical credentials was not based on her ethnicity.  All Russian educational credentials were invalidated in Estonia.  Additionally, the IJ held that Dr. Stserba had suffered no harm from the loss of her Estonian citizenship because she was able to regain it several years later.  Finally, the IJ disposed of Mr. Pabo’s claim stating that the harm he suffered at the hands of the Estonian populace was not sufficiently severe to warrant a grant of asylum.  The IJ ordered Dr. Stserba deported to Estonia and Mr. Palo deported to Russia.  The Stserba family appealed to the BIA and then to the Circuit Court of Appeal.

The Sixth Circuit reversed and remanded the Stserba family’s asylum claim to the BIA holding that neither the IJ nor the BIA had adequately discussed the issue of forced denationalization as persecution.  The court held that people have a fundamental right to citizenship, and that forced denationalization that results in statelessness can constitute persecution.  Although the mere creation of statelessness or the change of citizenship as a result of a governmental or border change does not give rise to a claim of asylum in the United States, a person who is made stateless on account of membership in a protected group has demonstrated persecution. 

The Court was equally unimpressed with the IJ’s and BIA’s handling of Dr. Stserba’s claim of loss of livelihood.  The court held that a government’s limitation of opportunities for an individual to continue to work in their chosen profession may constitute persecution even though an individual may continue to work in a field other than that of their choosing.  Even though the IJ correctly noted that the invalidation of Russian diplomas is not limited to ethnic Russians, the IJ ignored the desperate impact of this policy.  The only residents of Estonia that poses the Russian language skill and desire to attend a Russian university would be ethnic Russians.

Finally the Court notes that Mr. Pabo’s mistreatment in Estonia by itself probably does not rise to the level of harm necessary to constitute persecution.  However the Court reverses and remands Mr. Pabo’s asylum application to the BIA with instructions to consider Mr. Pabo’s claim in the aggregate with Dr. Stserba’s claims.  A collection of harmful events that when considered individually do not rise to the level of persecution may be considered persecution when considered together.


Copyright 2011 Richard M. Green, All Rights Reserved

The Two Edged Sword: Citizenship Discrimination in Employment Revisited

Last week, the blog discussed the Immigration Reform and Control Act of 1986 and the twin immigration related employment enforcement mechanisms:  Employment of an unauthorized alien and unlawful discrimination on the basis of alienage.

This week, the blog delves deeper into one of these issues: Unlawful discrimination on the basis of alienage.  The Immigration Reform and Control Act of 1986 criminalized the employment of an unauthorized alien.  The anti-discrimination statute was added to IRCA as a protection to aliens who had the right to live and work in the United States.  Some members of Congress feared that with the criminalization of employment of an unauthorized alien, many businesses would comply with the new law by simply refusing to hire non-US citizens.

The bulk of the work of the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices seems to be directed at punishing employers who prefer US citizen workers and unfairly discriminate against non-citizens who are permitted to live and work in the United States.  In the last two months, the Justice Department recently settled charges they brought against a community college district in Arizona, a fast food franchise operator in Maine and an agricultural staffing agency in Iowa for unfairly discriminating against non-citizens.

But the law is a two-edged sword.  IRCA’s anti-discrimination provisions also prevent employers from discriminating against US citizens in favor of hiring individuals who are not authorized to work but can be made authorized by filing a visa petition.  IRCA protects US citizens, aliens admitted for permanent residence (also known as green card holders), individuals who have been granted asylum and individuals granted refugee status from unfair employment related discrimination. 

On May 17, 2011, the Office of Special Counsel announced the settlement of a citizenship discrimination claim brought against Iflowsoft, LLC, a New Jersey information technology staffing agency.  The OSC alleged that Iflowsoft discriminated against US citizens in its hiring practices by expressing a preference for non-citizen temporary visa holders in its employment advertising.  Click here to read OSC's press release,and click here to read the the settlement agreement. 

Specifically, the OSC found that Iflowsoft violated the anti-discrimination provisions of IRCA becasse it advertised that it preferred individuals who needed an H-1 visa transfer or change of status from F-1 student to H-1.  The OSC found that Iflowsoft did not consider qualified US citizens who applied for jobs with the company.  Temporary non-immigrants such as H-1B visa holders are not protected by the anti discrimination provisions of IRCA.

As a result of the settlement, Iflowsoft will pay a civil penalty of $6,400 to the Justice Department, $7,158.49 in back pay to the two US citizens that complained, and adopt personnel policies to avoid such discriminatory practices in the future. 


Copyright 2011 Richard M. Green, All Rights Reserved

Immigration Employment Verification: Charting a Course between the Devil and The Deep Blue Sea

As President Obama hits the campaign trail for immigration reform this week, let’s take a look back at the last time Congress created a pathway for illegal immigrants to regularize their status:  The Immigration Reform and Control Act of 1986 (IRCA).  Passed by both houses of Congress and signed into law by President Regan in 1986, IRCA amended the Immigration and Nationality Act (INA) to permit individuals who had been illegally present in the United States since January 1, 1982 to regularize their status.

In the horse trading that is the legislative process, the following deal was struck:  In exchange for the amnesty for illegal immigrants described above, IRCA added a provision to the INA that required employers to verify the immigration status of their employees.  IRCA criminalizes the employment of illegal aliens, and somewhat paradoxically, prohibits employers from discriminating in hiring decisions on the basis of citizenship or immigration status.  Thanks to IRCA, employers must sail between Scylla and Charybdis.  They walk a tightrope between the twin evils of hiring unauthorized aliens and discriminating on the basis of alienage with every hiring decision.

Although all the individuals who benefited from IRCA’s amnesty have long since received permanent residence and naturalized, the employer mandates of IRCA live on today.  IRCA’s mandates on employers are enforced by two separate agencies:  The Civil Rights Division of the Department of Justice and the Department of Homeland Security’s Immigration and Customs Enforcement.  As the two news articles listed below indicate, both agencies have been busy.

1.       On March 8, 2011 Rick M. Vartanian, the president and primary shareholder of Brownwood Furniture, was sentenced to ten months in federal prison for obstruction of justice and the employment of illegal aliens.  Mr. Vartanian was also ordered to pay a $15,000 fine.  Read about Mr. Vartainian’s troubles here and here.

2.       On April 26, 2011 the Civil Rights Division of the US Justice Department announced a settlement agreement with Restwend, LLC, the operator of several Wendy’s restaurants in Maine.  The Justice Department accused Restwend of engaging in illegal employment discrimination against non-US citizens by only hiring US citizens to work in its restaurants.  Restwend agreed to pay a fine, back pay to the potential worker that was discriminated against, and to train its human resources staff.  Read about Restwend’s settlement here and here.

Immigration enforcement is on the rise.  Employers should consider consulting with competent immigration counsel before charting a course between the devil and the deep blue sea.


Copyright 2011 Richard M. Green, All Rights Reserved

BALCA: Elevating Form over Substance

On April 21, 2011, the Board of Alien Labor Certification Appeals of the U.S. Department of Labor (BALCA) released its decision in the Matter of Ifuturistics, Inc. 2010-PER-00631 (BALCA 2011).  In this case, BALCA celebrates form over substance by using procedural rules to ignore evidence and deny a Labor Certification.

On May 19, 2009, Ifuturistics (the Employer) filed a PERM Application for Permanent Labor Certification with the Certifying Officer of the Department of Labor’s Atlanta Processing Center.  The Employer sought certification on behalf of one of its employees to work as a Computer Systems Analyst. 

A Labor Certification is the first step in most employment based permanent residency cases.  In order to obtain a labor certification, an employer must test the labor market and demonstrate that there are no US citizens, Lawful Permanent Resident aliens, or other work authorized individuals that are ready, willing, and qualified to perform the job as described on the labor certification.

In order to test the labor market, and fulfill the requirements for PERM, the Employer advertised its Computer Systems Analyst position in the professional journal Computer.  The Certifying Officer denied the Employer’s application, stating that Computer is not a professional journal.  Shortly after receiving the denial, the Employer requested review of the denial.  Along with their request, the employer sent six pages of documentation regarding the publisher (the IEEE) and readership of the journal Computer.

Upon review, BALCA refused to consider the documents regarding the journal Computer, and affirmed the denial of certification.

Because the Employer requested a review before BALCA, rather than reconsideration from the [Certifying Officer], we are limited by 20 C.F.R. § 656.27(c) to an analysis based upon evidence upon which the [Certifying Officer’s] denial was made. Consequently, the six pages of information related to the significance of the IEEE, as a preeminent technical society, which likely would have carried Employer’s burden, is not properly before us. We are therefore constrained procedurally to affirm the denial, despite the fact that the [Certifying Officer] was arguably incorrect in his determination that Computer magazine is not a qualifying professional journal. Matter of Ifuturistics, Inc. 2010-PER-00631 at 3-4.

There are two lessons to be learned from this case:

1.     PERM is like a mine field.  It is a highly technical practice area.  This certification was denied because the attorney that represented the Employer asked for the wrong kind of appeal: Review by BALCA and not reconsideration from the Certifying Officer. It appears that counsel for the Employer thought that BALCA would ignore its own regulations and review the documentation regarding the publisher and readership of Computer.  Knowledge of the PERM regulations and the culture/mindset of the Department of Labor are necessary to getting a PERM application certified.

2.      BALCA thoughtlessly adheres to its rules.  It will use the smallest of procedural defect to kill an otherwise meritorious application.  Labor Certification Applications take time (two years in this case) and cost money (advertising and attorneys fees).  Additionally, continued employment and continued residency in the United States turn on a Labor Certification Appliation.  BALCA is content to ignore these considerations.  Additionally BALCA is willing to ignore evidence that the Certifying Officer wrongly denied certification because the evidence of the error was not properly before them.  With an air of royalty, BALCA elevates form over substance.

Copyright 2011 Richard M. Green, All Rights Reserved