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Archive for January, 2015

Melting ICE: Constitutional Challenges to Immigration Hold Provision Prompts Federal Overhaul of Immigration Enforcement Laws

Posted on: January 9th, 2015

By: Charles Reed, Jr.


Immigration and the enforcement of immigration laws has been a hot topic in politics in recent electoral cycles. Until earlier this year, local law enforcement agencies routinely worked with federal immigration and control enforcement (“ICE”) officials under a program called “Secure Communities” or “S-Comm” in arranging for the transfer of suspected aliens from local custody to federal custody upon receipt of a detainer request from ICE.  Under the S-Comm program, when local jurisdictions shared the fingerprints of arrested or booked individuals with the Federal Bureau of Investigation to see if the arrestee had a criminal record, the FBI automatically sent the fingerprints to the Department of Homeland Security to check against its immigration databases.  If the checks revealed that the individual was unlawfully present in the United States or otherwise removable due to a criminal conviction, ICE would notify the local jurisdiction that the arrestee should be detained pursuant to 8 C.F.R. § 287.7.  8 C.F.R. § 287.7(a) provides that the detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.” The statute further provides that upon receipt of an ICE detainer, local agencies “shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” 8 C.F.R. § 287.7(d).  This warm relationship between federal and local law enforcement agencies got a bit frosty in early 2014 after two federal courts found local counties liable for violating arrestees’ Fourth Amendment rights by complying with ICE detainers.

In Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. Pa. 2014), Lehigh County jail officials detained Galarza, a U.S. citizen of Puerto Rican heritage, in compliance with an ICE detainer despite Galarza’s documented proof of U.S. citizenship and his posting of bail.  The 3rd Circuit Court of Appeals held that the county’s blanket policy of complying with ICE detainers after bail was posted violated Galarza’s Fourth Amendment constitutional rights because ICE detainers were “‘requests’ or part of an ‘informal procedure’” based on its review of case law. Id. at 643.  The 3rd Circuit concluded that holding otherwise would violate the anti-commandeering principle of the Tenth Amendment. Id.  In Miranda-Olivares v. Clackamas County, No. 3:12-CV-02317-ST, 2014 WL 1414305  (D. Or. Apr. 11, 2014), Clackamas County jail officials received an ICE detainer following Miranda-Olivares’ arrest for violating a domestic violence restraining order.  Jail officials told Miranda-Olivares’ family on several occasions that Miranda-Olivares would not be released from custody because of the ICE detainer, even if her underlying state criminal charges were resolved or bail was posted.  After resolving the underlying criminal charges for which she was arrested, jail officials held Miranda-Olivares an additional nineteen (19) hours before transferring her to ICE custody.  Miranda-Olivares brought suit under the Fourth Amendment for the extra nineteen (19) hours she spent in custody.  In finding that Clackamas County violated Miranda-Olivares’ Fourth Amendment rights, the district court held that ICE detainers are “‘requests for information about when an alien will be released from [local law enforcement] custody’ and as one way [local law enforcement] may ‘assist’ the federal government in the detention and removal of aliens.” Id. at 6 citing Arizona v. United States, 132 S. Ct. 2492, 2507 (U.S. 2012). Referencing Galarza, the district court rejected the county’s argument that the words “shall maintain custody” in section 287.7(d) was a mandatory command holding that “when read as a whole, only one interpretation of the statute is reasonable. If both ‘shall’ and ‘request’ are given meaning, then a detainer issued by ICE…is a ‘request’ that local law enforcement voluntarily hold suspected aliens up to 48 hours.” Id. at *6.  While both of these cases involved the interpretation and application of federal law, the United States Department of Justice did not intervene or file any amicus briefs setting forth the federal government’s position on how ICE detainers were to be handled leaving local law enforcement agencies alone in the hot seat.

Inflamed by favorable court decisions on this issue, pro-immigration reform supporters put pressure on local law enforcement agencies to clarify their stance on honoring ICE detainers. Facing cold silence from the federal government on how it viewed ICE detainers, local law enforcement agencies across the United States began either refusing to honor ICE detainers or placing limitations on when they would comply with the request. (See, for example, Connecticut, Iowa, Georgia, California, Colorado, Massachusetts). On November 20, 2014, President Barack Obama announced a sweeping change to immigration enforcement in the United States, including the end of S-Comm as currently designed.  While the President has indicated that the change in S-Comm will not affect the removal of foreign nationals who pose a threat to public safety and national security, federal agencies are still reorganizing and re-allocating resources to reflect this shift in immigration enforcement. Given the state of flux currently surrounding this situation, law enforcement agencies that continue to aggressively enforce S-Comm may find themselves under fire as well as the governmental entities with whom they are affiliated.  We will continue to monitor this issue and provide updates as more information becomes available.

Retaliation Claims Keep Expanding: Flight Attendants Bring OSHA Claim for Reporting “Security Threat”

Posted on: January 9th, 2015

By: Amy Combs Bender


A few days ago, thirteen flight attendants filed a complaint with the federal Occupational Safety and Health Administration (“OSHA”) against their former employer, United Airlines, claiming they were terminated in retaliation for reporting a security and safety threat. In July 2014, prior to a flight from San Francisco to Hong Kong, the flight attendants learned of what they claim were “threatening words” and “menacing images” that had been drawn on the plane’s tail cone, which was accessible only by employees with certain security clearance and only with special equipment. Specifically, the words “BYE BYE” were written next to two faces, one smiling and the other with a “frowning or devilish” expression.

The flight attendants expressed that they were concerned and uncomfortable about the situation and felt unsafe. After determining to proceed with the flight, United issued the flight attendants a direct order to work the flight. In light of the facts that the flight attendants were concerned about the nature of the message and images and their perceived threat to the safety of the crew and passengers; it was not known who made them, when, or where; they had not been discovered during prior security checks; the flight attendants were not informed of the true nature of the situation for some time after the message and images were discovered; the captain had been describing the situation as a maintenance issue and later referred to the graffiti as a joke; a full security sweep of the entire plane was not conducted; and the TSA’s recent increase in security measures for international flights, all thirteen attendants refused the direct order. Each was terminated for insubordination for refusing to comply with the direct order.

The flight attendants allege in their OSHA complaint that their terminations violated the anti-retaliation provisions of a federal aviation law. They argue that they engaged in “protected activity” when they made statements to United regarding the security threat to the aircraft and refused to fly the aircraft with the security threat unresolved. The flight attendants have requested that OSHA investigate their claims, issue a determination that their terminations were retaliatory, and reinstate them to their jobs. The complaint currently is pending with OSHA. (A picture of the graffiti and a copy of the complete complaint are available on the website of the law firm representing the flight attendants.)

Although this case deals with a specific law applicable only to the airline industry, it is a good lesson to all employers of the increasing frequency of retaliation and whistleblower claims and the need to review internal policies and procedures for reporting and responding to such claims. A cause of action for retaliation is available under all of the major federal employment laws, including:

  • Title VII of the Civil Rights Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on race, color, religion, sex, or national origin);
  • the Americans with Disabilities Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on an actual, perceived, or record of disability);
  • the Age Discrimination in Employment Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on age);
  • the Fair Labor Standards Act (prohibiting retaliation for filing a complaint or instituting or testifying in a proceeding alleging a minimum wage or overtime violation);
  • the Family and Medical Leave Act (prohibiting retaliation for exercising a right regarding taking leave for protected family or medical reasons, opposing or complaining about any unlawful practice under the statute, or filing a charge, instituting a proceeding, or giving information or testimony about an alleged violation); and
  • the Occupational Safety and Health Act (prohibiting retaliation for filing a complaint, instituting or testifying in a proceeding, or exercising a right regarding safe and healthful working conditions).

In addition, under the Sarbanes-Oxley Act, employees of publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission are protected from retaliation for reporting alleged mail, wire, bank, or securities fraud; violation of SEC rules and regulations; or violation of federal law relating to fraud against shareholders. That Act also provides that employees of any employer may assert a retaliation claim for providing truthful information to a law enforcement officer about the commission or possible commission of a federal offense. Moreover, public employees may assert Constitutional retaliation claims. Numerous other statutes permit retaliation actions in various contexts and business industries.

Furthermore, for the past few years, retaliation has been the most frequently asserted category of claim in Charges of Discrimination filed with the Equal Employment Opportunity Commission.

Employers are advised to review their employee handbooks or personnel policies to ensure they include a comprehensive procedure for reporting complaints of discrimination or harassment under any category protected by law as well as a prohibition on retaliation for reporting or participating in the investigation of any such complaint. Employers also should ensure that this prohibition is enforced on a practical level by training their managers and supervisors not to target or treat less favorably employees who have made or assisted with a complaint on account of their protected conduct.