(1) UNIONS SUCCEED IN TEMPORARILY BLOCKING NEW DHS "NO-MATCH" RULE

A group of unions led by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) succeeded on Friday in temporarily blocking the Department of Homeland Security’s (DHS) new "no match" rule.

Intended to crack down on employers who hire illegal immigrants, the new rule mandates that employers receive "no match" letters when employee-provided names and Social Security numbers do not match up with the Social Security Administration’s database. In cases where the information does not match, employees would have 90 days to resolve the discrepancy. If the identity issue is unable to be resolved in that time, employers may then be required to fire the employee or face fines or criminal penalties for knowingly violating federal statutes that prohibit hiring illegal aliens.

As reported in last week’s issue of FEDagent(SM), the unions filed suit against DHS charging that the new rule violates workers’ rights and unfairly burdens employers. They argue that the SSA database is riddled with errors, caused by such things as confusion over name changes, multiple surnames, and simple typos, and could result in legal immigrants and U.S. citizens being fired. They also say that employers may simply fire employees receiving "no match" letters rather than going through the "burdensome process." Moreover, unscrupulous employers will simply ignore the letter and continue to employ undocumented workers, they add.

The rule was originally scheduled to go into effect on September 14th. SSA had planned to send out notices of the new rule to approximately 140,000 employers beginning September 4th, but the judge’s order prohibits SSA from moving forward with that action.

As it stands now, under the Immigration and Nationality Act (INA), employers must verify the immigration status of employees upon initial hire. While employers already receive "no match" letters when the employee-provided information does not correspond to that in SSA’s database, those "no match" letters are purely advisory, and clearly say that they do not "make any statement about an employee’s immigration status."

The lawsuit was filed in the United States District Court for the Northern District of California. U.S. District Court Judge Maxine M. Chesney, who issued Friday’s ruling, found that the unions "raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration."

A hearing on the group’s request to permanently bar the implementation of the DHS rule is scheduled for October 1st before U.S. District Court Judge Charles Breyer.

We’ll let you know what happens.

(2) U.S. MILITARY OFFICER SENTENCED TO 17 YEARS FOR IMPORTING ECSTASY ON AIR FORCE AIRCRAFT

Last Friday, Master Sergeant John Fong of the U.S. Air National Guard was sentenced to 210 months in prison on federal narcotics charges stemming from his importation of Ecstasy on board a U.S. Air Force plane, the Drug Enforcement Administration announced. The sentence was imposed by United States District Judge John G. Koeltl.

"Justice has been served. John Fong betrayed the public trust by smuggling illegal drugs into the very community he was entrusted to protect. For his betrayal and for his illegal drug trafficking, he will be spending the next 17 years behind bars," stated Special Agent-in-Charge of the DEA’s New York Office, John P. Gilbride.

Fong, age 38, and his co-defendant Franklin Rodriguez, a former Captain in the U.S. Air National Guard, both pleaded guilty on May 19, 2006, to one count of conspiring to import into the U.S., and one count of conspiring to possess and distribute Ecstasy. The charges were the result of an international investigation of the importation of Ecstasy on military aircraft and the distribution of the drug in the United States.

According to the indictment, on April 12, 2005, Rodriguez and Fong flew from Germany to Stewart Air National Guard Base in Newburgh, New York, aboard a United States Air Force C-5A "Galaxy" cargo aircraft on which they had hidden more than 200,000 Ecstasy pills. Rodriguez also stored Ecstasy pills and approximately $725,000 in cash in his apartment in the Bronx, New York, and Rodriguez and Fong stored approximately 60,000 pills in an automobile in Tampa, Florida.

Rodriguez was sentenced to 17 ˝ years’ imprisonment in October 2006.

(3) SEN. SANDERS BLAMES INADEQUATE STAFFING, LOW MORALE FOR LONG LINES AT THE BORDER

With long lines and sometimes hours-long delays at checkpoints along the border of the United States and Canada, Senator Bernard Sanders (I-Vermont) hosted a public forum last week to address concerns about the situation. Sanders said the current border backlog can be blamed on multiple factors, including poor morale and low staffing levels within the Bureau of Customs and Border Protection (CBP).

"Staffing at the agency is inadequate," Sanders said. "Turnover is very high and we have less manpower than we need. And frankly morale is very low."

Colleen M. Kelley, president of the National Treasury Employees Union (NTEU), agreed with Sanders’ assessment. "Staffing levels at CBP remain far too low to handle air, land and seaport traffic," Kelley said. "In addition to media reports from around the country about long waits at border crossings and airports, CBP Officers in some ports of entry are stretched so thin they are being compelled to work overtime."

The Buffalo News reported recently that waits of one, two or three hours are not uncommon, the union leader added. However, the problem is not limited to the Canadian border, she said. Last week, the El Paso Times reported hours-long waits at the Mexican border.

"CBP employees are the first line of defense against terrorists, black-market weapons and illegal drugs entering this country," Kelley said. "The administration should be seeking additional resources that allow them to fulfill their dual roles of facilitating trade and tourism, while defending our nation’s borders."

(4) ICE REMOVES 168 ILLEGAL ALIENS IN LARGEST FLIGHT TO AFRICA IN TWO YEARS

In a special flight out of Niagara Falls, New York, last month, U.S. Immigration and Customs Enforcement (ICE) removed 168 illegal African immigrants to their home countries, the largest government charter flight to Africa in two years. Of those removed, 96 had criminal records, ICE officials reported.

The criminal records of the aliens included convictions of homicide, sexual assault, aggravated robbery and assault, fraud and forgery, importation, sale and/or possession of drugs, larceny, robbery, burglary, weapons possession, prostitution, reckless injury to a child and immigration-related violations. A special Justice Prisoner and Alien Transportation System (JPATS) flight was chartered to avoid putting criminals on commercial airline flights. The flight made stops in Liberia, Ghana and Nigeria.

"Many of the aliens removed on this flight are people who have broken the law in our communities," said William Cleary, field office director for ICE detention and removal operations in Buffalo. "While America is a welcoming country, ICE is committed to ensuring public safety and national security. When those who enter our country illegally then prey on our citizens, we are going to find them, prosecute them and remove them permanently from our streets, never to return."

In fiscal year 2006, ICE removed 197,804 illegal aliens from the country, a record for the agency and a 10 percent increase over the number of removals during the prior fiscal year. Already in fiscal year 2007, ICE has removed 217,599 individuals.

Of the aliens being removed from the United States last month, 104 were Nigerians, 40 were Ghanaians, and 24 were Liberians. Individuals had been housed at various detention facilities across the country and were staged at the Batavia Federal Detention Facility shortly before the flight.

ICE staffed the repatriation flight with ICE Detention and Removal officers, Public Health Service medical staff personnel, consular officers from Nigeria and Ghana and a member of the Nigerian High Commission stationed in Canada.

ICE manages alien transportation and repatriation flights via Special Charter Missions and JPATS. JPATS is a Department of Justice program that services the client agencies of ICE, the U.S. Marshals Service and the Bureau of Prisons, with ICE being the largest client, using over 65% of JPATS’ flight hours.

(5) MORE THAN 1,700 GROUPS TO PARTICIPATE IN HOMELAND SECURITY NATIONAL PREPAREDNESS MONTH

The U.S. Department of Homeland Security (DHS) announced last Friday that more than 1,700 national, regional, state, and local organizations will support the department by participating in National Preparedness Month 2007. This campaign occurs annually in September, and encourages Americans to prepare for all types of emergencies in their homes, businesses, schools, and communities. DHS promotes individual emergency preparedness through the Ready Campaign and the department’s Citizen Corps Program throughout the year.

"Too many individuals remain in a state of denial when it comes to personal preparedness," said Homeland Security Secretary Michael Chertoff. "Able-bodied Americans need to be prepared to take care of themselves and their families after an emergency, so that first responders can focus on those who need assistance most. With the help of our coalition members, we encourage Americans to get an emergency supply kit, make a family communications plan, and be informed about the different types of emergencies that may affect them."

During September, Coalition Members will share preparedness information with their members, customers, employees, and communities. National Preparedness Month activities will take place throughout the month, and a complete list of events can be found by clicking on www.ready.gov .

The purpose of National Preparedness Month is to encourage Americans to prepare for emergencies. DHS officials say that although significant progress has been made, there is still a long way to go to ensure that all Americans are prepared. A national survey conducted by The Advertising Council on behalf of Homeland Security in July found that 66 percent of Americans believe it is "very important" for individuals to prepare, and 54 percent report having taken some steps to prepare. The study also found progress on emergency preparedness among specific subgroups, including Hispanic Americans; men, particularly fathers; and employers.

(6) AGENTS COULD LAWFULLY SEIZE COUNTERFEIT MERCHANDISE WITHOUT A WARRANT UNDER THE PLAIN VIEW DOCTRINE, FEDERAL DISTRICT COURT RULES

Agents could lawfully seize counterfeit merchandise without a warrant under the plain view doctrine under certain circumstances, a federal district court in Louisiana has ruled.

In this case, a merchant doing business in Bossier City, Louisiana, made a complaint to the Shreveport Immigration and Customs Enforcement (ICE) office that another merchant in the mall was selling counterfeit jeans. Two ICE agents went to investigate the complaint. When they came to the booth, which bore the name "Classy Fashions," they immediately noticed what they believed to be counterfeit trademark clothing.

Having received extensive instruction and on-the-job experience in identifying counterfeit goods, the agents noticed that the "hang tags" on the products did not look authentic, and that they were attached with staples rather than the threads that are customarily used with designer jeans. They also noticed that the products were manufactured in countries in which the trademark holders do not typically manufacture their products.

The agents then contacted mall security for assistance in seizing the items. They also conducted a database check, and found out that the owner of "Classy Fashions" had been warned twice before about selling counterfeit goods. The agents spoke with the owner over the telephone, and told him that the items were counterfeit and were being seized. A few days later, after the seizure had already occurred, the agents had the seizure warrant signed.

The owner subsequently argued that the evidence in this case should be suppressed because the agents seized the goods without a warrant. He also contended that the agents did not have probable cause to make the seizure.

The court, however, disagreed. It explained that the plain view exception to the warrant requirement is applicable to the facts in this case. Specifically, the agents were lawfully in the Classy Fashions booth area, which was open for business, when they viewed the merchandise; the merchandise’s counterfeit nature was immediately apparent; and the agents had a lawful right of access to the clothing. Accordingly, said the court, the agents could lawfully seize the counterfeit merchandise without a warrant.

The court also dismissed the owner’s argument that the agents lacked probable cause to seize the items. The court explained that the facts in this case, when considered in combination with the agents’ training and experience, led the agents to believe that the merchandise was counterfeit. The totality of the circumstances – the hang tags not corresponding to those that are customarily used, the staples, and the countries where they were manufactured – gave rise to probable cause to support the agents’ warrantless seizure of the counterfeit goods in plain view, the court determined.

Accordingly, the court concluded that the agents had probable cause to believe the Classy Fashions merchandise in plain view constituted illegal counterfeit merchandise, and thus, a warrant was not required to seize the goods. Therefore, there was no Fourth Amendment violation, and no basis upon which to suppress the evidence.

The case is U.S. v. Nweke, U.S. District Court for the Western District of Louisiana, Shreveport Division, Criminal Action No. 06-50099, August 23, 2007.

FEDagent

Publisher: Shaw, Bransford, Veilleux & Roth, P.C.

Consulting Attorney: Debra L. Roth

Editor: Susan S. McWilliams

Website: http://www.fedagent.com

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