Sunday, July 24, 2011

OCAHO Says Reporting Unauthorized Workers Is Not Protected Under INA §274B

The Office of the Chief Administrative Hearing Officer (OCAHO) found that there is no cause of action under INA §274B(a)(5), where the employee alleges retaliation for reporting the presence of undocumented workers or other violations that fall under INA §274A. (Cavazos v. Wanxiang, 4/27/11).

OCAHO says reporting unauthorized workers is not protected under INA §274B (5/13/2011) OCAHO found that there is no cause of action under INA §274B(a)(5), where the employee alleges retaliation for reporting the presence of undocumented workers or other violations that fall under INA §274A.

The Seventh Circuit, in which this case arises, has construed the statute the same way without reference to our case law, noting that § 1324b(a)(5) “does not cover all activities that implicate any provision of the immigration laws; it is limited to complaints and charges regarding discrimination based on national origin and citizenship . . . .” Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 814 (7th Cir. 2003), aff’g No. 00 C 6542, 2002 WL 1888489 (N.D. Ill. Aug. 15, 2002). The Arres court, while affirming the district court on other grounds, found it was error for the lower court to award summary judgment to the defendant Remcor based on the mistaken view that § 1324b(a)(5) provided a remedy for individuals who filed a charge or complaint about violations of immigration law. Id. at 813. The court observed that even had there been a federal remedy for Arres, such remedy would not automatically have precluded a state claim for retaliatory discharge. Id. at 813-14. See also, Tiengkham v. Electronic Data Sys. Corp., 551 F. Supp. 2d 861, 871 (S.D. Iowa 2008) (agreeing with Arres about the limited nature of the cause of action contained in § 1324b(a)(5), and finding that plaintiff’s state action for retaliatory discharge for reporting the presence of illegal aliens at the plant was not preempted because it did “not come within ‘the preemptive scope’ of 8 U.S.C. § 1324b”).

The Office of the Chief Administrative Hearing Officer (OCAHO) is headed by a Chief Administrative Hearing Officer who is responsible for the general supervision and management of Administrative Law Judges who preside at hearings which are mandated by provisions of law enacted in the Immigration Reform and Control Act of 1986 (IRCA (PDF)) and the Immigration Act of 1990 (PDF). These acts, among others, amended the Immigration and Nationality Act of 1952 ( INA).

Administrative Law Judges hear cases and adjudicate issues arising under the provisions of the INA relating to (1) knowingly hiring, recruiting, or referring for a fee or the continued employment of unauthorized aliens, and failure to comply with employment verification requirements in violation of section 274A of the INA (employer sanctions); (2) immigration-related unfair employment practices in violation of section 274B of the INA; (3) immigration-related document fraud in violation of 274C of the INA; and (4) failure to comply with the information dissemination provisions for international match making organizations in violation of 8 U.S.C. 1375a. Complaints are brought by the Department of Homeland Security, the Office of Special Counsel for Immigration-Related Unfair Employment Practices in the Department of Justice, or private individuals as prescribed by statute.

Hearings are conducted under applicable laws and regulations, as well as the general requirements of the Administrative Procedure Act. Employer sanctions and document fraud cases are subject to administrative review by the Chief Administrative Hearing Officer. All final agency decisions are subject to review in federal courts.

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