Blue Mountain Enterprises v. Owen

Where two or more separate and distinct wrongful acts are combined in the same cause of action in a complaint, a party may present a summary adjudication motion that pertains to some, but not all, of the separate and distinct wrongful acts. Where a defendant disposed of all of his ownership interest in a company in one contract while concurrently agreeing to refrain from carrying on a similar business within a specified geographic area in which the business was sold in another, the contracts are to be construed together, and the nonsolicitation covenant is enforceable. Individualized and targeted contact is not consistent with an advertisement or promotional activity directed to the public at large; a letter specifically addressed to past and potential clients that made a direct appeal for future work was a solicitation as a matter of law.

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Board of Trustees of the Western States Office and Professional Employees Pension Fund v. Welfare & Pension Administrative Service

For purposes of determining an employer’s annual withdrawal payment from a multiemployer pension plan, a surcharge paid by the employer when a plan is in critical status is not included in the calculation of the highest contribution rate.

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Few migrants escape Remain in Mexico, despite Biden-era reforms

 BY REBECCA BEITSCH 

Just a fraction of migrants subjected to the court-ordered reimplementation of the Remain in Mexico policy are dodging the program despite a concerted effort by the Biden administration to reduce the legal standard needed to bypass enrollment.

December figures released by the Biden administration earlier this month shows that just 12 percent of migrants were able to make the case that they would face danger if sent across the border to Mexico while pursuing asylum claims in the U.S.

The figures were alarming to immigration advocates, who have urged the Biden administration to abandon a policy they say releases asylum seekers into dangerous conditions in Mexico only exacerbated by the arrival of vulnerable migrants forced to wait there for months.

“It just points to how this program can't be fixed,” said Kennji Kizuka, a researcher with Human Rights First. “They can sort of jiggle the standards, they can adjust the procedures, but at the end of the day, they just can't make it safe, and they can't do the screenings properly or fairly.” 

The Biden administration reimplemented what is formally known as the Migrant Protection Protocols (MPP) in December, following a court order directing it to carry out the policy “in good faith” as they continue to appeal a lower court ruling.

The program still largely bars asylum seekers from entering the U.S. to wait out their case, continuing the Trump-era practice of sending them across the border to Mexico, but the memo from the Department of Homeland Security (DHS) included various reforms meant to help divert some asylum seekers from the program. 

“Secretary of Homeland Security Alejandro N. Mayorkas has repeatedly stated that MPP has endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and failed to address the root causes of irregular migration,” DHS said in a statement about the latest data, noting that it is committed to “implementing MPP in the most humane way possible.” 

DHS has directed border agents to affirmatively ask whether migrants have a fear of being sent to Mexico rather than wait for asylum seekers to raise the issue themselves.

And the department lowered the legal standard to bypass the program, requiring migrants only show a reasonable possibility they will face danger in Mexico, generally considered a one-in-ten chance — a lower threshold than the “more likely than not” standard used under Trump.

“Obviously, you can't actually do the math on persecution. So this just comes down to the discretion of the officer, and there's no appeal process here,” Kizuka said. 

Early data on the program shows few asylum seekers have been able to successfully escape MPP even though 91 percent of the 267 people initially enrolled in the program in December said they feared for their safety if sent to Mexico.

The 12 percent figure significantly trails those for asylum interviews conducted over the same period that use the same standard. Government figures for December show that nearly 30 percent of asylum seekers outside of MPP were found to have met the legal requirement to establish fear.

Migrants who travel to the U.S. are often fleeing danger and persecution in their own country before making a risky journey to the border that can often lead to another series of tragic events. 

But after being taken into U.S. Customs and Border Patrol custody, asylum seekers must outline concerns that are specific to Mexico. Much like in the U.S., migrants must make the case that they would face persecution in Mexico due to their race, gender, or membership in a particular social group.

Being a migrant could qualify as meeting the social group criteria, given the well-documented history of migrants being targeted for crime because of their vulnerability once sent to Mexico. But migrants are often ill-prepared for what is known as a non-refoulement interview (NRI) that determines whether their fear justifies exclusion from MPP. 

“The United States should not and cannot, legally, send people back to a country where they will be harmed because of who they are. So here you have a program where people are being sent back to Mexico, and because of who they are, because they are migrants in this very well-known program called MPP, they are extraordinarily vulnerable to kidnapping, to assault, to violence,” said Heidi Altman, policy director at the National Immigrant Justice Center.

“There are literally dozens of reports documenting this extraordinarily high risk of harm. If the standard is being correctly applied, how could anyone not pass their NRI?”

But many migrants struggle to make their case or navigate the labyrinth of requirements for meeting the standard, and they’re given just 24 hours to find and consult with an attorney ahead of the interview.

The short timeframe gives little prospect for success as many of the national legal aid groups that provide pro bono legal advice say they won't contract with the government to provide services — a refusal due to both to what some say is the inhumane nature of the program as well as being given a window that is simply too short to meaningfully provide legal advice.

Just 11 migrants secured an attorney ahead of their interview, which is conducted while they are in CBP custody speaking over the phone with U.S. Citizenship and Immigration Services staff who weigh their claims.

In the confusion, some migrants may not even understand they need to make Mexico-specific claims or that they aren’t being interviewed about their overall asylum plea based on issues in their home country.

“For all they know, they're about to be interviewed about their asylum claim and their fear of returning to their country of origin,” said Nicholas Palazzo, staff attorney with Las Americas Immigrant Advocacy Center.

It’s not that those in custody haven’t faced danger – he’s had clients that were raped and robbed along the journey. 

“In the Mexico context, it doesn't suffice to simply show that you were robbed or kidnapped or suffered any egregious form of violence. You have to show that your perpetrators specifically targeted you because of one of those characteristics,” he said. 

Under the Biden administration, MPP has also been expanded to include Haiti and other Caribbean nations, meaning a number of Black migrants who may not be Spanish speakers will also be sent to Mexico. 

It’s another group that Palazzo said should readily fit the criteria for exclusion from MPP but who may struggle on their own to show that they were targeted due to their race or not being a native Spanish speaker.

The handful of asylum seekers who did retain an attorney fared better – 36 percent managed to be removed from MPP and can await their full hearing in the U.S. 

While few asylum seekers were able to successfully argue for their diversion from MPP, the data shows that the government decided to remove another 10 percent of migrants after determining they had some other vulnerability that would disqualify them from being sent to Mexico.

Mexico only agreed to participate in the U.S. reinitiation of the program after it secured an agreement to exclude from MPP those with health issues, the elderly, and others who might be vulnerable there, including those who identify as LGBT. 

But Kizuka said CBP isn’t consistently screening out those people who ought to be excluded from MPP without ever needing to claim fear.

“One of those should be fairly easily identifiable is if someone is LGBT. But again, it's not really clear what screening CBP officers are actually doing because most people we talked to hadn't been asked that question at all,” he said.

“Part of the issue is that it's not clear what training the CBP officers have got and what they're being told to do. Even when they're doing the screenings, it's really cursory.”

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/index.html

10 arrested after Guatemala coordinated with US in raids against migrant smugglers

 BY LEXI LONAS

© Getty Images

Ten people were arrested after Guatemala coordinated with the U.S. Department of Homeland Security in raids against migrant smugglers on Friday.

Guatemalan officials said it carried out 19 raids against a migrant smuggling group that led to the arrest of eight men and two women, Reuters reported.

The raids where the 10 were arrested were conducted in Comitancillo, according to a national police spokesperson. 

The group is known for smuggling Guatemalan migrants to Mexico, a dangerous journey that ended last year with a massacre of 19 people.

Of the 19 people killed in Mexico, 16 were Guatemalans and most were from Comitancillo, according to Reuters. 

Migrants in Central America make the journey through Mexico in hopes of ultimately crossing the U.S. border, but the trip is dangerous and many die or fall victim to crime.

Last year, Vice President Harris said during a trip to Guatemala that migrants should not try to come to the U.S.

"I want to emphasize that the goal of our work is to help Guatemalans find hope at home. At the same time, I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States Mexico border: Do not come, do not come," Harris said.

The U.S. has been working with Central American countries to limit migrants coming to the border as the number of crossings have increased during the Biden presidency.

The Hill has reached out to Department of Homeland Security for comment.

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/index.html

Hispanics sour on Biden and Democrats' agenda as midterms loom

 BY MANUEL A. ROSALES, OPINION CONTRIBUTOR

President Biden comfortably won the Hispanic vote in 2020 by 59 percent, according to the Pew Research Center. Yet a Quinnipiac Poll this month showed Biden’s job approval rating among Hispanics plummeted to just 28 percent. So, what happened? It’s important to know because defection of a once reliable voting bloc could signal disaster for the Democratic Party in this year’s midterm elections and, possibly, loss of majority control in the House and Senate.

From my perspective as an immigrant from Nicaragua, combined with analysis of reliable polls, what happened seems clear.

First, Hispanic voters care about the same things as most everyone else, despite contrary narratives on TV. The economy and health care consistently rank at the top of their concerns, especially given COVID-19. They’re not happy. A late 2021 report by FiveThirtyEight.com cites a Politico/Morning Consult poll showing the dip in their approval of Biden’s job performance from 60 percent to 42 percent on the economy, and 65 percent to 45 percent on his handling of the pandemic over just four months.  

Latinos were disproportionately hurt by COVID, which explains a lot. According to the Centers for Disease Control and Prevention (CDC), their case rates were significantly higher than Blacks, non-Hispanic whites and Asians — nearly triple the latter. Moreover, the CDC claims that racial and ethnic minority groups, overall, have been impacted the worst. 

Economically, Hispanic Americans were crushed by lockdowns that impacted businesses where many of them work, such as bars, restaurants, barbershops, resorts, hotels and cafes. Though Vice President Kamala Harris was right to note that “sadly, during the course of the pandemic, one-third of our small businesses have closed,” she also supported lockdowns to contain the virus, which contributed to business closures. 

Second, despite the straw man arguments in the media that bind the Latino vote to immigration and equate border security with racism, polls don’t back them up. A September 2020 Pew Research poll on top election issues among Hispanics ranked immigration eighth in importance. Even more conflicting, most U.S. Hispanics’ views on immigration are opposite of what we often hear on TV. As this month’s Quinnipiac Poll shows, Hispanics gave Biden just a 23 percent approval rating on immigration, down from 49 percent last May.

It’s not surprising. Roughly 2 million people from around the world illegally crossed our southern border in 2021 alone. Authorities stopped most of them, but hundreds of thousands were not stopped. Many underage migrants reportedly were put on “midnight runs” on airplanes to stealthily resettle them around the country, which the Biden White House has downplayed.

Of the roughly 15,000 Haitians who illegally crossed the Rio Grande and swarmed Del Rio, Texas, last year, many trekking from Chile about 5,000 miles away as immigration restrictions tightened, Homeland Security Secretary Alejandro Mayorkas acknowledged that some 12,000 would be admitted into the U.S. to process their claims. Most probably will never leave.

Who gets hurt by open borders? U.S. Latinos, Black, brown and white. They lose jobs because of shadow economy wages often found in immigrant-heavy industries such as farming, meat packing and construction. That’s why E-Verify remains a must-have national policy.

Third, Biden’s numbers among Hispanics are plunging because many Democrats are sprinting to the left, glorifying socialism, celebrating communist Cuba, and generally leaving these voters behind. 

Some, such as Rep. Ruben Gallego (D-Ariz.), are waking up to reject woke terms such as “Latinx,” since only about 2 percent of Latinos recognize it and 40 percent are offended by it. A 2021 Gallup poll showed that, by a roughly 2-to-1 margin, Americans believe athletes should compete according to the gender listed on their birth certificates, not their preferred gender identification, and since most Hispanics are socially conservative, it’s easy to guess where most stand on this issue.

Critical Race Theory weaved into our education system discriminates against Latinos, who identify as “white,” thereby ignoring calls for racial equality. The progressive push for late-term abortions is repulsive to most Latinos. So is skyrocketing crime, and several Democrat-led cities have moved to defund or restrict police, failing to arrest or prosecute many criminals. 

Rep. Alexandria Ocasio-Cortez (D-N.Y.) hurts Biden by association for her endless circus that embarrasses many fellow Hispanics. This includes a widely mocked staged photo shoot at the southern border; her bizarre claim that Republicans criticize her out of unsatisfied lust; and her defying mask mandates that Democrats pushed, only to test positive for COVID after partying in Miami over the holidays.  

Who is funding the allegedly “pro-Hispanic” progressive positions, anyway? The Forbes Real-Time Billionaire List shows U.S. Latinos represent just a few of the country’s 700-plus influential billionaires, and those individuals aren’t associated with activism. Yet, since the 10 wealthiest Americans, worth more than a trillion dollars collectively, all are non-Hispanic white liberal mega-donors — except for Elon Musk, who donates to both major political parties — it’s easy to guess who’s funding these positions. 

Many Latinos appear to have wised up to Biden, and their support for Democrats isn’t guaranteed. 

Manuel A. Rosales, a Vietnam-era Army veteran, is owner of Inter-American Financial Services. He is a former deputy director of coalitions for the Republican National Committee (2009-11), former president and CEO of Caribbean Central American Action (2007-09), and former associate administrator of the U.S. Small Business Administration (2001-07).

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/index.html

Democrats say change to filibuster just a matter of time

 BY ALEXANDER BOLTON

Democratic lawmakers, aides and strategists believe it’s just a matter of time before the Senate filibuster is substantially changed to limit the minority’s ability to stop legislation, despite a defeat on the matter last week.

Anger throughout the party at Sen. Kyrsten Sinema’s (D-Ariz.) opposition to changing the filibuster, which helped derail a final vote on voting rights legislation, signals opposition to filibuster reform as an increasingly untenable position with the Democratic Party, they say.

Sinema and fellow centrist Sen. Joe Manchin (D-W.Va.) opposed a proposal last week to change the rules to force GOP senators to go to the floor to carry out their filibuster.

But Democratic activists predict such a position will be unworkable soon for any Democrat, whether they are a liberal or centrist.

“I really do think Sinema and Manchin are the last two members of the Senate Democratic Caucus that will ever support keeping the filibuster in its current form,” said Brian Fallon, a former senior aide to Senate Majority Leader Charles Schumer (D-N.Y.) who is now executive director of Demand Justice, a group that advocates for a more progressive judiciary.

“It’s hard to imagine anybody getting elected in the future that won’t arrive on a platform of getting rid of the filibuster,” he added.

In the competitive Pennsylvania Senate Democratic primary, both leading candidates, Lt. Gov. John Fetterman and centrist Rep. Conor Lamb, have called for getting rid of the filibuster.   

In the Wisconsin Senate Democratic primary, Lt. Gov. Mandela Barnes, Outagamie County Executive Tom Nelson and Milwaukee Bucks executive Alex Lasry have also supported scrapping the filibuster.   

“You’re seeing that phenomenon take hold with candidates in primaries. Mandela Barnes is for getting rid of the filibuster, John Fetterman is getting rid of the filibuster. Even [Democratic Rep.] Val Demings, who is trying to run a more moderate [Senate] campaign in Florida,” Fallon noted.   

And in the Senate, centrists including Sens. Jon Tester (D-Mont.), Angus King (I-Maine), Mark Kelly (D-Ariz.) and Chris Coons (D-Del.) have now gone on record as supporting a rule change that would require opponents to actively hold the floor with debate in order to block voting rights legislation.  

“It was smart strategy by Schumer to see the process through all the way to its bitter conclusion even if you knew you weren’t going to get the 50 votes. What has now happened is the 48 other Democrats have now cemented their position in favor of change. Forcing the issue has hardened the position from everybody from long-term stalwarts of the institution like Pat Leahy to red-staters like Jon Tester to in-cycle members who are generally cautious like Maggie Hassan and Kelly of Arizona,” Fallon added.

Ray Zaccaro, a former senior adviser to Sen. Jeff Merkley (D-Ore.) who helped spearhead the push to establish a talking filibuster to require Republicans to actively hold the Senate floor said filibuster reform will be a major issue in the 2022 midterm elections.

“It’s nearly unthinkable now to imagine the subject of Senate reform not being a very serious and broadly discussed component of any 2022 Senate race, certainly for the primaries,” he said.

Zaccaro said while 48 Democratic senators voted to require a talking filibuster only for the consolidated voting rights bill that passed out of the House, it still was a major step toward changing the Senate’s rules considering how divided the party has been in recent years on filibuster reform.

“If you consider where they come from and where they were and what they’ve gotten to, it’s a remarkable turn. It’s hard to really imagine too many other issues where we’ve seen the party coalesce in that way in the course of just one year,” he said.

Schumer was noncommittal about the prospect of filibuster reform after Democrats took over the Senate majority a year ago, telling reporters that members of his caucus would first have a wide-ranging discussion before setting out a strategy.

A major shift in party sentiment on the issue came in July 2020, when former President Obama called the filibuster a “Jim Crow relic” while speaking at the funeral of Rep. John Lewis (D-Ga.), for whom this Congress’s voting rights legislation is named.

Rules reformers said a breakthrough came in March of last year when President Biden said he agreed with Obama that the filibuster “was a relic of the Jim Crow era.”

Schumer on Thursday declared that he’s not going to give up the fight to change the Senate rules to passing election reform and voting rights legislation, which means the issue is coming back to the floor at some point in the future.

“I believe that the lessons of history are clear. When representatives have to take a stand, when they have to show the American people where they are on the issues, the right side of history ultimately prevails,” he said.    

If Democrats can add two seats to their Senate majority in November by picking up the open seat held by retiring Sen. Pat Toomey (R-Pa.) and vulnerable incumbent Sen. Ron Johnson (R-Wis.), they can overcome the opposition of Sinema and Manchin to rules reform.   

Democratic strategists, however, caution that future control of the House is also a key factor. If Democrats lose control of the House in 2023, that would blunt the momentum for reform.   

They say that hitching rules reform to a popular issue, such as voting rights, immigration reform or reproductive rights legislation, enhances the chances of mustering the 50 votes needed in the Senate.   

“I do truly think that there was progress made toward real filibuster reform. The conversation has shifted from being one where filibuster reform was seen as a progressive position where now it’s seen as a consensus position across the Democratic Party,” said Eli Zupnick, a former Senate aide and the spokesman for Fix Our Senate, a coalition of more than 80 groups in support of filibuster reform.

Zupnick also pointed to Lamb, the centrist Senate Democratic candidate in Pennsylvania, as well as Tester as supporting reform.

“It’s a matter of when, not a matter if” Senate Democrats change the filibuster rule, he said. “If Democrats win another few seats in 2022, hold the House ... then I think they will quickly move to adjust the filibuster.”

“No matter what, the filibuster is not long for this world and this month has done a lot to move us in that direction,” he said.   

The shifting sentiment among Democrats regarding the filibuster and the minority party’s ability to stop legislation is something the late Senate Majority Leader Harry Reid (D-Nev.) predicted.

“The filibuster is on its way out,” Reid told MSNBC’s Joy Reid last year. “It’s not a question of if but when. It may not be tomorrow or six months from now, but the filibuster is doomed for failure. You can’t have a democracy that requires 60 percent of the vote on everything.” 

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Democrats ask for information on specialized Border Patrol teams

 BY RAFAEL BERNAL

© Greg Nash

Congressional Democrats on Monday called on the Biden administration to clarify the Border Patrol's internal investigations into allegations of misconduct by agents.

In a Monday letter to Customs and Border Protection (CBP) Commissioner Chris Magnus, Reps. Carolyn Maloney (D-N.Y.) and Bennie Thompson (D-Miss.), chairs of the House Oversight and Reform Committee and the House Homeland Security Committee, asked about the Border Patrol's use of "critical incident teams" (CITs) to respond to emergencies and investigate allegations against agents. 

"Congress has not provided the U.S. Border Patrol with specific authority to conduct investigations of its agents’ misconduct, and the CBP Commissioner has not publicly delegated this authority to Border Patrol," wrote Maloney and Thompson. 

"Despite the apparent lack of authority to investigate agent misconduct, Border Patrol appears to have created special teams of agents to investigate and collect evidence following incidents that may create criminal or civil liability, including allegations of excessive use of force," they added.

CBP is the Border Patrol's parent agency.

Human rights groups have been vocal in calling on Congress to investigate CITs, which according to Maloney and Thompson "are not mentioned in the most recent version of CBP’s Use of Force Administrative Guidelines and Procedures Handbook."

According to the Southern Border Communities Coalition, the Border Patrol has used what the coalition calls "shadow police units" dating back to 1987. 

While CITs are not in the CBP manual, the agency recognized the existence of Border Patrol "teams with specialized evidence collection capabilities" after advocates denounced the existence of CITs in November. 

Maloney and Thompson referenced the investigation that followed the 2010 killing of Anastasio Hernández Rojas, who died in Border Patrol custody, reportedly after being beaten and tasered while handcuffed.

The federal investigation into Hernández's death found his killing "justifiable," but advocates say the case is a prime example of the dangers of a self-investigating law enforcement agency.

"One Critical Incident Team allegedly tampered with evidence during the 2010 investigation of the killing of Anastasio Hernández Rojas. In particular, the Critical Incident Team assigned to that case allegedly served an administrative subpoena for Mr. Hernandez Rojas’s medical records and then refused to provide San Diego Police Department investigators with the records," wrote Maloney and Thompson.

"The Critical Incident Team also allegedly altered the Border Patrol apprehension report to remove the narrative of the border agent who first encountered Mr. Hernandez Rojas, and failed to preserve video footage of the incident requested by the San Diego Police Department," they added. 

In a separate letter on the matter to Government Accountability Office (GAO) Comptroller Gene Dodaro Monday, Maloney and Thompson were joined by House Judiciary Chairman Jerry Nadler (D-N.Y.); Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee; Sen. Gary Peters (D-Mich.), chair of the Senate Oversight Committee; Sen. Alex Padilla (D-Calif.), chair of the Senate Judiciary Subcommittee on Immigration; Rep. Nanette Barragán (D-Calif.), chair of the House Homeland Security Subcommittee on Border Security; Sen. Kyrsten Sinema (D-Ariz.) chair of the Senate Homeland Security Subcommittee on Border Management; Rep. Zoe Lofgren, chair of the House Judiciary Subcommittee on Immigration and Citizenship; and Rep. Jamie Raskin (D-Md.), chair of the House Oversight Subcommittee on Civil Rights and Civil Liberties.

That letter asked GAO to investigate CBP's use of CITs, focusing on the groups' evidence-collecting mission. 

"We would like to better understand the roles and responsibilities of these Critical Incident Teams, including their authorities, activities, training and oversight," the members wrote.

CBP officials did not immediately respond to a request for comment on this story.

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/index.html

Hughes v. Northwestern University

 Determining whether plausible claims have been asserted against plan fiduciaries for violations of ERISA’s duty of prudence requires a context-specific inquiry of the fiduciaries’ continuing duty to monitor investments and to remove imprudent ones; even in a defined-contribution plan where participants choose their investments, plan fiduciaries must conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options; if the fiduciaries fail to remove an imprudent investment from the plan within a reasonable time, they breach their duty.

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Hispanic Democrats hear out Harris aide, expect support on immigration reform

 BY RAFAEL BERNAL

© PBS.org

Vice President Harris's top communications aide survived the first major challenge of his tenure, after delivering apologies to congressional Hispanic Democrats over decade-old tweets that seemingly made light of immigration enforcement arrests.

Harris Communications Director Jamal Simmons on Thursday met via teleconference with Congressional Hispanic Caucus (CHC) members to address the tweets, which re-surfaced shortly after his position was announced earlier this month.

"Jamal was apologetic and seemed open during the meeting. He said that he was ready and willing to work with the CHC," said a source familiar with the conversation, which took place at the CHC's weekly members meeting.

Still, Simmons received pushback in the meeting, particularly from the group's most senior senator, New Jersey's Bob Menéndez, who led the push in the upper chamber to include immigration provisions in President Biden's signature Build Back Better (BBB) spending legislation.

According to another source in the room, “Menendez emphasized how his actions are more important than words from now on, and reminded Simmons to be thoughtful before saying anything that can hurt an entire community.”

Simmons' presentation to the CHC was preceded by a blitz on social media and direct calls to lawmakers, with powerful allies in the immigrant community vouching for the Harris aide.

Simmons, who previously worked at progressive public affairs firm The Raben Group and as a progressive political commentator including at Hill.TV, has a history of taking left-leaning positions on an array of issues, including immigration, before and since the tweets in question.

Still, some members of the CHC and many in the Hispanic community found it hard to forgive one tweet, where Simmons made a flippant remark questioning immigration arrests.

Rep. Lou Correa (D-Calif.), who decided not to attend the meeting because of the nature of that remark, said Simmons' "acid test is going to be the test of time."

"I think people have to recognize the sensibilities of our community," said Correa.

"These people are terrified. To have statements like these made is a total disregard for what’s going on on Main Street," added Correa, who's become one of the most vocal defenders of immigrant rights in the CHC.

While Simmons' 2010 comment contrasts with his historical and current stated positions on immigration, it hit a third rail with immigrant communities.

In the tweet, Simmons asked why Immigration and Customs Enforcement (ICE) was not "picking … up" an undocumented activist and a law student who outed their immigration status on live television.

In an apology to Erika Andiola, the activist in question, Simmons said he was not advocating for ICE to arrest the two, rather questioning the wisdom of undocumented people publicly outing their status.

Andiola, who publicly accepted Simmons' apology, said she in part accepted his apology "because people who I truly love and respect (including undocu folks) know him, and they've known his stances on immigration for years."

".@VPHarris has the power to ignore the Parliamentarian if BBB goes to the Senate floor for a vote. No, the Comms Director doesn't work on policy, but it sure won't hurt to have someone influence the VP. Just saying," added Andiola.

Both members who accepted the apology and who didn't pointed to the immigration reform fight as a field where Simmons could make significant amends beyond verbal apologies.

Correa, who said he represents more Dreamers than any other member, said the issue goes beyond a single tweet, and beyond Simmons.

"My concern also is it creates a narrative – another point in a narrative of predispositions and attitudes that we are willing to accept," said Correa.

"You make those statements and they become essentially acceptable. That’s the damage."

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/index.html

Vines v. O’Reilly Auto Enterprises

 Where evidence of the facts regarding the alleged underlying discriminatory and harassing conduct about which the plaintiff had complained was relevant to establish, for the retaliation cause of action, the reasonableness of his belief that conduct was unlawful, a trial court abused its discretion in finding the claims were not sufficiently related or factually intertwined to support an award of attorney fees under the Fair Employment and Housing Act.

For more information contact us at http://www.beverlyhillsemploymentlaw.com

Top Latina advocate: Hispanics need Biden spending bill, homeownership and immigration

 BY RAFAEL BERNAL

© Greg Nash

The head of the country's largest Hispanic civil rights organization on Thursday delivered a straightforward recipe for Hispanic prosperity to Congress: Pass President Biden's Build Back Better bill, promote homeownership and deliver on immigration reform.

UnidosUS President Janet Murguía plans to tell the House Select Committee on Economic Disparity and Fairness in Growth that structural factors perpetuate economic gaps that hamper productivity and perpetuate income and wealth gaps.

"​​Latinos have incredible resilience and fortitude — I urge you to imagine the contributions they could make to the economy if our community had a fair and equal opportunity to thrive," said Murguía in her prepared statements obtained by The Hill.

Murguía's comments will come as part of a committee hearing on race and inequality.

According to research by UnidosUS, Latina-led families have a median net worth equal to a nickel on the dollar of families led by white men, and about a dime on the dollar to the net worth of families led by white women.

In her written testimony to the committee, Murguía wrote that Black families have a median net worth of $24,000, Hispanic families of $36,000 and white families of $188,000.

"The moment has never been more critical: Latinos are more likely to die from COVID-19, less likely to have health insurance, and more likely to struggle to make ends meet. Importantly, the systems that exacerbate inequality and keep Latinos from building wealth can be addressed," said Murguía.

Murguía emphasized the child tax credit provisions in the Build Back Better bill, saying monthly payments instituted by the Biden administration — which recently expired — kept 3.8 million children from poverty.

Biden's massive spending package is currently stalled in the Senate. Biden on Wednesday admitted his signature legislation would have a better chance to make it to his desk in a piecemeal fashion.

"Second, homeownership is the single most powerful strategy for closing the racial and ethnic wealth gap," said Murguía.

She called on Congress to approve down payment assistance and improve housing availability to aid in that goal, but also tied educational investment and student aid relief to homeownership.

"And to enable savings that allow homeownership and financial well-being, Congress should make college education more equitable by investing in completion grants and canceling student loan debt," said Murguía.

The UnidosUS head added that immigration reform with a pathway to citizenship for undocumented immigrants would be beneficial to the economy as a whole.

"Immigrants have long been part of the solution to labor shortages, yet last year, the U.S. saw the lowest levels of international migration in decades," she said.

The original version of Biden's spending package included a pathway to citizenship for a majority of the country's nearly 11 million undocumented immigrants, but that number was whittled down in negotiations with the Senate parliamentarian.

Because Democrats are trying to pass the Build Back Better bill without Republican support, they need to conform to stricter Senate rules that allow them to bypass a potential filibuster and approve the legislation with 50 votes and Vice President Harris's tiebreaker.

Despite the parliamentarian's refusals to accept immigration provisions in that process, many advocates still see the piecemeal strategy as the best possible vehicle to include any sort of broad immigration benefits for undocumented immigrants.

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Espinoza v. Hepta Run

 The Motor Carrier Safety Act’s hours of service regulations apply to short haul drivers; the fact that those drivers are exempted from one rule does not remove them from the universe of drivers subject to the hours of service rules, and it is not reasonable to read the language of the order to suggest they are. In order to cause a violation of the Labor Code, an individual must have engaged in some affirmative action beyond his status as an owner, officer or director of the Corporation; this does not mean the individual must have had involvement in the day-to-day operations of the company, nor is it required the individual authored the challenged employment policies or specifically approved their implementation, but to be held personally liable he must have had some oversight of the company’s operations or some influence on corporate policy that resulted in Labor Code violations.

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Rift grows between Biden and immigration advocates

 BY RAFAEL BERNAL AND REBECCA BEITSCH

When images of Border Patrol agents on horseback aggressively corralling Haitian migrants filled the airwaves in September, immigration advocates were shocked to see cruelty that rivaled anything they'd denounced under former President Trump.

What followed was not the reckoning on immigration enforcement that President Biden's allies in immigration advocacy expected, but a top-level push to send immigration to the back burner in favor of other policy issues.

"I never would have predicted this White House, within Year One, would be expelling Haitians to a failed state," said Frank Sharry, executive director of America's Voice, a progressive immigration policy organization.

"In December of 2020 we're talking about a transformative vision. And in 2022, expelling Haitians without a meaningful asylum process. Wow."

The arrival and subsequent expulsion of about 15,000 Haitians in Del Rio, Texas, and its aftermath cemented advocates' fears that Biden's early promises of an optimistic, wide-ranging, humanitarian approach to immigration had devolved into a tactical day-to-day management of a political liability.

A year in to the Biden administration, policy victories have been overshadowed by Trump-era holdovers that together block the majority of migrants from seeking asylum: either immediately expelling them from the U.S. without the chance to apply - the outcome for many Haitians in Del Rio - or forcing them, like under Biden's predecessor, to await their asylum court date in Mexico.

"The administration started very strong and announced a lot of things as on Inauguration Day or shortly thereafter that many of us took as a positive signal of things to come," said Jorge Loweree, policy director with the American Immigration Council, pointing to Biden's reversal of the so-called Muslim travel ban.

But the politics of the border have clouded many of its immigration decisions, he said.

"The issues at the border seemingly made the administration reticent to do much of anything on immigration for fear of the potential consequences, which has been very disappointing," he said. "Frankly, things could have gone much different."

Biden administration officials on Wednesday went on a media blitz to defend the administration's accomplishments, with Homeland Security Secretary Alejandro Mayorkas and Esther Olavarria, the deputy director for immigration on the Domestic Policy Council, touting the administration's immigration accomplishments.

"In this first year, we have been building an immigration system that was dismantled by the prior administration. We have had to rescind cruel policies, bring offices back to life, issue new policies, rebuild entire operations," said Mayorkas.

"At the outset, we established a fundamental principle, and that is the respect for the dignity of each individual," he added.

Biden has signed nearly 300 executive actions on immigration, many of them reversing Trump policies like the public charge rule, and moved away from an immigration enforcement agenda where any undocumented person was considered a priority for removal.

Still, the administration has placed emphasis on touting economic and social policies - not immigration - in talking points distributed to congressional offices by the White House for Biden's first anniversary as president. In those talking points, there was not a single note on immigration.

Two policies are central to the rift between the administration and advocates: Title 42 and the Migrant Protection Protocols (MPP), also known as "Remain in Mexico."

"If we look at the whole picture, we've made some progress as policy goals: the plans to boost refugee admissions, the halt to workplace raids, ending enforcement of the public charge," said Rep. Jesús García (D-Ill.), one of three Democrats who led the charge to keep immigration provisions in Biden's signature Build Back Better (BBB) legislation.

"But of course, I remain alarmed by the number of Trump's worst policies that are still in place - Title 42 and Remain in Mexico," added García.

The latter is a policy that by the administration's own admission cannot be humanely implemented: It requires prospective asylum-seekers to wait in Mexico while their claims are adjudicated by U.S. courts.

Mayorkas has twice issued memos rescinding MPP, but courts have forced the Biden administration to reimplement it.

While Mayorkas has denounced MPP, the Department of Homeland Security also expanded the program as it sought to fulfill court orders requiring continued implementation of MPP, a program that under Trump only applied to citizens of El Salvador, Guatemala and Honduras.

"This isn't Remain in Mexico as we know it. It's an expansion - the Biden administration policy expands the nationalities subject to forcible returns," said García.

And Title 42, on paper a pandemic-related sanitary protection that allows U.S. officials to immediately expel foreign nationals caught at the border under the auspices of Centers for Disease Control and Prevention authority, has been even more divisive.

Administration officials had signaled they would wind down Title 42, but that initiative lost steam with the emergence of the Delta variant and nonstop press coverage of Del Rio and monthly border apprehension numbers.

"We kept hearing Title 42 is going to be taken down in late 2020, or at least rumors of that and they were making arrangements," said Sharry, of America's Voice. 

"But they didn't stick with it. They didn't follow through. Instead of going forward, they decided to go back and take the heat. I just think that as a policy matter, it's a short-term reaction that will solve nothing in the end, and as a political matter, I think it's trying to placate those who hate you instead of deliver for those who back you," he added.

The Biden administration's sensitivity to press coverage and criticism from the right has become a major point of frustration for immigrant advocates throughout the political spectrum.

"I think the key decision makers in the Biden administration are of the position that migrants who are already here are beneficial and should be integrated and should get citizenship," said David Bier, an immigration policy expert at the Cato Institute.

"But future immigration is not seen as an opportunity to be harnessed to the benefit of a country, it's seen as a detriment. It's seen as a problem to be managed, rather than an opportunity to grow and improve the country," added Bier.

Faced with a wide array of domestic and international challenges, the administration and its closest Democratic allies have become hypersensitive to criticism on immigration, choosing instead to publicly address other policy priorities.

"The hypersensitivity could be coming either from Republicans that are trying to project, I think wrongfully, that everything that's wrong with our country is directly connected to the migration patterns on the southern border, or the hypersensitivity could also come from that guy on a horse with a whip," said Rep. Adriano Espaillat (D-N.Y.).

That risk-averse approach has made the administration stingy when called upon to expend political capital on immigration bills in Congress.

After an initial proposal that laid out the administration's immigration wish-list, including a pathway to citizenship for 11 million people, the pledge to pass systematic immigration reform through Congress never materialized. 

Discussions in Congress to include immigration in the BBB proposal whittled away the number of immigrants that it would help, as the Senate parliamentarian repeatedly rejected proposals that she said stretched the bounds of procedures needed to pass legislation with just 50 votes.

García, along with Espaillat and Rep. Lou Correa (D-Calif.), threatened to vote against both BBB and the bipartisan infrastructure deal if immigration provisions were discarded.

Ultimately, the House passed a bill that would provide up to 10 years of work authorization for those already in the U.S., a status that could be used as a springboard to citizenship for up to 3 million people. The Senate has yet to take up the measure.

"The administration obviously deserves credit for very early on sending a broad immigration reform package to Congress. But we've also seen a lack of leadership from the administration during the legislative debates that followed. It was at many moments unclear what the administration supported and believed to be priorities, which complicated matters on the Hill," Loweree said.

The failure to legislate - hardly exclusive to the Biden administration - was preceded by Biden's high-flying campaign promises and the pain of unfettered immigration enforcement during the Trump administration.

In the whiplash between a president who'd promised a wall and mass deportations and a president with the most liberal immigration platform in decades, advocates saw an opportunity for a realistic shot at reform, whether legislative or through executive action.

"We have not seen the president really step up to the plate on those more politically challenging issues. And he needs to do that to deliver on his promises and to uphold his own vision and principles on immigration," said Greg Chen, director of government relations for the American Immigration Lawyers Association.

Sen. Bob Menendez (D-N.J.), who led the Senate push to include immigration in BBB, put the onus on the administration to keep the issue alive.

"In 2022, when immigration policy and border management will be focal points of national debate, the Biden-Harris administration cannot run away from immigration policy," Menendez said.

"Instead, it is the time for them to work in lockstep with Congress on any and all options to achieve inclusive and humane reform," he added.

And some Democrats saw the opportunity to build base loyalty to rival Trump's, or the risk of alienating immigrant-friendly voters.

"I probably represent the largest number of Dreamers in the country, and my community is certainly immigrant and not only Latino, but from around the world. People are saying, you know, we've had it with Democratic promises," said Correa. 

"So this is a very precarious position right now for the Democratic Party. If nothing is done on immigration reform, there's going to be some difficult challenges for the Democrats next election cycle," he added.

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