Mr. Martinez (Maybe) Goes to Washington: NJ Chief Administrator to be Appointed by President Trump

Raymond Martinez, the current Chair and Chief Administrator of the New Jersey Motor Vehicle Commission (“MVC”), is to be appointed by President Trump as the next Administrator of the Federal Motor Carrier Safety Administration (“FMCSA”). The FMCSA is a separate administration within the U.S. Department of Transportation and is tasked primarily with ensuring safety in motor carrier operations through strong safety regulation enforcement.

Mr. Martinez has served under Governor Christie since 2010. In his role as Chief Administrator, Mr. Martinez directs 2,400 employees at 71 MVC locations across New Jersey. He also serves as Chairman of the Motor Vehicle Commission Board, a policy-making body comprised of government and public members. Governor Christie appointed Mr. Martinez as an Executive Branch Member of the State Planning Commission, where he is called upon to represent state government in the oversight of environmental protection issues, land use, development and redevelopment.  In 2015, Mr. Martinez was selected by the American Association of Motor Vehicle Administrators (“AAMVA”) to serve as a member of its International Board of Directors.

Mr. Martinez has been active in the public arena for more than twenty years. From 2005 to 2009, he served as the Deputy U.S. Chief of Protocol and Diplomatic Affairs for the U.S. Department of State, and the White House under President George W. Bush. As such, Mr. Martinez was responsible for managing five operational divisions: Diplomatic Affairs, Foreign Visits, Ceremonial Events, Blair House, and Administration. Between 2000 and 2005, Mr. Martinez served as the Commissioner for the New York State Department of Motor Vehicles as well as Assistant General Counsel for the Long Island Power Authority. During President Reagan’s administration, he served as Deputy Director for Scheduling and Advance for First Lady Nancy Reagan. He also held roles in the U.S. Department of Housing and Urban Development, within the New York State Senate, and as a private attorney.

For questions about employment issues involving the trucking and logistics industries, please contact John Vreeland, Esq., Chair of the Transportation, Trucking & Logistics Group and Partner in the Labor Law Practice Group at jvreeland@nullgenovaburns.com or (973) 535-7118. Please also sign-up for our free Labor & Employment Law Blog at www.labor-law-blog.com to keep up-to-date on the latest news and legal developments effecting your workforce.

President Ends DACA Program, Gives Congress Six Month Deadline to Pass Long-Term Fix for Dreamers

On September 5 U.S. Attorney General Sessions announced that the Administration will end the Obama Administration’s Deferred Action for Childhood Arrivals program, known as DACA. The program has been in effect since mid-2012 and has allowed individuals brought to the U.S. as children or teens before 2007 to apply for work permits and avoid deportation. To be eligible to apply for DACA, an individual had to be under age 16 upon entry into the U.S. and no older than 31 as of June 15, 2012, must have lived in the U.S. continuously since 2007, either be enrolled in high school or college, or already have a diploma or degree, and have no felony criminal convictions, no significant misdemeanor convictions, no more than three other misdemeanor convictions, and not otherwise pose a threat to national security or public safety. If granted deferred action, the individual’s deportation would be deferred and received a work permit (EAD) valid for two years and renewable for additional two-year periods. These individuals are known popularly as dreamers.

Under the Trump administration program, anyone whose DACA status is set to expire by no later than March 5, 2018 will be able to apply for a final two-year permit by October 5, 2017, but all DACA program beneficiaries whose permits expire after March 5, 2018 are ineligible for a renewal. No new DACA applications will be processed. Any individual who has an EAD though the DACA program has no obligation to tell his or her employer that it is a DACA EAD. An employee whose EAD expires and is not renewable will be ineligible to work legally in the U.S. It is crucial that employers know when their employees’ EADs expire. Although there are indications that Congressional Democrats and President Trump are nearing a deal to save the DACA program, the official stance of the Administration is that Congress has six months to pass legislation to save the program. If Congress does not pass legislation by early March 2018, then DACA program enrollees whose EADs expire in the meantime will be subject to deportation.

For an employer that knows or believes it has employees with work permits through DACA, there is currently little they can do after the Attorney General’s announcement, other than advising these employees who are eligible to renew their EADs to do so by October 5, 2017. Employers cannot preemptively discharge these employees before their EADs expire. Doing so may expose the employer to claims of national origin discrimination. An employee whose EAD expires must be removed from the employer’s active payroll. Employers that refuse to release the employees who are not authorized to work in the U.S. can be liable for significant monetary penalties.

For questions about DACA and how it could affect your employees and your business, contact Patrick W. McGovern, Esq., Partner in the firm’s Immigration Law Practice Group, at pmcgovern@nullgenovaburns.com, or by phone at 973-535-7129.

Hawaii Court Enjoins Trump Travel Ban For Excluding Non-Immediate Family Members of US Persons and DHS-Approved Refugees

In June the Supreme Court enforced temporarily President Trump’s travel ban to the extent it excludes persons without a “bona fide relationship” to a person or entity in the U.S. The Court expressly identified wives and mothers-in-law as persons who have a bona fide family relationship to a person in the U.S.  Following the Court’s decision, the Trump administration interpreted “bona fide relationship” narrowly, to include only fiancés, spouses, children, parents and siblings of the U.S. person. On July 13 a federal judge in Hawaii loosened the travel ban by entering a nationwide injunction that orders the Trump administration to exempt from the ban grandparents, grandchildren, aunts, uncles, brothers-in-law, sisters-in-law, nieces, nephews, and cousins of persons in the U.S. U.S. District Judge Derrick Watson criticized the Administration’s narrow definition of bona fide family relationship as “the antithesis of common sense,” which “dictates that close family members be defined to include grandparents.”

Additionally, Judge Watson enjoined enforcement of the ban to the extent it excludes from entry refugees who have formal assurance from a U.S. resettlement agency. Judge Watson reasoned that such assurance “meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades…Bona fide does not get any more bona fide than that.”

Immediately, the Justice Department appealed Judge Watson’s ruling to the Ninth Circuit and simultaneously filed motion papers with the Supreme Court requesting clarification. In its motion, the Justice Department argues that Judge Watson’s interpretation of the travel ban “empties the Court’s decision of meaning,” because it includes “not just ‘close’ family members, but virtually all family members…Treating all of these relationships as ‘close familial relationship[s]’ reads the term ‘close’ out of the Court’s decision.” The Justice Department asked the Court to stay the effective date of the Hawaii court’s order until the Court resolved the motion to clarify the Court’s June ruling. The Justice Department’s motion, which remains pending, may be viewed here.

If you would like to discuss the implications of the travel ban and the various court decisions affecting the ban for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Fourth and Ninth Circuits Sink Trump Travel Ban as Prelude to High Court Review

In the most recent judicial setbacks to President Trump’s Executive Order earlier this year suspending the U.S. entry of aliens from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), reducing the number of refugees allowed entry in 2017 to 50,000, indefinitely and then temporarily barring the admission of Syrian refugees, and suspending the Refugee Admissions Program for 120 days, on May 25 the Fourth Circuit en banc enjoined nationally enforcement of the Executive Order. Although the Justice Department argued that the Order’s primary purpose is advancing national security, the court, with three of the 14 judges dissenting, remained unconvinced that the travel ban had “more to do with national security than it does with effectuating the President’s promised Muslim ban.” The Fourth Circuit found that the Order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The opinion referenced statements that President Trump made in 2016 while on the campaign trail, which the court found supported its finding that the Executive Order was religiously motivated and violated the Constitution’s Establishment Clause. However, the court vacated the lower court’s injunction to the extent it enjoined the President. International Refugee Assistance Project v. Trump.

On June 12 the Ninth Circuit in a per curiam decision by a three-judge panel, also upheld a lower court’s nationwide injunction against enforcement of the travel ban, but on the separate grounds that the Executive Order violated U.S. immigration law. The court stated that the revised travel ban “exceeded the scope of authority delegated to [the President] by Congress.” The panel held that by broadly prohibiting entry by all persons from the listed countries, the Executive Order is too broad and ignores important factors, such as the alien’s working arrangements, family matters and access to U.S. medical care. The Ninth Circuit did not address Establishment Clause issues, as the Fourth Circuit did. Instead, its major concern was that “the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.” However, the court vacated the injunction against the President and against the Government’s conducting internal reviews of security risks posed by nationals of the listed countries and the refugee program. Hawaii v. Trump.

The Supreme Court must now decide whether to hear the Administration’s appeal from the Courts of Appeals decisions this term. Most recently, in view of the current non-enforcement of the travel ban, on June 14 the President revised the 90-day ban on travelers and the 120-day ban on refugees to ensure they do not expire in the interim and will take effect 72 hours if and after the Administration prevails in having the injunctions lifted.

If you would like to discuss the implications of the Executive Order and these court decisions for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nulllgenovaburns.com.

Virginia Federal Judge Upholds Trump Immigration Executive Order Signalling Possible Split in Circuits

On March 24 President Trump’s revised immigration ban which took effect March 16, 2017 (March Order) was found to be enforceable for the first time. U.S. District Judge Anthony J. Trenga in Alexandria, Va., denied an emergency request for a temporary restraining order (“TRO”) to suspend enforcement of the March Order. Judge Trenga diverged from his counterparts in Hawaii and Maryland who granted temporary restraints against the March Order. On March 15 U.S. District Court Judge Derrick Watson in Honolulu issued a TRO pending further order of the Court and blocked core provisions of the March Order on the basis that the Order is an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism; this order is on appeal to the Ninth Circuit. Specifically, Judge Watson blocked the 90-day ban on entry of foreign nationals from the six Muslim-majority countries (Iran, Syria, Libya, Sudan, Yemen and Somalia) and the 120-day ban on U.S. entry by all refugees. The next day U.S. District Court Judge Theodore D. Chuang in Greenbelt, Maryland issued a nationwide preliminary injunction blocking the part of the March Order that suspended the issuance of visas to citizens of the six banned countries; Judge Chuang’s decision is on appeal to the Fourth Circuit which will hear arguments on May 8. Judge Chuang and Judge Watson both found that the March Order was intended to discriminate against Muslims. On March 29, Judge Watson converted the TRO into a nationwide preliminary injunction blocking provisions of the March Order indefinitely.

The Virginia lawsuit was brought by Linda Sarsour, national co-chair of the Women’s March on Washington and a Muslim activist. Ms. Sarsour relied on Trump’s public remarks and argued that the “long and unbroken stream of anti-Muslim statements made by both candidate Trump and President Trump, as well as his close advisors, which, taken together, makes clear that [Trump’s January and March Orders] are nothing more than subterfuges for religious discrimination against Muslims.” In deciding not to enjoin the March Order, Judge Trenga reasoned that the March Order was “explicitly revised in response to judicial decisions that identified problematic aspects of EO-1 [Trump’s January Order]…” and cited that part of the March Order that “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.” Judge Trenga found no violation of the Establishment Clause on the grounds that the March Order “clearly has a stated secular purpose: the ‘protect[ion of United States] citizens from terrorist attacks, including those committed by foreign nationals.’” Judge Trenga also concluded that the substantive revisions reflected in the March Order precluded findings that the predominant purpose of the March Order is religious discrimination against Muslims and that the March Order is a pretext for this purpose. Judge Trenga wrote that to proceed otherwise required his “extending [the] Establishment Clause jurisprudence to national security judgments in an unprecedented way.”

Judge Trenga’s March 24 decision is not immediately appealable; Sansour’s court challenge will proceed and the Administration must answer the complaint. If Judge Trenga dismisses the complaint, an appeal to the Fourth Circuit Court of Appeals is expected and may then be consolidated with the pending appeal of Judge Chuang’s preliminary injunction. Given the increased likelihood of a split in the Circuits, the March Order may ultimately be reviewed by a fully constituted Supreme Court. Meanwhile, Judge Watson’s national injunction remains in effect and the attorneys general for California, Maryland, Massachusetts, New York and Oregon have joined Washington in filing another complaint challenging both the January and the March Orders.

If you would like to discuss how the March Executive Order or these court decisions affect your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Trump Blinks and Signs Revised Executive Order; States React Immediately

On March 6 President Trump signed a second Executive Order revoking his January Order and replacing it with Executive Order (“March Order”) effective March 16, 2017 that is intended to overcome court challenge. The March Order suspends for 90 days entry into the U.S. of nationals of six countries, but carves out limited exceptions for certain categories of affected aliens. After issuing the March Order, the Justice Department immediately asked the federal court in Seattle to halt Washington’s and Minnesota’s legal challenge from proceeding against the January Order and notified the Court notice that the Government plans instead to enforce the provisions of the March Order.  However, for the moment the Seattle lawsuit remains pending.

Under the March Order, entry by nationals of six countries -Iran, Libya, Somalia, Sudan, Syria and Yemen- is suspended through June 14, 2017. The suspension of entry into the U.S. will apply only to foreign nationals from the six countries who 1) are outside the U.S. as of March 16, 2017, and 2) did not hold a valid visa as of 5 p.m. EST on January 27, 2017 and 3) do not have a valid visa as of March 16, 2017. The suspension of entry into the U.S. will not apply to U.S. permanent residents, any foreign national who is admitted to or paroled into the U.S. on or after March 16, 2017, any foreign national who has a document other than a visa valid on March 16, 2017 that permits the individual to travel in the U.S., any dual national of one of the six countries if the individual is traveling using a passport from the non-designated country, any foreign national traveling on a diplomatic visa, NATO visa, C-2 visa for travel to the U.N. or a G-1, 2, 3 or 4 visa, any foreign national granted asylum, and any refugee already permitted to be in the U.S. No immigrant or nonimmigrant visas issued before March 16, 2017 is being revoked by the March Order and any individual whose visa was revoked as a result of the January Order is entitled to a travel document permitting travel to and entry into the U.S.

Although the March Order does not list Iraq as a banned country, decisions about issuance of visas or granting entry to any Iraqi national will be subject to additional scrutiny to determine if the alien has connections to ISIS or other terrorist organizations, or otherwise poses a threat to national security or public safety.

The March Order also suspends all refugee travel into the U.S. under USRAP and suspends decisions on all refugee status applications through July 16, 2017. The January Order banned all Syrian refugees’ admission into the U.S. indefinitely. The Secretaries of State and Homeland Security retain the ability to jointly determine a refugee’s admission into the U.S. on a case-by-case basis so long as admission is in the national interest and poses no threat to national security and welfare. Finally, for fiscal year 2017 entry by refugees in excess of 50,000 is suspended until the President determines additional entries are in the country’s interest.

The first state to challenge the March Order was Hawaii which sued in Honolulu federal court claiming that the March Order results in an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism. U.S. District Judge Derrick Watson will hear Hawaii’s request for a temporary restraining order on March 15. New York’s Attorney General announced that New York will join Washington and Minnesota in the pending federal case in Seattle. Other states are expected to follow New York’s and Hawaii’s example.

If you have any questions or would like to discuss how the March Executive Order affects your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

9th Circuit Refuses to Stay Nationwide Injunction Against Enforcement of Trump Immigration Order While Government Appeals

On February 9, 2017, the Court of Appeals for the Ninth Circuit affirmed the U.S. District Court’s Temporary Restraining Order prohibiting nationwide enforcement of key portions of the immigration Executive Order issued on January 27. A unanimous three-judge panel, consisting of two Democratic appointees and one Republican appointee, in a per curiam opinion, ruled that “the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” As a result, the TRO stands and aliens from the seven listed countries (Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen), including those with immigrant and non-immigrant visas, may continue normal processes for entry into the U.S. and refugees from the seven countries, including Syria, may resume their proceedings to relocate to the U.S. State of Washington v. Trump, (February 9, 2017).

Washington State and Minnesota argued that the Executive Order violated the Establishment and Equal Protection Clauses because it disfavored Muslims and that the TRO merely returned the nation temporarily to the status quo in effect for many years. The Government submitted no evidence to rebut the States’ arguments. The Government, the judges observed, was hard pressed to point to a single recent example of an entrant from one of the seven listed countries who was arrested for terrorist activities. Regarding the argument that the Executive Order violates the Establishment Clause, the court withheld judgment for the time being, pending a decision on the merits, explaining, “The States’ claims raise serious allegations and present significant constitutional questions.”

The Ninth Circuit decision to maintain the nationwide TRO of the Trump immigration Order is immediately appealable to the Supreme Court. The President’s immediate tweet — “See You In Court, The Security Of Our Nation Is At Stake!” – anticipates that the Supreme Court will ultimately review the constitutionality of the Executive Order.

If you have any questions or would like to discuss how the Executive Order affects your employees and your business, please contact  Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.