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Immigration News - October 15, 2007

October 15, 2007

By The Immigration Practice Group

Federal Court Issues Preliminary Injunction Against Implementation of DHS "No-Match Letter" Regulation

Last week, the U.S. District Court in San Francisco issued a preliminary injunction against implementation of the final Department of Homeland Security (DHS) regulation entitled "Safe Harbor Procedures for Employers Who Receive a [Social Security] No-Match Letter." Although his decision does not constitute a final adjudication of the merits of the plaintiffs' (the AFL-CIO, the U.S. Chamber of Commerce, and other labor and business organizations) claims, Judge Breyer granted the plaintiffs' request for a preliminary injunction because he found that they had raised serious questions on three of their claims and that the balance of harms tipped sharply in favor of the injunction. The court found that the plaintiffs had raised serious questions  as to  whether (1) the rule is arbitrary and capricious and thus in violation of the Administrative Procedure Act because DHS failed to provide a reasoned analysis for the agency's new position that a no-match letter is sufficient, by itself, to put an employer on notice of an employee's unauthorized status; (2) DHS exceeded its authority by interpreting the anti-discrimination provisions within the immigration laws, because authority over those issues is delegated by statute to the Department of Justice, and (3) DHS violated the Regulatory Flexibility Act by not conducting a final flexibility analysis to determine the impact of the rule on small businesses. However, the court did not find that the plaintiffs had raised serious questions with regards to a number of their substantive claims. The court did not find that the regulation is inconsistent with its governing statute. The court also did not find that the rule, which amends the current regulatory definition of constructive knowledge, improperly alters the statutory meaning of "knowing."

The court ordered the plaintiffs and the Government to meet and confer on the language of the injunction and  to submit a proposed order to the court by October 12, 2007. We will send out additional updates when the actual language and terms of the injunction are known.