Welcome to the eighth issue of The Globe for this year.
Pradip K. Sahu, Vice Chair of the Section Council, has provided a description concerning the June 12th CLE program concerning international intellectual property issues. I hope as you read this issue and specifically that article you will mark June 12th on your calendar to plan to attend the CLE program.
Section Council member Gwendolyn Osmer has provided a reminder note concerning the International and Immigration Law Section Council portion of the Illinois State Bar Association Web site. As Gwendolyn’s article points out, the International and Immigration Law page provides over one hundred eighty links to sources of information concerning international and immigration law practice. If you have any suggestions on additional links, please e-mail them to Gwendolyn at gosmer@casscomm.com.
Lawrence Schaner has provided us an announcement of the International Arbitration Event hosted by the International Center for Dispute Resolutions and to be held in Chicago later this month.
Joshua Fellenbaum’s article on Zimbabwe legislation is his second article and Tahani Afaneh’s “New Employment-Based Immigration Regulations Cause Controversy” is also her second article.
May 1st is approaching and the International and Immigration Law Section Council and the Human Rights Section Council of the Illinois State Bar Association, along with the Decalogue Society of Lawyer’s has joined The John Marshall Law School in putting on a program on the crisis in Darfur. Scott Gertz’s article appeared in the last issue of The Globe and I’m reprinting it in this issue because of the current nature and importance of the topic.
We have included a list of Upcoming Events Concerning International Trade as organized by the International Trade Association of Greater Chicago.
In addition to organizing a tremendous series of CLE and other educational programs this year, producing eight issues of The Globe already this year with significant and wide ranging articles and as a Section Council commenting on proposed state legislation, the International and Immigration Law Section Council is concentrating much of its’ discussion and work on the issue of the obligation to inform foreign nationals who are arrested or detained of their legal rights under the Vienna Convention on consular relations. In this issue an article by Section Council Secretary Cindy Buys, an Association Professor of Law at Southern Illinois University School of Law and by Mark E. Wojcik, Professor at The John Marshall Law School, former Chair of the Section Council and currently serving as the ISBA Board of Governors Liaison to the Section Council, addresses this topic. When this article and issue of The Globe was submitted, we were waiting for the U.S. Supreme Court to reach a decision in Medellin v. State of Texas, a decision which will probably be handed down before you read this issue and we hope will be the subject of future articles.
The members of the Section Council have planned to meet with representatives of various foreign Consulates in Chicago to illicit more information concerning their day to day, practical experience with consular notification. The discussions with the consular representatives and the information gathered by the Section Council will be the subject of future articles of The Globe.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
E-mail: lfmatuszewich@mkm-law.com
On June 12, 2008, the International and Immigration Law Section will present an all day CLE program regarding intellectual property and international law issues in representing a globally expanding company. The program will be co-sponsored by the Intellectual Property Law Section and the General Practice, Solo and Small Firm Section and will include six hours of continuing legal education, 1.25 hours of which are dedicated to professional responsibility. This CLE program is geared towards attorneys with some to little experience with international law or intellectual property matters. It gives an overview of major issues that are faced when representing a globally expanding client as well as practical nuts and bolts tips on effective representation that every attorney must know to help develop the client’s business while building the attorney’s law practice.
Michael Geoffrey of Reed Smith in Chicago will present the first topic of the program entitled “International Technology Protection Strategies.” Michael has represented companies with operations throughout the world in all intellectual property matters. He is also a well sought after speaker on intellectual property strategy, management, and protection issues, and he has spoken at numerous venues including the United Nations as well as intellectual property conferences throughout the world. During this part of the CLE program, Michael will teach the basic components of effective strategies such as filings for patents and other intellectual property protection, physical and computer security measures, strategic partnerships, joint ventures, licenses and confidentiality agreements.
Mary Squyres of Brinks Hofer in Chicago will present the second topic entitled “International Brand Protection Strategies.” Mary’s practice includes international trademark litigation, licensing and prosecution, including determination of international filing strategies, negotiating worldwide mutual co-existence agreements and effective enforcement strategies to defend marks and prevent infringements. She represents numerous companies that have an international presence. This session of the program will cover the basics of how to assist clients in protecting their brands internationally. The attendee will learn how to assist the client in developing an overall brand protection strategy that includes careful brand development, strategic trademark filings, selective customs registrations, and litigation.
The third topic will be presented by Marc Trachtenberg of Ladas and Parry in Chicago and is entitled “Domain Name Registration and Protection Strategies for Globally Expanding Businesses.” Marc is a trademark and copyright attorney focused on U.S and international trademark prosecution and enforcement and leads the Digital Brands Practice at Ladas & Parry. He has particular expertise with regard to domain name, internet, and technology matters and specializes in protecting intellectual property on the internet. Marc is also the Director of Operations for Ladas Domains. This portion of the CLE program will cover issues relating to the intersection of intellectual property law, business and cyberspace. The attendee will learn strategies in registering and protecting domain names throughout the world to support a client’s business, as well as measures that can be taken should a domain name dispute arise.
Adam Weiss of Schiff Hardin in Chicago will present the fourth topic called “Effective Anti-Counterfeiting Strategies.” Adam has extensive experience handling counterfeiting issues for top companies throughout the world. Counterfeiting is a global problem that affects many U.S. businesses. Counterfeit products come to the United States from all over the world, but most notably from East Asia and Latin America. Attendees will learn strategies and techniques to protect their clients from these counterfeiters and importers of gray-market goods.
Violeta Balan of Mayer Brown’s Chicago office is the fifth speaker and is slated to talk about “Alternative Dispute Resolution Clauses and Their Implications in International Contracts.” Violeta’s practice has a focus on international arbitration and other forms of alterative dispute resolution. Alternative dispute resolution is gaining wider acceptance in all types of contracts, including in international contracts. The attendee will learn strategies to draft and negotiate effective arbitration, mediation and dispute resolution clauses. The attendee will also learn the implications of the clauses when disputes arise.
The sixth topic will be presented by Robert W. Kent, Jr. of Baker and McKenzie in Chicago and is entitled “Corporate Compliance in International Enterprises.” Robert focuses his practice in internal investigations, white-collar criminal defense, and complex civil litigation. As the former Chief of the Complex Fraud Section of the United States Attorney’s Office in Chicago, he brings the perspective of a former federal prosecutor to his clients’ issues with government authorities. Publicly traded companies that do business in other countries must comply with applicable laws, rules and regulations such as the Foreign Corrupt Practices Act and Sarbanes Oxley. The attendees will learn the basics about the compliance issues so that they may guide their clients appropriately.
Glen Belvis of Brinks Hofer will speak about “Protecting the Attorney-Client Privilege in International Litigation.” Glen has over twenty years experience in all facets of intellectual property law, including patents, trademarks, copyrights, trade secrets and related antitrust matters. He has substantial patent litigation experience, including bench and jury trials, ITC cases, appeals before the Federal Circuit and alternate dispute resolutions. He has also participated in several multinational litigations involving related patent lawsuits in the U.K., Europe, Asia, Canada and the United States. This type of international litigation is extremely complex, and an added layer of complexity arises when trying to protect the attorney–client privilege. The attendee will learn how to protect the privilege, the implications of waiver of privilege, as well as ethical considerations such as compliance with Rule 1.6 of the Illinois Rules of Professional Conduct.
Gary Ropski, president of Brinks Hofer, and Thomas Burton also of Brinks Hofer will discuss the eighth topic entitled “Comparison of the Patent Laws of the United States, Germany and Japan.” Gary has over thirty years of intellectual property law experience, and his practice now focuses on litigation, but has included patent prosecution and litigation; trademark prosecution, including oppositions and litigation; trade dress litigation; copyright registration and litigation; trade secret litigation; right of publicity counseling and litigation; and related unfair competition and antitrust matters in federal and state courts. He has a particular interest in international patent litigation. Often U.S. based clients are involved in a patent dispute that arises with implications outside of the United States. The attendee will learn basic differences in litigating patent cases in the United States versus in Germany and Japan—where many disputes between U.S. and non-U.S. companies arise.
Richard Ruzich of Duane Morris will present the final topic entitled “Compliance with United States Export Controls.” Rich practices in the area of intellectual property law with an emphasis on litigating complex patent, copyright, trademark and trade secrets matters. He represents high-tech and generic pharmaceutical companies (ANDA) in both opinion and litigation matters. Prior to entering private practice, Rich served as a trial attorney for the U.S. Department of Justice in Washington, D.C., defending the United States and its agencies against patent infringement suits brought by the private sector. In his talk, Rich will provide an overview covering the ramifications of international agreements relating to information security, foreign disclosure, and technology transfer. Various statutory and regulatory provisions, including 22 USC 2767 (Authority to Enter into Cooperative Projects with Friendly Foreign Countries), 10 U.S.C. 2350(a) (Cooperative Research and Development Projects), and Dept. of Defense Directive 5530.3 will be reviewed. These provisions are critical to any attorney handling the transfer of technology to a foreign entity.
The mission of the International and Immigration Law Section Council of the Illinois State Bar Association is to improve the knowledge and skill of Illinois attorneys in the fields of international business law and immigration law and to inform the general public about these growing areas; to raise the awareness of section members about the legal and political issues of international, both public and private; to raise the consciousness of Illinois lawyers representing the foreign born in general legal matters; and to publish newsletters and sponsor seminars and conferences in furtherance of these goals. In an effort to fulfill its mission, the International and Immigration Law Section Council has worked diligently to maintain an updated Web site for the benefit not only of its current members but also prospective members. The Web address is <http://www.isba.org/sections/international/home.asp>
The Web site gives members the exclusive opportunity to subscribe to receive a free weekly E-mail Practice Update, and to read and search newsletters online from 1999 to the present. In addition, the Web site allows members and prospective members to view a selected Table of Contents from various newsletters. Perhaps the most practical feature on the Web site, available to members and prospective members, is the list of more than 180 links to various sources pertaining to different areas of international and immigration law. While the Web site contains numerous links to sources in the United States, the Web site also includes a myriad of links to organizations, entities and governmental agencies across the globe. This feature undoubtedly provides an exceptional resource to individuals conducting research on a vast array of topics or desiring to learn more information concerning an area of personal interest.
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Gwendolyn M. Osmer is a member of the International and Immigration Law Section Council and serves a Web site liaison. She practices in Beardstown, Illinois with the law firm of McClure, Brannan & Thomas and may be contacted at gosmer@casscomm.com.
The International Centre for Dispute Resolution is bringing together arbitration experts to discuss timely issues at a major conference to be held in Chicago April 24-25, at the InterContinental Hotel. The focus of the conference will on international dispute resolution in North America. Topics discussed will include: corporate strategies for international dispute resolution; common pitfalls and mistakes in international arbitration; judicial review in Canada, Mexico and the United States; emergency interim relief; ethical challenges in international dispute resolution; and an update on the enforcement of arbitration awards.
A highlight of the conference will be a lunch program featuring prominent judges from the U.S., Canada and Mexico, including: The Hon. Diane P. Wood, Circuit Judge, U.S. Court of Appeals for the Seventh Circuit; The Hon. Justice Kathryn N. Feldman, Court of Appeal for Ontario; and The Hon. Mgdo. Julio Cesar Vazquez Mellado, Seventh Civil Collegiate Tribunal of First Circuit, in Mexico. The program will be moderated by William K. Slate II, President of the ICDR & CEO of the American Arbitration Association.
In-house counsel from large corporations will play a leading role in the conference. Speakers will include Lawrence Buonomo, General Motors; Doug Everleigh, Solo Cup Company; Nestor Garcia, PEMEX; Carlos Rodriguez, Gas Natural (Mexico City); Michael Stanek, Rio Tinto Alcan; Marcela Marquez Alonso, P.M.I Comercio Internacional; and Jeffrey Paquin, Abbott Laboratories, Inc. Other panelists will include top international arbitration lawyers from throughout North America.
The ICDR is the international division of the American Arbitration Association. It is responsible for the administration of all international cases filed with the AAA. A copy of the conference brochure is attached. Information about the conference can also be found on the ICDR’s Web site at <http://www.adr.org/OnlineRegistrations.asp> or by calling (212) 716-3977.
Excerpts from the program and agenda include:
Corporate Strategies for International Dispute Resolution, Common Pitfalls and Mistakes in International Arbitration, Judicial Review in Canada, Mexico and the United States, Article 37: Emergency Interim Relief, Ethical Challenges in International Dispute Resolution, and Updates on Enforcement and Challenges to Arbitral Awards.
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Lawrence S. Schaner practices with Jenner & Block in Chicago, Illinois. He may be reached at LSchaner@jenner.com.
Recent legislation approved by Zimbabwe’s President Robert Mugabe gives indigenous Zimbabweans the power to control a majority share of foreign companies. The Indigenisation and Economic Empowerment Act poses a serious risk to foreign companies investing in Zimbabwe by requiring that every company has at least 51 percent of their shares owned by indigenous Zimbabweans.
The extent of the government’s intervention remains unclear because the act comes in the middle of parliamentary elections and President Mugabe has stated that the government will set forth timetables to transfer shares.
With that said, if the act is indeed engaged, then mining, banking and other business industry entities with investments in Zimbabwe may nevertheless be able to rely on bilateral investment treaties and arbitration under the auspices of the International Centre for Settlement of Investment Disputes as an effective dispute resolution mechanism against the government of Zimbabwe.
Zimbabwe and Bilateral Investment Treaty
In the past several years Zimbabwe has seen a deterioration of its legal system, culminating in the physical removal of several Supreme Court Justices whose judgements had dissatisfied the executive. This deterioration adds to the appeal of independent arbitration before ICSID, which hinges on the existence of a bilateral investment treaty between Zimbabwe and the home state of the foreign company.
Given the prevailing political landscape in Zimbabwe, it is particularly important for potential investors to ensure that their investment is protected by a bilateral investment treaty. Zimbabwe has currently signed 30 such investment treaties. The following six bilateral investment treaties, however, are the only ones to have come into force: China, Denmark, Germany, the Netherlands, Serbia and Montenegro, and Switzerland. An investment treaty with South Africa was negotiated, but it has not been signed in over three years. A general survey of Zimbabwean bilateral investment treaties reveals that they largely contain the key provisions found in most such treaties. These include provisions for:
(i) fair and equitable treatment, which protects investors from arbitrary and discriminatory treatment, and changes in laws and regulatory regimes that disrupt reasonable investor expectations;
(ii) full protection and security, and compensation for damage caused by armed conflict;
(iii) dispute resolution procedures which generally provide for disputes to go to arbitration if they cannot be resolved through negotiation; and
(iv) expropriation to be allowed only on the basis of a proper public interest justification with adequate compensation provided. Expropriation can also include measures that detract from the value of the investment without necessarily including in these “taking” of property.
The treaties also generally contain provisions for most favoured nation treatment, and national treatment, which require investors to receive treatment that is not less favorable than that accorded to other foreign nationals and to local investors. There is some inconsistency between treaties, however, on the provision of umbrella clauses. Umbrella clauses provide for the host state to honour any obligations under agreements between it and a foreign investor who is a national of a contracting party. However, an umbrella clause may not give way to a breach of the relevant bilateral investment treaty if there is a proper public interest justification with adequate compensation provided.
Enforcement of investment treaties
In 2005, Zimbabwe passed a similar economic initiative known as the ‘Farm Seizure Programme’, in which the government of Zimbabwe took control of over 4,000 farms from white owners and transferred them to indigenous Zimbabweans. This expropriation was popular with voters in the re-election of Robert Mugabe, but is also credited in playing a major role resulting in Zimbabwe having the world’s highest inflation rate of over 100,000 percent. Many fear that President Mugabe’s new initiative will have even more disastrous results effecting major companies investing in Zimbabwe.
In response to the ‘Farm Seizure Programme,’ a group of 15 Dutch farmers filed a claim against Zimbabwe for compensation of damages, which has led to the first trial under the auspices of ICSID to feature Zimbabwe as a respondent. In Bernardus Henricus Funnekotter & Others v. Republic of Zimbabwe, the farmers have focused their claim on a bilateral investment treaty that entered into force in 1998 between the Netherlands and Zimbabwe that contained clauses regarding expropriation, full protection and security, and protection against breach of the investment contract (the umbrella clause). After an initial hearing in December 2006 and a series of written briefs and counter-claims an oral hearing was conducted in October 2007 before a ICSID tribunal in Paris (France).
Although investment into Zimbabwe is often made against a background of political and economic risk, companies such as the mining conglomerate Anglo-American, British timber corporation Lonmin, Australian mining companies Rio Tinto Ltd. Aquarius Platinum Ltd. and Zimbabwe Platinum Mines Ltd., along and several banks, have continued investing in Zimbabwe.
Those and others may have the ability to pursue a claim in response to The Indigenisation and Economic Empowerment Act based on Zimbabwe’s investment treaties.
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The article was initially published in Vol. 3 Issue 2 of Global Arbitration Review’s Magazine.
The author acknowledges the kind assistance provided in the preparation of this article by Mr. Tanvir Ahmed and Ms. Fabiola Schmidt, Paralegals, Clayton Utz.
Joshua Fellenbaum is a U.S. qualified attorney working in Sydney Australia for Clayton Utz’s International Arbitration Group. Mr. Fellenbaum is an associate member of the Chartered Institute of Arbitrators, a member of the Australasian Forum for International Arbitration, and a member of the ICDR Young & International.
Mr. Fellenbaum previously worked as a summer associate in DLA Piper’s Prague office and was selected for an international scholarship during his first year of law school to attend a certificate program at The School of International Arbitration, Queen Mary, University of London. Prior to attending law school, Mr. Fellenbaum held internships in the offices of Czech Senator Jaroslava Moserova, U.S. Senator Joseph Lieberman, and U.S. Senator George Voinovich. Prior publications of Mr. Fellenbaum include articles in “World Arbitration & Mediation Report,” “Mondaq.com”, “The Globe,” “Ohio State Bar Association’s Law Students Newsletter,” and in the “State Bar of California’s International Law Sections E-Brief.”
The Bush Administration recently implemented controversial changes to employment-based immigration regulations. The first of these changes concerns the newly implemented and revised Employment Eligibility Verification forms (Form I-9). The second change relates to the recently promulgated final rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” These changes spawned highly controversial litigation, both on the State level, here in Illinois, and on the Federal level, with a lawsuit in the Northern District of California.
Form I-9
The Immigration Reform and Control Act (IRCA) requires all U.S. employers to verify the employment eligibility and identity of all employees hired after November 6, 1986 to work in the United States. IRCA requires employers to complete the Form I-9 for all employees, including U.S. citizens, in order to document that the employee is authorized to work in the United States. The Form I-9 lists the various documents that an employer may use to establish both the identity and employment eligibility of any given worker.
On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), amended the INA to reduce the number of documents that an employer may accept from newly hired employees when verifying their identity and employment eligibility. On September 30, 1997, legacy INS published an interim rule implementing those amendments. However, legacy INS failed to concurrently amend the Form I-9 to reflect the changes made by the interim rule. As a result, the Form I-9 contained an outdated list of acceptable documents. On November 7, 2007, USCIS finally posted an amended I-9 Form that comported with the new rule.
The revised regulation and comporting Form I-9 removes five key documents from the list of documents that an employer may accept as proof of both identity and employment eligibility: Certificate of U.S. Citizenship (Form N-560 or N-561); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). However, the new Form I-9 added the most recent version of the EAD (Form I-766) to the list of acceptable documents.
As of November 7, 2007, the revised Form I-9 is on the only version of the form that is valid for use. DHS allowed a transitional period, which ended on December 26, 2007, for employers to adjust to the new I-9 requirements. After December 26, 2007, employers who fail to use Form I-9 may be subject to all applicable penalties under INA, as enforced by ICE, which includes monetary penalties.
E-Verify
An off-shoot of the Form I-9 is the federal E-Verify Program. E-Verify, formally known as the Basic Pilot Program, is a government program that purports to provide employers with a web-based means to verify the validity of an employee’s name and social security number, in order to determine whether their employees are legally authorized to work in the United States. If work authorization cannot be confirmed, E-Verify sends a “tentative non-confirmation” notice to the employer. A tentative nonconfirmation may lead to the termination of the employee if DHS or SSA fail to determine whether the employee is eligible to work in the United States. While E-Verify is a “voluntary program,” federal contractors are required to use it, and other employers are highly encouraged to use it.
The E-Verify program unleashed controversy. Many organizations, employers, and individuals argue that the tentative non-confirmation determinations include all sorts of system errors, including the government’s failure to properly document marital change names and simple clerical errors. They argue that the effects of E-Verify may be detrimental in that it may impact millions of workers.
The controversy surrounding the E-Verify is especially heated here in Illinois. The Illinois legislature recently enacted an amendment to the Right to Privacy at Work Act. The amendment, H.B. 1744, prohibits employers from using the E-Verify federal program. H.B. 1744 bars Illinois employers from utilizing the federal E-Verify program until DHS databases “…are able to make a determination on 99 percent of the tentative nonconfirmation notices issued to employers within 3 days.” Illinois politicians argue that the E-Verify program leaves excessive room for error, to the detriment of both citizen and non-citizen employees. Unless DHS knocks out the kinks, HB 1744 prohibits Illinois employers from using the system as a means to verify work authorization.
DHS, in response to the Illinois Act, responded by filing a lawsuit, seeking to invalidate and enjoin Illinois from enforcing HB 1744. Specifically, DHS alleges that HB 1744 is preempted by the Supremacy Clause of the Constitution. DHS further argues that HB 1744 hinders DHS’s ability to evaluate the efficacy of the E-Verify Program. The result of the lawsuit remains to be seen. See DHS v. State of Illinois.
“No-Match Letter regulations”
Yet another controversial spawn of the Form I-9 is a recently promulgated final rule, entitled the Safe-Harbor Procedures for Employers Who Receive a No-Match Letter. On August 15, 2007, DHS published the final rule, which the industry has coined the “No-Match Letter Regulations.” The rule purportedly provides guidance to employers who receive warnings by either Immigration and Customs Enforcement (ICE) or the Social Security Administration (SSA) that the name and social security number of an employee do not match. While ICE sends these letters after conducting an audit of an employer’s Form I-9s, the SSA sends these letters after noting discrepancies in an employee’s W-2s. The regulation purports to clarify the obligations of the employer upon receipt of the no-match letter.
Federal law currently prohibits employers, and has for decades, from allowing unauthorized individuals to work. Employers are held legally accountable for allowing unauthorized individuals to work if the employer has “constructive knowledge” of the lack of authorization. The previous rule gave three examples of situations when the “constructive knowledge” standard is met: (1) the failure to correctly complete a Form I-9; (2) the awareness of a Labor Certification or Application for Prospective Employer (a Form I-140); (3) acting with “reckless and wanton disregard” to the legal consequences of allowing someone else to bring an unauthorized alien into the employer’s workforce or to act on its behalf.
However, the final no-match regulations expand the definition of constructive knowledge by adding an additional three examples of what may also constitute constructive knowledge. Generally, the regulation now states that an employee may have constructive knowledge of an unauthorized worker if the employer receives either (1) a letter from the SSA indicating that the name and social security number of an employee do not match; or (2) a letter from DHS that the I-9 contains inconsistencies. Despite these examples of what DHS and SSA may consider to be “constructive knowledge,” the final decision rests on the “totality of the relevant circumstances.”
The no-match regulations contain a “safe harbor” protocol that employers are encouraged to follow, which purport to prevent employers from a constructive knowledge finding. This “safe harbor” protocol gives employers up to 93 days to reconcile any discrepancy between the employer’s records and the government’s records. Should the employee receive a letter from the DHS indicating that the Form I-9 is not consistent with DHS records, an employer may have less than 30 days to reconcile the situation.
The safe-harbor protocol immediately instigated a federal lawsuit filed in the Northern District of California by a consortium of unions and business groups. The plaintiffs requested that the DHS be enjoined from enforcing the protocol. The plaintiffs argued that the rule is arbitrary and capricious because DHS did not supply cogent reasoning as to why a no-match letter is sufficient to put an employer on notice of an employee’s possible unauthorized status. Plaintiffs further argued that DHS exceeded its authority by interpreting IRCA’s anti-discrimination provision, and that DHS violated the Regulatory Flexibility Act in its failure to conduct a final flexibility analysis to ascertain the effects that the final rule would have on businesses. See American Federation of Labor v. Chertoff (N.D. Cal. October 10, 2007).
Federal District Judge Breyer granted the preliminary injunction. Judge Breyer stated that the mandated time frame of 90 days would result in the termination of employment of authorized employees, as “. . . there is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days, even if the employees are actually authorized to work.” He stated that this is especially harmful because the SSA records contain numerous errors, which the government itself recognizes. Judge Breyer further noted that, contrary to the government’s assertion that compliance with the protocol is voluntary, the “. . . voluntary form of the rule is but a veil for the threat it obscures,” because failing to comply with the safe harbor protocol subjects employers to the threat of both civil and criminal liability.
In the same vein, Judge Breyer criticized the government for refusing to conduct a final flexibility analysis to ascertain what effect the safe harbor rule would have on small businesses. Judge Breyer stated that employers who prefer to adhere to the safe harbor protocol would have to develop the expensive human resource systems capable of resolving discrepancies, and must do so within the small time frame given. In support of his holding, Judge Breyer quoted Kenneth Apfel, a former Commissioner of the SSA, who himself stated that many legally authorized workers would not be able to resolve no-match problems within the ninety day deadline.
Judge Breyer also castigated the government for failing to comply with procedures set forth in the Administrative Procedures Act (APA) when it promulgated the safe harbor protocol. He stated that DHS’s new policy that the receipt of a no-match letter alone constitutes constructive knowledge, is a marked change from its previous policy that receiving the no-match letter alone was not enough to meet the constructive knowledge charge. He reminded the government that the agency’s drastic policy change requires the adherence to the APA.
Finally, Judge Breyer expressed concern that the DHS impermissibly exceeded its authority and encroached on other governmental departments by interpreting IRCA’s anti-discrimination provisions. Judge Breyer affirmed that DHS does not have the authority to preclude enforcement of the anti-discrimination statutes where employers follow the safe-harbor protocol.
Recent developments
On March 26, 2008, DHS published a supplemental proposed rule to further clarify the August 2007 Final Rule relating to the Safe-Harbor Regulations. This supplemental proposed rule did not make any substantive changes to the August 2007 Final Rule. However, the supplemental rule addressed certain issues of concern raised in the Federal District Court.
First, DHS discussed that it did not agree with the Court’s holding that the new rule signified a change in policy relating to the significance of receiving a no-match letter. DHS further argued that, even if its policy changed, they had valid reasons to change the policy. Next, DHS rescinded its comments relating to the interpretation of the anti-discrimination law. Finally, DHS provided an Initial Regulatory Flexibility Analysis to determine what the impact of the new rule will have on small businesses.
After touching upon all of these issues, DHS stated that it plans to re-promulgate the regulation relating to the Safe-Harbor Procedure.
Conclusion
While many businesses, individuals and organizations predict that these new employment-based rules will have a detrimental impact on the workforce, the actual effects remain to be seen. While the DHS justifies these regulations as a means to curtail illegal employment, many businesses see them as incoherent and confusing hurdles that do not guarantee protection. States will continue to act and react as their legislatures see fit. Some will perhaps look at Illinois’ reaction positively, and may follow-suit. Others may require the use of E-Verify. Only one thing remains certain: these regulations cannot substitute for the desperately needed comprehensive immigration reform.
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Tahani Afaneh is a third-year law student at the John Marshall Law School at Chicago. She is a Staff Editor to Law Review and a member of Moot Court. She has clerked for AzulaySeiden Law Group since July, 2006. She can be contacted at Tahani.afaneh@gmail.com. Special Thanks to Linda M. Babich, Esq., Robert Gard, Esq. and Shannon M. Shepherd for their invaluable guidance on this article.
The images have been horrific. The United States government has labeled the atrocities committed by the Sudanese government genocide.1 As the tragic events in the Darfur region of the Sudan unfold, however, many of us find ourselves bewildered by the complexity and intractability of the conflict.2 Yet, as lawyers and as citizens who take the rule of law seriously, we must make the effort to understand and, if so compelled, to speak out.
Questions abound: in light of the gravity of the situation on the ground, what has been the U.S response to attempt to bring the bloodshed to a halt? What steps have the African Union, the United Nations and the rest of the international community engaged in to bring pressure to bear on the al-Bashir regime?3 Is the use of force (even unilateral force) morally justified if the regime continues to commit atrocities on this scale? Who is enabling the regime in Khartoum to continue down this horrific path?4 Who are the Janjaweed? And when do crimes committed by a sovereign government rise to the level of genocide under international law?
These questions, as well as many others, will be addressed by a distinguished panel of judges and law professors for a Law Day event.5 This program is sponsored by the International and Immigration Section Council and the Human Rights Section Council of the Illinois State Bar Association, the Decalogue Society of Lawyers, and the John Marshall Law School. The program will take place at John Marshall on May 1st at 3:30 P.M. After introductory words by Program Coordinator Scott Gertz, Ralph Ruebner, Associate Dean for Academic Affairs for the John Marshall Law School, will serve as M.C. and introduce the presenters. The speakers are: Judge Michael Hyman of the Circuit Court of Cook County; Professor Cindy Buys, of the Southern Illinois University School of Law; Professor Samuel Jones, of the John Marshall Law School; and Professor Sean O’Brien, of the Notre Dame Law School. After the formal presentations have ended, a question and answer session will be held, followed by a reception.
The subject matter is grim. The perpetrators and victims involved are a world away. We are all busy going about our lives. Nevertheless, we must not yield to the temptation to turn away. Lawyers and the organized Bar, especially lawyers and the organized Bar, must, at a minimum, raise awareness and educate. The stakes are too high to do anything less.
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Scott W. Gertz, attorney at law, member of the International and Immigration Section Council of the Illinois State Bar Association, Second Vice President of the Decalogue Society of Lawyers.
1. The U.S. Congress, President Bush and two U.S. Secretaries of State have used the genocide designation, the first time in U.S. history that a conflict has been so labeled while it was ongoing. The Genocide in Darfur, Briefing Paper, Save Darfur, June 2007.
2. Since 2003, more than 200,000 people have died and an estimated 2.5 million have been displaced. Chicago Sun-Times, February 14, 2008.
3. Omar al-Bashir is the President of the Sudan.
4. Clearly, one significant player in the conflict is China, who buys about two thirds of Sudan’s oil exports and sells weapons to the country. Chicago Sun-Times, February 14th 2008.
5. There is not a Continuing Legal Education component to this event.
The following are excerpts from the Illinois International Business Calendar which is an effort among the International Trade Association of Greater Chicago, the Office of Trade & Investment of the Illinois Department of Commerce and Economic Opportunity, and the Illinois District Export Council on behalf of the U.S. Export Assistance Center Chicago. More information can be obtained by visiting the International Trade Association’s website at www.itagc.org.
May 1
Illinois agriculture going global and realizing biotech’s potential
Conference sponsored by the World Trade Center Illinois and the Illinois Department of Agriculture. Topics include: 2008 U.S. Agricultural Economic Outlook and U.S. Trade and Agricultural Policy Prospects; Illinois Agriculture and Biotechnology: Review and Prospects; Trends in Global Food Demand and Trade Patterns; Competing Globally from Illinois: New Markets and Opportunities; Regulations and Requirements to Operate in the Biotech Sector. 11:30 a.m., World Trade Center Illinois, 200 East Randolph Street, Suite 2200, Chicago. General admission - $100; Groups of 3 or more from same company - $75 each; Partner/member organizations - $65. For information & registration, please e-mail: adenes@wtcc.org.
May 1
Fair trade fair
Exhibits, reception and presentation sponsored by the Organization of Women in International Trade-Chicago Chapter. Exhibits and products will be of Fair, Free, Direct or Sustainable products from around the world. Presentation by Nancy Jones, Director, ChicagoFairTrade.org. 6:00 p.m., Drinker, Biddle & Reath, 191 North Wacker Drive, Suite 3700, Chicago. No charge; advance registration required. For information & registration, please e-mail: owitchicago@yahoo.com.
May 5-19
Global strategy certificate program
Three-part certificate program, sponsored by the University of Illinois Business & Industry Services, is designed to help your business take advantage of, and profit from, growth opportunities in the continually evolving global business environment. Part 1 (May 5): Global Strategic Analysis & Design; Part 2 (May 12): Keys to Growing Sales in International Markets; Part 3 (May 19): Keys to Doing Business Successfully in International Markets. 8:00 a.m.-4:00 p.m., 1100 East Warrenville Road, Naperville, IL. Fee: $1,100 ($550 with grant funding). For information & registration, please call Mary Rose Hennessy at 630/505-0500 x225; e-mail: jmoravik@uiuc.edu or see: www.bis.uiuc.edu.
May 5-7
Acess to opportunity in the Middle East
International investment conference organized by the Overseas Private Investment Corporation. Participants will have a unique opportunity to learn from investment experts, U.S. businesses and financial institutions operating in the region about which sectors and markets currently offer the best returns on investments in the broader Middle East. Topics include: Access to Capital: From Microfinancing to SMEs; Access to Capital: Private Equity; Infrastructure; Energy; Tourism; Information Technology; Housing. Kampinski Hotel Ishtar, Dead Sea, Jordan. For information & registration, please see www.trademeetings.com or e-mail: opic@mfmgroup.com.
May 6-8
Illinois biotechnology trade mission to bio-finance—Toronto, Canada
The Illinois Department of Commerce & Economic Opportunity Office of Trade & Investment is partnering with the Illinois Biotechnology Industry Organization, U.S. Department of Commerce, U.S. Department of Agriculture and the Illinois Department of Agriculture to host a Biotech Trade Mission to BioFinance Canada. BioFinance Canada is attended by senior life science executives, institutional and venture capital investors, industry analysts, corporate finance executives and experts from the scientific and medical communities in Canada, the United States, Europe and Asia. BioFinance Canada will provide Illinois Biotechnology/Life Science firms with the opportunity to present and develop business contacts with key industry players in the Canadian Biotechnology sectors of: devices, therapeutics, diagnostics, industrial, environmental and agricultural. For more information on BioFinance 2008, please see: www.biofinance.ca. Participation is limited and qualified Illinois participants are accepted based on availability up to the deadline of Feb. 29. To register, please call Tom Hagle at 312/814-4959 or e-mail: tom.hagle@illinois.gov.
May 8
Update on high-tech environmental regulations: WEEE, R0HS, REACH & EUP.
Program sponsored by AeA; hosted by Motorola. Topics include: EURoHS; EU WEEE; China RoHS; Energy Awareness; Environmental State Legislation & Activities; REACH Legislation & Regulations; IEC TC111. 7:30 a.m.-3:30 p.m., Motorola — Schaumburg Campus, Corporate Tower Auditorium, Door 53, 1303 East Algonquin Road, Schaumburg, IL. AeA Members - $159; Non-members - $299. For information & registration, please call Michelle Scott at 630/613-7739 or see: www.aeanet.org/events/mwms_environmentupdate0508.asp
May 10
Chinese language immersion
Session, sponsored by the College of Lake County, designed to build Chinese speaking, reading and writing skills. No proficiency is required. 9:30 a.m.-12:00 p.m., College of Lake County, C Building, Lower Lobby, 19351 West Washington Street, Grayslake, IL. No charge. For information & registration, please call 847/543-2948 or e-mail: gliu@clcillinois.edu.
May 11
Attracting Asian investors to EB-5 projects
Webinar sponsored by Artisan Business Group. The program offers discussion on current Federally-designated Regional Centers that assist foreign investors in obtaining permanent U.S. residency utilizing the Federal EB-5 program. Topics include: Overview of Asian Outbound Immigration Investments; Major EB-5 Projects Available in Asian Market; Characteristics of Asian Investors; Asian Investors’ Decision Making Process; Developing Effective Marketing Strategies; Partnering with Asian Marketers; Cultural and Legal Issues. 2:00-3:30 p.m. CST. Fee: $120. For information & registration, please see: www.midwestusachina.com or e-mail: info@midwestusachina.com.
May 13-14
Go global or get left behind?
Seminar and workshops sponsored by the: Rockford Area Economic Development Council; Greater Rockford Airport Authority; PointTrade Services; U.S. Export Assistance Center Rockford; Northern Illinois University; Illinois Department of Commerce & Economic Opportunity; and others. Speakers include: William A. Strauss, Senior Economist and Economic Advisor, Research Department, Federal Reserve Bank of Chicago; Adrian Madunic, Coordinator, Illinois SBDC International Trade Center, Blackhawk College; Dr. Tanuja Singh, Chair, Department of Marketing, College of Business, Northern Illinois University; Tess Morrison, Director, Illinois International Trade Center, University of Illinois at Urbana- Champaign; John A. Nevell, Regional Manager, U.S. Small Business Administration; Cliff Rusnak, Executive Vice President and Board Chairman, SK Hand Tool Corporation. Northern Illinois University, 8500 East State Street, Rockford, IL. Fee for 1 day - $50; 2 days - $75. For information & registration, please see: www.rockfordil.comI2008/02/07/GoGlobal/.
May 15
UCP 600 for Americans
Seminar, sponsored by the United States Council for International Business, covers the recent revision of the Uniform Customs and Practice for Documentary Credits letter of credit rules as well as initial banking and trade feedback. Presentation by Donald R. Smith, U.S. Delegate to the UCC Revision and Chair of the USCIB Banking Committee. 8:30 a.m.-4:00 p.m., Holiday Inn Chicago Mart Plaza, 350 North Orleans Street, Chicago. Fee: $395. For information & registration, please see: www.ucp600seminar.org or call: 212/703-5066.
May 17-20
Foodservice buyers mission—The National Restaurant Association
(NRA) SHOW. Sponsored by Food Export-Midwest and Food Export-Northeast, this offers a low-cost opportunity to meet one-on-one with qualified importers and retailers representing markets from around the world, including: Canada, Caribbean, Central America, Japan, Mexico and South Korea. Products of interest: bakery and bakery mix products; beef; beverages; condiments; diary; desserts; ethnic foods and drinks; frozen and canned vegetables; pork; poultry; processed meats; sauces; spirits; wines. Fee: $75 (by April 5); $125 (by May 3). For information & registration, please call 312/334-9200; e-mail: info@foodexport.org or see: www.foodexportalliance.org/eweb/.
May 19
Attracting international students to Illinois
Fifth annual conference sponsored by the Study Illinois international education consortium; supported by the: U.S. Commercial Service-Chicago Office; Illinois Office of Trade & Investment; International Trade Association of Greater Chicago. Speakers include U.S. State Department-affiliated overseas education advisors from: Brazil, Egypt, India, Jamaica, Pakistan, and Thailand. 1:30-5:00 p.m., Loyola University Watertower Campus, Kasbeer Hall, 25 East Pearson Street, 15th Floor, Chicago. Study Illinois Members - $10; Non-members - $20. For information & registration, please call Debra Rogers at 312/353-6988 or e-mail: debra.rogers@mail.doc.gov.
May 19
How to establish your first European business operation
Seminar and reception sponsored by the Netherlands Foreign Investment Agency in cooperation with the International Trade Club of Chicago. Keynote address: Steven J. Lichter, Vice President Manufacturing, Global Pharmaceuticals Operations, Abbott Laboratories. Other speakers include: Hans van Heukelum, Vice President Global Marketing, Aon Corporation; Warren Lillund, Vice President of Sales, National Premium; David Wolf, President, Fremont Group. 3:00-6:00 p.m., University of Chicago Gleacher Center, 450 North Cityfront Plaza Drive, Chicago. ITCC Members - $30; Non-members - $40. For information & registration, please see: www.itcc.org.
May 20-22
Sweets and snacks buyers mission at the All Candy Expo
Sponsored by Food Export-Midwest and Food Export-Northeast, this offers a low-cost opportunity to meet one-on-one with qualified importers and retailers representing markets from around the world, including: Germany, Mexico, UK, Australia, Japan, Philippines, Singapore and Hong Kong. Products of interest include: confectionery; salty snacks; cookies; candy; gum; popcorn; nuts; meat snacks; nutrition and granola bars; fruit snacks; breakfast snacks; biscuits. McCormick Place, 2301 South Lake Shore Drive, Chicago. Fee: $75 (by April 8); $125 (April 9 - May 6). For information & registration, please e-mail: info@foodexport.org call 312/334-9200 or see: www.
foodexportalliance.org/eweb/ProfilePage.aspx?WebCode=CSCEventInfoSC&evt_key=9d057f 28-1dfa-4069-8ad4-d0c9d5745845.
June 16
The challenges of an ascending Asia
Presentation and discussion sponsored by The Chicago Council on Global Affairs. Presentation by Stephen Bosworth, Dean, Fletcher School of Diplomacy, Tufts University. 5:30 p.m., InterContinental Hotel, 505 North Michigan Avenue, Chicago. CCGA Members - $20; Non-members - $30. For information & registration, please see: www.thechicagocouncil.org/chicago_council_event_corporate_detail.php?eventid=1864.
June 20
Study in China
Joint program sponsored by the Chicago Chinese Cultural Institute and Central July 7 University for Nationalities, Beijing. Students will spend half-time in language study and the balance in cultural studies. Fee: $2,800 (includes airfare, room & board, classes, teaching materials, visa application, cultural activities, etc.). For information & registration, please call ZJ Tong at 312/842-1988; e-mail: tong@chicagocci.com or see: www.chicagocci.com/studyinchina.htm.
June 24-27
Illinois trade mission to Expo Pack 2008—Mexico City
The State of Illinois Office 27 of Trade & Investment invites export-ready Illinois companies to join this mission to the largest and most important packing trade show in Mexico and Central America. It draws thousands of visitors from throughout Mexico and Latin America and is the place for leading packing companies to showcase their latest and most successful innovations and solutions. The trade show has become the gateway for companies looking to expand to Mexico and Central America. Fee: $500; first come, first served. For questions on Expo Pack 2008, please see: www.expopack.com.mx. For information & registration, please call Enrico Doggett at 312/814-7295; e-mail: enrico.doggett@illinois.gov or Raymundo Flores at: rflores@illinoislatinamerica.org.
July 20-25
Midwest Food & Ag Buyers Mission
Sponsored by Food Export-Midwest, up to 20 buyers from around the world will meet one-on-one with Midwest food and agricultural exporters. These meetings offer unparalleled opportunity for each participant to learn more about exporting, marketing requirements or capabilities, strategies, opportunities and limitations in a variety of foreign markets. For further information, please call 312/334-9200 or e-mail: info@foodexport.org.
Aug. 3
Increasing opportunities from China’s education market
Webinar sponsored by Artisan Business Group. U.S. educational institutions and companies can tap the increasing opportunities in China’s growing education and training market by collaborating with Chinese educational institutions. 2:00-3:00 p.m. CST. Fee: $90. For information & registration, please see www.midwestusachina.com or e-mail: info@midwestusachina.com.
Aug. 15
2008 International Real Estate Expo—Chicago
Conference sponsored by the Chicago International Real Estate Council. Includes informational sessions covering international trends and issues. 9:00 a.m.-5:30 p.m., Holiday Inn Chicago Mart Plaza, 350 North Orleans Street, Chicago. Fee: $49. For information & registration, please call Jessica Sivels at 312/214-5534; e-mail: jsivels@chicagorealtor.com or see: www.chicagorealtor.com/international.
Sep. 25
Importing 2008.
Seminar sponsored by Sandler, Travis & Rosenberg, P.A. For new and experienced importers, this program will provide a thorough understanding of the major areas of concern under the Customs laws. 9:00 a.m.-5:00 p.m., Sandier, Travis & Rosenberg, P.A., 225 West Washington Street, Chicago. Fee: $370. For information & registration, call 312/641-0000 or e-mail: gbarrientos@strtrade.com.
Sep. 26
NAFTA qualifications, compliance & recordkeeping
Seminar sponsored by Sandier, Travis & Rosenberg, P.A. Gain a clear understanding of NAFTA, including the critical Rules of Origin as well as compliance and recordkeeping requirements. 9:00 a.m.-5:00 p.m., Sandier, Travis & Rosenberg, P.A., 225 West Washington Street, Chicago. Fee: $370. For information & registration, please call 312/641-0000 or e-mail: gbarrientos@strtrade.com.
Oct 16
The basics of exporting: Understanding U.S. regulatory requirements
Seminar, sponsored by Sandier, Travis & Rosenberg, P.A., provides a comprehensive overview of the various U.S. export laws and regulations, with a general introduction to the different agencies that exercise jurisdiction over certain financial transactions and the export/re-export of commodities, software and technology. 9:00 a.m.-5:00 p.m., Sandler, Travis & Rosenberg, P.A., 225 West Washington Street, Chicago. Fee: $370. For information & registration, please call 312/641-0000 or e-mail: gbarrientos@strtrade.com
Nov. 13
Preparing for U.S. Customs focused assessment
Seminar, sponsored by Sandler, Travis & Rosenberg, P.A., analyzes the compliance-related elements of the Mod Act and offers concrete advice on preparing for and surviving a Customs focused assessment. 9:00 a.m.-5:00 p.m., Sandier, Travis & Rosenberg, P.A., 225 West Washington Street, Chicago. Fee: $370. For information & registration, please call 312/641-0000 or e-mail: gbarrientos@strtrade.com.
Nov. 14
Managing customs valuation
Seminar, sponsored by Sandier, Travis & Rosenberg, P.A., focuses on the strategies and techniques companies use to lower Customs duties and to support planning, pricing and value declarations. 9:00 a.m.-5:00 p.m., Sandier, Travis & Rosenberg, P.A., 225 West Washington Street, Chicago. Fee: $370. For information & registration, please call 312/641-0000 or e-mail: gbarrientos@strtrade.com.
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About the Sponsoring Organizations...
Founded in December 1977, The International Trade Association of Greater Chicago (ITA/GC) was incorporated in January 1979 as an Illinois not-for-profit, voluntary business association dedicated to promoting international commerce in all its forms by providing a forum for the exchange of practical information and insight within the international business community.
The Office of Trade and Investment (OTI) of the Illinois Department of Commerce and Economic Opportunity (DCEO) is the State of Illinois’ lead international advocate in promoting job retention and creation in Illinois through International Trade and Investment. To contact the OTI of DCEO, please call 312-814-2828 or visit: www.illinoisbiz.biz/bus.ito/index.html.
The U.S. Export Assistance Center Chicago is part of the Commercial Service of the U.S. Department of Commerce and is committed to assisting U.S. firms in realizing their export potential. To contact the U.S. Export Assistance Center, please call 312-353-8040 or visit: www.buyusa.gov/uppermidwest.
Comprised of 26 volunteers appointed by the U.S. Secretary of Commerce, the Illinois District Export Council supports, assists and advises the U.S. Export Assistance Center Chicago in its mission to increase the exports of the United States. For further information, please e-mail: info@illinoisdec.org.
The issue of consular notice is presently before the U.S. Supreme Court in Medellin v. Texas, No. 06-984. But no matter how the Court decides that pending case, questions will continue about when law enforcement or other governmental officials need to: (1) inform foreign nationals who are arrested or detained of their legal rights under the Vienna Convention on Consular Relations (VCCR); and (2) comply with other bilateral treaties that require consular notice, even when the foreign national does not necessarily want to contact his or her consulate or embassy.
The ISBA Section Council on International and Immigration Law recently learned that the United States may be systematically violating article 36(1)(b) of the Vienna Convention on Consular Relations, which requires that U.S. authorities inform foreign nationals of the right to consular notification “without delay” when they are arrested or detained. The systematic failure to provide consular notice may also be violating numerous bilateral treaties that make consular notification mandatory when a foreign national is arrested or detained.
The alleged systematic violations may be occurring at O’Hare Airport and other points of entry into the United States. The ISBA International and Immigration Law Section Council was advised that U.S. immigration officers are taking the position that consular notice is not required-and that foreign nationals need not be told of their right to request consular notification-before until a foreign national legally “enters” the United States. Such a position would seem to violate the plain text of the Vienna Convention on Consular Relations, which requires, if the foreign national so requests, that “the competent authorities of the receiving State shall, without delay, inform the consular post of the Sending state if, within its consular district, a national of that state is arrested . . . or is detained in any other manner.” The foreign consulates recognize these ports and points of entry into the United States as being within their consular districts. The language of the Vienna Convention does not require formal “entry” into the United States.
Likewise, the practice would also seem to violate multiple bilateral consular conventions. For example, the treaty between the U.S. and the Czech Republic requires that: “In all instances, when a national of the sending state is placed under any form of deprivation or limitation of personal freedom, the competent authorities of the receiving state shall inform the consulate of the sending State without delay.” The treaty does not require formal entry into the United States.
The official stated government position does not require that a formal entry into the United States take place before the right of consular notification attaches. In this regard, the relevant State Department instructions state that: “While there is no explicit exception for short detentions, the Department of State does not consider it necessary to follow consular notification procedures when an alien is detained only momentarily, e.g., during a traffic stop. On the other hand, requiring a foreign national to accompany a law enforcement officer to a place of detention may trigger the consular notification requirements, particularly if the detention lasts for a number of hours or overnight. The longer a detention continues, the more likely it is that a reasonable person would conclude that the Article 36 obligation is triggered.” See United States Dept of State, Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them, at 19, available at <http://travel.state.gov/law/consular/consular_636.html>. The relevant Department of Homeland Security (DHS) regulation states: “Every detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States.” 8 CFR 236.1(e). Thus, the practice appears to be contrary to the official positions taken by both the State Department and the DHS.
Foreign nationals detained at airports have reportedly included a grandmother who was handcuffed to a radiator. In addition, some foreign nationals have been detained for up to three days at the airports before travel arrangements could be made for them to return home. The foreign consular officials say that they are not being notified when their nationals are being detained at airports and other ports of entry, and that the failure to provide consular notice violates mandatory notice provisions under the bilateral treaties as well as the obligation to inform the detained foreign nationals of their rights under the VCCR.
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Cindy Buys is an associate professor of law at Southern Illinois University School of Law and the secretary of the ISBA Section Council on International and Immigration Law. Mark E. Wojcik is a professor at The John Marshall Law School in Chicago and a former Chair of the section. He is currently a member of the ISBA Board of Governors.