December 6, 2007

Department of Justice Appeals No-Match Injunction

In a surprising reversal, on December 4, 2007, Department of Homeland Security (DHS) Secretary Michael Chertoff announced the Agency’s decision to appeal the No-Match regulations injunction issued in October by the U.S. District Court for the Northern District of California.

This notice and appeal by the Department of Justice on behalf of DHS comes less than two weeks after DHS filed a motion in the same U.S. district court requesting that the case be stayed on the merits. On November 23, 2007, DHS requested the stay pending its promulgation of a new rule taking into account the concerns Judge Breyer had raised in his decision. The court has not ruled on the DHS motion. If the stay is granted it would place the litigation on hold until March 24, 2008, when DHS anticipated the new rulemaking proceedings would be complete.

Secretary Chertoff’s statements regarding the decision to not only appeal the ruling of the court but also move forward with rulemaking were made following press statements issued by the American Civil Liberties Union (ACLU) that the government had abandoned the current no-match rule. Thereafter, Secretary Chertoff’s response to the ACLU outlined DHS’s intent to proceed with their appeal and their push to move forward with the rulemaking process to rectify deficiencies in the previous no-match regulations. In the statement, Secretary Chertoff affirms DHS’s stance noting:

Far from abandoning the rule, we’re going to fight hard to make it effective. To that end, we are pursuing two strategies. First we’re addressing the discrete concerns the district court raised in October in our forthcoming supplemental rule. Second, we have filed an appeal of the district court’s order to the Ninth Circuit. We’re pursuing both options at once in order to get the quickest possible resolution.”

Until the lawsuit was filed, the Social Security Administration (“SSA”) had been mailing no-match letters to employers when the name and social security number submitted to the SSA for employees did not match its records. Under the new rule, SSA would have sent copies of the letters to employers with an added insert from DHS regarding steps employers had to take upon receipt of the letters. Furthermore it would have imposed a 90 day time period to rectify mismatches or face civil or criminal action. For a detailed background please see the Greenberg Traurig Immigration Alerts “Department of Homeland Security Issues FINAL Regulations on Social Security No-Match Letters” and “No-Match, ICE, Investigations, Fines, I-9s - How Much More Difficult Can it Get to Run a Business?” and October 10, 2007 and November 16, 2007 news flashes.

Greenberg Traurig will continue to monitor this lawsuit and provide timely updates.