The US immigration court backlog

On July 19, 2023, Law360 published the attached commentary entitled A Blueprint For Addressing The Immigration Court Backlog, by Donald Kerwin. This article addresses the US immigration court backlog, which it attributes to systemic problems in the broader US immigration system.

"It would be a mistake to blame the backlog on EOIR [the Executive Office for Immigration Review] or its 650 immigration judges," Kerwin writes. "Instead, the backlog results from ... gross disparities in funding between immigration enforcement and the adjudication of removal proceedings, the failure of Congress to enact meaningful legislative reform, backlogs in the legal immigration system and the limited authorities of immigration judges."

The commentary offers seven sets of interrelated policy recommendations based on the Center for Migration Studies of New York's (CMS's) comprehensive study, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, published in CMS's Journal on Migration and Human Security.

“Many of the broader problems in the US immigration system have seemed impervious to reform," the commentary concludes. "Yet a technical, good-government issue, such as reducing the backlog, may be the right vehicle to begin to remedy past failures. A nation with 45 million foreign-born residents needs an immigration court system that fairly and efficiently adjudicates cases.”

To access CMS's immigration court backlog report click HERE. 

Texas woman charged with stealing over $65,000 in NYS pension payments

On July 24, 2023, State Comptroller Thomas P. DiNapoli announced the indictment of a 53-year-old Texas woman for allegedly stealing more than $65,000 in New York state pension payments meant for a deceased acquaintance. Christy Gibson, of Smith County, Texas, was indicted by Texas prosecutors and charged with one count of theft after an investigation by DiNapoli’s office.*

“Christy Gibson went to great lengths to cover up the death of an acquaintance to line her own pockets,” DiNapoli said. “Thanks to the work of my investigators and law enforcement in Texas, she will be held accountable. We will continue to partner with law enforcement from across the country to protect the New York State Retirement System.”

William H. Walsh Jr. retired from the New York State Department of Corrections and Community Supervision in November 1986. He elected to receive a reduced monthly retirement benefit so his wife, Mary L. Walsh, would continue to receive payments if he died before her. William Walsh died in October 2005. Mary Walsh died in December 2012 and at the time of death the pension payments should have stopped. Instead, her death was never reported to the New York state retirement system.

In May 2013, the retirement system received information indicating that Walsh may have died, and pension payments were halted. In June of that year, the retirement system sought verification that Mary Walsh was still alive and subsequently received notarized verification, purportedly from Mary Walsh. As a result, the pension payments were reinstated.

A later investigation by the State Comptroller’s Office found that Mary Walsh was in fact deceased, and the verification was fraudulent.

In total, 70 pension payments were paid after date of death, amounting to $65,102.28.  

The pension payments went into a joint account in the name of Mary Walsh and Gibson that was opened in 2011. Gibson never informed the bank of Walsh’s death or removed Walsh’s name from the account. It appears that Gibson was an acquaintance of Mary Walsh through her sister-in-law and also worked at the nursing home where Walsh eventually lived.

DiNapoli’s investigators determined that Gibson used the joint account to pay for entertainment and food.  Gibson also made electronic transfers and cash withdrawals.

Gibson was indicted in the 114^th District Court of Smith County Texas on one count of theft. Gibson’s anticipated arraignment will be on August 7 before Judge Austin Reve Jackson.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

* N.B. The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

New York State Comptroller DiNapoli releases School District and Municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following School District and Municipal audits were issued on July 21, 2023.

Click on the text highlighted in color to access the entire audit report.

 

Patchogue-Medford Union Free School District – Health Insurance Buyouts (Suffolk County) Although the district’s health insurance buyout program is generally cost-effective, the district could achieve greater savings by modifying the terms of the program. For example: the district should review the eligibility requirements of the program for married couples and family members employed by the district. For the 2021 calendar year, auditors found the district could have saved $73,966 if it had more cost-effective buyout requirements.

 

Village of Solvay – Financial Management (Onondaga County) The board and officials did not develop a budget for the electric fund and adequately manage its financial condition. From 2016-17 through 2020-21, the electric fund’s total net assets declined by approximately $9 million, and cash declined from $4.1 million to $1 million. Officials also did not maintain up-to-date records or provide adequate financial reports to the board; take action to ensure electric fund revenues kept pace with expenses; ensure that annual payments from the electric fund to the general fund totaling approximately $1 million were justified and supported; monitor the general fund budget during 2021-22; or develop long-term written financial or capital plans. Auditors found 31 general fund appropriation accounts were over expended by nearly $1.2 million.

 

West Hempstead Union Free School District – Nonstudent Network User Account Controls (Nassau County) District officials did not establish adequate controls over nonstudent network user accounts to help prevent unauthorized use, access and loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found the board and district officials did not: develop and adopt policies and procedures addressing key network user access controls, such as user account management, password security and user account controls, or disable 60 of the district’s enabled nonstudent network accounts that were not needed. Twenty-two of these accounts have not been used in more than five years.

 

Town of German – Supervisor’s Records and Reports (Chenango County) The former supervisor did not maintain the town’s accounting records and reports in a complete, accurate and up-to-date manner. As a result, the board’s ability to monitor financial operations was compromised, resulting in diminished transparency of the town’s financial operations. The former supervisor: incorrectly recorded almost $1 million of highway fund revenues and $57,000 of fire protection fund revenues in the general fund for the 2020 through 2022 fiscal years; did not provide budget status reports, or a monthly accounting of all money received and disbursed, to the board; consistently filed the annual financial report and the tax cap form late with the Comptroller’s Office; did not annually provide accounting records to the board for audit.

 

Tioga County Court and Trust Auditors reviewed the treasurer’s processes, procedures and records for the receipt and management of court and trust funds. They found the treasurer established adequate procedures, maintained appropriate records and properly reported court and trust funds as prescribed by statute. Auditors also found that records maintained by the County Clerk and Surrogate’s Court were up to date and complete with no material discrepancies.

 

East Ramapo Central School District – Nonpublic School Transportation (Rockland County) An audit issued in November 2019 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before June 30, 2019, for seven of the eight audit recommendations, officials did not actually take corrective actions. Of the eight audit recommendations, six recommendations were not implemented and the status of two recommendations could not be determined.

 

East Ramapo Central School District – Textbooks Loaned to Nonpublic School Students (Rockland County) An audit issued in August 2020 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before July 2020, of the six audit recommendations, one recommendation was implemented, two recommendations were partially implemented, and three recommendations were not implemented.

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Selected decisions distinguishing residence and domicile when determning eligibility for employment in the public service

 Click on the text in color to access the posting on the Internet.

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment  Matter of Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 92 AD3d 1272. The City of Niagara Falls decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_03230.htm; A summary of the decision in Beck-Nichols is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/02/court-of-appeals-holds-that-residency.html

 

Determining “continuous residency” for the purpose of qualifying for public office or employment. Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_05842.htm

 

Distinguishing between an individual's "domicile" and his or her "residence" . The decision is posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

 

Distinguishing between residence and domicile Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_01885.htm

 

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), The Allen decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/pdfs/2011/2011_31035.pdf. See, also, the Johnson decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm 

 

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances. Matter of Bowman (City of Niagara Falls--Commissioner of Labor), 2015 NY Slip Op 00425, The decision is posted on the Internet at www.nycourts.gov/reporter/3dseries/2015/2015_00425.htm
.

Employee found to have violated employer's domiciliary policy terminated . Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division. The Adrian decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

 

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

 

Employee terminated for failure to comply with the employer’s “residence” requirement 2013 NY Slip Op 04148, The decision in this action is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04148.htm [See also Alexis v City of Niagara Fallsposted on the Internet at:  http://publicpersonnellaw.blogspot.com/2013/05/an-employees-satisfying-employers.html].

 

Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773. The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs

 

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode” . Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm

 

 

NYPPL's public personnel law handbooks, listed below, are available for purchase from BookLocker.com, Inc

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits: payable to firefighters, police officers and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.