In the Matter of Sunny View Farms

Case No. 2004-TLC-6

U.S. Department of Labor; Office of Administrative Law Judges

An employer, Sunny View Farms, filed two H-2A temporary alien labor certifications with the U.S. Department of Labor Employment and Training Administration on February 4, 2004. 

The ETA denied the certification, finding that Sunny View had not complied with the requirements of 20 C.F.R. § 655.102(b)(2) which requires the employer to provide the alien with workers’ compensation insurance in compliance with state law, and if the employment sought is not covered by state law, then the employer must provide the alien with insurance at least equal to those provided under the state law for comparable employment to cover injury and disease arising out of and in the course of the worker’s employment.

Sunny View requested an expedited administrative review of the matter, and the Administrative Law Judge affirmed the denied of the application, finding that pursuant to North Dakota law, Sunny View was required to provide $272.96 insurance per week to each alien applicant.  Sunny View provided evidence of providing only $150.00 insurance per week, and therefore, falls short of the requirement. 

*****

Roble v. Pontesso
Tenth Circuit Court of Appeals
2004 U.S. App. LEXIS 3826

Petitioner Ali Nur Roble filed a petition for a writ of habeas corpus seeking release from pre-removal incarceration and challenging a final administrative order removing him to Somalia or alternatively to Kenya.  The district court denied his petition and the Tenth Circuit vacated and remanded the case for further consideration. 

Roble was admitted to the US with a Kenyan passport.  In 1999, in an application for asylum, he asserted that the Kenyan passport used for entry was not genuine and that he was actually a Somalian national.  Roble's Kenyan passport appeared to be genuine, and the IJ found his testimony regarding his Somalian origin to lack credibility.  The IJ denied Roble's asylum application, and ordered him removed to Somalia and alternatively to Kenya.  Roble was placed in civil detention in April of 2002.  The BIA summarily affirmed the IJ's decision on August 9, 2002.  In January of 2003, the US District Court for the Western District of Washington entered a permanent injunction enjoining the INS from removing Somalis to Somalia because Somalia does not have a functional government to accept aliens removed from the US. 

Roble sought release pending removal, and claimed that his indefinite incarceration was unlawful.  The Tenth Circuit held that Roble's removal period had expired, and noted case law supporting detention beyond the removal period only if the alien is a risk to the community or unlikely to comply with the order of removal.  The court found that Roble's removal to Somalia did not appear imminent, and that the INS had not asserted grounds for continuing to hold Roble beyond the removal period. 

The court sent the case back to the district court with instructions to first determine the likelihood that Roble would be removed within the reasonably foreseeable future.  If the district court finds that it is likely that Roble will be removed in the reasonably foreseeable future, the INS may then be authorized to continue to detain Roble only if the district court determines that Roble is a flight risk or a risk to the community.  The district court judgment was vacated and the matter was remanded.