The Law Offices of Delvis Meléndez, P.C.

For more than 22 years, my firm has represented individuals in employment matters.

We have fought to vindicate the legal rights of those who have been exploited, discriminated against, and taken advantage of.

04/20/2022
09/21/2020

In memory of RBG.
WHEN GREAT TREES FALL
When great trees fall,
rocks on distant hills shudder,
lions hunker down
in tall grasses,
and even elephants
lumber after safety.
When great trees fall
in forests,
small things recoil into silence,
their senses
eroded beyond fear.
When great souls die,
the air around us becomes
light, rare, sterile.
We breathe, briefly.
Our eyes, briefly,
see with
a hurtful clarity.
Our memory, suddenly sharpened,
examines,
gnaws on kind words
unsaid,
promised walks
never taken.
Great souls die and
our reality, bound to
them, takes leave of us.
Our souls,
dependent upon their
nurture,
now shrink, wizened.
Our minds, formed
and informed by their
radiance,
fall away.
We are not so much maddened
as reduced to the unutterable ignorance
of dark, cold
caves.
And when great souls die,
after a period peace blooms,
slowly and always
irregularly. Spaces fill
with a kind of
soothing electric vibration.
Our senses, restored, never
to be the same, whisper to us.
They existed. They existed.
We can be. Be and be
better. For they existed.
~ Maya Angelou

06/18/2020

Supreme Court rules against Trump Administration in DACA case. Chief Judge Roberts writing the majority opinion held that the revocation of DACA protections was arbitrary and capricious, in violation of the Administrative Procedure Act and infringed upon the equal protection clause of 5th Amendment. Below is the syllabus of the decision.

SUPREME COURT OF THE UNITED STATES
Syllabus
DEPARTMENT OF HOMELAND SECURITY ET AL. v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 18–587. Argued November 12, 2019—Decided June 18, 2020*
In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred
Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a
two-year forbearance of removal. Those granted such relief become
eligible for work authorization and various federal benefits. Some
700,000 aliens have availed themselves of this opportunity.
Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and
Lawful Permanent Residents (DAPA). If implemented, that program
would have made 4.3 million parents of U. S. citizens or lawful permanent residents eligible for the same forbearance from removal, work
eligibility, and other benefits as DACA recipients. Texas, joined by 25
other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the
Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. This Court affirmed by an equally divided vote, and
——————
*Together with No. 18–588, Trump, President of the United States, et
al. v. National Association for the Advancement of Colored People et al.,
on certiorari before judgment to the United States Court of Appeals for
the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secretary
of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before
judgment to the United States Court of Appeals for the Second Circuit.

2 DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Syllabus
the litigation then continued in the District Court.
In June 2017, following a change in Presidential administrations,
DHS rescinded the DAPA Memorandum, citing, among other reasons,
the ongoing suit by Texas and new policy priorities. That September,
the Attorney General advised Acting Secretary of Homeland Security
Elaine C. Duke that DACA shared DAPA’s legal flaws and should also
be rescinded. The next day, Duke acted on that advice. Taking into
consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program. She
explained that DHS would no longer accept new applications, but that
existing DACA recipients whose benefits were set to expire within six
months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own
terms, with no prospect for renewal.
Several groups of plaintiffs challenged Duke’s decision to rescind
DACA, claiming that it was arbitrary and capricious in violation of the
Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District
Courts in California (Regents, No. 18–587), New York (Batalla Vidal,
No. 18–589), and the District of Columbia (NAACP, No. 18–588) all
ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the
INA deprived the courts of jurisdiction. In Regents and Batalla Vidal,
the District Courts further held that the equal protection claims were
adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely
to succeed on their APA claims. The District Court in NAACP took a
different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their
APA claim, finding that the rescission was inadequately explained.
The court then stayed its order for 90 days to permit DHS to reissue a
memorandum rescinding DACA, this time with a fuller explanation of
the conclusion that DACA was unlawful. Two months later, Duke’s
successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and
instead explained why she thought her predecessor’s decision was
sound. In addition to reiterating the illegality conclusion, she offered
several new justifications for the rescission. The Government moved
for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate
meaningfully on the illegality rationale.
The Government appealed the various District Court decisions to
the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government filed three petitions for certiorari

Cite as: 591 U. S. ____ (2020) 3
Syllabus
before judgment. Following the Ninth Circuit affirmance in Regents,
this Court granted certiorari.
Held: The judgment in No. 18–587 is vacated in part and reversed in
part; the judgment in No. 18–588 is affirmed; the February 13, 2018
order in No. 18–589 is vacated, the November 9, 2017 order is affirmed
in part, and the March 29, 2018 order is reversed in part; and all of the
cases are remanded.
No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18–
588, affirmed; and No. 18–589, February 13, 2018 order vacated, November 9, 2017 order affirmed in part, and March 29, 2018 order reversed in part; all cases remanded.
THE CHIEF JUSTICE delivered the opinion of the Court, except as to
Part IV, concluding:
1. DHS’s rescission decision is reviewable under the APA and is
within this Court’s jurisdiction. Pp. 9–13.
(a) The APA’s “basic presumption of judicial review” of agency action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted by showing that the “agency action is committed to agency discretion by law,” 5 U. S. C. §701(a)(2). In Heckler v. Chaney, the Court held
that this narrow exception includes an agency’s decision not to institute an enforcement action. 470 U. S. 821, 831–832. The Government
contends that DACA is a general non-enforcement policy equivalent to
the individual non-enforcement decision in Chaney. But the DACA
Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney,
DACA’s creation—and its rescission—is an “action [that] provides a
focus for judicial review.” Id., at 832. In addition, by virtue of receiving
deferred action, 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Access to such
benefits is an interest “courts often are called upon to protect.” Ibid.
DACA’s rescission is thus subject to review under the APA. Pp. 9–12.
(b) The two jurisdictional provisions of the INA invoked by the
Government do not apply. Title 8 U. S. C. §1252(b)(9), which bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien,” is inapplicable where, as here, the parties do not challenge any removal proceedings. And the rescission is not a decision “to
commence proceedings, adjudicate cases, or execute removal orders”
within the meaning of §1252(g). Pp. 12–13.
2. DHS’s decision to rescind DACA was arbitrary and capricious under the APA. Pp. 13–26.
(a) In assessing the rescission, the Government urges the Court to
consider not just the contemporaneous explanation offered by Acting
Secretary Duke but also the additional reasons supplied by Secretary

4 DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Syllabus
Nielsen nine months later. Judicial review of agency action, however,
is limited to “the grounds that the agency invoked when it took the
action.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds are
inadequate, a court may remand for the agency to offer “a fuller explanation of the agency’s reasoning at the time of the agency action,” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654
(emphasis added), or to “deal with the problem afresh” by taking new
agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Secretary Nielsen chose not to take new action, she was limited to elaborating on the agency’s original reasons. But her reasoning bears little
relationship to that of her predecessor and consists primarily of impermissible “post hoc rationalization.” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision
before considering new reasons is not merely a formality. It serves
important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not
simply convenient litigating positions, and facilitating orderly review.
Each of these values would be markedly undermined if this Court allowed DHS to rely on reasons offered nine months after the rescission
and after three different courts had identified flaws in the original explanation. Pp. 13–17.
(b) Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the problem before the agency. Although
Duke was bound by the Attorney General’s determination that DACA
is illegal, see 8 U. S. C. §1103(a)(1), deciding how best to address that
determination involved important policy choices reserved for DHS.
Acting Secretary Duke plainly exercised such discretionary authority
in winding down the program, but she did not appreciate the full scope
of her discretion. The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA.
The Fifth Circuit, the highest court to offer a reasoned opinion on
DAPA’s legality, found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the
defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance
component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely
within Duke’s discretion. Yet, rather than addressing forbearance in
her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and
forbearance, without explanation. That reasoning repeated the error
in Motor Vehicle Manufacturers Association of the United States, Inc.
v. State Farm— treating a rationale that applied to only part of a policy
as sufficient to rescind the entire policy. 463 U. S. 29, 51. While DHS

Cite as: 591 U. S. ____ (2020) 5
Syllabus
was not required to “consider all policy alternatives,” ibid., deferred
action was “within the ambit of the existing” policy, ibid.; indeed, it
was the centerpiece of the policy. In failing to consider the option to
retain deferred action, Duke “failed to supply the requisite ‘reasoned
analysis.’ ” Id., at 57.
That omission alone renders Duke’s decision arbitrary and capricious, but it was not the only defect. Duke also failed to address
whether there was “legitimate reliance” on the DACA Memorandum.
Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain
features of the DACA policy may affect the strength of any reliance
interests, but those features are for the agency to consider in the first
instance. DHS has flexibility in addressing any reliance interests and
could have considered various accommodations. While the agency was
not required to pursue these accommodations, it was required to assess
the existence and strength of any reliance interests, and weigh them
against competing policy concerns. Its failure to do so was arbitrary
and capricious. Pp. 17–26.
THE CHIEF JUSTICE, joined by JUSTICE GINSBURG, JUSTICE BREYER,
and JUSTICE KAGAN, concluded in Part IV that respondents’ claims fail
to establish a plausible inference that the rescission was motivated by
animus in violation of the equal protection guarantee of the Fifth
Amendment. Pp. 27–29.
ROBERTS, C. J., delivered the opinion of the Court, except as to Part IV.
GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and SOTOMAYOR, J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinion
concurring in part, concurring in the judgment in part, and dissenting in
part. THOMAS, J., filed an opinion concurring in the judgment in part and
dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J.,
and KAVANAUGH, J., filed opinions concurring in the judgment in part
and dissenting in part.

_________________
_________________
Cite as: 591 U. S. ____ (2020) It appears the Supreme Court will hold fast to the application of law to fact rather than political cronyism. aThe Supreme Court Rules against Trump Administration in DACA case. Chief Judge Roberts writing for teh majority opinion wrote held teh Trumps Adminstration revocation of DACA protections was arbitraty and caprisiocyus, in violation so the Adminstrative Procedure Act and infringed on the equal protection Clause of the 5th Amendment.

06/11/2020

On June 10, 2020, in a matter called the State of New York and Eric Gonzalez v. U.S Immigration and Customs Judge Rakoff sitting in the Southern District of New York held ICE Policy of court house arrests of undocumented immigrants are illegal and not permitted.

06/03/2020

NYS QUARANTINE LAW
Passed on 3/18/2020 provided for additional paid and unpaid leave and expansion of the State Family Medical Leave and Disability Benefits.
1. Employers with 10 or fewer employees and net income less than one million must provide job protection for duration of the Quarantine Order.
2. Employers with 11-99 and employers with 10 or fewer employees and net income greater that 1 million must provide at least five days paid sick leave and job protection for duration of Quarantine Order.
3. Employers with 100 or more employee and public employees, as well as public employees must provided at least 14 days sick leave and guaranteed job protection.
Important: The current New York State or PAUSE requirement that all non essential business close or only work remotely does not entitled displaced worker benefits under the law. An Order of Quarantine or Isolation as Ordered by Public Health Official must be issued not Cuomo. See Executive Order 202.8
4. Employees who are asymptomatic or have not yet been diagnosed and are physically able to work remotely are exempt.
5. Quarantine and Isolation benefits do not apply to employees who returned from to U.S for non related travel.
THE FAMILIES FIRST CORONA VIRUS ACT. (HR-6201
Will become effective April 2, 2020. It will expire December 31, 2020.
Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. …
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
Generally, the Act provides that covered employers must provide to all employees:
• Two weeks (up to 80 hours) of paid sick time at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick time at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
A covered employer must provide to employees that it has employed for at least 30 days:
• Up to an additional 10 weeks of paid family leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Qualifying Reasons for Leave:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:
1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

QUESTION AND ANSWERS.

Do I have to pay employees if I temporarily close my business due to Covid 19?
Answer: Employers do not have to pay non exempt employees who do not work.
If I lay off employees do I have to provide some kind of form?
Answer: Yes, Employers should provide laid off and/or terminated employees with a NYDOL Records of Employment form at separation.
Will employers be required to pay “report to work pay” even if employee was sent home early.
Answer: Yes. The hospitality industry must pay employees who reported to work at least for three hours of work in one shift. In other industries they must be paid a minimum of four hours of work.
Must I provide Notice to employees if I close my business.
Answer: Yes and No. Under the Warn act if the employer has more than 50 employees it must provide Notice at least 90 days before termination. There is an exemption for unforeseeable circumstance. Corona virus might be one.
Can I employer can shifts without notice.
Answer: Retailers and fast food restaurant can cancel shifts without notice.

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