Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

Document 108-3

Filed 11/17/2006

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EXHIBIT B

Case 1:04-cv-01160-LTB-CBS

Document 108-3

Filed 11/17/2006

Page 2 of 5

DEPOSITION OF BARTCHAI/EZ
, S IN THE UNITED STATES DISTRICT CO(IRT FOR DISTRICT COrcNEOO THE OF CiailActionNo,04CVI 160 S

Taken DEFEMetfT by WEDMSDAY NOVEIIBER 2005 30,

G@PV
Reported by: Geneva Hansen

provided Transcript by:

THOMAS T. TOMKO
AND ASSOCIATES, INC. Registered Professional Reporters
820Slxteenth Suite530 St., Denver, Colorado80202 (303) 825-1822

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Case 1:04-cv-01160-LTB-CBS WEDNESDAY NOV 30, 2OO5
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Document 108-3
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Filed 11/17/2006 Page 3 of 5 Condsnselt!w DEPOSMON OF BART CHAVEZ
and the materialspror.ided l l than your experience I l 2 by Mr.Maguire? g 11

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I Maguire did you discussany conversations with z JohnCombs? 3 A. No, I don't recall any conversations + relating to a Mr. Combs. 5 e. Are you familiar with the finn of 6 StemandElkind? 7 A. My office is representing a 8 respondento removalproceedings, currently is s detainedin Denverand Mr. Sterncontacted as me to to how we were handlingthat particular caseand lt that's beenwithin just the last week. I know t2 that that firm has a very goodreputationandMr. tl Sternis a very reputableattorneywithin the t4 American immigration lawyers' circles. 15 As to specificwork they havedone, 16 no, but as to their generalreputation,yes. q. During the courseof preparationof l7 18 your opinion andreport, you had an opportunity 19 to review the credentialsandexperience Ms. of zo Ross;is that correct? 2r e. Yes,I did. 22 it e. And you would agree was reasonable zs of Lionbridgeto rely on any adviceprovidedby 24 hefl 25 A. That was the acceptable practicein

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a. Specificallythereis a book that we l -4 useda numberof times in our practice. One t would be the that t-- Thompson H-lB handbook is put out by West,2005Edition. l o l 7 I believethey alsohave a 8 corresponding book with respectto alien wavier 9 certification, the 2005 Edition that was also put l 0 out by Thompson West. ll Otherthan thosetwo ThompsonWest Q. t z booksor treatises, your personalexperience and l 3 the materialsprovidedby Mr. Maguire, did you 14 rely on any othermaterialsin preparingyour l 5 report for this case? t6 A. No, not to my recollection. t7 [email protected]*vin 1 8 Cd'gradn9"** l9 A. )..{nrl*am"not,. q And y.su6dddgefi,*ptyou're 20 not 2 l an exp6ltfrin*gn]4ilMa]l*shape*q; on Colorado form
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22 @*.*24 practidelaw in the stateof ColoradoI have 25 neve@alcourtsinthe

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Pagel 0 Paget2 t these typesof cases.If Ms. Ross'srelationship Stateof Colorado. z is similar to thosewith our corporate p(eaddlaole'tlae""l,ast.,qr-estion. ) r immigration clients,yes. .ruN0,*km,a0f*en-gxnpfiff& Colorado 4 e. I thoughtmy questionwas simpler 4 law. 5 than your response.My questionis simplyymaas q. (By Mr. Cross) You do, however, 5 0 6 consideryor:rself to be an expert in the laws t grv@dentials? relatingto immigration and asylum issues;is ncffes.". 8 that correct? 9 In preparingyour report, did you Q. a. I believethe correctterm would be to rely on any publisheddataor treatises? l 0 the laws of the immigration and nationality laws ll A. To my recollectionmy repofi was l l would probably be a fair statement. tz prepared Marilyn basedon the materials by q. And that's all federallaw, correctl 12 tr providedto me by Mr. Maguire and a variety of l3 R. Technically not federallaw. I it's 14 experiences I've had hereas a immigration that t 4 like to coin it as the whole body of law. 15 lawyeroverthe last 13 plus years. l5 Immigration practiceis primarily an 16 Q. So other than the materialreviewed, l 6 administative practiceand,however,somecases 1n 17 as setforth in your report, and otherthan your do go to the federallevel, but ttre majority of 18 experience relied on nothingelseto prepare you l 8 immigration practiceis administrativein nature. 19 the report submittedin this case? t9 a. And by administrativepractice you 20 A. No, I would say that I also - I did 20 arereferring to the forum in which it's zt discussttris matterwith my paralegal, Angie. I 2l practiced? 22 know that shehad opportunity to review someof 22 A. That would be correct. Each of the 23 the materialsandwe did reference I did refer or 23 respective areas have specific agencies you that 24 to somematerialsprovided in othsr treatises. 24 dealwith either at the stateor federal level. 25 25 Q. What preciselydid you rely on other e. The underlying law, however,is
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1 r federallaw, correct? I 2 e. I would classify it as the body of | r law that is practiced. It is universally I in it's | + recognized all 50 states.Whettrer s federalin nature,per se,that is another I question. Therearelaws in most cases governed | 0 t by federalstatuteor regulation. I Q. Federalstatuteand federal |8 I I regulation,correct? A. Because work on a numberof cases we Ito as Itt with regulations well. q. And thosearefederalregulations, t2 13 correct? t4 e. They areimplemented setup by our or ts peoplein Washington, D.C. 16 Q. Doesyour opinion expressed yow in {'I, lz report regardingthe conductof Lionbridge us.o*e t8 that Lionbridgehad a duty of careto Ms. jJ 19 Derkevorkian? j$ 20 a. Yes. ti 2t e. And would that duty of carenot come l' 22 from Coloradolaw? f 23 R. No. It would comefrom ttrc laws and i 24 the practicesandprocedures a recognized ! that 25 immigration attorney-- no, I do not believeit d | I I | |

Page15 t statelaw would be Coloradolaw, correct? I a. More than likely. | 2 q. You're familiar with the fact that 3 | | 4 Ms. Derkevorkianwas offered a translator September 2002, of I s positionin approximately | 6 correct? A. Arc we talking aboutthe translator | 7 a position or the manager translatorposition? I 9 Q. Well, in September 2002,it would of | be your understanding, wouldn't it, that Ms. Ito Derkevorkian thenheld a translator management Itt Itz position,correct? A. My understanding that shewas was lt, t+ beingpromotedto that position, yes. 15 e. Well, what's your understanding of 16 when Ms. Derkevorkianbecame managerof a 17 translation? 18 A. My understanding was that shebecame 19 a manager aboutthe time that the labor at zo certification or greencard processwas being 21 discussed between parties. the 22 e. So ifthe labor certificationissue 23 wirs addressed earlier rn200}, it would be yow 24 understanding at that time Ms. Derkevorkian that 25 was a manager translation? of

P ' r 14 Page 1 6 . Aa t would comefrom Coloradolaw. a. I believethat is a fair statement. L I I F q. In your pastresponse referenced z you a, And it is alsoyour understanding | 2 : what an attomeywould do, correct? t that sometimeafter the labor certification issue I + A. Yes. | + cameto a headMs. Derkevorkianwas offered a 5 that Lionbridgeis not e. You understand translationposition for purposes ofthe green | 5 6 an attomey,correct? 6 card application;is that correct? | 7 A. We understand that, yes. A. That is a fair statenrent. It 8 from any obligationon an Q. So separate 8 Q. Is that your understanding? 9 attorneypracticing irnmigration law is it not 9 A. Yes, that is my understanding. 10 accurate that the only duty that Lionbridgewould l0 to Q. Somy question you is, if Ms. tt be subject would be from Colorado to law? 1l Derkevorkianhad accepted translator that 12 e. I don't agree with that stateinent. tz position in September 2002,and Lionbridge had of q. You would agree 13 that federallaw or 13 begunthe alien labor certification processit t+ the body of immigration law that you refer to 14 that trme it is reasonable believethat Ms. to 15 imposesno duty on an employerto sponsoran t5 Derkevorkiancould havebeengrantedextensions 16 employee, correct? to on her H-18 for a period of oneyear beginningin r7 A. That I would agree with. t7 Octoberof 2003? 18 q e. So any obligationto spousor Ms. 18 A. Yes. tg Derkevorkianwould arisefrom statelaw, correct? ;f 19 with that Q. So you would agree 20 A. No, it would arise-- restatethe 20 statement? $ 2l question. 2t A. Yes,from an immigrationlawyer's E 22 (Readback the last question.) 22 perspective, yes. Let me add I don't believeit { 23 a. That would seemto be a fair 23 is unreasonable assu:ne to believe. t to or 24 statment q. In your report you state,quote,when 24 q. (By Mr. Cross) And in this case*rat 25 25 a probleq arisesduring the processthe attorney,

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41 Page Page43 t would have a box to checkto say that saidthat t independent to challenge prevailing survey the 2 was a position ttrat was beingconsidered, right? 2 wagedetennination, you don't believethere but 3 A. That is correct. 3 was enoughtime for that to happen,right? 4 Is it your understanding Ms. that 4 A.It certainlyis questionable. Q. I 5 Derkevorkianwas offeredthe demotionposition of 5 couldn't say to any certaintywhethertherewas 6 translatorby Lionbridge? time or not, but it sr.ue e enough doesn't appear A. That is my understanding, that therewould havebeenenoughtime to jump 7 yes. 7 8 she s throughtheseadditionalhoops. Q. Is it your understanding tumed 9 down that offer? 9 Q. Have you forrred an opinion to a l0 e. Apparentlyso,yes. l0 degree ofreasonablecertainty as an expert as to ll ll whetherMs. Derkevorkiancould havecommissioned Q. So would your optionhavemadesense tz abouttaking the demotionand gettingthe tz a private surveypaid for by her, which would tl promotionthen later knowing that sheturned down 13 haveovercome prevailing wageproblem? the 14 theposition? t4 A. Giveh the fact that shewas informed 15 e. Given the window of time and t5 aboutthe prevailing wageissue,and I may be off 16 opportunity that was apparent this caseI in to on the date. I believethis is in my report. On t7 believethat the partiesneeded move andmove to 17 September 17,2Q02,andgiventhe fact that her tB rather swiftly explainedall of Ms. l8 H-18 status wasexpiringon October1,2003,it t9 Derkevorkian'soptions and alternatives her. to 19 doesntt reasonable that independent seem that q. If one of the optionswas taking a 20 20 surveycould havebeensecuredand/orresolved zt demotionand shedeclinedthat, what elseis 2l with the ColoradoDeparhnentof Labor within two 22 tlrereto discussthat was not discussed your in zz weeksbecause would haveneeded have an she to z: opinion? 23 Alien Labor Certification Application pendingat A. Let me give other suggestions. 24 The 24 leasto:teyeaxin orderto get H-18 extensions 25 prevailing wageissuecould havebeenreviewedby the z5 beyond six-yearperiodof time. So I don't Page 42 t the Board of Alien Labor Immigration Appeals. 2 As I recall,it appears Rossdid Ms. : investigatethe possibility of ttre independent 4 slrrvey. Employer surueycould havebeen 5 conducted.I didn't seeanythingin the o materialsthat Ms. Derkevorkianwas given the z option ofpaying for the independent survey. 8 But, again,the biggestconcernthat I haveis 9 timing. I don't know if we could haveeven l0 exploredthoseother options. II I havegiven all the partiestoday a reasonable 12 solution to a difficult problem. 13 Q. Let me make sureI havetbe list of 14 what the optionswere. We talked about,she 15 could havetakenthe demotion,right? 16 e. Yes. 17 Q. Shecould havetakenthe dernotionfor ta a limied time and then goneinto a promotionif tr Lionbridge had agreed, correct? 20 A. Correct. 2r Q. Shecouldhavelookedfor ajob at zz another company,right? e. If given enoughtime, yes. 23 24 a. And thenyou said,if therehad been 25 enoughtime, shecould havepaid for her own Page 44 it could havebeenaccomplished that t believe at z point in time. 3 Q. In your report you indicate on page qvote,this expert doesnot have issuewith 4 2, 5 Ms. Ross'sknowledge the immigrationlaws and of 6 DoL,closequote. Am I correctby readingthat that you 7 8 havenot reached conclusionthat her analysis a I of immigration law was flawed in any respect? l0 a. As to what was possiblypresented, ll no. But what could havebeendoneI believe tz remainsin questionor what suggestions or 13 alternatives could havebeenpresented, my ih t+ mind, remainunclearand are at questionin this 15 case. your report 16 Q. Well, as I understand just read and the other t7 from that sentence I 18 thingswe've now talkedabout,you're not saying tg sheerredin analyzingthe immigration law. You 20 arc sayingsheshouldhavecommunicated more zt optionsto Ms. Derkevorkian? a. I believethat is the responsibility 22 zs ofthe attorney. That's a true and correct 24 statement. q. Your report on page2 further says, 25

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