Villegas-Valenzuela v. I.N.S.

Citation103 F.3d 805
Decision Date20 December 1996
Docket NumberP,Nos. 95-70767,VILLEGAS-VALENZUEL,95-70841,LIMON-PERE,s. 95-70767
Parties96 Cal. Daily Op. Serv. 9290, 97 Daily Journal D.A.R. 352 Ana Mariaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Martinaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ralph J. Leardo, San Francisco, CA, for petitioners.

Karen Fletcher Torstenson, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.

Petitions to Review Decisions of the Executive Office for Immigration Review. OCAHO Nos. 94C00204, 95C00024.

Before: RONEY, * BEEZER, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Ana Villegas-Valenzuela and Martina Limon-Perez petition to overturn decisions of administrative law judges granting summary decisions in favor of the Immigration and Naturalization Service ("INS") in two separate civil document fraud proceedings seeking civil money penalties under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1324c(a)(2). We must consider whether employees violate section 1324c(a) by using false immigration documents to prove to their employers that they are eligible for employment. Because we conclude that such use of false documents by employees violates the statute, we dismiss the petitions. 1

I. BACKGROUND
A. The Statutory Framework

In 1986, Congress enacted the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359 (1986) (codified in scattered sections of 8 U.S.C.), which amended the INA and, among other things, made it unlawful for an employer knowingly to hire an alien who is unauthorized to work in the United States. Id. § 1324a. The statute creates an employment-eligibility verification system. Under this system, an employer must execute a verification form ("I-9"), attesting under penalty of perjury, that it has examined the requisite documents showing the employee's identity and employment authorization and thereby verified that its employee is not an unauthorized alien. Id. § 1324a(b)(2). If an employer fails to comply with the employment-eligibility verification requirements, it can be sanctioned under the statute. Id. § 1324a(e)(4).

In 1990, Congress concluded that the IRCA's employer-sanctions provisions were not having the desired effect of reducing the flow of illegal immigration that is motivated by the prospects of U.S. employment. See 136 Cong. Rec. S13,628-29 (daily ed. Sept. 24, 1990) (statement of Sen. Simpson). In response to this concern, Congress enacted the Immigration Act of 1990 ("1990 Act"), Pub.L. No. 101-649, 104 Stat. 4978 (codified at 8 U.S.C. § 1324c (1990)). The 1990 Act makes it unlawful for any person knowingly to use or accept counterfeit, altered, forged, or falsely made documents in order to satisfy various requirements of the IRCA's, including the attestation requirements discussed

above. Id. § 1324c(a). The 1990 Act imposes civil money penalties of not less than $250 and not more than $2,000 for each instance of document fraud. Id. § 1324c(d)(3)(A). A person charged with document fraud under the 1990 Act is entitled to a hearing before an administrative law judge ("ALJ") in accordance with the requirements of the Administrative Procedure Act, 5 U.S.C. § 554. Id. § 1324c(d)(2). The ALJ's decision becomes a final order unless the agency modifies or vacates the decision within 30 days. Id. § 1324c(d)(4). A party adversely affected by a final order may petition the Court of Appeals for review within 45 days after the order becomes final. Id. § 1324c(d)(5).

B. Facts and Prior Proceedings

In 1994, Villegas-Valenzuela and Limon-Perez (together, "Petitioners") worked as housekeepers at two different hotels in Fresno, California. That same year, United States Border Patrol Agent Steven Borup separately took Petitioners into custody after obtaining copies of fraudulent social security cards and alien registration cards that Petitioners had showed to their respective employers to prove their employment eligibility. Agent Borup also obtained copies of the "I-9" immigration forms Petitioners had signed, attesting that they were eligible to work. On the I-9 forms, each Petitioner had attested: "under penalty of perjury, the documents that I presented as evidence of identity and employment eligibility are genuine and relate to me. I am aware that federal law provides for imprisonment and/or fine for any false statements or use of false documents in connection with this certificate."

Agent Borup interviewed each Petitioner and contemporaneously recorded the interviews by typing a "Record of Sworn Statement." Both Petitioners admitted to using the fraudulent documents, which had been purchased from Los Angeles street vendors, to "obtain employment in the United States." Both Petitioners also admitted that they had showed the "counterfeit" cards to their employers to prove they were authorized to work in the United States.

Based upon the information obtained by Agent Borup, the INS filed complaints seeking civil money penalties under 8 U.S.C. § 1324c(a)(2). The complaints charged that Petitioners had "knowingly used and possessed the forged, counterfeit, altered, and falsely made documents ... in order to satisfy any requirement of the Immigration and Nationality Act." The complaints specifically identified the social security cards and alien registration cards as the fraudulent documents in question.

In their answers, Petitioners raised affirmative defenses, including that the complaints failed adequately to state claims upon which relief could be granted. Specifically, they argued that: 1) the complaints were conclusory and vague; and 2) section 1324c(a)(2) did not apply to their actions as employees.

The INS moved to strike the affirmative defenses and for summary decision in both cases. In support of its motions, the INS argued that the documents were counterfeit because computer printouts from the INS Central Index System showed that the Alien Registration Numbers on Petitioners' cards were issued to other aliens. The INS's motions were supported by Agent Borup's affidavits and the "Records of Sworn Statements" taken by Agent Borup. 2

The ALJs granted the INS's motions to strike the affirmative defenses because of controlling precedent of the Office of the Chief Administrative Hearing Officer ("OCAHO"), which provided that section 1324c(a)(2) does apply to the actions of employees, and because the defenses were not supported by a "statement of fact" as required by 28 C.F.R. § 68.8(c)(2). The ALJs also granted the INS's motions for summary decision, concluding that the INS was entitled to judgment as a matter of law. The ALJs then fined each Petitioner the statutory minimum penalty of $500.00 ($250.00 for each fraudulent document used).

The OCAHO refused to modify the ALJs' orders. Petitioners appealed to this court, contending: 1) that an employee's use of false documents to verify employment eligibility does not violate section 1324c(a)(2); 2) that the administrative complaints filed by the INS failed to adequately state claims upon which relief could be granted because they were conclusory and vague; and 3) that summary decision was inappropriate because the INS's evidence was insufficient for the ALJs to conclude as a matter of law that each Petitioner possessed the requisite mens rea specified in the statute.

II. DISCUSSION
A. Did the Petitioners Violate 8 U.S.C. § 1324c(a)(2)?

To determine if an employee violates section 1324c(a)(2) by using fraudulent documents to prove employment eligibility, we consider the plain language of the statute, its legislative history, and the relevant caselaw interpreting the statute. We review questions of statutory interpretation de novo, Braun v. INS, 992 F.2d 1016, 1018 (9th Cir.1993), but we give deference to an agency's interpretation of the statutes it administers. Mason v. Brooks, 862 F.2d 190, 192 (9th Cir.1988); see also Fernandez v. Brock, 840 F.2d 622, 631 (9th Cir.1988) (where statutory language is ambiguous, court must "defer to the agency's interpretation of the statute if it is based on a permissible construction of the statute" and must "not substitute [its] own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency") (internal quotation omitted). We are not obligated, however, to accept an interpretation that is "demonstrably irrational or clearly contrary to the plain and sensible meaning of the statute." Bui v. INS, 76 F.3d 268, 269-70 (9th Cir.1996) (quotation omitted).

Our analysis must begin with the statute itself; the language of the statute controls where it is not ambiguous or unconstitutional. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). Section 1324c(a) provides:

It is unlawful for any person or entity knowingly

(1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this chapter,

(2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this chapter,

(3) to use or attempt to use or to provide or attempt to provide any document lawfully issued to a person other than the possessor (including a deceased individual) for the purpose of satisfying a requirement of this chapter, or

(4) to accept or receive or to provide any document lawfully issued to a person other than the possessor (including a deceased individual) for the purpose of complying with section 1324a(b) of this title.

8 U.S.C. § 1324c(a) (emphasis added).

In order to establish a violation of 8 U.S.C. § 1324c(a)(2), therefore, the INS must show that 1) the Petitioner used the forged, counterfeit, altered, or falsely made documents, 2) knowing the...

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