Arteaga v. Industrial Com'n of State

• Decision Date: 31 January 1985
• Docket Number: No. 84CA0601,84CA0601
• Citation: 703 P.2d 654
• Parties: Eudesimo ARTEAGA, Petitioner, v. The INDUSTRIAL COMMISSION OF the STATE of Colorado, (Ex-Officio The Unemployment Compensation Commission of Colorado); and Division of Employment, Colorado Department of Labor and Employment, Respondents. . III
• Court: Colorado Court of Appeals

Page 654

703 P.2d 654

Eudesimo ARTEAGA, Petitioner, v. The INDUSTRIAL COMMISSION OF the STATE of Colorado (Ex-Officio The Unemployment Compensation Commission of Colorado); and Division of Employment, Colorado Department of Labor and Employment, Respondents.

No. 84CA0601.

Colorado Court of Appeals Div. III.

Jan. 31, 1985.

Rehearing Denied Feb. 28, 1985.

Certiorari Granted Aug. 19, 1985.

Colorado Rural Legal Services, Charles H. Wheeler, Margaret Gleason, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Christa D. Taylor, Asst. Atty. Gen., Denver, for respondents.

TURSI, Judge.

Petitioner, Eudesimo Arteaga, seeks review of an order of the Industrial Commission denying him unemployment compensation benefits. We set aside the order and remand to the Industrial Commission.

Petitioner entered the United States illegally in March of 1981. On April 26, 1982, he married a citizen of the United States. Petitioner was arrested by the Immigration and Naturalization Service (INS) on April 28, 1982, and requested a deportation hearing. He was released upon posting an appearance bond which contained a "no-work" rider restricting him from further employment in the United States.

On May 5, 1982, petitioner's wife filed an immediate relative petition with the INS requesting that her husband be granted resident alien status based on his marriage to a citizen. This petition was approved on June 23, 1982. In the interim, the INS struck the no-work rider from petitioner's bond on May 19, 1982, and issued him an authorization to accept employment in the United States. On May 16, 1983, petitioner was issued a permanent resident alien visa.

Petitioner filed a claim for unemployment insurance benefits on June 23, 1983. He had been employed by the same employer from May 1, 1981, to the date of his claim. After several stages of administrative consideration, the Industrial Commission ruled that the appropriate standard for determining an alien's entitlement to unemployment insurance benefits under § 8-73-107(7), C.R.S., is whether the alien is lawfully in the United States during his employment. The Commission concluded that prior to obtaining his permanent resident alien visa on May 16, 1983, petitioner was not in the country lawfully, and ordered that any wages claimant earned prior to this date could not be used as a basis for eligibility for benefits. Petitioner, however, claims that his eligibility runs from either May 19, 1982, the day his authorization to work was granted, or from June 23, 1982, the day his wife's petition was approved.

The statutory test, § 8-73-107(7)(a), C.R.S., for the disqualification of aliens from unemployment insurance benefits is substantially identical to 26 U.S.C. § 3304(a)(14)(A) (1976), and was adopted as a condition for continued federal approval of this state's unemployment compensation laws. See 26 U.S.C. § 3304(a) (1976).

Section 8-73-107(7)(a) provides:

"Benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed ...."

The question here is whether petitioner falls into that category of aliens "permanently residing in the United States under color of law." Since § 8-73-107(7), C.R.S., is based on federal law, federal authority interpreting the federal enactment is highly persuasive in interpreting this state statute. See Sandefer v. Reynolds Securities, Inc., 44 Colo.App. 343, 618 P.2d 690 (1980).

Only one federal case has been brought to our attention which discusses the meaning of "permanently residing in the United States under color of law." That case, Holley v. Lavine, 553 F.2d 845 (2nd Cir.1977), cert. denied sub nom., Shang v. Holley, 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545 (1978), involved a Canadian citizen who was in the United States illegally, but whose six children were all American citizens. The INS had informed the alien that she would not be deported at least until her children were grown.

The alien challenged a New York State Social Services Law which made aliens unlawfully residing in this country ineligible for benefits under the cooperatively operated state and federal Aid to Families with Dependent Children program. The controlling federal regulation under which the Department of Health, Education, and Welfare approved the New York State law contained the same three qualifying criteria for alien eligibility as are at issue here, including the provision concerning those persons who are "permanently residing in the United States under color of law." See Memorandum for the United States...