Castillo v. Jackson

• Decision Date: 21 December 1990
• Docket Number: Nos. 1-89-2952 and 1-89-2954,s. 1-89-2952 and 1-89-2954
• Citation: 207 Ill.App.3d 799,566 N.E.2d 404,152 Ill.Dec. 717
• Parties: , 152 Ill.Dec. 717 Victorino CASTILLO, Plaintiff-Appellant, v. Sally JACKSON, et al., Defendants-Appellees. Alberto JIMENEZ, Plaintiff-Appellant, v. Sally JACKSON, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 404

566 N.E.2d 404

207 Ill.App.3d 799, 152 Ill.Dec. 717

Victorino CASTILLO, Plaintiff-Appellant, v. Sally JACKSON, et al., Defendants-Appellees.

Alberto JIMENEZ, Plaintiff-Appellant, v. Sally JACKSON, et al., Defendants-Appellees.

Nos. 1-89-2952 and 1-89-2954.

Appellate Court of Illinois First District, Sixth Division.

Dec. 21, 1990.

Legal Assistance Foundation of Chicago, Chicago (Jeffrey B. Gilbert, Barbara A. Kahn and Susan Wishnick, of counsel), for plaintiffs-appellants.

Neil F. Hartigan, Atty. Gen., Chicago (Robert J. Ruiz and Jennifer A. Keller, Asst. Atty. Gen., of counsel), for defendants-appellees.

Justice RAKOWSKI delivered the opinion of the court:

Plaintiffs' cases, consolidated for review, were brought separately in the Circuit Court of Cook County as complaints for administrative review. Each plaintiff sought reversal of a final administrative decision of the Board of Review of the Illinois Department of Employment Security. (IDES) The trial judge affirmed the decisions of the Board of Review which found plaintiffs ineligible for employment insurance benefits. Plaintiffs request that this court reverse the circuit court's judgment.

The issue this case presents is whether plaintiffs, who applied for and established prima facie cases of entitlement to amnesty pursuant to the Immigration Reform and Control Act of 1986 (IRCA) (8 U.S.C. § 1255a (1986)), were "permanently residing in the United States under color of law" as of November 6, 1986 (IRCA's effective date) within the meaning of the Illinois Unemployment Insurance Act (the Act). Ill.Rev.Stat.1987, ch. 48, par. 444.

Victorino Castillo, plaintiff in case number 1-89-2952, is a Mexican citizen who entered the United States illegally in 1972. Castillo was employed as a factory worker since that time, until being laid-off in January of 1988. On June 23, 1987, Castillo applied for amnesty under IRCA. At this time, Castillo received authorization from the Immigration and Naturalization Service (INS) to work in the United States. On February 1, 1988, Castillo applied for unemployment benefits.

To be eligible for unemployment insurance, a claimant must have been paid sufficient wages within his "base period". The base period in Illinois consists of the first four of the last five completed calendar quarters prior to the first day of the week in which the claimant files his claim. (Ill.Rev.Stat.1987, ch. 48, pars. 347, 352.) Castillo's base period thus ran from October 1, 1986 through September 30, 1987. If all of the wages Castillo had earned during his base period had been counted toward his financial eligibility, Castillo would have been eligible for benefits. However, IDES did not count the wages Castillo had earned prior to June 23, 1987, the date he applied for amnesty. The Board of Review held that prior to June 23, 1987, Castillo had been working illegally, and that his application for amnesty did not give color of law to Castillo's pre-application wages.

Alberto Jimenez, plaintiff in case number 1-89-2954, is a Cuban citizen, who entered this country in 1980 on a tourist visa and has remained here continuously since the expiration of the tourist visa. He became employed as an assembler in 1980. On October 28, 1987, Jimenez applied for amnesty under IRCA, and received formal work authorization from INS on February 1, 1988. On March 15, 1988, Jimenez's employer laid him off, and Jimenez applied for unemployment benefits in the same month. Jimenez's base period ran from October 1, 1986, through September 30, 1987.

IDES also denied Jimenez's benefits. Jimenez was denied benefits because he applied for amnesty on a date after his base period expired, and IDES did not consider Jimenez to be residing in this country under color of law until the date of his application for amnesty. Like Castillo, if Jimenez's wages earned after IRCA's effective date were used as wage credits, Jimenez would have been eligible for unemployment benefits.

The facts in this case are not in dispute and this court is not bound by the Board's determination of questions of law. The legal effect of undisputed facts is such a legal question. (Barron v. Ward (1987), 165 Ill.App.3d 653, 659, 115 Ill.Dec. 180, 517 N.E.2d 591.) Courts must, however, give substantial weight and deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. Airey v. Department of Revenue (1987), 116 Ill.2d 528, 536, 108 Ill.Dec. 481, 508 N.E.2d 1058.

The Act was enacted to "lighten [the] burden which now so often falls with crushing force upon the unemployed worker and his family". (Ill.Rev.Stat.1987, ch. 48, par. 300.) The Act is to be liberally construed in order to effectuate the legislature's public policy of protecting against the severe economic consequences which result from involuntary unemployment. (Lipman v. Board of Review of Dept. of Labor (1984), 123 Ill.App.3d 176, 179, 78 Ill.Dec. 679, 462 N.E.2d 798.) The eligibility of non-resident aliens for benefits is provided for in par. 444 of the Act, which provides that "[a]n alien shall be ineligible for benefits ... on the basis of wages for services performed by such alien, unless the alien is an individual who has been lawfully admitted for permanent residence or otherwise is permanently residing in the United States under color of law...." (Ill.Rev.Stat.1987, ch. 48, par. 444.) The color of law provision of the Act is an adoption of an alien eligibility category found in the Federal Unemployment Tax Act. (FUTA) (26 U.S.C. § 3301 et seq., § 3304(a)(14)(A) (1986).) Because unemployment insurance is a cooperative federal-state program, federal decisions are persuasive in resolving the issue that confronts us.

In Holley v. Lavine (2d Cir.1977), 553 F.2d 845, cert. denied sub nom. Shang v. Holley (1978), 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545, the court shed some light on the phrase "under color of law". In Holley, the Second Circuit held that an otherwise deportable alien who had moved to the United States as a child and bore six children who are United States citizens, qualified as a person residing in the United States under color of law. (Holley, 553 F.2d at 849.) The determinative factor in the court's reasoning was a "formal letter" an INS official wrote to the plaintiff stating that " 'deportation proceedings have not been instituted ... for humanitarian reasons' " and that the " 'Service does not contemplate enforcing her departure from the United States at this time.' " (Holley, 553 F.2d at 849.) The court specifically limited its holding to the case where the plaintiff lived in this country with the knowledge or permission of the INS. (Holley, 553 F.2d at 849.) The plaintiff in Holley was a claimant for Aid to Families with Dependant Children benefits. (AFDC) In affirming the Board's decision, the trial judge in this case specifically noted that plaintiffs in this case did not come within the parameters of Holley, because, unlike Holley, the INS had no knowledge of the plaintiffs' presence at the time the wages at issue were earned.

The Holley court provided an insightful discussion of the phrase "under color of law". The court stated:

"The phrase obviously includes actions not covered by specific authorizations of law. It embraces not only situations within the body of the law, but also others enfolded by a colorable imitation. 'Under color of law' means that which an official does by virtue of power, as well as that what he does by virtue of right. The phrase encircles the law, its shadows, and its penumbra. When an administrative agency or a legislative body uses the phrase 'under color of law' it deliberately sanctions the inclusion of cases that are, in strict terms, outside the law but are near the border.

There is no more common instance of action 'under color of law' than the determination of an official charged with enforcement of the law that he, as a matter of public policy, will exercise his discretion not to enforce the letter of a statute or regulation because such enforcement would involve consequences, or inflict suffering, beyond what the authors of the law contemplated. The discretionary refusal of a prosecutor or like administrator of the law to use his enforcement powers is often not supported by specific language in a statute or other charter of authority. Yet there is a legion of adjudicated cases which recognize that the prosecutor or like enforcing official may exercise a discretionary power, virtually unreviewable by a court, not to enforce a statutory command, and not to seek the imposition of penalties or other sanctions upon a known violator." Holley, 553 F.2d at 849-50. (emphasis in original)

The Second Circuit provided further discussion of the phrase in the case of Berger v. Heckler (2d Cir.1985), 771 F.2d 1556. In Berger, the court observed "the phrase is designed to be adaptable and to be interpreted over time in accordance with experience, developments in the law, and the like. In this sense the phrase is organic and fluid, rather than prescriptive or formulaic." (Berger, 771 F.2d at 1571.) Berger involved the permanently residing under color of law language found in 42 U.S.C section 1382c(a)(1)(B)(ii) regarding the eligibility of aliens for Supplemental Security Income. Berger, 771 F.2d at 1558.

An examination of the cases which have construed the phrase "under color of law" with respect to aliens' eligibility for government assistance or government-operated benefit programs reveals several different scenarios where an alien has been held to be "under color of law". The first such scenario is that of the Holley case. In this situation, the INS has discretionally decided not to deport the alien and specifically informed the alien of this exercise of discretion. In such a situation, a fact-specific review of the alien's case has been made. One court has somewhat restrictively held that "the phrase makes...