Maka v. U.S. I.N.S.

• Decision Date: 04 June 1990
• Docket Number: No. 89-70030,89-70030
• Citation: 904 F.2d 1351
• Parties: 54 Empl. Prac. Dec. P 40,065 Lueleni MAKA, dba Maka's Akamai Service, and Maka's Akamai Service Inc., Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1351

904 F.2d 1351

54 Empl. Prac. Dec. P 40,065

Lueleni MAKA, dba Maka's Akamai Service, and Maka's Akamai Service Inc., Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 89-70030.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 12, 1990.

Decided June 4, 1990.

George Noguchi, Honolulu, Hawaii, for petitioner.

Karen Fletcher, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C., for respondent.

Petition to Review a Decision of the Executives Office for Immigration Review.

Before FARRIS, PREGERSON and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Maka's Akamai Service petitions this court to review an order of the Chief Administrative Hearing Officer finding Maka in violation of 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.). The order found that Maka had violated Sec. 274A(a)(1)(A) of the Act, 8 U.S.C. Sec. 1324a(a)(1)(A), for unlawfully employing, after November 6, 1986, an alien not authorized for employment in the United States. The order also found Maka in violation of Sec. 274A(a)(1)(B) of the Act, 8 U.S.C. Sec. 1324a(a)(1)(B), for failing to comply with the Act's formal verification requirements. We affirm.

I

Maka is an immigrant alien from Tonga who operates both a tree trimming and ground maintenance business and a farm. On August 27, 1987 an agent for the Immigration and Naturalization Service (INS) made an educational visit to Maka's residence and furnished a Handbook for Employers. ¹ During this visit the agent noted that he "saw about 10 people there. One claimed to be a new hire."

On August 28, 1987, the INS issued a Notice of Inspection to Maka's Akamai Service, that was served at Maka's residence on Maka's mother on August 31, 1987. The Notice of Inspection stated in part:

Section 274A of the Immigration and Nationality Act, as amended by the Immigration Reform and Control Act of 1986, requires employers to hire only American citizens and aliens who are authorized to work in the United States. Employers must verify employment eligibility of persons hired after November 6, 1986, using the Employment Eligibility Verification Form (I-9).

You have been selected for a compliance review and audit by the Immigration and Naturalization Service (INS) on Thursday September 3, 1987....

During this review, Special Agent Robert Lasack will discuss the requirements of the law with you and inspect your I-9 Forms. The purpose of this review is to assess your compliance with the provisions of the law.

On September 1, 1987, Maka's attorney, responding to the Notice, informed the INS that "Maka's Akamai Service has hired no one after November 6, 1986 and therefore has nothing available for review on any employment eligibility verification form (I-9)." INS agents arrived at Maka's residence on September 3, 1987, for the scheduled audit, but were unable to conduct the inspection because neither Maka nor a representative of his company was present.

On September 18, 1987, the INS issued a second Notice of Inspection, informing Maka that an inspection was scheduled for September 23, 1987. This Notice was served on Maka's wife. On September 23, the INS agents arrived at Maka's residence to conduct their inspection, but again Maka was not present and the agents were unable to proceed.

On October 20, 1987, a Citation, pursuant to 8 U.S.C. Sec. 1324a(i)(2), was served on Maka's Akamai Service for failure to present Forms (I-9) at the scheduled inspections. This citation was Maka's first violation of IRCA during the 12-month first citation period for "statutory immunization" purposes.

On October 26, 1987, the INS issued a third Notice of Inspection, informing Maka that a compliance audit would take place on October 30, 1987. This Notice was personally served on Maka's attorney. The INS also requested that Maka provide employee and payroll records. On October 30, the parties met for the scheduled inspection. Maka's attorney presented the INS agents with a letter stating that Maka's Akamai Service had not hired anyone after November 6, 1986, and therefore no I-9 Forms were on file. Attached to the letter was a hand-written list of all employees who had worked for Maka's Akamai Service since November 6, 1986. This list did not include the name of Feaomoeata Kapetaua.

Also on October 30, the INS conducted a raid on Maka's workers at the Marine Corps Air Station in Kaneohe. Maka's employee Kapetaua was interviewed at the scene. He stated that he was hired "last week Monday" (October 19, 1987). Kapetaua could not provide any documentation that he was lawfully in the United States or working with authorization from the government.

The INS served a subpoena on Maka through his attorney on November 5, 1987. The subpoena ordered Maka to produce, on November 10, 1987, personnel and payroll records for all of Maka's employees as of November 6, 1986, as well as personnel and payroll records for all employees hired after November 6, 1986. The subpoena also requested Maka to present I-9 employment eligibility forms for Kapetaua and three other individuals. Maka's attorney responded to the subpoena, in a letter dated November 9, as follows:

In response to your question ... my client alleges that no employee records exist for any and all employees as of November 6, 1987. As stated to your agent ... my client is trying to reconstruct all his cash payments and other remuneration paid to his employees since 1982 in order to file his taxes and to account to various Federal and State agencies for his failure to file and pay certain employee assessments. In good faith, we provided ... a list of substantially all employees who were on the payroll in November 1987.... [A]ll of them were working prior to November 6, 1986 and as such need not fill out the I-9 form.

....

As to your request for I-9 forms for the individuals listed therein, we answer as follows:

1. Feaomoeta Kapetaua--No I-9 form is required because this individual has worked for my client prior to Nov. 6, 1986. Since Nov. 6, 1986 he has worked only two to five days per month.... His name was inadvertently omitted from the list given to agent Kirk due to his infrequent employment.

Maka was served with a Notice of Intent to Fine on January 4, 1988, pursuant to 8 C.F.R. Sec. 274a.9(c). Maka answered the Notice on February 3, 1988, and requested a hearing before an Administrative Law Judge (ALJ). The United States filed a complaint against Maka on February 23, 1988, and amended the complaint on July 11, 1988. In the amended complaint Maka was charged with two counts involving Kapetaua:

First, Maka was charged with violating 8 U.S.C. Sec. 1324a(a)(1)(A) which makes it unlawful, after November 6, 1986, for a person or other entity to hire, for employment in the United States, an alien knowing the alien is unauthorized for employment in the United States.

Second, Maka was charged with violating 8 U.S.C. Sec. 1324a(a)(1)(B) which makes it unlawful, after November 6, 1986, for a person or other entity to hire, for employment in the United States, an individual without complying with the requirements of section 274A(b) of the Act, 8 U.S.C. Sec. 1324a(b), and 8 C.F.R. Secs. 274a.2(b)(1)(i) and (ii). ²

After a hearing, the ALJ filed his Findings of Fact and Conclusions of Law. The ALJ found that Maka "was not in violation of the Immigration Reform and Control Act of 1986, specifically sections 274A(a)(1)(A) and 274A(a)(1)(B) of the Immigration and Nationality Act." The ALJ found that the evidence established that Maka had continuously employed Kapetaua "from prior to November 6, 1986 until approximately March 1988 as either a tree trimmer, grounds maintenance man, or agricultural worker." Therefore, Maka did not violate the IRCA because Kapetaua was a grandfathered employee, and thus Secs. 1324a(a)(1)(A) and (a)(1)(B) did not apply to Kapetaua's employment.

On November 18, 1988, the INS filed a request with the Chief Administrative Hearing Officer (CAHO) for an administrative review of the ALJ's decision pursuant to 8 U.S.C. Sec. 1324a(e)(7). The CAHO vacated the ALJ's decision. The CAHO held that

[t]he evidence in this proceeding clearly establishes that Kapetaua 'quit' working for Maka's sometime in December 1986, and thereby terminated his employment relationship with [Maka]. Thus, Kapetaua forfeited his 'grandfathered employee status' under Section 274A(a)(3). 8 U.S.C. 1324a(a)(3). Accordingly, [Maka] violated Sections 274A(a)(1)(A) and (a)(1)(B) of the INA when he rehired Kapetaua in the Summer of 1987 knowing that he was an alien unauthorized for employment in the United States.

The CAHO levied fines totalling $3,000 against Maka, the same amount the INS assessed in the Notice of Intent to Fine. Maka appeals.

II

The standard of review for agency decisions under IRCA is the same standard of review applied under the Administrative Procedure Act (APA). Mester Mfg. Co. v. INS, 879 F.2d 561, 565 (9th Cir.1989). We must affirm the agency's findings of fact that are supported by substantial evidence. Id. Substantial evidence is "more than a mere scintilla. It means such relevant evidence, as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citation omitted). "In assessing whether a finding is supported by substantial evidence, we must consider the record as a whole." Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir.1986).

Under the substantial evidence standard, the task of this court is to review the CAHO's decision, not the decision of the ALJ. Id. The substantial evidence standard "is not modified in any way" merely because the CAHO and the ALJ disagree. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951); Howard v. Heckler, 782 F.2d at 1487. However, ...