Montero v. I.N.S., 1512
| Citation | 124 F.3d 381 |
| Decision Date | 28 August 1997 |
| Docket Number | No. 1512,D,1512 |
| Parties | Gloria Esperanza MONTERO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 96-4130. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Michael Wishnie, New York City (Lucas Guttentag, Judy Rabinovitz, Lee Gelernt, American Civil Liberties Union Foundation, Muzaffar Chishti, Catherine Waelder, Ira Jay Katz, Allison Rosenberg, Union of Needletrades, Industrial and Textile Employees, New York City, of counsel), for Petitioner.
Pierre M. Gentin, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Southern District of New York, Diogenes P. Kekatos, Steven M. Haber, Assistant United States Attorneys, New York City, of counsel), for Respondent.
(Stephen D. Hibbard, William D. Kissinger, Michael T. Pyle, Sindy Siegel, McCutchen, Doyle, Brown & Enersen, LLP, Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon & Rubin, Maria Blanco, Golden Gate University School of Law, Sara Campos, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, of counsel), for Amicus Curiae.
Before: VAN GRAAFEILAND, MINER and CABRANES, Circuit Judges.
Petitioner Gloria Esperanza Montero petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming a finding of deportability by an immigration judge ("IJ"). The BIA determined that the IJ properly admitted evidence of petitioner's alien status, even though the evidence was obtained by the Immigration and Naturalization Service ("INS") as a result of a raid initiated in part on a tip from Montero's employer in furtherance of the employer's efforts to quash union activity in its garment manufacturing facility. The BIA also determined that Montero was not arrested and interviewed by the same INS agent, in violation of 8 C.F.R. § 287.3, and therefore concluded that the IJ properly declined to terminate Montero's deportation proceeding on that ground.
For the reasons that follow, we deny the petition for review.
Montero is a 40-year-old native and citizen of Ecuador who unlawfully entered the United States in November of 1989. From February to October of 1992, she was employed at STC Knitting, Inc. ("STC") in Long Island City, New York. In May of 1992, workers at STC began union organization activity with the help of Local 155 of the International Ladies' Garment Workers' Union, now the Union of Needletrades, Industrial and Textile Employees ("Union"). Montero was a member of the Union's organizing committee and, later, the Union's negotiating committee.
STC responded to the union activity with threats and coercion, including threats to inform the INS that certain employees were in the United States illegally. In response to STC's conduct, the Union filed five separate unfair labor practice charges against STC with the National Labor Relations Board ("NLRB") by early fall of 1992. In September of 1992, the NLRB conducted a union representation election at STC, which resulted in the regional director of the NLRB certifying the Union as the exclusive bargaining agent for STC employees. On September 29, 1992, the regional director issued a complaint against STC for violations of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq., after a finding of good cause.
In late August or early September of 1992, during the course of the Union's organizing campaign, Henry Dogin, STC's attorney and former district director of the New York office of the INS, sent a fax to the INS indicating that undocumented aliens might be employed at STC. At the time the fax was received, Dogin's association with STC was unknown to the INS. However, the INS later became aware that Dogin was STC's attorney. Prompted by this fax, the INS began an investigation of STC.
Sometime in mid-September, the INS received two anonymous complaints concerning the employment of undocumented aliens at STC. Following the receipt of these complaints, the INS stepped up its investigation of STC and attempted to put STC under surveillance. In late September, a notice of inspection was served on STC, giving STC three days to produce its Form I-9s, 1 see 8 C.F.R. § 274a.2(b)(2)(ii). STC complied and forwarded approximately 60 Form I-9s to the INS. The I-9s were examined by Agent William Riley, the case agent in charge of the STC investigation. Riley determined that 20 of the I-9s contained alien registration numbers that either did not exist or were assigned to other aliens.
Based upon this information, Riley sought and received authorization to conduct a consent survey of STC, pursuant to § 274A of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1324a. On October 19, 1992, Riley, his supervisor, and other INS agents went to STC and received oral consent from STC's owner to survey employees on the factory floor. INS agents had a list of suspected employees based upon the false I-9s identified by Riley. In conducting the survey, agents identified themselves and then asked the employees for documentation of their eligibility for employment in the United States. If an employee did not produce documentation of his legal presence in the United States, he was arrested and taken to the INS offices. As a result of the survey of STC, 10 employees, including Montero, were arrested and taken to INS offices for processing. 2
Montero was processed at the INS offices by Agent Francisco Meneses. Meneses testified that, although he had been present during the STC raid, he did not recall encountering Montero prior to examining her at the INS offices. Montero signed several INS documents, including an Affidavit of Sworn Statement (Form I-215), which documents alienage, manner of entry into the United States and work eligibility status. Meneses reported that he read the statement back to Montero in Spanish and that Montero verified the accuracy of the information stated therein. She disputes this contention. Based upon the information obtained by Meneses, Montero was issued an order to show cause and deportation proceedings were commenced that same day.
Deportation proceedings against Montero and four other aliens were conducted before the same IJ. At the outset of the proceedings, counsel for the aliens obtained an adjournment to allow time for the INS to comply with a Freedom of Information Act ("FOIA") request submitted on behalf of all of the aliens. Counsel also moved to suppress evidence obtained from the survey because it was obtained in violation of the aliens' Fifth Amendment rights, and to terminate the proceedings because the INS violated its regulation requiring that an alien be arrested and examined by different agents. During the hearing of the first two cases, the IJ denied the motion to suppress and stated that it likely would do so in each case.
Montero's deportation hearing began on October 25, 1994, and was continued to October 27, 1994. Montero invoked the Fifth Amendment and refused to answer questions about her alienage and her documentation to work in the United States. At the conclusion of the hearing, the IJ again denied the motion to suppress the information obtained from the survey and found Montero deportable based upon the INS documents executed following her arrest. The IJ granted Montero the privilege of voluntarily leaving the United States by April 27, 1995, in lieu of deportation.
Montero appealed the IJ's finding of deportation to the BIA. Over the dissent of one member, the BIA dismissed Montero's appeal on July 30, 1996. The BIA rejected Montero's arguments that her deportation was contrary to the NLRA and that the INS's conduct in surveying STC was so egregious as to warrant suppression of the evidence obtained from the survey. The BIA also rejected her contention that she had been arrested and examined by the same agent, in violation of INS regulations, because she had not testified that the same agent had arrested and questioned her and because of other evidence in the record contradicting her claim. The BIA further found that, even if Montero had been arrested and examined by Meneses, she failed to show prejudice warranting termination of the proceeding.
The dissenting BIA member disputed only this last finding, concluding that Montero had provided sufficient evidence that the INS had violated 8 C.F.R. § 287.3. Moreover, the dissenting member concluded that § 287.3 was promulgated to protect a fundamental right and therefore that Montero was not required to show prejudice from the INS's failure to adhere to its regulation. This petition followed.
Montero argues that the BIA erred in failing to find that INA § 274A, 8 U.S.C. § 1324a, prohibited her deportation based upon evidence obtained in conjunction with an employer's unfair labor practice. Specifically, she contends that the legislative history of § 274A dictates that immigration law should not be enforced in a manner that undermines employees' rights under labor law. We review the BIA's interpretation of the statutory provisions to determine "whether the agency's answer is based on a permissible construction of the statute." Zhang v. Slattery, 55 F.3d 732, 749 (2d Cir.1995) (quotation omitted), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996).
INA § 274A, 8 U.S.C. § 1324a, was enacted as part of the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359. Section 274A provides for civil and criminal sanctions for any employer that knowingly employs an undocumented worker. See 8 U.S.C. § 1324a(a), (f). The primary purpose of the provision was to reduce the flow of illegal immigration into the United States by removing the employment "magnet" that draws undocumented aliens into the country. See H. Rep. No. 99-682(I), at 45-46, 56, reprinted in 1986 U.S.C.C.A.N. 5649, 5649-50, 5660.
Section 274A makes no reference to its effect upon...
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