Vazquez v. Review Bd. of Indiana Employment Sec. Div.

Decision Date30 December 1985
Docket NumberNo. 2-984-A-277,2-984-A-277
PartiesJose N. VAZQUEZ, Appellant (Defendant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, David L. Adams and Paul M. Hutson, as members and as constituting the Review Board of the Indiana Employment Security Division, and Songer Construction Company, Appellees (Plaintiffs Below).
CourtIndiana Appellate Court

Blanca Bianchi de la Torre, Rivera, Schlesinger & de la Torre, East Chicago, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee Review Bd. of the Indiana Employment Sec. Div.

SULLIVAN, Judge.

Appellant, Jose N. Vazquez (Vazquez), seeks review of a decision of the Review Board of the Indiana Employment Security Division (Review Board) affirming the referee's denial of unemployment compensation benefits.

Vazquez presents three issues, which are rephrased as follows:

(1) Whether the Review Board committed an abuse of discretion by denying Vazquez's request for leave to introduce additional evidence.

(2) Whether Vazquez is permanently residing in the United States under color of law, 1 and therefore eligible to receive unemployment compensation benefits.

(3) Whether the appeals referee erred by failing to insure that Vazquez received a complete and fair hearing.

As developed before the appeals referee, the facts show that Vazquez was laid off from his employment at Songer Construction Company and applied for unemployment compensation benefits on May 31, 1983. Although Vazquez is otherwise eligible to receive benefits, his claim was denied upon grounds that Vazquez is an "illegal alien" not entitled to accumulate wage credits for unemployment purposes.

Vazquez is a citizen of Argentina. He was admitted to the United States on February 4, 1978, as a visitor for business. This authorization was to have expired on May 3, 1978, but was periodically extended pending the processing by the Immigration and Naturalization Service (INS) of Vazquez's petition for asylum. Based upon an Arrival/Departure Record, the appeals referee found that Vazquez was first authorized to work as of August 9, 1983, and that all wage credits accumulated prior to that date were void. The Review Board adopted the referee's findings and affirmed the denial of benefits on July 12, 1984.

Vazquez asserts that the Review Board erred by denying his request to submit additional evidence. The additional evidence consists of exhibits which Vazquez sought to introduce at the hearing before the referee and later before the Review Board. The exhibits are three separate INS forms I-210, which though written almost entirely in Spanish, appear to be extensions of Vazquez's "voluntary departure date." 2 Each of the exhibits contains the phrase "Employment Authorized" stamped in bold letters in the upper right-hand corner.

Review Board contends that its refusal to consider additional evidence rests within its sound discretion and that Vazquez has failed to show that the Review Board abused its discretion. 3 In addition, Review Board argues that the exhibits were not "additional" evidence because Vazquez first attempted to introduce the exhibits at the hearing before the referee. Thus, the Review Board argues that its decision was in reality an affirmance of the referee's refusal to admit the exhibits.

Neither the Review Board nor the appeals referee made a specific finding concerning the admission of Vazquez's exhibits. We do note, however, that all documentation was offered by Vazquez at the same time. The Arrival/Departure Record was admitted but the I-210 forms were refused. We can reasonably assume, therefore, that the referee denied admission of the exhibits and premised her denial upon the fact that the exhibits were in Spanish. Though not discussed by the parties herein, 640 IAC 1-11-17 supports the referee's decision to exclude the untranslated portions of the exhibits. That section of the administrative code states:

"[n]o paper or document written in any foreign language shall be introduced in evidence unless it be accompanied by a correct English translation thereof, with satisfactory proof that such translation is a correct translation of the original." (1984 Ed.)

Cf., White v. Weinhold (1961) 132 Ind.App. 656, 172 N.E.2d 219, 223, (stating that a foreign language exhibit is void of probative value only if it cannot be translated or deciphered and not merely because the exhibit is introduced without an accompanying translation).

Because Vazquez was unrepresented by counsel, the referee was under a special duty to insure that Vazquez's interests were protected, and the case fully presented. Russell v. Review Board of Ind. Employment Security Division (1981) 3d Dist. Ind.App., 415 N.E.2d 774, 777. 640 IAC 1-11-3 (1984 Ed.). Vazquez did not present a translation of the exhibits and was not informed that the translation was crucial to the admission of the exhibits. In fact, there was not explicit finding with respect to the exhibits' admissibility.

Nevertheless, the portion of the exhibits indicating that Vazquez was authorized to work was written in English, required no translation and therefore should have been considered by the referee. The stamped authorization corroborated Vazquez's unrefuted testimony that he received permission to work from INS shortly after he filed the petition for asylum and that this permission was routinely extended thereafter.

The Review Board argues that possessing a work permit is insufficient to bring Vazquez within the provisions of I.C. 22-4-14-9, which provides, in pertinent part:

"For weeks of unemployment occurring subsequent to December 31, 1977, benefits may not be paid on the basis of services performed by an 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 (including an alien who is lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) [8 U.S.C. 1153(a)(7) ] or section 212(d)(5) [8 U.S.C. 1182(d)(5) ] of the Immigration and Nationalization Act)." (Emphasis supplied.)

It is the construction of the underscored language that is at issue in this appeal.

The terms "permanent" and "residing" or "residence" are included in 8 U.S.C. Sec. 1101, the definitional section of the Aliens and Nationality Act. A "permanent" relationship is one of "continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law." 8 U.S.C. Sec. 1101(a)(31). As defined, the term "residence" requires no particular intent, merely that it constitute the person's "principal, actual dwelling place." 8 U.S.C. Sec. 1101(a)(33). There appears to be no quarrel with Vazquez's assertion that he is presently, permanently residing in the country in accordance with the definitions in 8 U.S.C. Sec. 1101. The disagreement centers upon whether Vazquez resides here "under color of law."

Upon cross-examination by the appeals referee on behalf of Vazquez, the claims deputy testified as follows:

"A. ... but as far as the state the wages that he's earned during that time I can not use for unemployment purposes until he gets a green card.

Q. He was paid unemployment compensation in October of '80, that thing is dated what? You was supposed to have left the country according to that in in [sic] May. What is it May?

A. Okay, back then we weren't as strict on this. They've come out with new laws now. We have to have a green card. I have to have that before I can pay." Record at 33.

Apparently, because Vazquez did not have a "green card," the deputy concluded that Vazquez was residing in the United States illegally and therefore not eligible to accumulate wage credits. The appeals referee adopted that conclusion, as did the Review Board. Nowhere in the record, however, is there a description or definition of a "green card," or what status is conferred upon someone issued a "green card," or why that particular status was deemed critical to the question of whether Vazquez is permanently residing in the United States under color of law.

The phrase "under color of law" is not statutorily defined, but has been construed to include

"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 what he does by virtue of right." Holley v. Lavine (2d Cir.1977) 553 F.2d 845, 849, cert. denied sub nom Shang v. Holley (1978) 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545.

The court in Holley determined that an alien was residing in the United States "under color of law" due to a letter in which INS expressly declined to enforce her departure from the country. 553 F.2d at 847. Other state jurisdictions have also addressed this question and when faced with similar facts have concluded that an alien, with legal permission to work, is entitled to accumulate wage credits and receive unemployment compensation benefits.

In the case cited by Vazquez, Rubio v. Employment Division (1984) 66 Or.App. 525, 674 P.2d 1201, the court determined that Rubio was permanently residing in the United States under color...

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