Garcia v. Secretary of Labor ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8572
_____________________
MARIO GARCIA,
Plaintiff-Appellee,
VERSUS
THE SECRETARY OF LABOR,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_____________________________________________________
(December 15, 1993)
Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,1
District Judge.
BARKSDALE, Circuit Judge:
This appeal from the district court's reversing the decision
by the Secretary of Labor that farm labor contractor Mario Garcia
knowingly employed illegal aliens, in violation of 29 U.S.C. §
1816(a) (repealed 1986), turns on the Secretary's interpretation of
that statute and the sufficiency of the evidence supporting that
decision, which was contrary to that reached by the Administrative
Law Judge. We AFFIRM.
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
I.
Garcia provided workers for several farm owners in the "Lower
Valley" region of El Paso County, Texas. In the spring of 1985,
the Department of Labor began an investigation into his hiring
practices. As part of that investigation, it reviewed Border
Patrol deportation records for August 1983 to May 1985.
Garcia's legal odyssey began almost eight years ago, in March
1986, when, as a result of the investigation, the Department, inter
alia, assessed $119,275 in civil penalties. At the subsequent
hearing before the ALJ, the Department claimed that, in several
respects, Garcia had violated the Migrant and Seasonal Agricultural
Worker Protection Act, 29 U.S.C. §§ 1801-1872. Concerning the only
issue before us, the ALJ concluded that Garcia had not knowingly
employed illegal aliens in violation of § 1816(a) (repealed 1986).2
2
Because the ALJ found that the Department's position was not
substantially justified, Garcia was awarded attorney's fees. The
ALJ found:
The [Department] pursued the case in spite of the
fact that it had almost no reliable evidence to
support its position .... [It] pursued this action
against [Garcia] for thousands of dollars although
there was little legitimate basis in fact or law.
The violations found against Garcia by the ALJ included
failures to keep required records and display a poster advising
workers of their rights under the Act ($110 fine); the Secretary
and district court affirmed. The ALJ found for Garcia on the
charge that he had employed a farm labor contractor without an
appropriate certificate of registration; the Secretary reversed,
imposing a $150 fine; the district court affirmed. These rulings
are not on appeal. The Secretary also reversed the award of
attorney's fees; that decision was not before the district court.
- 2 -
More than four years later,3 the Secretary reversed this
conclusion, assessed $118,800 in penalties ($400 for each of the
297 illegal aliens), and revoked Garcia's farm labor contractor
certificate of registration.4 The Secretary's conclusion that
Garcia knowingly employed illegal aliens was based on his failure
to check documents prescribed by her.
Garcia appealed to the district court, which, inter alia, held
for Garcia on the issue of knowingly employing illegal workers.5
After carefully essaying the proper standard for review and
recognizing the appropriate deference to be accorded the Secretary,
it reversed for two reasons: it found insubstantial evidence to
support the Secretary's conclusion; and it held that the basis for
that conclusion -- failure to check prescribed documents -- was the
product of an impermissible construction of the statute.
3
It goes without saying that delay of this magnitude is of
great concern.
4
When the decision was rendered in 1991, Lynn Martin was
Secretary of Labor.
5
The Act permits any person against whom civil penalties have
been imposed or whose farm labor contractor's certificate of
registration has been revoked to seek review in district court,
with appeal to circuit court. See 29 U.S.C. §§ 1813(c), 1853(c).
The district court ruled on cross-motions for summary
judgment. Of course, the ruling was based on the undisputed
administrative record, to which the district court's review is
necessarily confined. See 5 U.S.C. § 706; see also 29 U.S.C. §§
1813(c), 1853(c) (referring to § 706(2)(E) for appropriate standard
of judicial review).
- 3 -
II.
A.
The Secretary contends that the district court erred when it
held that, as a matter of law, Garcia was not obligated by § 1816
to verify his workers' legal status in this country. That section
provided in part:
No farm labor contractor shall recruit, hire,
employ, or use, with knowledge, the services of any
individual who is an alien not lawfully admitted
for permanent residence or who has not been
authorized by the Attorney General to accept
employment.
29 U.S.C. § 1816(a) (repealed 1986) (emphasis added). Section
1816(b) added the following:
A farm labor contractor shall be considered to
have complied with subsection (a) of this section
if the farm labor contractor demonstrates that the
farm labor contractor relied in good faith on
documentation prescribed by the Secretary ....
29 U.S.C. § 1816(b) (repealed 1986). Pursuant to § 1816(b), the
Secretary prescribed a number of documents. See 29 C.F.R. § 500.59
(repealed 1986).6
The Secretary maintains that § 1816 created an objective
standard; that in a geographic area in which illegal workers are
likely to be encountered, a failure to check documents should be
deemed a proscribed knowing employment under § 1816(a).
Accordingly, she asserts that the "Department need only establish
6
Those documents included, inter alia: birth certificates,
United States passports, certificates of citizenship, certificates
of naturalization, United States identification cards issued by the
INS, and consular reports of birth. 29 C.F.R. § 500.59 (repealed
1986).
- 4 -
the presence of illegal aliens in Garcia's workcrew in order for
the burden to shift to Garcia to show that he relied in good faith
on the prescribed documentation." Because Garcia did not check the
prescribed documents in the manner advocated by the Secretary,7 she
claims that he violated § 1816.
The deference we accord the Secretary's interpretation of a
statute she is charged with administering is subject to the
following well-known standard:
When a court reviews an agency's construction of
the statute which it administers, it is confronted
with two questions. First, always, is the question
whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is
clear, that is the end of the matter; for the
court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress....
[I]f the statute is silent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency's answer is based on a
permissible construction of the statute.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984). Accordingly, we do not defer to an
interpretation which frustrates the clear intent of Congress. See
Nicklos Drilling Co. v. Cowart, 927 F.2d 828, 831-32 (5th Cir.
7
Garcia testified that he asked workers for a social security
card or passport, and hired a worker if he possessed the former.
The Secretary asserts correctly that a social security card alone
would not fulfill the requirements of 29 C.F.R. § 500.59 (repealed
1986). Still, the ALJ determined that Garcia, who lacks formal
education and is not conversant in English, "constructively
complied with this requirement to the extent that could be
realistically expected." The Secretary disagreed, finding "no
basis for finding constructive compliance". Because we hold that
the Secretary's determination that § 1816(a) and § 500.59 placed an
affirmative duty on farm labor contractors to check the prescribed
documents is an impermissible interpretation of the statute and
regulation, we need not reach the issue of constructive compliance.
- 5 -
1991) (en banc), aff'd, 112 S. Ct. 2589 (1992); see also Chevron,
467 U.S. at 843 n.9 ("The judiciary is the final authority on
issues of statutory construction and must reject administrative
constructions which are contrary to clear congressional intent.").
Insofar as the Secretary's interpretation of § 1816
effectively reads out the "with knowledge" requirement, we hold
that it frustrates the clear intent of Congress. Section 1816(a)
proscribed employing "with knowledge" an illegal worker.8 Section
1816(b) merely set forth a means by which a farm labor contractor
could demonstrate an absence of such knowledge; it was in the
nature of an affirmative defense. Nor do we read the plain
language of § 1816(b) to place an affirmative obligation on farm
labor contractors to check the prescribed documents (though,
certainly, they would benefit from doing so).9
8
This language requires a particular subjective mental state in
order to find a violation of § 1816(a). "With knowledge" is
synonymous with "knowingly". See Black's Law Dictionary 872 (6th
ed. 1992). Such phrases are usually directed at, and descriptive
of, an individual's own, conscious awareness of a particular fact.
See id. Cf. United States v. Smith, 548 F.2d 545, 549 (5th Cir.)
("the Government must prove that the defendant knowingly did an act
which the law forbids; that is to say purposely intending to
violate the law") (emphasis added), cert. denied, 431 U.S. 959
(1977). Therefore, Congress sought to punish those who employed
workers with an awareness of the workers' illegal status. The
Secretary fails to cite any language in the statute which would
support her interpretation. And, she fails to assert that § 1816
is silent or ambiguous on this issue, thereby abandoning any basis
for deference to her interpretation of § 1816.
9
Of course, proof that a farm labor contractor both employs
illegal workers and fails to check prescribed documents is evidence
from which one might infer that the employer hired illegal workers
"with knowledge".
- 6 -
The Secretary directs our attention to a prior decision by
this court which cited 29 C.F.R. § 40.51(p) (repealed) as support
for the proposition that a farm labor contractor "has an
affirmative duty to inquire into a prospective employee's status as
a United States citizen or person lawfully authorized to work in
the United States." See Counterman v. United States Department of
Labor, 776 F.2d 1247, 1248 (5th Cir. 1985). Counterman does not
support the Secretary's interpretation. It involved the
predecessor to the Act, namely, the Farm Labor Contractor
Registration Act, 7 U.S.C. §§ 2041-2055 (repealed 1983); § 40.51(p)
was promulgated by the Secretary under that act.
Unlike either the statute or regulation in issue here, §
40.51(p) required that a farm labor contractor "must evidence an
affirmative showing of a bona fide inquiry of each prospective
employee's status as" a legal employee. 29 C.F.R. § 40.51(p)
(repealed) (emphasis added); see generally, Counterman v. United
States Dept. of Labor, 607 F. Supp. 286, 288 (W.D. Tex), aff'd, 776
F.2d 1247 (5th Cir. 1985). Neither the regulation nor the statute
in issue explicitly required such an affirmative showing.
B.
Needless to say, the Secretary's conclusion that Garcia
employed illegal workers must be, inter alia, supported by
substantial evidence. 29 U.S.C. §§ 1813(c), 1853(c); 5 U.S.C. §
706(2)(E). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
- 7 -
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It is
more than a mere scintilla, and less than a preponderance."
Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citation
omitted).
In situations in which an ALJ and a Secretary disagree, we
"must examine the evidence and findings of the [Secretary] more
critically than [we] would if the [Secretary] and the ALJ were in
agreement." See Syncro Corp. v. NLRB, 597 F.2d 922, 924-25 (5th
Cir. 1979) (citation omitted). Although this heightened scrutiny
does not alter the substantial evidence standard of review, it does
require us to apply it with a particularly keen eye, especially
when credibility determinations are in issue, as discussed infra.
See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951).
Garcia began working as a farm labor contractor in 1983.10
During the relevant time period (May 1983 - May 1985), he provided
approximately 5,000 workers to Lower Valley farm owners. The area
is noted for its "general chaos of movement and employment". He
provided up to 120 workers per day. They were seldom the same
workers day in and day out; the turnover rate was about 60% per
day.
Garcia obtained a significant number of his workers from the
Texas Employment Commission (TEC), which attempts to check the
legal status of its referrals. Its officers frequent the fields in
which their referrals are working for the purpose of investigating
10
Garcia quit school in Mexico after the sixth grade; he neither
speaks nor reads English.
- 8 -
the legal status of workers at the site. Eli Vera, a TEC liaison
officer, routinely visited the fields in which Garcia's workers
were working, doing so at least weekly. While making these visits,
he normally determined that all, or almost all, of Garcia's workers
were legally employed. On those occasions when illegal workers
were found at a Garcia site, they numbered four to five out of 100
to 150 workers.
1.
At the hearing, the Department presented only two witnesses
who were not authorized to work in the United States and had worked
for Garcia: Manuel Ortiz, on April 11, 1985; Ricardo Alvillar, on
April 10-11, 1985.11 Together, their testimony was proof that two
illegal workers had been employed by Garcia for a collective total
of three days. Alvillar had no contact with Garcia; it appears
doubtful that Ortiz did.
In addition, Garcia admitted on cross that one of his foremen,
Mr. Perea, was an illegal worker. The Secretary states that
"Garcia admitted ... that he was aware that Perea was a citizen of
Mexico and ... was not authorized to work in the U.S. at the time
11
Ricardo Anaya, the Department's compliance officer who
conducted the investigation, testified that, in April and May 1985,
he took statements from ten persons being deported, whom he claimed
had worked for Garcia: seven on April 11 (including Alvillar and
Ortiz); two on May 1; and three on May 2. Of those ten, Anaya
testified that only Alvillar and Ortiz could be located in order to
testify; the Department offered the statements of the other eight
into evidence. Garcia objected because, among other things, a pre-
hearing order required the exchange of proposed exhibits, but the
Department had not provided the statements to Garcia; the ALJ
sustained the objection. In its offer of proof, the Department
stated that the statements "would be cumulative" of Alvillar's and
Ortiz's testimony.
- 9 -
he worked for Garcia." Although technically accurate, this
statement overreaches. Garcia was asked: "Are you aware that
[Perea] is not authorized to seek employment in the United States?"
(Emphasis added.) Garcia answered affirmatively. This falls far
short of establishing that Garcia was aware of Perea's illegal
status when he employed him. In fact, the ALJ found that "the
evidence does not establish that [Garcia] knew, at the time Perea
worked with him, that Perea could not lawfully accept employment."12
Thus, through these witnesses, the Department provided
evidence that, at most, three individuals employed by Garcia were
not authorized to seek employment in the United States, but offered
no evidence that Garcia hired them with knowledge of their illegal
status.
2.
The remaining evidence offered to prove violation of the Act
was documentary. Several documents were admitted by stipulation,
but Garcia reserved the right to make objections as to weight or
purpose. Three documents are relevant to our review.
The first, exhibit 5, consisted of approximately 40
Immigration and Naturalization Record of Deportable Alien forms (I-
213s), all dated April 11, 1985. The I-213s reflect that they are
prepared by Border Patrol officers prior to deporting illegal
12
Indeed, the record supports the inference that Perea was no
longer working for Garcia. Garcia affirmed that Perea "was" one of
his workers, suggesting that Perea no longer is. This would be
consistent with Garcia's standard operating procedure upon
discovering illegal workers in his employ: "let them go."
- 10 -
aliens. Most of the I-213s list Garcia as the employer of the
deportable alien, a few do not, and some are illegible.13 No
evidence explains these forms in any meaningful respect; we cannot
discern from them how they were generated, or how the reference to
Garcia came to be on them.
The second document is exhibit 6, compiled by Ricardo Anaya,
who conducted the investigation. It consists of a series of dates
of deportation, with the names of persons deported (total of
approximately 1800) on those dates. (As discussed infra, the same
name is often listed under more than one date.) According to
Anaya, the exhibit is a "daily summary ... made upon reviewing the
[deportation] logs kept by the border patrol station", with the
names being those shown in the logs as employed by Garcia. But,
once again, we have no evidence clarifying the means by which these
names came to be associated with Garcia.
The third document, exhibit 7, also prepared by Anaya, lists
the 297 names that appear in exhibit 6 more than once. Of course,
this list is not any more probative of Garcia's alleged knowing
13
Apparently, the original exhibit has been lost; nevertheless,
the contents are not in dispute. The Secretary acknowledges that
two of the I-213s did not list Garcia as the employer. Also, she
recognizes that at least 14 of the I-213s were illegible. In any
event, we can infer the essential contents of the exhibit by
referring to copies of the two I-213s provided in the record
excerpts.
Likewise, it appears that exhibits 6 and 7, discussed infra,
have been lost. But, copies of the first page of each are in the
record excerpts. Once again, the contents are not in dispute;
conflict only arises concerning the weight to be given the
exhibits.
- 11 -
employment of illegal workers than the list from which it was
derived.
In evidence was a certification by a Border Patrol officer
that there are I-213s for all of the names on the lists. But, we
agree with the ALJ that the lists do not prove that Garcia
knowingly employed illegal aliens. The certification does not
explain how an I-213 is generated; in other words, it does not add
any explanation to the content of the I-213. Perhaps, as the
district court noted, the certifying officer could have testified
as to how the I-213s are generated. Such an explanation might have
added to the weight we attach to these documents.
Although the Secretary presents contentions regarding the
admissibility of these documents,14 few are advanced to support the
weight to be given them. Apparently referring to the I-213s, the
Secretary asserts that the Department was not required to "produce
the author of the item". Obviously, we agree; the Department does
not have to produce the border agent who created each I-213 because
of, among other things, the "improbability that he would recall the
facts surrounding any one particular deportation." See United
States v. Quezada, 754 F.2d 1190, 1196 (5th Cir. 1985).
Nevertheless, the Department should have called someone with
sufficient knowledge to give "testimony relating to the procedures
followed in keeping the records". See id.
14
We do not doubt their admissibility; Garcia stipulated to
that.
- 12 -
Finally, the Secretary maintains that the "trustworthiness and
probative weight of these documents is assured by ... the integrity
of public officials." More specifically, she contends that
"[t]here is no indication ... that the ... officials involved were
untrustworthy or incompetent in preparing these documents, nor is
there any other reason to doubt the trustworthiness or accuracy of
these records." Once again, we do not doubt this; but, simply
stated, we do not know either how the I-213s were generated or how
Garcia came to be associated with the deportable aliens identified
on them. For example, did a Border Patrol agent engage in a
thorough investigation of the deportee's employment history in this
country and make an independent finding that Garcia had employed
the illegal worker; or, did the agent put Garcia's name on the I-
213 because an illegal alien said that he worked for him? In the
absence of any factual basis in the record for determining the
means by which Garcia has been identified on Border Patrol
documents as an employer of deportable aliens, we agree with the
ALJ that Anaya's testimony fell "short of making the necessary
connection" between the I-213s and employment of illegal workers by
Garcia.15
15
The Secretary once again cites Counterman, claiming that it
compels us to reverse the district court. Specifically, she
asserts that in Counterman, "an ALJ based his holding that a [Farm
Labor Contractor] had habitually hired illegal aliens solely on the
testimony of one illegal alien witness and on [Border Patrol] logs
and summaries introduced into evidence and testified to by a
compliance officer." Counterman, however, does not thoroughly
discuss the testimony surrounding the introduction of the logs and
summaries. We simply do not know what testimony was introduced to
explain them. In any event, it goes without saying that we cannot
look to the records in other cases to determine whether the
- 13 -
3.
We have serious doubts that the preceding evidence, offered by
the Secretary, produced "more than a mere scintilla" of proof that
Garcia employed illegal workers with knowledge. See Spellman, 1
F.3d at 360. In any event, there was additional evidence before
the ALJ, involving some credibility determinations.
When evaluating whether substantial evidence supports the
Secretary's conclusion, the "significance" of the ALJ's contrary
conclusion "depends largely on the importance of credibility in the
particular case." Universal Camera, 340 U.S. at 496; see also
Texas World Svc. Co. v. NLRB, 928 F.2d 1426, 1431 (5th Cir. 1991).
The Secretary does not dispute the ALJ's credibility
determinations; rather, she disagreed with the probative weight the
ALJ afforded the documentary evidence. Accordingly, we attach
particular significance to the ALJ's credibility determinations in
this case.
Garcia testified that he never knowingly employed illegal
workers, and that when he became aware that one was in his employ,
he would fire the worker. The ALJ determined that Garcia was
"believable", and we attach significance to this credibility
determination.
In addition, Vera, the TEC liaison officer, testified that he
believed that Garcia never knowingly employed an illegal worker.
Because Vera, a state officer, visited the fields in which Garcia's
Secretary's conclusion in this case is supported by substantial
evidence.
- 14 -
workers were employed at least weekly for the purpose of
ascertaining those workers' legal status, we attach particular
weight to this testimony. The ALJ stated that he gave "special
weight to Mr. Vera's testimony for the reason that he had no vested
interest in the outcome of this proceeding other than his own
reputation in this farming community." The ALJ questioned Vera
extensively; obviously, the ALJ's credibility determination is
significant.
Because the ALJ found Vera and Garcia credible, their
testimony detracts from the weight to be afforded the evidence
presented by the Department. See Universal Camera, 340 U.S. at 488
("The substantiality of evidence must take into account whatever in
the record fairly detracts from its weight."); Texas World Svc.,
928 F.2d at 1431. In sum, canvassing the record as a whole, as we
must, see Universal Camera, 340 U.S. at 488, we hold that the
Secretary's conclusion that Garcia knowingly employed illegal
workers is not supported by substantial evidence.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
KING, Circuit Judge, dissenting:
I concur in the majority's interpretation of 29 U.S.C. § 1816
(repealed 1986). However, because I believe that the record
contains substantial evidence in support of the Secretary of
- 15 -
Labor's determination that Garcia knowingly hired or recruited
aliens not authorized to work in the United States, I respectfully
dissent.
Statutory Interpretation
The threshold issue in this case is whether we must accept the
Secretary's interpretation of 29 U.S.C. § 1816 (repealed 1986) and
its accompanying regulations. The Secretary argues that a farm
labor contractor violates § 1816(a) if he knows or should
reasonably know that he is hiring or recruiting aliens not
authorized to work in this country. Section 1816(a) by its own
terms appears to make actual knowledge that one is hiring
unauthorized aliens an element of a violation. Section 1816(b)
provides that a farm labor contractor can comply with § 1816(a) by
examining and relying in good faith on certain prescribed documents
evidencing that a prospective employee is entitled to work in this
country. As the majority correctly points out, however, § 1816(b)
does not purport to be the only way for a farm labor contractor to
comply with § 1816(a). The Secretary argues that a presumption of
knowledge should arise if a farm labor contractor is found to be
employing unauthorized aliens in an area in which illegal
immigration of agricultural workers is widespread, and that this
presumption should be rebuttable only by compliance with § 1816(b)
and its companion regulation, 29 C.F.R. § 500.59 (repealed)
(prescribing the documents a farm labor contractor may use to
verify employment status).
- 16 -
I agree with the majority that, in a proceeding brought under
§ 1816, the burden of proving actual knowledge remains on the
government at all times. In the first place, this reading is
consistent with the plain language of the statute, while the
Secretary's interpretation is not. The case is analogous to
Contract Courier Servs., Inc. v. Research and Special Programs
Admin., 924 F.2d 112 (7th Cir. 1991). That case also involved a
statute that proscribed certain conduct if done "knowingly." Id.
at 113. The Department of Transportation, however, promulgated a
regulation that included "should have known" within the meaning of
"knew," and enforced its regulation against Contract Courier
Services. Id. The Seventh Circuit reversed, holding that the
statute prohibited the Department of Transportation from
"obliterat[ing] any distinction between knowledge and ignorance."
Id. at 114. The court also observed that "knew" and "should have
known" may be equated if some rule of law penalizes a person's
failure to make inquiry. Id. No such rule existed in that case,
however, and no such rule has been called to our attention in the
instant case. This is the key distinction between the instant case
and Counterman v. United States Dep't of Labor, 776 F.2d 1247,
1248-49 (5th Cir. 1985), in which we emphasized that a regulation
specifically imposed an affirmative duty of inquiry on farm labor
contractors and that Counterman had not complied with that
regulation. The regulation implementing § 1816(b) did not impose
such an affirmative duty.
- 17 -
The successor statute to § 1816 also sheds some light on the
proper interplay between §§ 1816(a) and (b). Section 1816 was
replaced by 8 U.S.C. § 1324a of the Immigration Reform and Control
Act (IRCA). IRCA, much like § 1816 before it, generally prohibits
an employer from knowingly hiring an unauthorized alien. 8 U.S.C.
§ 1324a(a)(1)(A). Good faith compliance with the prescribed
verification procedures is an "affirmative defense" to a charge
that one has hired or recruited unauthorized aliens. 8 U.S.C. §
1324a(a)(3).16 The legislative history explains how the IRCA
affirmative defense works as follows. If an employer proves that
he checked the required documents and retained the attested
verification forms, he has established a "rebuttable presumption"
that he did so in "good faith." At this point the burden shifts to
the government to prove lack of good faith.
It should be noted that this is not an absolute defense,
and the government could rebut the presumption by
offering proof that the documents did not reasonably
appear on their face to be genuine, that the verification
process was pretextual, or that the employer . . .
colluded with the employee in falsifying documents, etc.
Of course, even if the employer does not seek to
establish an affirmative defense, the burden of proving
a violation of the hiring, recruitment, or referral
prohibition always remains on the government--by a
preponderance of the evidence in the case of civil
penalties and beyond a reasonable doubt in the case of
criminal penalties.
H.R. Rep. No. 99-682(I), 99th Cong., 2d Sess. 57 (1986), reprinted
in 1986 U.S.C.C.A.N. 5649, 5661. The close similarity between the
16
Interestingly, farm labor contractors are given special treatment
under IRCA. Compliance with the prescribed verification procedures
is now mandatory for such employers. 8 U.S.C. §§
1324a(a)(1)(B)(ii), 1324a(b).
- 18 -
scheme set forth in IRCA for most employers and that set forth in
§ 1816 for farm labor contractors strongly suggests that they
should operate the same way. Thus, as the majority concludes, the
burden of proving that Garcia had actual knowledge that he was
hiring unauthorized aliens remained at all times on the government.
Substantial Evidence
I disagree with the majority's conclusion that there is no
substantial evidence in the record to support the Secretary's
finding that Garcia knowingly hired unauthorized aliens. The
majority concedes that evidence exists to support a finding that
Garcia hired illegal aliens. What the records lacks, according to
the majority, is substantial evidence that he did so knowingly. I
turn first to the evidence that Garcia hired illegal aliens because
the sheer volume of that evidence, in my view, raises an inference
that he did so knowingly. Under the substantial evidence standard,
the Secretary was entitled to draw that inference, and under the
applicable standard of appellate review, we should defer to her
decision to do so.
Two witnesses testified at the hearing before the ALJ that
they were Mexican citizens not authorized to work in this country
and that they had worked for Garcia. Texas Employment Commission
Agent Eli Vera also testified that he repeatedly found unauthorized
aliens working for Garcia (up to four or five on any given day) and
that he informed Garcia of his discoveries on multiple occasions.
The exact number of unauthorized aliens that Garcia actually
hired during the period in question is more difficult to discern.
- 19 -
By stipulation, several government exhibits were admitted into
evidence. One exhibit was a collection of some forty I-213 forms,
all dated April 11, 1985, many of which listed Garcia as the
employer of deportable aliens. Another was a list of names of
aliens deported during the period of the investigation totalling
some 1800 names in all. The person who compiled the list testified
that the list included the names of only those deported aliens
whose I-213 forms listed Garcia as their employer. A second list
showed the names of those unauthorized aliens whose names appeared
on the first list more than once--almost 300 names. The majority
gives slight credence to these exhibits because the government did
not offer evidence to explain how the agents who prepared the I-213
forms determined that Garcia was the employer of the particular
alien being deported. Admittedly, this evidence would carry far
more weight if it were supported by the independent investigation
of a border patrol agent than if it were merely the product of a
brief interrogation of an illegal alien just prior to deportation.
Without such support, it is difficult to attach a great deal of
weight to the Secretary's documentary evidence. Nevertheless, I
believe that a reasonable mind could accept the documentary
evidence as adequate to support the conclusion that Garcia employed
numerous unauthorized aliens, and that he in fact employed many of
them on more than one occasion. These conclusions in turn permit
the inference that Garcia employed unauthorized aliens knowingly.17
17
Many courts, it may be noted, accept "willful ignorance" as the
equivalent of knowledge. See, e.g., Garcia v. Donovan, 101 Lab.
Cas. ¶ 34,574 (CCH) (M.D. Fla. 1984) (interpreting § 1816). See
- 20 -
Thus, on the whole, I believe that substantial evidence
supports the Secretary's finding in this case. The substantial
evidence standard, it is well known, is a very low standard indeed.
It requires evidence that amounts to more than a mere scintilla,
but less than a preponderance. Additionally, under the substantial
evidence standard we may not reweigh the evidence, nor may we try
the issues de novo. Conflicts in the evidence are for the
Secretary to resolve, not the courts. Spellman v. Shalala, 1 F.3d
357, 360 (5th Cir. 1993). In any event, the conflict in the
evidence in the instant case is not great. Garcia denied any
knowledge of the fact that he was employing unauthorized aliens, a
denial belied by the evidence that he actually employed such aliens
in droves. If the government's evidence is accepted that Garcia
employed some 1800 unauthorized aliens during the period in
question, this amounts to some 36% of his total work force during
that time. The Secretary was entitled to trust the documentary
evidence as circumstantial evidence of Garcia's knowledge over
Garcia's self-serving denial. The Secretary was also entitled to
discount Vera's testimony that Garcia lacked such knowledge. Even
if we take Vera's credibility for granted, he could not have had
direct knowledge of Garcia's mental state, and in fact he testified
only that he had no reason to believe that Garcia had ever
knowingly or intentionally employed any illegal aliens. The
generally Robin Charlow, Willful Ignorance and Criminal
Culpability, 70 Tex. L. Rev. 1351 (1992).
- 21 -
Secretary could reasonably have resolved the conflict in the
evidence against Garcia.
As the majority notes, the disagreement between the ALJ and
the Secretary does not modify in any way the substantial evidence
standard. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496
(1951). Although Garcia's credibility was certainly a factor in
the ALJ's decision that the Secretary could not lightly dismiss,
she was entitled to discount it in light of the conflict between
Garcia's testimony and the "obvious inferences from the remainder
of the record." Delchamps, Inc. v. NLRB, 588 F.2d 476, 480 (5th
Cir. 1979). The Secretary is not bound to accept an ALJ's
credibility determination over conflicting evidence, particularly
when the ALJ relies on "testimony given by an interested witness,
relating to his own motives." Russell-Newman Mfg. Co. v. NLRB, 407
F.2d 247, 249 (5th Cir. 1969). Thus, the ALJ's credibility
determination as to Garcia was not binding on the Secretary in the
instant case. The ALJ's credibility determination as to Vera was
certainly not binding; Vera's testimony, after all, was necessarily
limited to his own beliefs about Garcia's knowledge.
Because a reasonable mind could accept the evidence presented
by the government as adequate to support the conclusion reached by
the Secretary, her findings should be affirmed. Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
- 22 -