Split Rail Fence Co. v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 20, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SPLIT RAIL FENCE COMPANY, INC., a
Colorado corporation,
Petitioner,
v. No. 15-9561
UNITED STATES OF AMERICA, United
States Department of Justice Executive
Office for Immigration Review Office of the
Chief Administrative Hearing Officer,
Respondent.
_________________________________
PETITION FOR REVIEW OF AN ORDER
FROM THE DEPARTMENT OF JUSTICE
(DOJ No. 12A00059)
_________________________________
Christopher J. Forrest, Miller & Steiert, P.C., Littleton, Colorado (Michael P. Miller and
Benjamin L. Broder, Miller & Steiert, P.C., Littleton, Colorado; and Ann Allott, Allott
Immigration Law Firm, Centennial, Colorado, with him on the briefs), appearing for
Petitioner.
Dana M. Camilleri, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Civil Division, and Anthony P. Nicastro, Acting Assistant Director,
with her on the brief), Office of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, DC, appearing for Respondent.
_________________________________
Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Split Rail Fence Company, Inc., a Colorado business that sells and installs fencing
materials, petitions for review of an administrative law judge’s (“ALJ”) summary
decision. The decision imposed civil penalties on Split Rail for violating the Immigration
Reform and Control Act (“IRCA”) by (1) “hir[ing] for employment in the United States
an individual without complying with the requirements of subsection (b)” of 8 U.S.C.
§ 1324a in violation of § 1324a(a)(1)(B) (Count One); and (2) “continu[ing] to employ
[an] alien in the United States knowing the alien is (or has become) an unauthorized
alien” in violation of § 1324a(a)(2) (Count Two). Exercising jurisdiction under
§ 1324a(e)(8), we deny Split Rail’s petition.
I. BACKGROUND
We begin by explaining the relevant legal background, the administrative
enforcement and adjudication process, and the factual and procedural history of this case.
A. Legal Background
Congress amended the Immigration and Nationality Act (“INA”) in 1986 by
enacting the IRCA. IRCA Section 274A establishes “an extensive ‘employment
verification system,’ § 1324a(a)(1), designed to deny employment to aliens who (a) are
not lawfully present in the United States, or (b) are not lawfully authorized to work in the
United States, § 1324a(h)(3).” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137,
147 (2002).
Known as the I-9 system, the IRCA requires employers (1) “to verify the identity
of their employees and ensure they are eligible to work in the United States by examining
certain . . . documents” specified in § 1324a(b), and (2) to complete and retain an
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Employment Eligibility Verification Form (I-9 form) for each employee. Chamber of
Commerce of U.S. v. Edmondson, 594 F.3d 742, 751 (10th Cir. 2010) (citing 8 C.F.R.
§ 274a.2(b)). A copy of the I-9 form and instructions relevant to this appeal is attached
as an appendix to aid in understanding this opinion.
Section 1324a(b) specifies that an employer must “attest . . . that it has verified
that the individual is not an unauthorized alien by examining . . . (i) a document described
in subparagraph (B), or (ii) a document described in subparagraph (C) and a document
described in subparagraph (D).” 8 U.S.C. § 1324a(b)(1)(A). The acceptable verification
documents for each category are listed in § 1324a(b)(1)(B)-(D), 8 C.F.R. §
274a.2(b)(1)(v), and in the “Lists of Acceptable Documents” instructions page
accompanying the I-9 form (“List A, B, or C documents”). Once the employer has
examined the appropriate documents, it must record the title, number, and expiration date
(if any) of those documents in Section 2 of the I-9 form.
IRCA Section 274A makes it unlawful for an employer (1) “to hire . . . an alien
knowing the alien is an unauthorized alien,” 8 U.S.C. § 1324a(a)(1); (2) “to hire . . . an
individual without complying with” the I-9 system, id. § 1324a(a)(1)(B); or (3) “to
continue to employ [an] alien . . . knowing the alien is (or has become) an unauthorized
alien,” id. § 1324a(a)(2). An “unauthorized alien” is an alien who is neither “(A) an alien
lawfully admitted for permanent residence, [nor] (B) authorized to be so employed by
[the IRCA] or by the Attorney General.” Id. § 1324a(h)(3). Within the agency, the first
type of violation is called a “knowing hire” violation. See, e.g., United States v. Jalisco’s
Bar and Grill, Inc., 11 OCAHO 1224, 2014 WL 4056921, *3 (June 27, 2014). Of
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relevance to this case, the second is called a “paperwork violation,” id., and the third is a
“knowing continue to employ violation,” United States v. Muniz Concrete & Contracting,
Inc., 12 OCAHO 1278, 2016 WL 2851340, at *8 (Apr. 29, 2016).
The IRCA also includes an anti-discrimination provision under which an
employer’s “request, for purposes of satisfying the requirements of section 1324a(b) of
this title, for more or different documents than are required under such section or refusing
to honor documents tendered that on their face reasonably appear to be genuine shall be
treated as an unfair immigration-related employment practice if made for the purpose or
with the intent of discriminating against an individual.” 8 U.S.C. § 1324b(a)(6); see also
Edmondson, 594 F.3d at 767.
B. Administrative Enforcement and Adjudication
The regulations implementing the IRCA authorize Immigration and Customs
Enforcement (“ICE”), an agency within the Department of Homeland Security (“DHS”),
to “conduct investigations for violations on its own initiative.”1 8 C.F.R. § 274a.9(b).
ICE’s investigation process typically begins by serving a Notice of Inspection
(“NOI”) to the employer. U.S. Immigration and Customs Enforcement, Form I-9
Inspection Overview (June 26, 2013), https://www.ice.gov/factsheets/i9-inspection. The
NOI compels production of the employer’s I-9 forms and may request other supporting
1
The regulations originally granted Immigration and Naturalization Service
(“INS”) with enforcement power. The Homeland Security Act of 2002, Pub. L. 107-296,
116 Stat. 2135, which went into effect in 2003, abolished the INS, 6 U.S.C. § 291, and
created ICE, id. § 271, which now enforces violations of Section 274 of the IRCA, see id.
§ 271(b).
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documentation. Id. Once the forms are produced, ICE agents inspect them for
compliance. Id.
When the inspection is complete, ICE notifies the employer of the results in
writing. Id. If ICE determines that the employer has violated IRCA Section 274A, it
may issue a “Warning Notice,” such as a “Notice of Suspect Documents” (“NSD”),
containing “a statement of the basis for the violations and the statutory provisions alleged
to have been violated.” 8 C.F.R. § 274a.9(c). In addition to or in place of a Warning
Notice, ICE may serve a Notice of Intent to Fine (“NIF”), which commences proceedings
to assess administrative penalties. Id. § 274a.9(d); see also 8 U.S.C. § 1324a(e)(4), (5)
(allowing the assessment of civil penalties). An employer served with an NIF may
negotiate a settlement with ICE or request a hearing before an ALJ. 8 C.F.R. § 274a.9(e).
The United States Department of Justice’s Office of the Chief Administrative
Hearing Officer (“OCAHO”) has jurisdiction to hear alleged violations under the INA.
Hearings are conducted before ALJs who issue orders stating their findings of law and
fact. 8 U.S.C. § 1324a(e)(3)(B)-(C). An ALJ’s order becomes the final agency decision
unless appealed to the Chief Administrative Hearing Officer (“CAHO”). 28 C.F.R. §
68.52(g). A party adversely affected by a final order may then petition a circuit court for
review. 28 C.F.R. § 68.56.
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C. Factual and Procedural History
1. ICE’s 2009 Investigation, Notice of Suspect Documents, and Settlement
On June 20, 2009, ICE special agents conducted an inspection at Split Rail to
determine its compliance with the IRCA. During the inspection, it examined Split Rail’s
I-9 forms. On September 11, 2009, ICE sent Split Rail an NSD stating:
This letter is to inform you that, according to the records checked by ICE,
the following individuals appear, at the present time, not to be authorized to
work in the United States. The documents submitted to you were found to
pertain to other individuals, or there was no record of the alien registration
numbers being issued, or the documents pertain to the individuals but the
individuals are not employment authorized or their employment
authorization has expired. Accordingly, the documentation previously
provided to you for these employees does not satisfy the Form I-9
employment eligibility verification requirements of the Immigration and
Nationality Act.
App. at 145. The NSD listed 32 current employees and 51 terminated employees. It
further stated, “Unless the above employee(s) present valid identification and
employment eligibility documentation acceptable for completing the Form I-9, other than
the documentation previously submitted to you, they are considered by ICE to be
unauthorized to work in the United States.” App. at 147. It noted that continued
employment of these employees without valid documentation could subject Split Rail to
civil monetary penalties.
Split Rail’s president and owner, Tom Barenberg, stated in his affidavit that
“shortly after” Split Rail received the NSD, it served the NSD on the 32 current
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employees named in it, videotaping the service.2 Id. at 723. He further stated, “Twenty-
three (23) of the employees would not affirm that they were authorized to work in the
United States and their employment was immediately terminated.” Id. The nine
remaining employees continued to work at Split Rail.
On October 14, 2009, Split Rail emailed the Office of Special Counsel (“OSC”)
for Immigration Related Unfair Employment Practices, seeking guidance on how it
should respond to the NSD consistent with the IRCA’s anti-discrimination provision.
OSC replied:
[OSC] cannot provide an advisory opinion on any particular instance of
alleged discrimination or on any set of facts involving a particular
individual or entity. However, we can provide some general guidelines
regarding employer compliance with the INA’s anti-discrimination
provision.
....
The anti-discrimination provision of the INA prohibits the request for
specific documents or the rejection of documents during the employment
eligibility verification process with the intent to discriminate on the basis of
national origin or citizenship status. However, it has been long recognized
that action by an employer taken for reasons other than an intent to
discriminate does not constitute an unfair employment practice within the
meaning of the antidiscrimination provision of the INA. While an ICE
Notice of Suspect Documents may provide a non-discriminatory reason
behind the decision to re-verify an employee’s employment eligibility, the
standard for accepting documents presented by the employee to re-establish
his or her employment eligibility remains the same—whether the
document(s) presented reasonably appear on their face to be genuine and to
relate to the person who presents the document(s).
App. at 696-97 (citations omitted).
2
Split Rail has not offered the recording as evidence.
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On February 1, 2010, ICE served Split Rail with an NIF, and in June 2010, ICE
and Split Rail entered a settlement agreement.
2. Jaime Lopez Ramirez’s I-9 Form
On October 5, 2009—after the issuance of the 2009 NSD and before the
settlement—Split Rail hired Jaime Lopez Ramirez. It verified his employment eligibility
using his Mexican passport, which included a temporary I-551 stamp. The I-551 stamp
authorized employment in the United States until September 13, 2010. Mr. Lopez
Ramirez continued working at Split Rail after his I-551 authorization expired. Split Rail
did not update or re-verify his employment authorization on or after that date.
3. ICE’s 2011 Investigation and NSD
On June 15, 2011, ICE mailed Split Rail a Notice of Inspection and five days later
began a review of Split Rail’s I-9 forms “for possible violations of Section 274A” of the
IRCA. App. at 161. ICE completed its investigation on August 29, 2011, and mailed
Split Rail an NSD the next day, which read:
This letter is to inform you that, according to the records checked by ICE,
the following individuals appear, at the present time not to be authorized to
work in the United States. The documents submitted to you were found to
pertain to other individuals, or there was no record of the alien registration
numbers being issued, or the documents pertain to the individuals but the
individuals are not employment authorized or their employment
authorization has expired. Accordingly, the documentation previously
provided to you for these employees does not satisfy the Form l-9
employment eligibility verification requirements of the Immigration and
Nationality Act.
The NSD listed nine current employees and one terminated employee, stating,
Unless the [named] employee(s) present valid identification and
employment eligibility documentation acceptable for completing the Form
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I-9 other than the documentation previously submitted to you, they are
considered by ICE to be unauthorized to work in the United Sates. If you
continue to employ these individuals without valid documentation, you may
be subject to a civil money penalty. . . .
If you or the employees feel that this determination is in error and the
employees are authorized to work, immediately call [the] Forensic Auditor
. . . . ICE will re-verify the information provided about the employees,
including any new information provided by you or the employees.
Id. at 152-53.
All but one of the individuals named in the 2011 NSD had also been named in the
2009 NSD. Split Rail had not updated or changed the I-9 forms of the nine employees
named in both NSDs since the 2009 inspection. According to Mr. Barenberg’s affidavit,
these nine employees were among the 32 employees Split Rail had videotaped after
receiving the 2009 NSD. He stated that, during the videotaping, the nine employees had
all orally “verified that they were authorized to work in the U.S.” App. at 723.
On September 26, 2011, ICE served Split Rail with an NIF, commencing this
administrative proceeding against Split Rail. Split Rail requested a hearing before an
ALJ three days later.
On February 17, 2012, Mr. Barenberg mailed ICE a letter, stating he “had
absolutely no reason to believe either now or at any time in the past that any of [the nine
individuals identified as ‘current employees’ in the 2011 NSD] are anything but law
abiding residents of the United States of America.” Id. at 586. He noted many of them
were long-term employees who, along with their families, had been involved in company
activities, parties, and picnics. He further stated they each appeared authorized to work
in the United States because they had bank accounts, cars, homes, and mortgages. He
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also noted many had valid driver’s licenses and some had filed successful workers’
compensation claims. He did not, however, state that Split Rail had taken any action
regarding the employees’ I-9 forms.
4. ICE’s Complaint and Summary Decision
On April 6, 2012, ICE filed a complaint against Split Rail. On July 20, 2012, it
filed an amended complaint—the complaint relevant to this appeal.
Count One of the amended complaint alleged a paperwork violation under
§ 1324a(b) as to Mr. Lopez Ramirez. It alleged that (1) when Split Rail hired Mr. Lopez
Ramirez, it verified his employment eligibility using his Mexican passport, which
included a temporary I-551 stamp authorizing employment in the United States until
September 13, 2010; (2) § 1324a(b) required Split Rail to re-verify his work authorization
and update his I-9 form with the new basis for employment eligibility when his
authorization expired; and (3) Split Rail failed to do so and therefore committed a
paperwork violation under § 1324a(a)(1)(B).
Count Two alleged Split Rail continued to employ nine of the employees listed on
the 2011 NSD knowing they were or had become unauthorized in violation of
§ 1324a(a)(2).
ICE moved for summary decision under 28 C.F.R. § 68.38, the administrative
analog to summary judgment under Federal Rule of Civil Procedure 56. The ALJ
granted ICE summary decision on both counts. Split Rail timely filed its petition for
review with this court.
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II. DISCUSSION
A. Standard of Review
We have yet to determine the standard of review that applies to a summary
decision under 28 C.F.R. § 68.38(c). Split Rail argues de novo review applies. ICE
asserts we may only reverse if the ALJ’s decision was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” arguing that we should review
questions of law de novo and factual determinations for a basis in “substantial evidence.”
See 5 U.S.C. § 706(2)(A), (E). Other circuits reviewing ALJ decisions in this context
have used varying standards.3 Because we conclude under de novo review—the standard
most favorable to Split Rail—there is no genuine issue of material fact and ICE is entitled
to summary decision, we need not decide which standard applies.
B. Summary Decision Standard
The requirements for a summary decision under 28 C.F.R. § 68.38(c) are the same
as under Federal Rule of Civil Procedure 56. See Getahun v. OCAHO, 124 F.3d 591, 594
(3d Cir. 1997) (“The standards governing the entry of summary judgment under Fed. R.
Civ. P. 56(c) in federal court cases are applied in determining whether summary decision
under 28 C.F.R. § 68.38(c) is appropriate in OCAHO cases.”); United States v. Foothill
3
See, e.g., Getahun v. OCAHO, 124 F.3d 591, 594 (3d Cir. 1997) (exercising
“plenary review” while giving “some deference . . . to an agency’s reasonable
construction of a statute it is charged with administering”); Villegas-Valenzuela v. INS,
103 F.3d 805, 809, 812 (9th Cir. 1996) (same); Odongo v. OCAHO, 610 F. App’x 440,
441 (5th Cir. 2015) (unpublished) (reviewing fact findings for substantial evidence and
conclusions of law de novo); Martinez v. Linen, 579 F. App’x 573, 573 (9th Cir. 2014)
(unpublished) (same); Rompalli v. Tykhe Capital, LLC, 452 F. App’x 69, 69-70 (2d Cir.
2012) (unpublished) (applying the arbitrary or capricious standard).
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Packing, Inc., 11 OCAHO 1240, 2015 WL 329579, *5-6 (2015) (citing the Rule 56
standard in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986), to explain the summary decision standard under 28
C.F.R. § 68.38(c)).
Under 28 C.F.R. § 68.38(c), an ALJ “shall enter a summary decision for either
party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters
officially noticed show that there is no genuine issue as to any material fact and that a
party is entitled to summary decision.” An issue is genuine “if there is sufficient
evidence on each side so that a rational trier of fact could resolve the issue either way.”
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (quotations omitted); see also
Anderson, 477 U.S. at 248. An issue of fact is material if under the substantive law it is
essential to the proper disposition of the claim. Anderson, 477 U.S. at 248; Foothill
Packing, Inc., 11 OCAHO 1240, 2015 WL 329579, at *5.
The movant bears the initial burden of demonstrating the absence of a genuine
issue of material fact and entitlement to judgment as a matter of law. See Celotex, 477
U.S. at 323; Foothill Packing, Inc., 11 OCAHO 1240, 2015 WL 329579, at *6. If the
movant satisfies this initial burden, the burden shifts to the non-movant to show specific
facts from which a rational trier of fact could find for the non-movant. See Celotex, 477
U.S. at 324; Foothill Packing, Inc., 11 OCAHO 1240, 2015 WL 329579, at *6.
C. Count One
We deny Split Rail’s petition for review of Count One because Split Rail failed to
update Section 3 of Mr. Lopez-Ramirez’s I-9 form when his work authorization expired,
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leaving no issue of material fact to be resolved and entitling ICE to judgment as a matter
of law.
1. Further Legal Background
As explained above, the regulations promulgated under § 1324a require an
employer to complete an I-9 form. 8 C.F.R. § 274a.2(a)(2),(b)(1). Relevant here is the
August 2009 version of the I-9 form, excerpted below and attached at the end of this
opinion, which Mr. Lopez Ramirez and Split Rail filled out when Mr. Lopez Ramirez
was hired. That version consisted of three sections.
a. Section 1
The employee must complete Section 1, titled “Employee Information and
Verification,” and attest under penalty of perjury his or her legal status in the United
States. See id. § 274a.2(b)(1)(i) (stating that when an employer hires an individual, the
employer “must ensure that the individual properly . . . [c]ompletes [S]ection 1”).
b. Section 2
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The employer must complete Section 2, titled “Employer Review and
Verification,” to confirm the identity and employment authorization of the employee by
listing the document numbers and expiration dates of examined documents. See id.
§ 274a.2(b)(1)(ii) (explaining an employer “must within three business days of hire . . .
[c]omplete [S]ection 2”).
Documents satisfying the “List A” category are listed on the “Lists of Acceptable
Documents” instructions page accompanying the I-9 form , and in subparagraph B of
§ 1324a(b)(1). Satisfactory documents include a “[f]oreign passport that contains a
temporary I-551 stamp.” App. at 749. Finally, the instructions to the I-9 form state,
“Employers may, but are not required to, photocopy the document(s) presented.” Id. If
an employer chooses to make photocopies, they “must be retained with Form I-9.” Id.
c. Section 3
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The employer also must complete Section 3, titled “Updating and Reverification.”
The employer must note the employee’s current employment authorization document
title, number, and expiration date if his previous grant of work authorization has expired.
The instructions to the I-9 form state, “Employers must reverify employment
authorization of their employees on or before the work authorization expiration date
recorded in Section 1 (if any).” Id. at 746.; see also 8 C.F.R. § 274a.2(b)(1)(vii) (“If an
individual’s employment authorization expires, the employer . . . must reverify on the
Form I-9 to reflect that the individual is still authorized to work in the United States;
otherwise the individual may no longer be employed, recruited, or referred.”). The
regulations explain in further detail,
In order to reverify on the Form I-9, the employee . . . must present a
document that either shows continuing employment eligibility or is a new
grant of work authorization. The employer or the recruiter or referrer for a
fee must review this document, and if it appears to be genuine and relate to
the individual, re-verify by noting the document’s identification number
and expiration date, if any, on the Form I-9 and signing the attestation by a
handwritten signature or electronic signature in accordance with paragraph
(i) of this section.
8 C.F.R. § 274a.2(b)(1)(vii).
2. Additional Factual Background
When Split Rail hired Mr. Lopez Ramirez, he presented a Mexican passport with a
temporary I-551 stamp showing an expiration date of September 13, 2010. In Section 1
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of his I-9 form, Mr. Lopez Ramirez wrote his alien number and incorrectly checked off
that he was a lawful permanent resident. In Section 2, Split Rail listed that it had
examined one List A document—Mr. Lopez Ramirez’s Mexican passport. Split Rail
noted his passport number and that his passport would expire on September 14, 2012, but
did not note the expiration date of his temporary I-551 work authorization. Split Rail also
retained a photocopy of Mr. Lopez Ramirez’s Mexican passport and temporary I-551
stamp with his I-9 form. Despite the September 13, 2010 expiration date of Mr. Lopez
Ramirez’s temporary I-551 stamp, Split Rail never completed Section 3. It continued to
employ him after his work authorization had expired.
3. Analysis
The ALJ found no issue of material fact that Split Rail did not properly complete
Sections 2 and 3. We agree as to Section 3 and conclude that ICE is entitled to summary
decision. Because the failure to complete Section 3 is sufficient to deny Split Rail’s
petition for review, we decline to address the ALJ’s Section 2 analysis.
Split Rail left Section 3 blank after Mr. Lopez Ramirez’s work authorization
expired on September 13, 2010. As explained above, Section 3 itself, the Form I-9
instructions, and 8 C.F.R. § 274a.2(b)(i)(vii) required Split Rail to re-verify Mr. Lopez
Ramirez’s authorization on or before its expiration date and provide information
regarding his new document establishing current employment authorization in Section 3.
Split Rail failed to do so.
Split Rail argues it was not required to update and re-verify Section 3 because Mr.
Lopez Ramirez did not check off “alien authorized to work” in Section 1. He instead
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checked off “lawful permanent resident” and provided an alien number. We agree that,
although Mr. Lopez Ramirez provided Split Rail with a Mexican passport and a
temporary I-551 stamp, he incorrectly stated in Section 1 he was a lawful permanent
resident.
But Split Rail should have caught this mistake. See Form I-9 Instructions (stating
in bold, “The employer is responsible for ensuring that Section 1 is timely and properly
completed.” (emphasis added)). Mr. Lopez Ramirez’s mistake did not relieve Split Rail
of its duty to complete Section 3. In Section 2, Split Rail had itself identified his
Mexican passport, not permanent residence, as the basis for Mr. Lopez Ramirez’s
eligibility to work in the United States. It used information on the passport to complete
Section 2 (“Employer Review and Verification”) of the I-9 form. Split Rail also retained
a copy of the passport and temporary I-551 stamp with Mr. Lopez Ramirez’s I-9 form.
When his temporary I-551 expired, Split Rail was required to complete Section 3 with the
information about his current employment authorization.
We therefore deny Split Rail’s petition for review as to Count One.
D. Count Two
The ALJ found Split Rail liable under Count Two for knowingly continuing to
employ nine unauthorized aliens. As explained further below, this violation requires
proof that (1) the employees were unauthorized and that (2) the employer knew they were
unauthorized.
Split Rail’s brief on Count Two is confusing. On the one hand, its “Issues
Presented” section lists—in relevant part—only a challenge to the ALJ’s finding that
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Split Rail had constructive knowledge of its employees’ unauthorized status, Pet. Br. at 3,
and Split Rail’s brief concludes by seeking only a determination “that ICE has failed to
establish its burden of proof regarding Split Rail’s constructive knowledge,” id. at 58.
On the other hand, in discussing constructive knowledge, Split Rail appears to contest the
ALJ’s finding that the employees were unauthorized. For example, it repeatedly argues
an NSD is insufficient to establish unauthorized status, and challenges the reliability of
ICE’s database searches to establish unauthorized status. Id. at 36, 42.
Although Split Rail’s brief could be read to challenge only the ALJ’s constructive
knowledge finding on Count Two, it is sufficiently ambiguous that we address both
elements below. Our analysis leads us to deny the petition for review because Split Rail
has failed to raise a genuine issue of material fact as to either element and ICE is entitled
to summary decision.
1. Further Legal and Administrative Background
The IRCA makes it “unlawful for a person or other entity” that has lawfully hired
an alien under the statute “to continue to employ the alien in the United States knowing
the alien is (or has become) an unauthorized alien with respect to such employment.”
8 U.S.C. § 1324a(a)(2). Thus, as relevant to this petition, a knowing-continue-to-employ
violation encompasses two essential elements: the employee’s unauthorized status and
the employer’s knowledge of the employee’s unauthorized status.4
4
Because Split Rail’s petition for review mentions only unauthorized status and
constructive knowledge, our review of the knowing-continue-to-employ violation is
Continued . . .
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The sparse federal case law on § 1324a(a)(2) violations comes from the Ninth
Circuit. We find those cases and the application of their reasoning by the OCAHO
decisions cited herein to be persuasive in interpreting both essential elements.5 Based on
the case law and the IRCA statute, this background section addresses three points
pertaining to our review of Count Two.
First, ICE can establish a prima facie showing of an employee’s unauthorized
status with evidence that a computer search of its records had indicated the employee was
suspected to be unauthorized due to false I-9 documentation. See Mester Mfg. Co. v. INS,
879 F.2d 561, 566 (9th Cir. 1989).
Second, evidence of notice to an employer that ICE’s investigation had revealed
an employee was suspected to be unauthorized, coupled with the employer’s failure to
take adequate steps to re-verify the individual’s employment eligibility, can establish a
prima facie showing of the employer’s constructive knowledge that the employee is
unauthorized. See New El Rey Sausage Co., Inc. v. INS, 925 F.2d 1153, 1158 (9th Cir.
1991).
Third, the IRCA contemplates that an employer’s examining and proffering the
documents outlined in § 1324a(b)(1)(B)-(D), other than those originally presented when
the employee was hired, to prove the employee is authorized for employment can rebut a
limited to these two elements. We decline to address elements of a § 1324a(a)(2)
violation not briefed by the parties.
5
We may consider non-binding cases for their persuasive value. See, e.g.,
Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1240 n.7 (10th Cir. 2016).
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prima facie showing of both unauthorized status and constructive knowledge. Without
these documents, or specific challenges to the sufficiency of the government’s search
results or the notice to the employer, ICE’s prima facie showings of unauthorized status
and constructive knowledge can establish a knowing-continue-to-employ violation under
§ 1324a(a)(2) in this case, warranting a summary decision. See, e.g., Mester, 879 F.2d at
566; New El Rey, 925 F.2d at 1158 (describing Mester); United States v. Occupational
Res. Mgmt., Inc., 10 OCAHO 1166, 2013 WL 1918850, at *8 (2013) (citing Mester).
a. Prima facie showing of unauthorized status
The government may make a prima facie showing of an employee’s unauthorized
status in an administrative proceeding under § 1324a(a)(2) by producing proof from its
computer records that the employee’s documentation is false, thereby demonstrating the
employee is suspected to be unauthorized.
Section 1360 mandates the creation of a “central index, which shall contain the
names of all aliens heretofore admitted or denied admission to the United States . . . and
the names of all aliens hereafter admitted or denied admission to the United States.”
8 U.S.C. § 1360(a). The Department of Homeland Security (“DHS”) maintains the
Central Index System (“CIS”) database, which contains a record of immigrant and non-
immigrant status information.6 DHS also maintains other relevant databases, including:
6
See U.S. Department of Homeland Security, Privacy Impact Assessment for the
Central Index System, at 2 (June 22, 2007), available at
https://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_uscis_cis.pdf; see also United
States v. Mendez, 514 F.3d 1035, 1040 (10th Cir. 2008) (describing the CIS database as
Continued . . .
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(1) the Computer Linked Application Information Management System (“CLAIMS”),
which tracks and processes naturalization and benefits applications;7 and (2) the
Enforcement Integrated Database—accessed, in part, through the ENFORCE Alien
Removal Module (“EARM”)—which maintains information related to investigations,
arrests, bookings, detentions, and removals of persons encountered during investigations
by law enforcement and DHS agencies.8
Once the employer produces its I-9 forms and any other requested documentation
in response to the NOI, ICE agents “conduct an inspection of the Forms I-9 for
compliance,” which may include comparison with ICE’s electronic databases. U.S.
Immigration and Customs Enforcement, Form I-9 Inspection Overview (June 26, 2013),
https://www.ice.gov/factsheets/i9-inspection.
including records “such as permanent residence cards, border crossing cards, and
certificates of naturalization”).
7
See U.S. Department of Homeland Security, Privacy Impact Assessment Update
for the Computer Linked Application Information Management System 4 (CLAIMS 4), at
2 (Nov. 5, 2013), available at
https://www.dhs.gov/sites/default/files/publications/privacy-pia-update-uscis-claims4-
november2013.pdf; see also Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178,
182 (3d Cir. 2007) (stating CLAIMS “is used to track applications or petitions for
benefits filed under the Immigration and Nationality Act” (quotations omitted)).
8
U.S. Department of Homeland Security, Privacy Impact Assessment Update for
the Enforcement Integrated Database (EID), at 2 (May 20, 2011), available at
https://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_ice_eidupdate(15b).pdf; see
also Long v. Dep’t of Homeland Sec., 113 F. Supp. 3d 100, 101 (D.D.C. June 29, 2015)
(describing EID as “a shared, operational database within ICE containing information on
the detention and removal of undocumented immigrants, including their biographical
data, criminal history, and encounters with law enforcement agents”).
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If ICE issues an NSD and the employer requests an administrative hearing, the
results of ICE’s database searches are admissible evidence. Specifically, a written
certification from an ICE officer that a diligent search of CIS was made and no record or
entry can be found is “admissible as evidence . . . that the records of [ICE] contain no
such record or entry, and shall have the same effect as the testimony of a witness given in
open court.” 8 U.S.C. § 1360(d).
Ninth Circuit and OCAHO case law agree that when a computer search of DHS’s
records system demonstrates an employee’s documentation is false—making the
employee’s authorization suspect—the government establishes a prima facie showing of
unauthorized status. See Mester, 879 F.2d at 566; Occupational Res. Mgmt., Inc., 10
OCAHO 1166, 2013 WL 1918850, at *8; cf. United States v. New El Rey Sausage Co.,
Inc., 1 OCAHO 66, 1989 WL 433853, at *19 n. 16 (1989), aff’d, 925 F.2d 1153, 1154
(9th Cir. 1991); United States v. Horno MSJ, Ltd., 11 OCAHO 1247, 2015 WL 1746681,
at *9-11 (2015).
For example, in Mester, the Ninth Circuit found that the INS’s reliance on a
computer search of its records system revealing that an employee’s documentation was
false was sufficient to establish a prima facie showing before the ALJ. Mester, 879 F.2d
at 566.
Similarly, in Occupational Resource Management, the ALJ explained that
although “ICE is not required to present conclusive evidence of the employee’s
unauthorized status,” “[w]hen the government makes a prima facie showing that a
document is false based on a computer search of its records system, and the employer
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fails to provide any evidence to the contrary, substantial evidence supports a finding of
lack of [employee work] authorization” to support a summary decision. 10 OCAHO
1166, 2013 WL 1918850, at *8 (quotations omitted) (citing Mester, 879 F.2d at 566).9
The government’s search of its records must establish that the employee’s status is
reasonably suspect, and the results cannot contain fatal “discrepancies and ambiguities,”
which would make the results “inconclusive.” See Horno MSJ, 11 OCAHO 1247, 2015
WL 1746681, at *9-11; New El Rey, 1 OCAHO 66, 1989 WL 433853, at *25.
b. Prima facie showing of constructive knowledge
For a § 1324a(a)(2) knowing-continue-to-employ violation, “[t]he term knowing
includes not only actual knowledge but also knowledge which may fairly be inferred
through notice of certain facts and circumstances which would lead a person, through the
exercise of reasonable care, to know about a certain condition,” including when an
employer “[h]as information available to it that would indicate that the alien is not
authorized to work.” 8 C.F.R. § 274a.1(l)(1); see also Mester, 879 F.2d at 567 (“The
knowledge element was satisfied; [the employer] had constructive knowledge, even if no
. . . employee had actual specific knowledge of the employee’s unauthorized status.”).
Accordingly, when the government proves at an administrative hearing that an employer
failed to respond to a warning notice, such as an NSD, it has established a prima facie
9
Although the Ninth Circuit in Mester and New El Rey reviewed the ALJ’s factual
findings on appeal for “substantial evidence” under 5 U.S.C. § 706(2), as stated above,
we apply de novo review here.
- 23 -
showing of constructive knowledge to satisfy the knowledge requirement of
§ 1324a(a)(2).
In Mester, the Ninth Circuit interpreted the knowledge element of § 1324a(a)(2) to
include constructive knowledge, analogizing to the treatment of knowledge in criminal
law, where a “deliberate failure to investigate suspicious circumstances imputes
knowledge.” 879 F.2d at 567 (citing United States v. Jewell, 532 F.2d 697 (9th Cir.
1976) (en banc)); see also New El Rey, 925 F.2d at 1157-58. Soon thereafter, the
definition of “knowing” that includes constructive knowledge was codified in the
employment verification regulations. 8 C.F.R. § 274a.1(l)(1); Safe-Harbor Procedures
for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611-01, 45612 (Aug. 15,
2007) (stating that the definition of constructive knowledge is “consistent with the Ninth
Circuit’s holding[s]” in Mester and New El Rey). The “basic principle underlying the
doctrine of constructive knowledge . . . is that the employer is not entitled to cultivate
deliberate ignorance or avoid acquiring knowledge.” Foothill Packing, Inc., 11 OCAHO
1240, 2015 WL 329579 at *7.
Thus, “when an employer receives specific information that casts doubt on the
employment authorization of an employee, and the employer continues to employ the
individual without taking adequate steps to re-verify the individual’s employment
eligibility, a finding of constructive knowledge may result.” Id. at *8 (citing New El Rey,
1 OCAHO 66, 1989 WL 433853, at *17, aff’d 925 F.2d 1153 (9th Cir. 1991) and Noel
Plastering, Stucco, Inc. v. OCAHO, 3 OCAHO 427, 1992 WL 533132, at *2 (1992), aff’d
15 F.3d 1088 (9th Cir. 1993) (unpublished)); United States v. Associated Painters, Inc.,
- 24 -
10 OCAHO 1151, 2012 WL 8018166, at *3 (2012) (citing same and United States v.
Mester Mfg., 1 OCAHO 18, 1988 WL 507634, at *18 (1988), aff’d 879 F.2d 561 (9th Cir.
1989)).
The statute “does not require that the knowledge come to the employer in any
specific way.” Mester, 879 F.2d at 566. Ninth Circuit and OCAHO case law, however,
have consistently held that receipt of a Warning Notice, such as an NSD, can be
sufficient to impart notice. See, e.g., New El Rey, 925 F.2d at 1158-59; Aramark Facility
Servs. v. Serv. Emps. Int’l Union, Local 1877, 530 F.3d 817, 828 (9th Cir. 2008)
(explaining notice “that the government suspects the workers of using fraudulent
documents” is “positive information . . . [that] provide[s] constructive notice” of
unauthorized status (quotations omitted)); Noel Plastering, 15 F.3d 1088, at *1 (holding
“written notice from the [INS] that the employees were likely unlawfully employed aliens
. . . [was] sufficient to give an employer constructive knowledge of a violation”); United
States v. Aid Maint. Co., 7 OCAHO 951, 1997 WL 1051451, at *4 (1997) (“Constructive
knowledge is most readily proven when it is shown that the employer had positive
information supplied by the INS, [as shown through a Warning Notice or NSD], that
some of its employees are unauthorized for employment in the United States, and
subsequently fails to take reasonable steps to re-verify the employment eligibility of those
employees.” (collecting cases)).
* * * *
- 25 -
The evidence used to establish the employee’s unauthorized status is related to but
distinct from the evidence used to establish the employer’s constructive knowledge. That
is, the computer searches and inspections ICE performs to demonstrate the employee is
suspected to be unauthorized and trigger an NSD are sufficient to establish the
government’s prima facie showing of unauthorized status. Service of the NSD informs
the employer that the employee is suspected to be unauthorized, and that notice, along
with the employer’s failure to re-verify the employee’s lawful status, establishes the
government’s prima facie showing of constructive knowledge.
c. Challenging a prima facie showing of unauthorized status and constructive
knowledge
i. Challenging unauthorized status
The government’s prima facie showing of unauthorized status based on a CIS
computer search must stand unless the employer (1) successfully challenges the computer
records search and its results, or (2) presents sufficient evidence to show the employee
was authorized.
First, the employer may attack ICE’s search results with specific evidence that the
search was flawed. However, an employer’s “general allegations” that the search was
unreliable or generally prone to error are insufficient to overcome the prima facie
evidence of unauthorized status. Mester, 879 F.2d at 566 (noting the employer’s general
allegations of unreliability lacked any specific contention, supported by facts, to rebut the
government’s finding that the specific employee had false documentation); see also New
El Rey, 1 OCAHO 66, 1989 WL 433853, at *19 n.16 (rejecting that vague allegations of
- 26 -
unreliability or inaccuracy of the computer-generated data could negate the unauthorized
status results of a properly-conducted CIS computer search).10 Rather, the employer must
challenge, for example, specific “discrepancies [or] ambiguities” which make the results
of the search inconclusive as to particular employees. Horno MSJ, 11 OCAHO 1247,
2015 WL 1746681, at *9-10.
Second, presenting the documents listed in § 1324a(b)(1)(B)-(D) can rebut the
government’s prima facie showing of unauthorized status.11 As noted above,
§ 1324a(b)(1)(C) lists documents evidencing employment authorization (e.g., a social
security card), § 1324a(b)(1)(D) lists documents establishing identity (e.g., a driver’s
license), and § 1324a(b)(1)(B) lists documents establishing both employment
authorization and identity (e.g., a U.S. passport or appropriate resident alien card).
Section 1324a(h)(3) defines “unauthorized alien” as an alien who is not either (a)
“lawfully admitted for permanent residence,” or (b) “authorized to be so employed by
this chapter or by the Attorney General.” Thus, when an employer presents valid
10
The OCAHO opinion in New El Rey concerned not whether the employees
“were actually authorized to work or not, but whether [the employer] had” constructive
knowledge they were unauthorized. 1 OCAHO 66, 1989 WL 433853, at *18. The ALJ
explained that it was not addressing the unauthorized status of the employees because the
employer had not claimed the employees were in fact authorized to work in the United
States. Id. Nonetheless, in analyzing whether the employer committed a knowing-
continue-to-employ violation, the ALJ discussed the unauthorized status element of the
violation.
11
DHS has identified documents satisfying § 1324a(b)(1)(B)-(D) in 8 C.F.R. §
274a.2(b)(1)(v) and in the “Lists of Acceptable Documents” instructions page
accompanying the I-9 form.
- 27 -
documents to the ALJ establishing the employee’s identity under § 1324a(b)(1)(D) and
documents evidencing employment authorization under § 1324a(b)(1)(C), or both under
§ 1324a(b)(1)(B), it has—by definition—rebutted the government’s evidence that the
employee is unauthorized.12
ii. Challenging constructive knowledge
The government’s prima facie showing that an employer had constructive
knowledge that its employee was unauthorized based on the employer’s inadequate
response to an NSD can be rebutted by the employer’s (1) successfully challenging the
NSD (or other notice) as providing inadequate notice, or (2) evidence that it responded to
the NSD as the statute required.
First, the employer may attack the sufficiency of the NSD, or other warning, as
insufficient to put the employer on notice that its employee was unauthorized. Ninth
Circuit and OCAHO case law have stated that, to impart constructive knowledge, the
employer must receive “specific and detailed information regarding that individual’s
possible unauthorized status.” United States v. Noel Plastering & Stucco, Inc., 2
12
The Ninth Circuit made a similar observation in New El Rey when it explained
that these documents would negate a showing that the employee was unauthorized. 925
F.2d at 1158 n.7. The court likened the situation where an employee’s documentation
was shown to be invalid—reflecting unauthorized status—to the expiration of an
employee’s documentation. Id. It explained that if the employee’s authorization had
expired, 8 C.F.R. § 274a.2(b)(vii) requires that “the employer . . . update the employee’s
I-9 form. To do this, the employee must present further documentation, which the
employer must review. This regulation is analogous to the situation here, where rather
than the verification expiring, it was found to be invalid.” Id. The documentation the
employer must review to update the expired I-9 form is listed in § 1324a(b)(1)(B)-(D).
Thus, the same documents are also sufficient to negate the invalidity of documentation,
and rebut the government’s evidence of unauthorized status.
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OCAHO 377, 1991 WL 717532, at *3 (1991); United States v. 4431 Inc., T/A
Candlelight Inn, 4 OCAHO 611, 1994 WL 269390, at *9 (1994); see also New El Rey,
925 F.2d at 1159 (finding the notice to be sufficiently specific to create a “reason to
believe that [the employer’s] employees were unauthorized”).
Second, the employer may prove it responded to the NSD (or other notice) by
presenting evidence the employee was authorized in the manner required by the statute.
As stated in New El Rey, “[n]otice that [an employee’s] documents are incorrect places
the employer in the position it would have been if the alien had failed to produce the
documents in the first place: it has failed to adequately ensure that the alien is
authorized.” 925 F.2d at 1158. Thus, receipt of a sufficiently specific NSD requires the
employer to re-verify the employee is legally authorized for employment by examining
new documents listed in § 1324a(b)(1)(B)-(D), 8 C.F.R. § 274a.2(b)(1)(v), and the “Lists
of Acceptable Documents” instructions page accompanying the I-9 form. If the employer
does not show that it re-verified the employee in this manner, it cannot rebut the
government’s showing that the NSD (or other notice), coupled with the employer’s
failure to re-verify, imparted constructive knowledge on the employer of the employee’s
unauthorized status.
2. ALJ Proceedings
During the proceedings before the ALJ, the parties discussed both (1) whether the
employees listed in Count Two were in fact unauthorized and (2) whether Split Rail had
constructive knowledge they were unauthorized.
- 29 -
a. The parties’ evidence
i. ICE’s evidence
In support of Count Two, ICE argued its 2009 and 2011 NSDs provided notice to
Split Rail that the nine employees were not authorized, and emphasized Split Rail’s
failure “to request other documents from any of them.” App. at 798; id. at 561. ICE also
offered nine Certificates of Nonexistence of Records (“Certificates”) dated January 17,
2013, regarding each of the employees listed in Count Two, and attached investigation
reports as to two of the employees. In each Certificate, a DHS Records Manager certified
she either conducted or oversaw a search for records relating to each employee, using
three separate databases—EARM, CLAIMS, and CIS—but found no records indicating
the employee was authorized for employment. The investigation reports showed that
both employees used U.S. citizens’ social security numbers without permission and that
one of them used a U.S. citizen’s name without permission.
ii. Split Rail’s evidence
In response, Split Rail argued it took adequate steps in response to ICE’s NSDs to
confirm the employees were authorized. First, it submitted Mr. Barenberg’s affidavit,
which explained that Split Rail had asked its employees named in the 2009 NSD to
reaffirm their work authorization on video. Second, it offered Mr. Barenberg’s February
17, 2012 letter, which stated Split Rail confirmed its employees’ status by determining
they had bank accounts, homes, mortgages, cars, driver’s licenses, and workers’
compensation claims. Third, it argued its email request for guidance from the OSC
showed a good faith effort to comply with the 2009 NSD, and characterized the OSC’s
- 30 -
response letter as advising Split Rail it “was under no obligation to re-verify employee
documents which appear to be facially genuine, even in reaction to an ICE NSD.” App.
at 684 (emphasis in original).
Split Rail also challenged the ICE’s Certificates with an affidavit from Todd L.
Johnson, a retired Senior Special Agent and Forensic Document Examiner for ICE. The
Johnson affidavit explained that errors may result from USCIS or DHS records searches.
As a result, the “fact that a record was not found does not necessarily mean an individual
is not work authorized or does not have legal status.” App. at 732. Based on this
affidavit, Split Rail argued that ICE’s Certificates were not reliable evidence of the
employees’ unauthorized status. Split Rail also noted it had sent requests for production
to ICE, asking for evidence relating to any search for records performed on the nine
individuals, but ICE declined to produce any evidence, claiming it was protected under a
“law enforcement privilege.” Id. at 526. Split Rail did not present evidence to contest
the two investigation reports.
b. ALJ’s summary decision
The ALJ granted summary decision for ICE. Although the ALJ’s opinion did not
separately analyze the employees’ unauthorized status and Split Rail’s constructive
knowledge, it concluded Split Rail failed to raise an issue of material fact and that ICE
was entitled to summary decision.
First, the ALJ acknowledged that “it is possible for errors to occur in government
database searches” for the reasons reflected in the Johnson affidavit, but noted “[t]his is
precisely the reason why the [NSD] itself extends the opportunity to the employer and the
- 31 -
employee to challenge the government’s preliminary findings and to present alternative
documentation sufficient to establish the individual’s eligibility for employment.” Id. at
802-03. Despite this opportunity, Split Rail failed to require its employees to present I-9
documentation (other than the documentation they originally presented when hired) and
failed to offer such documentation to challenge ICE’s evidence of unauthorized status
before the ALJ. The ALJ further noted ICE did not rely solely on the NSD’s summary
that the numbers on the documents presented by the nine employees either did not exist
or belonged to other individuals; it offered the Certificates and the two investigation
reports.
Second, the ALJ also concluded Split Rail had constructive knowledge of the
employees’ unauthorized status. The ALJ reasoned the two NSDs provided Split Rail
with notice that the named employees were suspected to be unauthorized and created a
duty to examine additional I-9 documentation from each employee. He held the re-
verification efforts described by Mr. Barenberg in his letter were inadequate. The letter
indicated that, rather than further examining List A, B, or C documents from the Count
Two employees to confirm their I-9 authorization, Split Rail gathered indicia of
authorization unrecognized by the I-9 system to contest unauthorized status. The ALJ
concluded those re-verification efforts were inadequate and that Split Rail accordingly
had constructive knowledge. Finally, the ALJ rejected Split Rail’s characterization of the
OSC letter, concluding it consisted only of “a generic recital of nondiscrimination
principles” and “patently [did] not tell [Split Rail] that the company [wa]s free to
disregard the government’s NSD.” Id. at 802.
- 32 -
3. Analysis
Because Split Rail failed to rebut the government’s prima facie showing that its
employees were unauthorized and also failed to negate the government’s prima facie
showing of constructive knowledge, we agree with the ALJ’s conclusion that ICE was
entitled to a summary decision.
a. Unauthorized status
As noted above, it is not clear whether Split Rail has raised a separate argument
challenging the unauthorized status element of its Count Two violation. It argues the
ALJ erred in holding that it had constructive knowledge based on the NSDs when
“OCAHO’s own precedents hold that [NSDs] alone do not establish unauthorized status.”
Pet. Br. at 44.13 The latter part of this disjointed argument appears to challenge the ALJ’s
determination of the employees’ unauthorized status. The ALJ, however, did not rely on
the NSDs to find unauthorized status. It relied on the computer search Certificates and
uncontested investigation reports.
i. Challenge to computer searches
13
Notably, each of the cases cited by Split Rail addresses civil penalty
assessments under § 1324a(e)(5), not liability for a knowing-continue-to-employ
violation under § 1324a(a)(2). See United States v. Romans Racing Stables, Inc., 11
OCAHO 1230, 2014 WL 5478350, at *3 (2014); United States v. Platinum Builders of
Cent. Fla., 10 OCAHO 1199, 2013 WL 4631839, at *8 (2013); United States v. Nat’l
Envtl. Inc., 10 OCAHO 1197, 2013 WL 4502692, at *4-5 (2013).
- 33 -
ICE’s presentation of the Certificates to the ALJ showed that computer searches of
three centralized records systems revealed the employees were unauthorized.14 The
Certificates stated that the government maintains “centralized records relating to
immigrant aliens who entered the United States on or after June 30, 1924, to
nonimmigrant aliens who entered on or after June 30, 1948, and a centralized index of all
persons naturalized on or after September 27, 1906.” See, e.g., App. at 231. The
Certificates then stated as to each employee, “[N]o record was found to exist indicating
that the [employee] obtained permission at any time . . . for legal immigrant status or
admission in the United States.” Id. ICE therefore made a prima facie showing that the
employees were unauthorized.15
Split Rail attempted to challenge the government’s computer records search and
results. But, like the employers’ arguments in Mester and New El Rey, the Johnson
affidavit Split Rail proffered presented only general allegations that the government’s
14
Because the Ninth Circuit and OCAHO have relied on unauthorized status
established by a search of one computer system, we find that ICE’s search of three
databases supports the reasonability of its results. See, e.g., New El Rey, 925 F.2d at
1154-55 (describing “computer checks on the Central Index System”); Mester, 879 F.2d
at 566 (“The INS relied on a computer search of its records system that revealed the false
green card.”); Horno MSJ, 11 OCAHO 1247, 2015 WL 1746681, at *9 (2015)
(discussing unauthorized status based on the government’s proffered CIS printouts).
15
This is particularly true because ICE’s burden in a civil adjudication is a
preponderance of the evidence. 8 U.S.C. § 1324a(e)(3)(C).
- 34 -
records system was unreliable.16 Split Rail alleged no specific facts sufficient to prove
the government’s findings regarding its nine employees were incorrect.17
ii. Rebuttal evidence
Split Rail also did not provide any documents listed in § 1324a(b)(1)(B)-(D) to
rebut the government’s showing that the employees were unauthorized. Specifically, it
did not examine or produce any alternative List A, B, and/or C documents for any of the
nine employees. Instead, it orally asked its employees to confirm they were authorized
and inquired whether they had bank accounts, cars, homes, mortgages, driver’s licenses,
or worker’s compensation claims. These efforts did not rebut the government’s prima
16
Split Rail complains it was precluded from obtaining specific evidence about the
accuracy of the database searches because ICE asserted that the law enforcement
privilege protected its data and methodology. Split Rail has forfeited this issue. The
record does not show that Split Rail sought to compel this discovery, 28 C.F.R.
§ 68.28(a)(3), or to obtain a ruling regarding applicability of the privilege. Nor has it
presented arguments the privilege should not apply. See e.g., In re Basic Research, LLC,
FTC No. 9318, 2004 WL 2682822, at *6 (Nov. 3, 2004) (explaining the law enforcement
privilege may be outweighed by showing necessity sufficient to outweigh the adverse
effects of revealing law enforcement techniques or sources); see also United States v.
Winner, 641 F.2d 825, 831 (10th Cir. 1981).
17
Split Rail argues that some Certificates list names different from those listed in
the NSDs or the Amended Complaint. This is a red herring. Although Split Rail
provides no examples of any discrepancy, our review shows that three of the nine
employees’ names on the NSDs or Amended Complaint vary only slightly (e.g., omission
of a maternal surname) from the names listed on the Certificates. Any such difference,
however, is immaterial because the names and dates of birth on each Certificate exactly
match the names and dates of birth listed on the respective employees’ I-9 forms or the
copies of the employees’ government-issued permanent resident cards attached to the I-9
forms. Split Rail does not contest that ICE relied on the employee information from the
I-9 forms to perform the database searches. Split Rail’s mismatched names argument
therefore lacks merit.
- 35 -
facie showing of unauthorized status under the statute and are otherwise unpersuasive to
establish that the employees were legally authorized for employment. Because the
evidence Split Rail proffered is unpersuasive, we need not decide whether unauthorized
status may be rebutted in a manner other than proffering the appropriate IRCA
documentation or challenging the computer records search and its results.
The results of the government’s database searches established a prima facie
showing of unauthorized status. Split Rail did not adequately challenge those results or
produce sufficient evidence to rebut the prima facie showing. Thus, we agree with the
ALJ that there is no genuine issue of material fact that the employees are unauthorized as
a matter of law. The ALJ properly granted summary decision for ICE on this issue.
b. Constructive knowledge
The government established a prima facie showing that Split Rail had constructive
knowledge of its employees’ unauthorized status by showing that Split Rail failed to
respond to the NSDs with the documentation required by the statute.
The 2009 NSD first put Split Rail on notice that the listed employees were
suspected to be unauthorized. The 2011 NSD then gave additional, detailed notice that
nine of the same employees were suspected to be unauthorized.
At the administrative hearing, Split Rail did not successfully challenge the
sufficiency of the NSDs or demonstrate that it had responded to the NSDs in the manner
required by the statute, and thus failed to rebut the government’s prima facie showing
that it had constructive knowledge its employees were unauthorized. The ALJ properly
concluded the government had proved constructive knowledge.
- 36 -
i. Challenges to the NSDs
Split Rail’s challenges to the sufficiency of the NSDs are unpersuasive. Split Rail
specifically argues that the 2009 and 2011 NSDs lacked sufficient specificity to impart
constructive notice. We disagree.
First, Split Rail attempts to distinguish its case from the constructive knowledge
imputed to the employer in New El Rey by arguing “the employer [there] was actually
informed which documents were suspect.” Pet. Br. at 48. But both the 2009 and 2011
NSD stated, “the documentation previously provided to you for these employees does not
satisfy the Form I-9 employment eligibility verification requirements.” Id. at 152. The
2011 NSD then provided even more specificity than the 2009 NSD, indicating whether an
I-551 stamp and/or a social security card was suspect as to each named employee. App.
at 152-53.
Moreover, the information in the notice sent to the employer in New El Rey was
almost identical to the 2009 and 2011 NSDs sent to Split Rail. See New El Rey, 925 F.2d
at 1155. Based on this information, the Ninth Circuit determined the employer was
“provided with specific, detailed information.” Id. at 1158. “The INS told it whom it
considered unauthorized and why. Under these circumstances the ALJ properly found
that a constructive notice standard” applied. Id. We reach the same conclusion here.
Split Rail also argues its NSDs were different from the NSD in New El Rey
because they failed to specify “what Split Rail must do.” Pet. Br. at 49. But both of Split
Rail’s NSDs clearly stated:
- 37 -
Unless the above employee(s) present valid identification and employment
eligibility documentation acceptable for completing the Form I-9 other than
the documentation previously submitted to you, they are considered by ICE
to be unauthorized to work in the United States.
App. at 147, 153. Although “specific directions from [ICE] would have been helpful, we
do not believe they were necessary” to place Split Rail on constructive notice. New El
Rey, 925 F.2d at 1159. As in New El Rey, “the letter [here] clearly told [Split Rail] that
since the documents the employees had provided were invalid, the listed employees had
to provide other documentation.” Id.Second, Split Rail argues the NSDs failed to specify “which databases had been
searched, and by whom.” Pet. Br. at 49. But the regulations only require a Warning
Notice, or NSD, to “contain a statement of the basis for the violations and the statutory
provisions alleged to have been violated”—not how ICE conducted its investigation.
8 C.F.R. § 274a.9(c).
Thus, the 2009 and 2011 NSDs constituted the exact type of “facts and
circumstances” to impute knowledge that is referenced in the relevant regulation: both
made “information available to [the employer] that would indicate that the alien is not
authorized to work.” 8 C.F.R. § 274a.1(l)(1)(ii).
ii. Rebuttal evidence
Split Rail also failed to negate the government’s prima facie showing of
constructive knowledge by demonstrating its response to the NSDs was to re-verify its
employees consistent with § 1324a(b)(1)(B)-(D). Because the NSDs were sufficient to
impart constructive knowledge, Split Rail’s receipt of the NSDs shifted the burden to
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Split Rail to rebut that it knowingly continued to employ unauthorized employees. To do
so, and successfully avoid imputation of constructive knowledge by deliberately failing to
investigate suspicious circumstances, Mester, 879 F.2d at 567 (citing Jewell, 532 F.2d
697), it was required to respond to the NSD in the manner contemplated by the statute.
As outlined above, the statute contemplates that Split Rail must examine List A, B,
and/or C documents other than those originally provided by the employees to re-establish
their identity and work authorization. Both the 2009 and 2011 NSDs accordingly stated:
“Unless the above employee(s) present valid identification and employment eligibility
documentation acceptable for completing the Form I-9, other than the documentation
previously submitted to you, they are considered by ICE to be unauthorized to work in
the United States.” App. at 147, 153 (emphasis added). Split Rail’s attempts to verify
the status of these employees by other means were insufficient to satisfy its burden.18
18
Split Rail argues the ALJ overstated its re-verification obligations to negate a
finding of constructive knowledge, citing Collins Foods International, Inc. v. INS, 948
F.2d 549 (9th Cir. 1991). In Collins, the Ninth Circuit reversed the ALJ’s finding that an
employer committed a knowing-hire violation with constructive knowledge its employee
was unauthorized because the employer satisfied its verification obligation by examining
documents, which reasonably appeared on their face to be genuine, and had no obligation
to ascertain the legitimacy of those documents. Id. at 554.
But Collins involved a knowing-hire violation, not, as here, a knowing-continue-
to-employ violation. The Collins opinion highlighted this key difference and specifically
distinguished Mester and New El Rey, which were knowing-continue-to-employ
violations. The court explained that the employers in Mester and New El Rey had
inadequately responded to “positive information”—that is, Warning Notices—from the
INS that certain employees were unauthorized, which equated to “willful blindness,” or
constructive knowledge. Id. at 555. Split Rail’s citation to Collins is unpersuasive for
the same reason. Like Mester and New El Rey, Count Two involves a knowing-continue-
to-employ violation, and Split Rail received “positive information” in the form of two
NSDs.
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Split Rail’s response to the 2009 NSD was to orally ask its employees to affirm
they were authorized. The same inadequate employer response occurred in New El Rey.
In that case, the INS charged an employer with two counts of knowingly continuing to
employ unauthorized aliens in violation of § 1324a(a)(2), and the ALJ imposed fines.
925 F.2d at 1155. The Ninth Circuit emphasized that, “[i]n response to the INS letter
insisting that the employees ‘provide valid employment authorization,’ [the employer]
merely asked its employees whether their cards were valid.” Id. at 1159. When the
employees said yes, the employer “relied on their self-serving statements without
requiring anything further from the employees, apparently assuming that the INS must
have made a mistake.” Id. The Ninth Circuit affirmed the ALJ’s summary decision,
concluding the employer had constructive knowledge that the two employees were
unauthorized. Id.Split Rail’s response to the 2011 NSD also was inadequate. Its inquiries into
whether the listed employees had bank accounts, cars, homes, mortgages, driver’s
licenses, or worker’s compensation claims are beside the point. The IRCA does not
recognize these indicia as establishing identity or employment eligibility. Sections
1324a(b)(1)(B)-(D), the “Lists of Acceptable Documents” instructions page
accompanying the I-9 form, and 8 C.F.R. § 274a.2(b)(1)(v) list the only documents the
employer may examine to establish the employee’s identity and eligibility under the
statute. We agree with the ALJ that “employers are not at liberty to create their own
alternative employment eligibility verification systems; they are obligated to conform to
the one that Congress enacted.” App. at 807.
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In sum, the government demonstrated a prima facie showing of constructive
knowledge with evidence that Split Rail, after being put on notice by the NSDs, had
failed to re-verify the named employees’ status in the manner the law requires. See New
El Rey, 925 F.2d at 1158-59; Aramark, 530 F.3d at 828; Noel Plastering, 15 F.3d 1088, at
*1; Aid Maint. Co., 7 OCAHO 951, 1997 WL 1051451, at *4-5 (collecting cases). At the
administrative hearing, Split Rail did not dispute that it failed to re-verify the employees’
status by examining and presenting new documents consistent with the IRCA. Because
Split Rail’s response did not follow the statute, and did not otherwise evidence “any steps
sufficient to demonstrate a good faith attempt to comply with the statute,” New El Rey,
925 F.2d at 1159 (emphasis in original),19 Split Rail has demonstrated the type of
“deliberate failure to investigate suspicious circumstances” the Ninth Circuit envisioned
to impute constructive knowledge. Mester, 879 F.2d at 567 (citing Jewell, 532 F.2d 697).
We agree with the ALJ that there is no genuine issue of material fact that Split
Rail had constructive knowledge of its employees’ unauthorized status and that summary
decision was proper.
19
Split Rail argues its re-verification efforts were made in good faith because it
lacked the “willful blindness,” “conscious disregard,” or “reckless or purposeful
abdication” of verification responsibilities that are typically associated with the definition
of constructive knowledge. It also argues that employers in past OCAHO decisions acted
more egregiously. Pet. Br. at 25, 41.
But Split Rail overstates the scope of good faith as it applies to constructive
knowledge. New El Rey stated an employer may rely on good faith only in terms of
efforts made to comply with the statute. 925 F.2d at 1159. Because the indicia Split Rail
collected to show its employees’ status in response to the NSDs had no basis in the
statute, its good faith arguments are unpersuasive.
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iii. Split Rail’s other arguments
Split Rail’s other arguments disputing the government’s showing of constructive
knowledge are not persuasive.
1) OSC letter
Split Rail characterizes the OSC letter as advising Split Rail it could “continue to
rely on facially valid [I-9] documents even in response to a Notice of Suspect
Documents” because examining such facially valid documents would violate the anti-
discrimination provision of the IRCA. Pet. Br. at 14; 35-36. We disagree.
The OSC letter did not negate constructive knowledge. It did not advise Split Rail
that it could continue to rely on the I-9 documents originally submitted by the employees
at the time of hiring and effectively ignore the 2009 NSD. Rather, it explained that the
IRCA’s anti-discrimination provision “prohibits the request for specific documents or the
rejection of documents during the employment eligibility verification process with the
intent to discriminate.” App. at 696 (emphasis added). It then specified, “it has been
long recognized that action by an employer taken for reasons other than an intent to
discriminate does not constitute an unfair employment practice” and that an NSD “may
provide a non-discriminatory reason behind the decision to re-verify an employee’s
employment eligibility.” Id. If anything, that language complemented the NSD.
Moreover, the OSC letter stated it “cannot provide an advisory opinion on any particular
instance of alleged discrimination or on any set of facts involving a particular individual
or entity.” Id.- 42 -
2) Certificates and investigation reports
Split Rail argues ICE failed to respond to its requests for production about the
nature of the searches underlying the Certificates20 and that the Certificates and
investigation reports were produced only after the NSDs and complaint were served.
The problem with this argument is that the ALJ did not rely on the Certificates or
investigation reports in concluding Split Rail had constructive knowledge. As explained
above, the ALJ relied on this evidence to find the employees’ unauthorized status. The
ALJ’s finding of constructive knowledge turned on the notice imparted by the NSDs and
Split Rail’s failure to produce evidence to the contrary. Id. at 805 (stating the main issue
regarding constructive knowledge was “whether an employer that receives a second NSD
identifying the same individuals whose documents were put in issue almost two years
earlier may continue to rely . . . on the verbal assurances of the employees and the
company’s own self-designated ‘evidence’ rather than requiring the employees to present
documents other than those they had previously produced, as directed by the
government” (emphasis added)).
20
As noted above, any challenge to ICE’s assertion of the law enforcement
privilege has been forfeited because Split Rail did not seek to compel this discovery from
the ALJ or otherwise seek to obtain a ruling regarding applicability of the privilege. See
supra note 16.
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III. CONCLUSION
For the foregoing reasons, we deny Split Rail’s petition for review.21
21
In light of this disposition, we deny as moot Split Rail’s motion to strike
Exhibits G-10 and G-17 from the record. Our analysis does not rely on either document.
Split Rail’s motion to supplement the record with a more legible copy of Exhibit R-6 is
also denied because a legible copy can be found in the Appendix at 586.
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