*1 MONTERO, Petitioner, Esperanza Gloria AND
IMMIGRATION SERVICE,
NATURALIZATION
Respondent. 1512, Docket
No. 96-4130. Appeals, States Court of
United Circuit.
Second May
Argued Aug.
Decided *2 agent,
intеrviewed same INS viola- 287.3, of 8 tion C.F.R. and therefore con- properly cluded that the IJ declined termi- nate proceeding ground. follow, deny For the reasons that we petition for review.
BACKGROUND a 40-year-old Montero is native and citi- of unlawfully zen Ecuador who entered the Wishnie, (Lucas City York Michael New United States November of 1989. From Rabinovitz, Gelernt, Guttentag, Judy Lee February to October of was she em- Foundation, American Civil Liberties Union (“STC”) ployed at Knitting, STC Inc. in Long Chishti, Waelder, Muzaffar Catherine Ira City, In May Island New York. of Katz, Jay Rosеnberg, Allison Union of Need- began workers at organization STC union letrades, Employees, Industrial and Textile activity help with the of Local 155 of the counsel), City, New York of for Petitioner. International Ladies’ Garment Workers’ Un- Gentin, Pierre M. Assistant United States ion, Needletrades, now the of Union Industri- Attorney, (Mary White, City New York Jo (“Union”). Employees al Textile Monte- Attorney, United States of Southern District was a organizing member of the Union’s York, Kekatos, Diogenes New P. M. Steven and, later, committee negotiating the Union’s Haber, Attorneys, Assistant United Statеs committee. counsel), City, Respondent. New York of responded activity STC union Hibbard, (Stephen Kissing- D. William D. coercion, threats including threats to er, Pyle, Sindy Siegel, Michael T. McCutch- inform the INS that employees certain en, Enersen, Doyle, LLP, Brown & Michael response in the illegally. United States In Rubin, Altshuler, Berzon, Nussbaum, Berzon conduct, separate STC’s the Union filed five Rubin, Blanco, & Maria Golden Gate Univer- practice unfair labor charges against STC Law, sity Campos, Lawyers’ School Sara with the National Labor Relations Board Rights Committee for Fran- Civil San (“NLRB”) by early Septem- fall Area, counsel), Bay cisco Amicus Curi- ber of the NLRB a union conducted ae. STC, representation election at which result- regional ed director of the NLRB GRAAFEILAND, Before: VAN MINER certifying the Union bargain- as the exclusive CABRANES, Judges. Circuit ing agent employees. Septem- for STC On 29, 1992, MINER, regional ber Judge: Circuit director issued a complaint against STC for violations Esperanza peti- Petitioner Gloria (“NLRA”), National Labor Act Relations tions for review of a decision the Board of seq., 151 et U.S.C. a finding goоd after (“BIA”) Immigration Appeals affirming a cause. finding deportability by an immigration (“IJ”). judge BIA August determined that the In late or early September of IJ petitioner’s during admitted the course of organizing the Union’s status, though alien campaign, Henry even Dogin, attorney evidence was STC’s obtained and Naturaliza- former district director of the New York (“INS”) tion Service as a result of a raid office of sent fax INS in part tip initiated on a indicating from Montero’s might that undocumented aliens employer in employer’s employed furtherancе of the At the time the fax was quash received, efforts to union activity garment Dogin’s association with STC was manufacturing facility. also deter- unknown to the INS. INS later mined Montero was not arrested and became that Dogin aware attor- STC’s prior examining fax, began countering the INS Prompted by ney. signed at the INS offices. Montero several investigation of STC. documents, including an INS Affidavit of mid-September, re- Sometime (Form 1-215), which Sworn Statement docu- concerning anonymous complaints *3 ceived two entry manner of into the alienage; ments aliens at employment of undocumented the eligibility and work status. United States com- receipt the of these Following reported that he read the statement Meneses investigation stepped up its plaints, the INS Spanish back to in Montero and Monte- attempted put under and to STC of STC accuracy of information verified the the a notice of September, In late surveillance. disputes She this contention. stated therein. STC, giving on STC inspection was served upon by the information obtained Based I-9S,1 seе produce Form 8 days to its three to Montero was issued an order 274a.2(b)(2)(ii). complied § STC and C.F.R. proceedings deportation show cause and I-9s approximately 60 Form to forwarded day. commenced that Agent were same by The I-9s were examined the INS. charge in of Riley, case the
William the against Deportation proceedings Montero Riley that 20 investigation. determined STC aliens conducted before four other registration num- the I-9s contained alien of proceed- the At the of the same IJ. outset or were as- that either did not exist bers ings, the aliens obtained an ad- counsel for signed other aliens. to journment for the INS com- allow time information, Riley sought upon Based ply a Freedom of Information Act a con- to conduct and received authorization (“FOIA”) all request submitted on behalf of STC, pursuant §to 274A survey of of sent sup- also of the aliens. Counsel moved Nationality Act Immigration the press survey from the be- evidence obtained 19, (“INA”), § 1324a. On October 8 U.S.C. in violation of the cause it was obtained 1992, Riley, supervisor, and othеr INS his rights, Fifth and to ter- aliens’ Amendment oral con- agents went to STC and received proceedings the vio- minate the INS survey employees owner to sent from STC’s regulation requiring that an alien be lated factory agents had a list of floor. INS by agents. different arrested upon false I- suspected employees based cases, first During hearing two Riley. conducting the 9s identified suppress motion to and stated IJ denied the survey, themselves and agents identified likely do in each case. that it would so employees for then asked documentation in eligibility employment for of their began deportation hearing on Montero’s pro- employee States. If United 25, 1994, and was continued Octo- October legal presence his duce documentation 27, invoked the Fifth ber 1994. Montero States, he was arrested and taken the United questions and refused to answer Amendment survey offices. As a result INS alienage her documentation about her Montero, STC, employees, including 10 At the conclusion work in the States. United taken to INS offices for were arrested and the mo- hearing, again the IJ denied processing.2 suppress information obtained tion to deporta- survey and Montero from the found processed was at the INS offices upon the documents executed ble based Agent Meneses tes- Francisco Meneses. granted IJ Monte- that, following her arrest. The although present he had been tified leaving the raid, privilege voluntarily ro the during the he did not recall en- STC who voted eligi- from the INS those aliens shield 1. A 1-9 indicates that an individual Form employment subsequently States. See 8 went out of against ble the United STC for union. 274a.2(a). business, § closing C.F.R. although for its the reason its com- NLRB also amended unknown. The day Subsequent made on the arrests charge against plaint against STC to include $23,060 raid, the INS assessed a fine of identifying activists to INS. union STC against STC violations of section for various out was after STC went NLRB action settled The INA, 1324a(a)(1). 8 274A of the U.S.C. of the settlement are of business. The terms aggrava fine increase to reflect the included an appeal. the record on alleged ting efforts to circumstance STC’s 384 -, April Statеs lieu
United of U.S. S.Ct. L.Ed.2d (1996). deportation. 274A, 1324a, INA 8 U.S.C. enact- was appealed finding IJ’s of de- part ed as Reform and portation tó the BIA. Over the dissent of one (“IRCA”), Act of Control Pub.L. No. member, dismissed Montero’s ap- 99-603, 100 Stat. pro- 3359. Section 274A peal rejected July The BIA for civil vides and criminal sanctions arguments that her employer knowingly employs an undocu- contrary was NLRA and that (f). 1324a(a), mented worker. See 8 U.S.C. surveying egre- INS’s conduct STC so primary purpose provision was to *4 gious suppression as to of warrant the evi- illegal immigration reduce the flow of into survey. dence obtained from the The BIA by removing employ- the United States the rejected contention also that she had “magnet” ment that draws undocumented been arrested and examined same country. aliens into the See Rep. H. No. 99- in agent, of INS regulations, be- 682(1), 45-46, 56, reprinted in 1986 she had cause not testified that the same 5649, 5649-50, U.S.C.C.A.N. questioned had arrested and her and 274A Section no makes reference to its of in other evidence the record con- upon existing effect labor laws. it tradicting her claim. The BIA further found legislative history is clear from IRCA’s that that, if even Montero had been arrested and Congress anticipated some conflict between she failed to show existing provisions new statute and the of prejudice warranting pro- termination statutes, various state and federal including ceeding. explained NLRA. As in the House Re- dissenting disputed member port: finding, concluding this last that Montero It is not the intention of the Committee provided had sufficient evidence that the INS employer that provisions sanctions Moreover, § had violated 8 C.F.R. 287.3. bill used to undermine or diminish dissenting § member concluded that 287.3 any way in protections labor existing in promulgated protect to a fundamental law, to powers or limit the of federal or right and therefore Montero was not boards, state labor relations labor stan- required to prejudice show from the INS’s agencies, dards labor or arbitrators its regulation. peti- failure adhere to This remedy practices unfair against committed tion followed. employees undocumented for exercising rights
their
agencies
before such
or for \
in
engaging
protected by existing
activities
DISCUSSION
particular,
law. In
employer
sanctions
Application
I.
INA 274A
provisions
are not
inten[d]ed to limit in
way
scope
“employee”
of the term
in
argues
that the BIA
erred
2(3)
Section
of the National Labor Rela-
274A,
failing
to find that INA
8 U.S.C.
(NLRA),
amended,
tions Act
or
1324a, prohibited
her deportation based
rights
protections
stated
7
Sections
upon
conjunction
evidence obtained in
and of that
8
Act.
employer’s
an
practice.
unfair labor
Specifi
58, reprinted
Id. at
in 1986 U.S.C.C.A.N. at
cally,
legislative
she contends that the
history
immigration
274A dictates that
law
not be
should
enforced
a manner
Notwithstanding
the inclusion of undocu-
employees’ rights
undermines
under labor
existing
pro-
mented aliens within
labor law
interpretation
law. We review
tections,
the BIA’s
no court
interpreted
ever has
IRCA
statutory
provisions
Attorney
to determine
ability
constrain
General’s
agency’s
“whether the
deport
answer is based on a
undocumented aliens
un-
once their
permissible construction
presence
cоuntry
statute.”
lawful
in the
has been dis-
(2d
Zhang
Slattery,
749
contrary,
Cir.
To
application
pro-
covered.
—
1995)
omitted),
denied,
(quotation
spective
cert.
law
labor
remedies to undocumented
upon
dispute.
light
dependent
tion to
labor
of Con-
consistently has been
aliens
permitted by the INS to
gress’s
strengthen
alien is
the enforcement
whether the
efforts
IRCA,
See A.P.RA.
the United States.
by enacting
remain
immigration
of our
laws
it
Inc.,
Group,
320 N.L.R.B.
Buyers
Fuel Oil
Congress
is inconceivable that
intended to
(1995)
(conditioning reinstatement
impediment
deportаtion
such
erect
an
employee’s presentation
documen
illegal
aliens.
employment);
showing eligibility for
tation
argue
per-
Montero and
amici3
Inc.,
Tortilleria,
N.L.R.B.
Ray
Del
mitting
upon
based
evidence ob-
(1991) (“[T]he
Board has wide latitude
dispute
tained
connection with labor
will
pursue
objectives which effectuate
significantly
protec-
undermine labor law
NLRA, and at the same time accommodate
misplaced.
concern is
tions.4 This
Under
IRCA, by ordering
reinstatement and
law,
employer
subject
current
to sanс-
provided
the INS has not de
backpay,
INA if
tions under both the NLRA and the
it
deporta
termined that
discriminatee
employees
identifies its undocumented
to the
ble.”),
grounds,
denied on other
enforcement
dispute.
in the
course of a labor
To the
(7th
(undocumented
Cir.1992)
is
Felzcerek
8 C.F.R.
287.3
(2d Cir.1996).
F.3d
115
Fairness
argument
final
closely
“is
related to the
this context
reliabili
deportation
proceeding should have been
ty
of the
Id.
and trustworthiness
evidence.”
terminated
she was
arrested and
Supreme
rejected application
has
Court
Agent
violation of 8
exclusionary
immigration
rule in
of an
287.3(a).
A
proceeding
C.F.R.
context,
reasoning that
the crime
“[w]hen
invalid where the
fails
adherе
presence
involves unlawful
in this
regulation
pro
“regulation
own
and the
[was]
free,
country,
may go
criminal
but he
mulgated
protect
right
a
fundamental
de
our
go
should not
free within
borders.” INS
rived from the
Constitution or
federal stat
1032, 1047,
Lopez-Mendoza,
v.
468 U.S.
INS,
(2d
ute.”
v.
Waldron
F.3d
(1984).
S.Ct.
Although his name Meneses write 1-213, review is denied. portion of “apprehension” form, entirety con- when read CABRANES, Judge, A.
text, compel finding Meneses JOSÉ Circuit does not First, dissenting: time of arresting agent. was the *7 inconsis- listed on 1-213 is apprehension respectfully it is unclear I dissent because I- time arrest. The with the actual tent below whether the Board from the record apprehended that Montero was 213 indicates (“BIA”) Appeals determined a.m., she testified that sur- at 11:00 but prima a that Montero failed to establish facie a.m.
vey occurred around 9:00 at STC 287.3”) (“ § ease that 8 C.F.R. 287.3 Moreover, the exami- the form indicates that violated, or it found that Montero whether a.m., making it at 11:00 thus nation occurred persua- burden of failed to meet her ultimate unlikely appre- that the time even more ambiguity, Because of this and sion. correctly. hension was recorded prima that a case was persuaded I am facie established, Second, I would remand the ease apprehension location of iden- if findings for further neces- is clarification and 1-213 inconsistent with tified on the testimony. sary. The form indi- Montero’s own apprehended at the cates that Montero was of the Im- Although parts of the decisions However, testi- office station. Montero (“IJ”) suggest migration Judge and the BIA office at fied that she was handcuffed § 287.3 claim they addressing the that station as designation The the office merits, pаrts suggest that the other on the apprehension is consistent the location of prima a was whether question at issue en- finding that Meneses first
with the IJ’s established, total and the case had been facie the office station and Montero at countered appli- laying out the ambiguous. effect is arresting agent. was not the that he case, string a in this BIA cited cable law “ proposition ‘[o]ne BIA for the that points states cases out that the 1-213 legality questioning the raises the claim “alienage deportability [were] who estab- that must come forward of the evidence by Meneses.” lished field SA proof prima establishing facie ease beyond before and the went a consideration of case, on will be called prima the Service assume the it is not clear to me facie justifying the manner in which it that the BIA burden of made a determination (citations omitted). significant obtained the evidence.’” merits. is This because if the The actually BIA later stated: “Ms. Montero asserts BIA decided that Montero failed to prima that the same offiсer both arrested and inter- establish a case that 287.3 was facie violated, rogated her in violation of 8 C.F.R. I would 287.3. conclude that this was error above, Industries, As respondent noted as a has bur- matter of law.1 See CutCo (2d proving den of that should be sup- Naughton, Inc. (foot- Cir.1986) (determination pressed regulatory due to a violation.” prima whether omitted). proof’ note The “burden of that case been has established is facie novo). appears was “noted to refer to above” law de The reviewed fact thаt case, establishing aprima testify burden of not agent did that the same facie deported the BIA described earlier its decision. arrested and her is fatal Moreover, why prima it is unclear the BIA would case—as both IJ facie BIA, emphasized government have that the ambiguously, has no however sug- seemed to obligation justify gest given itself in the absence of documentary the existence of ev- — prima showing violation, regulatory of a clearly raising possibility idence aof facie (“Record govern- if fact it that hаd concluded 287.3 violation. The 1-213 Form prevailed Alien”) Deportable ment completed merits. by the ex- officer, amining F. indicates similarly ambiguous. IJ’s decision apprehended this same officer Montero. Not It suggest government seems will only is Meneses’ name listed under the sec- required presumption to rebut tion labeled Location/Apprehen- “Method of interroga- the same officer arrested and sion,” but portion the narrative of the form ted prima Montero because no case had facie statеs, “Alienage deportability estab- Namely, been made. the IJ noted that lished field SA Meneses.” There is Montero never that the same testified believe, some reason to majority as the her, arrested and on that basis ante, out, points at 386-87 that in I- fact the IJ concluded “I do not believe that conclusively does not establish that under these circumstances Government Meneses Certainly, arrested Montero. how- obligation has an to show which of the offi- ever, enough it is prima to establish a facie cers in day arrеst attendance her.” case. ambiguity of the BIA and IJ decisions I would therefore remand the highlighted case tellingly most the fact that and, clarification if parties necessary, further find- themselves both characterize the *8 ings issue whether issue 287.3 was decided the BIA as whether Monte- violated. prima established a ease. The Gov- facie argues support ernment of “the BIA’s conclusion that Montero failed meet her establishing prima
burden of facie violation
of 8 C.F.R. 287.3.” Government’s Brief at this,
In light despite of all some coun-
tervailing suggesting the IJ majority correctly
1. The arresting notes that even if a interrogating officer from an alien established, §of 287.3 wеre this would no implicates unless other officer available — only require deportation proceed- rights, including right fundamental to be free invalidated, ings showing questioning the absence of a right from coercive and the to im- prejudice, regulation implicates partiality if this “funda- proceedings. in administrative Be- rights mental derived from the Constitution or a cause the issue of whether the INS violated resolved, federal statute.” Waldron v. 287.3 has not been I would (2d Cir.1994). presents I answering note that Montero defer until such time as prevents colorable necessary claim 287.3 —which it became so. do