     Case: 15-60173   Document: 00513633199    Page: 1   Date Filed: 08/11/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                No. 15-60173
                                                                        Fifth Circuit

                                                                      FILED
                                                                August 11, 2016

EMPLOYER SOLUTIONS STAFFING GROUP II, L.L.C.,                      Lyle W. Cayce
                                                                        Clerk
             Petitioner

v.

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER; JEH
CHARLES JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES OF AMERICA,

             Respondents




                     Petition for Review of an Order of the
              Office of the Chief Administrative Hearing Officer


Before DAVIS, PRADO, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Employer Solutions Staffing Group II, L.L.C. (“ESSG”), petitions for
review of an order imposing a fine for its alleged failure to complete properly
the employment verification forms for 242 employees. ESSG used one person
in Texas to examine original documents presented by employees and another
person in Minnesota to examine photocopies of the same documents and then
sign the verification form. An administrative law judge found that ESSG’s
procedure violated the Immigration and Nationality Act. We GRANT the
petition for review and VACATE the order except for a ruling as to one
employee for which no review was sought.
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                                No. 15-60173


              FACTUAL AND PROCEDURAL BACKGROUND
      In April 2010, ESSG, a temporary staffing agency, formed an agreement
with Larsen Manufacturing Co., LLC, to provide staff for Larsen’s facility in
El Paso, Texas. ESSG did not hire staff directly for Larsen but subcontracted
with Flexicorps, Inc., based in El Paso, to perform this task.      Flexicorps
employees made all the hiring decisions for temporary workers at the Larsen
facility. In addition, Flexicorps completed part of the Employment Eligibility
Verification Form (the “I-9 Form”) for each employee hired.         Flexicorps
employees would examine original identifying documents presented by the
hired employees and ensure hired employees completed Section 1 of the I-9
Form, which required providing basic biographical information and signing an
attestation that the hired employee was legally authorized to work. Flexicorps
employees would make color photocopies of the original documents and send
the photocopies along with the I-9 Form to ESSG in Edina, Minnesota. ESSG
employees would then inspect the photocopies and complete Section 2 of the I-
9 Form, which required a description of the identifying documents presented
by the hired employee and a signed attestation that the employer examined
the documents and believed them to be genuine.
      In November 2011, Immigration and Customs Enforcement (“ICE”),
which is part of the Department of Homeland Security (“DHS”), served a Notice
of Inspection on ESSG, requesting that ESSG present for inspection I-9 Forms
for current and terminated employees in El Paso between February 2008 and
February 2011. In February 2013, ICE served a Notice of Suspect Documents
and Notice of Intent to Fine on ESSG. ICE alleged that ESSG failed to ensure
that 242 employees completed properly Section 1, or failed to complete properly
Section 2 or 3 of the I-9 Form, thereby committing substantive paperwork
violations.   Further, ICE claimed ESSG violated the Immigration and
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                                       No. 15-60173
Nationality Act (“INA”), 8 U.S.C. § 1324a(a)(1)(B), and ordered ESSG to pay
fines totaling $237,162.75.
       ESSG contested the charges and requested a hearing before an
administrative law judge (“ALJ”).            The ALJ ruled for ICE in a Summary
Decision, finding ESSG failed to complete properly Section 2 of the I-9 Form
for 242 employees. The ALJ fined ESSG $226,270 for these violations. 1 ESSG
timely filed a petition for review of the ALJ’s order with this Court.


                                      DISCUSSION
       The Office of the Chief Administrative Hearing Officer (“OCAHO”) had
jurisdiction for its actions under 8 U.S.C. § 1324a(e)(3)(A)–(B). 2 This court
has jurisdiction to review final orders issued by OCAHO. § 1324a(e)(8).
       Agency determinations are reviewed under the “highly deferential”
standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), Knapp v.
U.S. Dep’t of Agric., 796 F.3d 445, 453 (5th Cir. 2015), while an agency’s
interpretations of caselaw are reviewed de novo. Willy v. Admin. Review Bd.,
423 F.3d 483, 490 & n.18 (5th Cir. 2005). We apply the same de novo standard
to agency determinations of constitutional law. Trinity Marine Prods., Inc. v.
Chao, 512 F.3d 198, 201 (5th Cir. 2007). Appropriate deference will be given
to DHS’s and ICE’s interpretations of ambiguities in the INA and in their own
implementing regulations. See Chevron USA, Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842–43 (1984); Auer v. Robbins, 519 U.S. 452, 461 (1997).



       1 The ALJ also found ESSG failed to present an I-9 Form for one employee and fined
ESSG $981.75 for this violation. ESSG does not appeal that fine.
       2 The INA requires the Attorney General to provide an administrative hearing at the

request of persons or entities charged with violating the verification requirements of the INA.
See 8 U.S.C. § 1324a(e)(3). The Attorney General designated OCAHO — an administrative
agency under the control of the Executive Office for Immigration Review of the Department
of Justice — to adjudicate these cases, as well as other related violations of the INA. See 28
C.F.R. §§ 68.1–.2.
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                                  No. 15-60173


I.    Overview of the INA Employer Verification System
      It is unlawful for an employer to hire an individual without complying
with certain identity and employment authorization verification requirements.
See 8 U.S.C. § 1324a(a)(1)(B), (b). The INA specifies that a “person or entity
must attest, under penalty of perjury and on a form designated or established
by the Attorney General by regulation, that it has verified that the individual
is   not   an   unauthorized   alien    by    examining”    employee   documents.
§ 1324a(b)(1)(A). The statute provides that a document is acceptable only if it
“reasonably appears on its face to be genuine.” § 1324a(b)(1)(A)(ii).
      DHS, not the Attorney General, now has authority to create the form
that facilitates the employer verification requirements; DHS also investigates
violations of the INA.     See § 1324a(b)(1)(A), (e)(1)–(2). 3    Regulations for
implementing the INA have been promulgated by DHS and its predecessor
agency in the Justice Department, the Immigration and Naturalization Service
(“INS”).   See 8 C.F.R. § 274a.2.      Under these regulations, employers must
examine documents presented by the employee and attest to having done so on
Section 2 of the I-9 Form. § 274a.2(b)(1)(ii). The Section 2 attestation in the
form as it existed at the time of the events in this case read:
      I attest, under penalty of perjury, that I have examined the
      document(s) presented by the above-named employee, that the
      above-listed document(s) appear to be genuine and to relate to the
      employee named, that the employee began employment on
      (month/day/year) ________ and that to the best of my knowledge
      the employee is authorized to work in the United States.




      3  The Attorney General’s authority to issue regulations to enforce the INA
employment verification requirements was transferred to DHS in 2002. See Clark v.
Martinez, 543 U.S. 371, 374 n.1 (2005).

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                                 No. 15-60173
The regulations establish that documents presented by the employee must be
originals. § 274a.2(b)(1)(v).


II.    Alleged Violation of the INA
       The ALJ found that ESSG failed to complete Section 2 of the I-9 Form
properly because the ESSG employee who signed the I-9 Form did not examine
the original employee documents personally and in the presence of the newly
hired employee. Therefore, the ALJ held, the I-9 Form’s attestation was false.
ESSG argues that it did not attest falsely because (1) the INA allows for
ESSG’s employee to speak about actions performed by its corporate
representative in El Paso, (2) the INA does not require ESSG’s employee, as
opposed to its corporate representative in El Paso, to examine original
documents, and (3) the INA does not require ESSG’s employee, as opposed to
its corporate representative in El Paso, to examine documents in the presence
of the newly hired employee.
       The central issue before us is whether the INA’s verification procedures
require personal, not corporate, attestation. DHS argues personal attestation
is required, meaning that the same ESSG representative who examines an
employee’s original documents must also meet with the employee and sign the
I-9 Form’s Section 2 attestation. Alternatively, ESSG argues that corporate
attestation at least is permitted, allowing its representatives in one state to
examine original documents and meet with an employee while a representative
in another state attests in Section 2 of the I-9 Form. The only difference in the
parties’ views is whether the person who signs the Section 2 attestation must
also have examined the original documents in the presence of the employee, or
whether those tasks may properly be performed by different people. To find
the answer, we review the statute, DHS’s regulations and prior adjudications


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                                 No. 15-60173
interpreting the statute, the I-9 Form itself, and the ALJ’s interpretation in
this enforcement action.


   A. The Statute
      We begin with the relevant statutory text. The INA provides that a
“person or entity must attest . . . on a form [established by the appropriate
agency] by regulation, that it has verified that the individual is not an
unauthorized alien by examining” employee documents. § 1324a(b)(1)(A). It
also states that a “person or entity has complied with the requirement of this
paragraph with respect to examination of a document if the document
reasonably appears on its face to be genuine.” § 1324a(b)(1)(A)(ii).
      In its memorandum of law presented to OCAHO urging a summary
decision, DHS argued that Section 1324a supported that ESSG had failed to
verify the identity and employment eligibility of 242 employees. It argued that
Section 1324a “makes it clear that in Section 2 of the Form I-9, the employer
must attest through a signature that it has verified that the individual is not
an unauthorized alien by examining the documents presented by the
employer.” Further, only original documents could be examined. DHS did not
discuss the need for the employee to be present with the original documents.
      ESSG responded, in part with an explanation of its decision to handle all
the I-9 Form attestations centrally in Minnesota after employees presented
their individual documents and were interviewed, not just in El Paso but in 22
states around the country. ESSG argued that Section 1324a allows corporate
attestation, and therefore, its approach is consistent with the statute. The ALJ
rejected ESSG’s position, finding it “impossible” for an attester to say the
documents appear genuine and to relate to the employee unless the attester
was physically present with the documents and the employee.


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                                   No. 15-60173
      In its briefing here, DHS concedes the INA itself does not address
whether the attester must be the same person who physically examines the
documents in the presence of the hired employee. We agree.


   B. Regulations and Prior Adjudications
      Next, we consider the relevant regulations and prior adjudications
interpreting the INA. DHS argues that, because the INA does not provide a
clear answer, “the choice of developing the answer is left to the agency.” That
may be, but at this point we are trying to discover how and when the agency
developed its answer. We find no answer in any regulation. The closest is this:
“an employer, his or her agent, or anyone acting directly or indirectly in the
interest thereof, must . . . [c]omplete section 2 . . . on the Form I-9 . . . and sign
the attestation . . . .” § 274a.2(b)(1)(ii)(B). We do not read this regulation to
require that the same person who met the hired employee and examined his or
her original documents must also sign the attestation.
      DHS argues we owe Chevron deference to regulations requiring “full and
proper completion of the Form I-9.” See § 274a.2(b)(1)(i)(A)–(B). This point is
not contested but does not aid our review. If corporate attestation is permitted,
then ESSG’s verification procedure could be deemed “full and proper.” DHS
also argues “copying documents does not provide an alternative means for
fulfilling the obligation to properly complete the Form I-9.” See § 274a.2(b)(3).
Again, the issue of copies begs the question of the permissibility of corporate
attestation.   Original documents were examined; someone else then so
attested.
      The only possibly relevant OCAHO adjudication that has been discussed
involves a wholly inapposite situation where the employer attached
photocopies of hired employees’ documentation in lieu of actually filling out the
I-9 Form. See United States v. Manos & Assocs., Inc., 1 OCAHO 130 (1989).
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                                 No. 15-60173
      Thus, we find no clear bar to corporate or entity attestation in the
regulations and prior adjudications interpreting the INA.


   C. The I-9 Form and the ALJ’s Interpretation in this Action
      After finding no guidance from the relevant statutory text and
regulations on whether the same person who meets a hired employee and
examines documents must also attest, we examine two other sources allegedly
supporting DHS’s view that corporate attestation is prohibited.
      First, in a Rule 28(j) letter filed days before oral argument, DHS argued
for the first time that we owe Auer deference to language appearing on the I-9
Form itself. See Auer, 519 U.S. at 461. This form is the only identified source
allegedly interpreting DHS’s ambiguous regulations that was made public
prior to this enforcement action. Because DHS asked only for Auer deference,
we limit ourselves to analyzing that level of deference as “we do not craft new
issues or otherwise search for them in the record.” United States v. Brace, 145
F.3d 247, 255 (5th Cir. 1998) (en banc). That form of deference will be given to
an agency’s interpretation of its own ambiguous regulations unless the
interpretation is “plainly erroneous or inconsistent with the regulation, or
there is reason to suspect that the agency’s interpretation does not reflect the
agency’s fair and considered judgment on the matter in question.” Knapp v.
U.S. Dep’t of Agric., 796 F.3d 445, 454 (5th Cir. 2015) (quotation marks
omitted) (citing Auer, 519 U.S. at 461–62). We assume without deciding that
the I-9 Form qualifies as DHS’s interpretation of its own ambiguous regulation.
      Second, DHS claims we owe Chevron deference to the ALJ’s decision in
this enforcement action. DHS argues “OCAHO permissibly determined . . . the
same individual who reviewed the original documents must be the individual
that attests to their apparent genuineness in Section 2” of the I-9 Form. We
first note that the ALJ’s opinion could be eligible for Chevron deference only if
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                                        No. 15-60173
it has the “force of law,” that is, if the opinion is precedential and thus binds
third parties. 4 See Dhuka v. Holder, 716 F.3d 149, 154–56 (5th Cir. 2013)
(holding a non-precedential decision of the BIA is not owed Chevron deference).
Here, the ALJ’s decision was published in the OCAHO reporter and appears to
be precedential; therefore, it may warrant Chevron deference when it
interprets the INA. See United States v. Emp’r Sols. Staffing Grp. II, LLC, 11
OCAHO 1242 (2015). 5
       Despite the degree of deference potentially owed to the I-9 Form and the
ALJ’s decision, we conclude ESSG lacked fair notice that corporate attestation
was prohibited. That fact affects the operation of deference, as we now explain.


       1. Lack of Fair Notice
       “[S]tatutes and regulations which allow monetary penalties against
those who violate them . . . must give [a regulated party] fair warning of the
conduct [they] prohibit[] or require[] . . . .”           Diamond Roofing Co., Inc. v.



       4 There is caselaw suggesting no deference is owed to an agency’s interpretation
where, like here, the interpretation appears for the first time in the agency’s adjudication
under consideration. See Paz Calix v. Lynch, 784 F.3d 1000, 1007 (5th Cir. 2015) (citing R&W
Tech. Servs. Ltd. v. CFTC, 205 F.3d 165, 171 (5th Cir. 2000)). Other caselaw implies we may
give the agency’s adjudication currently under review some degree of deference when it
interprets an ambiguous statute the agency is authorized to administer. See, e.g., Knapp,
796 F.3d at 454. Further, one unpublished decision from this court suggested we review de
novo all OCAHO conclusions of law. See Wije v. Barton Springs, 81 F.3d 155, 1996 WL
101380, at *1 (5th Cir. 1996) (citing Mester Mfg. Co. v. I.N.S., 879 F.2d 561, 565 (9th Cir.
1989)). Yet, the Ninth Circuit decision we relied on in Wije provides further context for review
of OCAHO decisions, explaining “[w]ithin the de novo framework . . . we give a certain
amount of deference to an agency’s reasonable construction of a statute it is charged with
administering.” Mester, 879 F.2d at 565. We need not address these possible tensions in our
caselaw because we resolve the case against DHS even assuming the ALJ’s interpretation
would typically warrant deference.
       5 OCAHO explains that it “publishes decisions that have been selected for and may

be used as precedent[.]” U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE CHIEF
ADMINISTRATIVE        HEARING     OFFICER,      https://www.justice.gov/eoir/office-of-the-chief-
administrative-hearing-officer-decisions (last visited Aug. 9, 2016). As our citation shows,
the ALJ’s decision in this action was published in Volume 11 of the OCAHO reporter.
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                                  No. 15-60173
Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.
1976). Recently, the Supreme Court cited favorably to Diamond Roofing for
the proposition “that agencies should provide regulated parties ‘fair warning
of the conduct [a regulation] prohibits or requires.’” Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2167 & n.15 (2012) (alterations in original)
(quoting Gates & Fox Co. v. Occupational Safety & Health Review Comm’n, 790
F.2d 154, 156 (D.C. Cir. 1986)). The Court also quoted favorably this summary
from a treatise: “[I]n penalty cases, courts will not accord substantial deference
to an agency’s interpretation of an ambiguous rule in circumstances where the
rule did not place the individual or firm on notice that the conduct at issue
constituted a violation of a rule.” Id. at 2167 n.15 (quoting 1 R. PIERCE,
ADMINISTRATIVE LAW TREATISE § 6.11, at 543 (5th ed. 2010)).
      Fair notice requires that the agency have “state[d] with ascertainable
certainty what is meant by the standards [it] has promulgated.” Diamond
Roofing, 528 F.2d at 649. This rule requires that a statute or agency action
“give an employer fair warning of the conduct it prohibits or requires, and it
must provide a reasonably clear standard of culpability to circumscribe the
discretion of the enforcing authority and its agents.” Id. The challenged
statute or agency action must “give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act
accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
      First, we examine the I-9 Form. Our question as to the form is whether
the version in the record states with ascertainable certainty the kind of
attestation that DHS claims must be made. Section 2 of the form is entitled
“Employer Review and Verification,” and it is “[t]o be completed and signed by
employer.” Section 2 concludes with the following attestation: “I attest, under
penalty of perjury, that I have examined the document(s) presented . . . and
that to the best of my knowledge the employee is authorized to work in the
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United States.” Beneath the attestation, there is a signature block for the
“Employer or Authorized Representative.” In the instructions to the I-9, we
learn that “the term ‘employer’ means all employers including those recruiters
and referrers for a fee who are agricultural associations, agricultural
employers, or farm labor contractors.”
       The I-9 Form provides minimal support for DHS’s claimed interpretation
that would prohibit corporate attestation. The attestation includes language
that appears personal: “I attest” and “I have examined.” 6 Yet, if attestation by
the entity is permissible, this language from the form could be interpreted to
allow the individual who attests to verify all the actions performed by the
entity as a whole.         DHS may have recognized the uncertainty when,
subsequent to fining ESSG, DHS clarified the I-9 instructions to read: “The
person who examines the documents must be the same person who signs
Section 2.” U.S. CITIZENSHIP & IMMIGRATION SERVS., OMB No. 1615-0047,
INSTRUCTIONS FOR EMPLOYMENT ELIGIBILITY VERIFICATION 3 (2013). DHS’s
decision to clarify the instructions is at least some support that at the time of
ESSG’s violation, the I-9 attestation was not as clear as DHS now claims.
       Finally as to the form, Section 2 consistently refers to the employer’s
verification requirements. The instructions to the I-9 Form define employer
broadly. In its Rule 28(j) letter, DHS offered a conclusory explanation for how
the I-9 Form supports its interpretation: “[I]t is clear from the certification in



       6 At oral argument, DHS presented this new justification. It argued that if corporate
attestation were permitted, the I-9 Form’s certification “wouldn’t say ‘I reviewed these
documents’ and ‘I determined that these documents relate to this individual under the
penalty of perjury.’” An argument raised for the first time at oral argument is waived. See
Comsat Corp. v. F.C.C., 250 F.3d 931, 936 n.5 (5th Cir. 2001). Further, the argument relies
on DHS’s interpretation of its ambiguous I-9 Form. We have held no deference is owed an
agency’s interpretation of its earlier ambiguous interpretations. See Elgin Nursing & Rehab.
v. U.S. Dep’t of Health & Human Servs., 718 F.3d 488, 493–94 (5th Cir. 2013).

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section 2 of the Form I-9 that it must be the same individual, and that
interpretation of the regulatory requirement warrants deference.” We have
examined the I-9 Form and do not agree. The form does not fairly address
whether corporate attestation is prohibited or permitted. To the extent the I-
9’s attestation implies it must be personal, the I-9 failed to state that
requirement with ascertainable certainty.
      Second, we examine another authoritative source — the ALJ’s decision
in this case. Was that interpretation of the INA in this enforcement action an
“unfair surprise”? See Knapp, 796 F.3d at 457–58. The ALJ suggested, without
expressly holding, that corporate attestation is prohibited. Relying only on
commonsense, which no doubt is important, the ALJ explained “[i]t is simply
impossible . . . for a payroll administrator in Edina, Minnesota to determine
whether a document reasonably appears to relate to an individual when the
administrator never saw the individual and the individual only presented
original documents to a different person more than a thousand miles away in
El Paso, Texas.” In support, the ALJ did not cite to any statute, regulation, or
prior adjudication. Apparently, neither Congress nor DHS had ever declared
a bar to corporate attestation prior to this enforcement action. For one person
in an entity to attest to all the company did is not clearly barred.
      Moreover, the statute and regulations suggest that corporate attestation
is permitted. Either a “person or entity” may attest. 8 U.S.C. § 1324a(b)(1)(A)
(emphasis added). An “entity” includes a company. Corporate attestation
would permit the company as a whole to perform the examination of original
documents, in the presence of the hired employee, and the attestation, even if
the same corporate representative does not perform all the required acts. The
relevant regulation says that “an employer, his or her agent, or anyone acting
directly or indirectly in the interest thereof, must . . . [c]omplete section
2 . . . on the Form I-9 . . . and sign the attestation . . . .” § 274a.2(b)(1)(ii)(B).
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The regulation can be fairly read to allow corporate attestation, appearing to
envision more than one person involved in completing Section 2. Finally, the
I-9 Form itself calls for the signature of the “Employer or Authorized
Representative,” and the instructions define “employer” broadly. All three
sources leave open the possibility that corporate attestation may be accepted.
       The Supreme Court has held Auer deference is “unwarranted” where to
hold otherwise “would seriously undermine the principle that agencies should
provide regulated parties ‘fair warning of the conduct [a regulation] prohibits
or requires.’”     See Christopher, 132 S. Ct. at 2165–69 (alteration in the
original); see cf. Knapp, 796 F.3d at 457–58 (reviewing a judicial officer’s
interpretation and citing favorably to Christopher). We conclude the same
principle applies where an agency’s interpretation of an ambiguous statute
unfairly surprises a regulated party.
       Thus, ESSG lacked fair notice, which alters the deference owed. 7 The
I-9 Form did not clearly address corporate attestations, and the ALJ’s new
interpretation does not flow clearly from any authority in existence prior to
this action. Thus, Auer and Chevron are inapplicable.


       2. Skidmore Deference
       Once deciding Auer deference is inappropriate, we follow Christopher’s
course and apply Skidmore deference, which is “a measure of deference
proportional to the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those



       7 Arguably, further analysis is unnecessary because DHS’s failure to give fair notice
— on its own — justifies setting aside the imposed fine. In 2012, the Supreme Court set aside
a fine imposed after concluding the regulated party lacked “sufficient notice prior to being
sanctioned.” See F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2318–20 (2012). The
parties have not briefed whether Fox is applicable to this case. Thus, we resolve this case on
other grounds.
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                                   No. 15-60173
factors which give it power to persuade.” Christopher, 132 S. Ct. at 2168–69
(quotation marks omitted) (citing United States v. Mead Corp., 533 U.S. 218,
228 (2001)). Assuming that both the I-9 Form and the ALJ’s opinion provide
support for DHS’s view that corporate attestation is prohibited, we find neither
interpretation persuasive.
      The I-9 Form is essentially silent on the issue. At best, the language of
the attestation (e.g., “I attest” and “I have examined”) shows that the agency
contemplated a single person would complete all of Section 2 and sign the I-9.
As already discussed, though, the I-9 includes other evidence that corporate
attestation is permitted (e.g., defining “employer” broadly, and requiring a
signature from an “Employer or Authorized Representative”). Even if the I-9
Form was intended to prohibit corporate attestation, we find the I-9 Form
unpersuasive because it provides inconsistent clues as to its meaning and lacks
the “hallmarks of thorough consideration.”          See id. at 2169. Further, an
agency’s statements are unpersuasive when they are “internally inconsistent”
and “fail to provide clear direction to regulated parties . . . .” Barboza v. Cal.
Ass’n of Prof. Firefighters, 799 F.3d 1257, 1268 (9th Cir. 2015) (citing
Christopher, 132 S. Ct. at 2169)
      The ALJ’s interpretation, while not silent on the issue, is also
unpersuasive. The ALJ’s conclusion may have been logical, but like the I-9
Form it did not exhibit the “hallmarks of thorough consideration.”              See
Christopher, 132 S. Ct. at 2169. In Christopher, the Supreme Court found
unpersuasive an agency’s interpretation because there had been “no
opportunity for public comment . . . .”      Id.   In a more recent decision, the
Supreme Court found unpersuasive an agency’s interpretation of an issue on
which the agency had previously been silent and where it failed to “explain the
basis of its latest guidance.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338,
1352 (2015).    Likewise, the ALJ’s novel interpretation in this enforcement
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                                    No. 15-60173
action has not been subject to public comment, it addressed an issue the agency
had never explicitly addressed prior to this enforcement action, and it relied
strictly on commonsense rather than any legal authority.
       Having concluded the agency has provided no persuasive interpretation,
“we must employ traditional tools of interpretation” to resolve whether
corporate attestation is prohibited. See Christopher, 132 S. Ct. at 2170; see
also Elgin Nursing & Rehab. v. U.S. Dep’t of Health & Human Servs., 718 F.3d
488, 494 (5th Cir. 2013).


       3. Textual Interpretation
       We have already explained that the INA’s requirement that a “person or
entity” attest appears to permit corporate attestation.                    See 8 U.S.C.
§ 1324a(b)(1)(A). The relevant regulation similarly leaves open the possibility,
requiring attestation by “an employer, his or her agent, or anyone acting
directly   or   indirectly   in   the   interest   thereof . . . .”       See   8    C.F.R.
§ 274a.2(b)(1)(ii)(B). The I-9 Form is also ambiguous, requiring a signature by
the “Employer or Authorized Representative” and defining “employer” broadly.
       In addition to those arguments already addressed, DHS argues that
because the form requires the individual completing it to examine the
documents presented and to attest that “the above-listed document(s) appear
to be genuine and to relate to the employee named,” the same individual must
also see the employee as well as the original documents. Yet, ESSG does not
deny that an in-person examination had to be conducted. It simply argues that
its employee in Minnesota could properly rely on the report of the in-person
examination conducted by its representative in Texas.
       Taking into consideration all relevant legal authorities, we conclude the
most    reasonable    interpretation     permits    corporate         attestation.     See
Christopher, 132 S. Ct. at 2171. The most basic reason is that the statute
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    Case: 15-60173      Document: 00513633199         Page: 16    Date Filed: 08/11/2016



                                     No. 15-60173
permits entity attestation, and nothing in the materials which ESSG had to
consider prior to this enforcement action fairly informed the company that its
procedures were invalid. We hold that, under the I-9 Form applicable in this
enforcement action, corporate attestation was permissible. Thus, ESSG did
not violate the law when one corporate representative in El Paso, Texas,
examined original documents in the presence of the hired employee, and
another corporate representative in Edina, Minnesota, inspected photocopies
of the documents and completed Section 2 of the I-9 Form.
      Our holding does not address whether DHS can lawfully prohibit
corporate attestation.      We also do not address whether the precedential
decision the ALJ entered in this case could be the support for any subsequent
enforcement actions. Finally, we agree that deciding the proper manner of
attestation is a matter for the agency’s discretion within the limits of the
statute. We are simply holding that even if it is proper for DHS to prohibit
corporate attestation, neither the applicable I-9 Form nor any other
authoritative source clearly so stated prior to the ALJ’s decision in this case. 8
                                  ***
      We GRANT the petition for review and VACATE all portions of the ALJ’s
order brought before us. 9




      8 Because we have held for ESSG, we do not address ESSG’s “good faith” defense.
      9 We do not disturb the ALJ’s unchallenged finding that ESSG failed to present an I-9
Form for one employee or the resulting fine of $981.75.
                                            16
