                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                           _____________________

                                No. 92-8572
                           _____________________

                               MARIO GARCIA,

                                                     Plaintiff-Appellee,

                                  VERSUS

                       THE SECRETARY OF LABOR,

                                                    Defendant-Appellant.

      ____________________________________________________

             Appeal from the United States District Court
                   for the Western District of Texas

      _____________________________________________________
                       (December 15, 1993)

Before KING and      BARKSDALE,    Circuit     Judges,   and   DUPLANTIER,1
District Judge.

BARKSDALE, Circuit Judge:

     This appeal from the district court's reversing the decision

by the Secretary of Labor that farm labor contractor Mario Garcia

knowingly employed illegal aliens, in violation of 29 U.S.C. §

1816(a) (repealed 1986), turns on the Secretary's interpretation of

that statute and the sufficiency of the evidence supporting that

decision, which was contrary to that reached by the Administrative

Law Judge.    We AFFIRM.




1
     District Judge of the Eastern District of Louisiana, sitting
by designation.
                                I.

     Garcia provided workers for several farm owners in the "Lower

Valley" region of El Paso County, Texas.   In the spring of 1985,

the Department of Labor began an investigation into his hiring

practices.   As part of that investigation, it reviewed Border

Patrol deportation records for August 1983 to May 1985.

     Garcia's legal odyssey began almost eight years ago, in March

1986, when, as a result of the investigation, the Department, inter

alia, assessed $119,275 in civil penalties.     At the subsequent

hearing before the ALJ, the Department claimed that, in several

respects, Garcia had violated the Migrant and Seasonal Agricultural

Worker Protection Act, 29 U.S.C. §§ 1801-1872. Concerning the only

issue before us, the ALJ concluded that Garcia had not knowingly

employed illegal aliens in violation of § 1816(a) (repealed 1986).2




2
     Because the ALJ found that the Department's position was not
substantially justified, Garcia was awarded attorney's fees. The
ALJ found:

          The [Department] pursued the case in spite of the
          fact that it had almost no reliable evidence to
          support its position .... [It] pursued this action
          against [Garcia] for thousands of dollars although
          there was little legitimate basis in fact or law.

     The violations found against Garcia by the ALJ included
failures to keep required records and display a poster advising
workers of their rights under the Act ($110 fine); the Secretary
and district court affirmed.    The ALJ found for Garcia on the
charge that he had employed a farm labor contractor without an
appropriate certificate of registration; the Secretary reversed,
imposing a $150 fine; the district court affirmed. These rulings
are not on appeal.    The Secretary also reversed the award of
attorney's fees; that decision was not before the district court.

                              - 2 -
     More than four years later,3 the Secretary reversed this

conclusion, assessed $118,800 in penalties ($400 for each of the

297 illegal aliens), and revoked Garcia's farm labor contractor

certificate of registration.4         The Secretary's conclusion that

Garcia knowingly employed illegal aliens was based on his failure

to check documents prescribed by her.

     Garcia appealed to the district court, which, inter alia, held

for Garcia on the issue of knowingly employing illegal workers.5

After   carefully   essaying   the    proper   standard   for   review   and

recognizing the appropriate deference to be accorded the Secretary,

it reversed for two reasons:         it found insubstantial evidence to

support the Secretary's conclusion; and it held that the basis for

that conclusion -- failure to check prescribed documents -- was the

product of an impermissible construction of the statute.




3
     It goes without saying that delay of this magnitude is of
great concern.
4
     When the decision was rendered in 1991, Lynn Martin was
Secretary of Labor.
5
     The Act permits any person against whom civil penalties have
been imposed or whose farm labor contractor's certificate of
registration has been revoked to seek review in district court,
with appeal to circuit court. See 29 U.S.C. §§ 1813(c), 1853(c).

     The district court ruled on cross-motions for summary
judgment.   Of course, the ruling was based on the undisputed
administrative record, to which the district court's review is
necessarily confined. See 5 U.S.C. § 706; see also 29 U.S.C. §§
1813(c), 1853(c) (referring to § 706(2)(E) for appropriate standard
of judicial review).

                                 - 3 -
                                  II.

                                     A.

     The Secretary contends that the district court erred when it

held that, as a matter of law, Garcia was not obligated by § 1816

to verify his workers' legal status in this country.           That section

provided in part:

                  No farm labor contractor shall recruit, hire,
             employ, or use, with knowledge, the services of any
             individual who is an alien not lawfully admitted
             for permanent residence or who has not been
             authorized by the Attorney General to accept
             employment.

29 U.S.C. § 1816(a) (repealed 1986) (emphasis added).               Section

1816(b) added the following:

                  A farm labor contractor shall be considered to
             have complied with subsection (a) of this section
             if the farm labor contractor demonstrates that the
             farm labor contractor relied in good faith on
             documentation prescribed by the Secretary ....

29 U.S.C. § 1816(b) (repealed 1986).          Pursuant to § 1816(b), the

Secretary prescribed a number of documents. See 29 C.F.R. § 500.59

(repealed 1986).6

     The Secretary maintains that § 1816 created an objective

standard; that in a geographic area in which illegal workers are

likely to be encountered, a failure to check documents should be

deemed   a    proscribed   knowing        employment   under   §   1816(a).

Accordingly, she asserts that the "Department need only establish


6
     Those documents included, inter alia: birth certificates,
United States passports, certificates of citizenship, certificates
of naturalization, United States identification cards issued by the
INS, and consular reports of birth. 29 C.F.R. § 500.59 (repealed
1986).

                                 - 4 -
the presence of illegal aliens in Garcia's workcrew in order for

the burden to shift to Garcia to show that he relied in good faith

on the prescribed documentation." Because Garcia did not check the

prescribed documents in the manner advocated by the Secretary,7 she

claims that he violated § 1816.

     The deference we accord the Secretary's interpretation of a

statute she   is   charged   with    administering   is   subject   to   the

following well-known standard:

          When a court reviews an agency's construction of
          the statute which it administers, it is confronted
          with two questions. First, always, is the question
          whether Congress has directly spoken to the precise
          question at issue. If the intent of Congress is
          clear, that is the end of the matter; for the
          court, as well as the agency, must give effect to
          the unambiguously expressed intent of Congress....
          [I]f the statute is silent or ambiguous with
          respect to the specific issue, the question for the
          court is whether the agency's answer is based on a
          permissible construction of the statute.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-43 (1984).        Accordingly, we do not defer to an

interpretation which frustrates the clear intent of Congress.            See

Nicklos Drilling Co. v. Cowart, 927 F.2d 828, 831-32 (5th Cir.


7
     Garcia testified that he asked workers for a social security
card or passport, and hired a worker if he possessed the former.
The Secretary asserts correctly that a social security card alone
would not fulfill the requirements of 29 C.F.R. § 500.59 (repealed
1986). Still, the ALJ determined that Garcia, who lacks formal
education and is not conversant in English, "constructively
complied with this requirement to the extent that could be
realistically expected."    The Secretary disagreed, finding "no
basis for finding constructive compliance". Because we hold that
the Secretary's determination that § 1816(a) and § 500.59 placed an
affirmative duty on farm labor contractors to check the prescribed
documents is an impermissible interpretation of the statute and
regulation, we need not reach the issue of constructive compliance.

                                    - 5 -
1991) (en banc), aff'd, 112 S. Ct. 2589 (1992); see also Chevron,

467 U.S. at 843 n.9 ("The judiciary is the final authority on

issues of statutory construction and must reject administrative

constructions which are contrary to clear congressional intent.").

     Insofar   as     the   Secretary's     interpretation    of   §   1816

effectively reads out the "with knowledge" requirement, we hold

that it frustrates the clear intent of Congress.          Section 1816(a)

proscribed employing "with knowledge" an illegal worker.8           Section

1816(b) merely set forth a means by which a farm labor contractor

could demonstrate an absence of such knowledge; it was in the

nature of an affirmative defense.            Nor do we read the plain

language of § 1816(b) to place an affirmative obligation on farm

labor   contractors   to    check   the   prescribed   documents   (though,

certainly, they would benefit from doing so).9




8
     This language requires a particular subjective mental state in
order to find a violation of § 1816(a).       "With knowledge" is
synonymous with "knowingly". See Black's Law Dictionary 872 (6th
ed. 1992). Such phrases are usually directed at, and descriptive
of, an individual's own, conscious awareness of a particular fact.
See id. Cf. United States v. Smith, 548 F.2d 545, 549 (5th Cir.)
("the Government must prove that the defendant knowingly did an act
which the law forbids; that is to say purposely intending to
violate the law") (emphasis added), cert. denied, 431 U.S. 959
(1977). Therefore, Congress sought to punish those who employed
workers with an awareness of the workers' illegal status.       The
Secretary fails to cite any language in the statute which would
support her interpretation. And, she fails to assert that § 1816
is silent or ambiguous on this issue, thereby abandoning any basis
for deference to her interpretation of § 1816.
9
     Of course, proof that a farm labor contractor both employs
illegal workers and fails to check prescribed documents is evidence
from which one might infer that the employer hired illegal workers
"with knowledge".

                                    - 6 -
      The Secretary directs our attention to a prior decision by

this court which cited 29 C.F.R. § 40.51(p) (repealed) as support

for   the   proposition         that    a     farm       labor    contractor      "has    an

affirmative duty to inquire into a prospective employee's status as

a United States citizen or person lawfully authorized to work in

the United States."           See Counterman v. United States Department of

Labor, 776 F.2d 1247, 1248 (5th Cir. 1985).                        Counterman does not

support     the    Secretary's         interpretation.                 It   involved     the

predecessor       to    the    Act,    namely,          the    Farm    Labor     Contractor

Registration Act, 7 U.S.C. §§ 2041-2055 (repealed 1983); § 40.51(p)

was promulgated by the Secretary under that act.

      Unlike either the statute or regulation in issue here, §

40.51(p) required that a farm labor contractor "must evidence an

affirmative showing of a bona fide inquiry of each prospective

employee's status as" a legal employee.                          29 C.F.R. § 40.51(p)

(repealed) (emphasis added); see generally, Counterman v. United

States Dept. of Labor, 607 F.Supp. 286, 288 (W.D. Tex), aff'd, 776

F.2d 1247 (5th Cir. 1985).             Neither the regulation nor the statute

in issue explicitly required such an affirmative showing.

                                             B.

      Needless     to    say,    the    Secretary's           conclusion       that   Garcia

employed    illegal      workers       must       be,    inter    alia,     supported     by

substantial evidence.           29 U.S.C. §§ 1813(c), 1853(c); 5 U.S.C. §

706(2)(E).    Substantial evidence is "such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion."

Richardson    v.       Perales,       402    U.S.       389,     401    (1971)    (quoting


                                            - 7 -
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).              "It is

more than     a   mere   scintilla,    and    less   than   a   preponderance."

Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citation

omitted).

       In situations in which an ALJ and a Secretary disagree, we

"must examine the evidence and findings of the [Secretary] more

critically than [we] would if the [Secretary] and the ALJ were in

agreement."       See Syncro Corp. v. NLRB, 597 F.2d 922, 924-25 (5th

Cir. 1979) (citation omitted).         Although this heightened scrutiny

does not alter the substantial evidence standard of review, it does

require us to apply it with a particularly keen eye, especially

when credibility determinations are in issue, as discussed infra.

See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951).

       Garcia began working as a farm labor contractor in 1983.10

During the relevant time period (May 1983 - May 1985), he provided

approximately 5,000 workers to Lower Valley farm owners.               The area

is noted for its "general chaos of movement and employment".                He

provided up to 120 workers per day.             They were seldom the same

workers day in and day out; the turnover rate was about 60% per

day.

       Garcia obtained a significant number of his workers from the

Texas Employment Commission (TEC), which attempts to check the

legal status of its referrals. Its officers frequent the fields in

which their referrals are working for the purpose of investigating


10
     Garcia quit school in Mexico after the sixth grade; he neither
speaks nor reads English.

                                      - 8 -
the legal status of workers at the site.   Eli Vera, a TEC liaison

officer, routinely visited the fields in which Garcia's workers

were working, doing so at least weekly. While making these visits,

he normally determined that all, or almost all, of Garcia's workers

were legally employed.     On those occasions when illegal workers

were found at a Garcia site, they numbered four to five out of 100

to 150 workers.

                                 1.

     At the hearing, the Department presented only two witnesses

who were not authorized to work in the United States and had worked

for Garcia:   Manuel Ortiz, on April 11, 1985; Ricardo Alvillar, on

April 10-11, 1985.11   Together, their testimony was proof that two

illegal workers had been employed by Garcia for a collective total

of three days.    Alvillar had no contact with Garcia; it appears

doubtful that Ortiz did.

     In addition, Garcia admitted on cross that one of his foremen,

Mr. Perea, was an illegal worker.       The Secretary states that

"Garcia admitted ... that he was aware that Perea was a citizen of

Mexico and ... was not authorized to work in the U.S. at the time

11
     Ricardo Anaya, the Department's compliance officer who
conducted the investigation, testified that, in April and May 1985,
he took statements from ten persons being deported, whom he claimed
had worked for Garcia: seven on April 11 (including Alvillar and
Ortiz); two on May 1; and three on May 2. Of those ten, Anaya
testified that only Alvillar and Ortiz could be located in order to
testify; the Department offered the statements of the other eight
into evidence. Garcia objected because, among other things, a pre-
hearing order required the exchange of proposed exhibits, but the
Department had not provided the statements to Garcia; the ALJ
sustained the objection. In its offer of proof, the Department
stated that the statements "would be cumulative" of Alvillar's and
Ortiz's testimony.

                                - 9 -
he   worked    for   Garcia."     Although   technically    accurate,   this

statement overreaches.          Garcia was asked:     "Are you aware that

[Perea] is not authorized to seek employment in the United States?"

(Emphasis added.)      Garcia answered affirmatively.        This falls far

short of establishing that Garcia was aware of Perea's illegal

status when he employed him.            In fact, the ALJ found that "the

evidence does not establish that [Garcia] knew, at the time Perea

worked with him, that Perea could not lawfully accept employment."12



      Thus,     through   these   witnesses,    the   Department   provided

evidence that, at most, three individuals employed by Garcia were

not authorized to seek employment in the United States, but offered

no evidence that Garcia hired them with knowledge of their illegal

status.

                                        2.

      The remaining evidence offered to prove violation of the Act

was documentary.       Several documents were admitted by stipulation,

but Garcia reserved the right to make objections as to weight or

purpose.      Three documents are relevant to our review.

      The     first,   exhibit     5,    consisted    of   approximately 40

Immigration and Naturalization Record of Deportable Alien forms (I-

213s), all dated April 11, 1985.         The I-213s reflect that they are

prepared by Border Patrol officers prior to deporting illegal

12
     Indeed, the record supports the inference that Perea was no
longer working for Garcia. Garcia affirmed that Perea "was" one of
his workers, suggesting that Perea no longer is. This would be
consistent with Garcia's standard operating procedure upon
discovering illegal workers in his employ: "let them go."

                                    - 10 -
aliens.   Most of the I-213s list Garcia as the employer of the

deportable alien, a few do not, and some are illegible.13        No

evidence explains these forms in any meaningful respect; we cannot

discern from them how they were generated, or how the reference to

Garcia came to be on them.

     The second document is exhibit 6, compiled by Ricardo Anaya,

who conducted the investigation.   It consists of a series of dates

of deportation, with the names of persons deported (total of

approximately 1800) on those dates.    (As discussed infra, the same

name is often listed under more than one date.)        According to

Anaya, the exhibit is a "daily summary ... made upon reviewing the

[deportation] logs kept by the border patrol station", with the

names being those shown in the logs as employed by Garcia.     But,

once again, we have no evidence clarifying the means by which these

names came to be associated with Garcia.

     The third document, exhibit 7, also prepared by Anaya, lists

the 297 names that appear in exhibit 6 more than once.   Of course,

this list is not any more probative of Garcia's alleged knowing



13
     Apparently, the original exhibit has been lost; nevertheless,
the contents are not in dispute. The Secretary acknowledges that
two of the I-213s did not list Garcia as the employer. Also, she
recognizes that at least 14 of the I-213s were illegible. In any
event, we can infer the essential contents of the exhibit by
referring to copies of the two I-213s provided in the record
excerpts.

     Likewise, it appears that exhibits 6 and 7, discussed infra,
have been lost. But, copies of the first page of each are in the
record excerpts.   Once again, the contents are not in dispute;
conflict only arises concerning the weight to be given the
exhibits.

                              - 11 -
employment of illegal workers than the list from which it was

derived.

         In evidence was a certification by a Border Patrol officer

that there are I-213s for all of the names on the lists.                 But, we

agree with the ALJ that the lists do not prove that Garcia

knowingly employed illegal aliens.              The certification does not

explain how an I-213 is generated; in other words, it does not add

any explanation to the content of the I-213. Perhaps, as the

district court noted, the certifying officer could have testified

as to how the I-213s are generated.           Such an explanation might have

added to the weight we attach to these documents.

     Although the Secretary presents contentions regarding the

admissibility of these documents,14 few are advanced to support the

weight to be given them.         Apparently referring to the I-213s, the

Secretary asserts that the Department was not required to "produce

the author of the item".         Obviously, we agree; the Department does

not have to produce the border agent who created each I-213 because

of, among other things, the "improbability that he would recall the

facts surrounding any one particular deportation."                  See United

States     v.   Quezada,   754     F.2d   1190,    1196    (5th   Cir.    1985).

Nevertheless,     the   Department    should      have   called   someone   with

sufficient knowledge to give "testimony relating to the procedures

followed in keeping the records".          See id.




14
     We do not doubt their admissibility; Garcia stipulated to
that.

                                     - 12 -
      Finally, the Secretary maintains that the "trustworthiness and

probative weight of these documents is assured by ... the integrity

of   public   officials."      More    specifically,       she   contends   that

"[t]here is no indication ... that the ... officials involved were

untrustworthy or incompetent in preparing these documents, nor is

there any other reason to doubt the trustworthiness or accuracy of

these records."       Once again, we do not doubt this; but, simply

stated, we do not know either how the I-213s were generated or how

Garcia came to be associated with the deportable aliens identified

on them.      For example, did a Border Patrol agent engage in a

thorough investigation of the deportee's employment history in this

country and make an independent finding that Garcia had employed

the illegal worker; or, did the agent put Garcia's name on the I-

213 because an illegal alien said that he worked for him?                 In the

absence of any factual basis in the record for determining the

means   by    which   Garcia   has   been     identified   on    Border   Patrol

documents as an employer of deportable aliens, we agree with the

ALJ that Anaya's testimony fell "short of making the necessary

connection" between the I-213s and employment of illegal workers by

Garcia.15

15
     The Secretary once again cites Counterman, claiming that it
compels us to reverse the district court.        Specifically, she
asserts that in Counterman, "an ALJ based his holding that a [Farm
Labor Contractor] had habitually hired illegal aliens solely on the
testimony of one illegal alien witness and on [Border Patrol] logs
and summaries introduced into evidence and testified to by a
compliance officer."    Counterman, however, does not thoroughly
discuss the testimony surrounding the introduction of the logs and
summaries. We simply do not know what testimony was introduced to
explain them. In any event, it goes without saying that we cannot
look to the records in other cases to determine whether the

                                     - 13 -
                                       3.

      We have serious doubts that the preceding evidence, offered by

the Secretary, produced "more than a mere scintilla" of proof that

Garcia employed illegal workers with knowledge.             See Spellman, 1

F.3d at 360.     In any event, there was additional evidence before

the ALJ, involving some credibility determinations.

      When evaluating whether substantial evidence supports the

Secretary's conclusion, the "significance" of the ALJ's contrary

conclusion "depends largely on the importance of credibility in the

particular case."      Universal Camera, 340 U.S. at 496; see also

Texas World Svc. Co. v. NLRB, 928 F.2d 1426, 1431 (5th Cir. 1991).

The   Secretary     does     not      dispute   the    ALJ's      credibility

determinations; rather, she disagreed with the probative weight the

ALJ afforded the documentary evidence.           Accordingly, we attach

particular significance to the ALJ's credibility determinations in

this case.

      Garcia testified that he never knowingly employed illegal

workers, and that when he became aware that one was in his employ,

he would fire the worker.            The ALJ determined that Garcia was

"believable",    and   we   attach    significance    to   this   credibility

determination.

      In addition, Vera, the TEC liaison officer, testified that he

believed that Garcia never knowingly employed an illegal worker.

Because Vera, a state officer, visited the fields in which Garcia's



Secretary's conclusion in this case is supported by substantial
evidence.

                                     - 14 -
workers   were    employed    at     least     weekly   for   the   purpose   of

ascertaining those workers' legal status, we attach particular

weight to this testimony.          The ALJ stated that he gave "special

weight to Mr. Vera's testimony for the reason that he had no vested

interest in the outcome of this proceeding other than his own

reputation in this farming community."               The ALJ questioned Vera

extensively; obviously, the ALJ's credibility determination is

significant.

     Because     the   ALJ   found    Vera     and   Garcia   credible,   their

testimony detracts from the weight to be afforded the evidence

presented by the Department.         See Universal Camera, 340 U.S. at 488

("The substantiality of evidence must take into account whatever in

the record fairly detracts from its weight."); Texas World Svc.,

928 F.2d at 1431.      In sum, canvassing the record as a whole, as we

must, see Universal Camera, 340 U.S. at 488, we hold that the

Secretary's    conclusion    that     Garcia    knowingly     employed   illegal

workers is not supported by substantial evidence.

                                      III.

     For the foregoing reasons, the judgment is

                                   AFFIRMED.




KING, Circuit Judge, dissenting:

     I concur in the majority's interpretation of 29 U.S.C. § 1816

(repealed 1986).        However, because I believe that the record

contains substantial evidence in support of the Secretary of


                                     - 15 -
Labor's determination that Garcia knowingly hired or recruited

aliens not authorized to work in the United States, I respectfully

dissent.

                         Statutory Interpretation

      The threshold issue in this case is whether we must accept the

Secretary's interpretation of 29 U.S.C. § 1816 (repealed 1986) and

its accompanying regulations.             The Secretary argues that a farm

labor   contractor      violates    §     1816(a)      if   he    knows     or   should

reasonably    know   that   he     is    hiring     or    recruiting        aliens   not

authorized to work in this country.                Section 1816(a) by its own

terms   appears   to    make     actual    knowledge        that      one   is   hiring

unauthorized aliens an element of a violation.                        Section 1816(b)

provides that a farm labor contractor can comply with § 1816(a) by

examining and relying in good faith on certain prescribed documents

evidencing that a prospective employee is entitled to work in this

country.    As the majority correctly points out, however, § 1816(b)

does not purport to be the only way for a farm labor contractor to

comply with § 1816(a).      The Secretary argues that a presumption of

knowledge should arise if a farm labor contractor is found to be

employing    unauthorized      aliens      in     an     area    in    which     illegal

immigration of agricultural workers is widespread, and that this

presumption should be rebuttable only by compliance with § 1816(b)

and   its   companion    regulation,       29    C.F.R.     §    500.59     (repealed)

(prescribing the documents a farm labor contractor may use to

verify employment status).




                                        - 16 -
     I agree with the majority that, in a proceeding brought under

§ 1816, the burden of proving actual knowledge remains on the

government at all times.            In the first place, this reading is

consistent with the plain language of the statute, while the

Secretary's interpretation is not.                  The case is analogous to

Contract Courier Servs., Inc. v. Research and Special Programs

Admin., 924 F.2d 112 (7th Cir. 1991).               That case also involved a

statute that proscribed certain conduct if done "knowingly."                  Id.

at 113.   The Department of Transportation, however, promulgated a

regulation that included "should have known" within the meaning of

"knew,"   and   enforced      its   regulation      against   Contract   Courier

Services.     Id.     The Seventh Circuit reversed, holding that the

statute     prohibited       the    Department       of    Transportation    from

"obliterat[ing] any distinction between knowledge and ignorance."

Id. at 114.     The court also observed that "knew" and "should have

known" may be equated if some rule of law penalizes a person's

failure to make inquiry.           Id.    No such rule existed in that case,

however, and no such rule has been called to our attention in the

instant case. This is the key distinction between the instant case

and Counterman v. United States Dep't of Labor, 776 F.2d 1247,

1248-49 (5th Cir. 1985), in which we emphasized that a regulation

specifically imposed an affirmative duty of inquiry on farm labor

contractors     and   that    Counterman      had    not   complied   with   that

regulation.     The regulation implementing § 1816(b) did not impose

such an affirmative duty.




                                         - 17 -
      The successor statute to § 1816 also sheds some light on the

proper interplay between §§ 1816(a) and (b).           Section 1816 was

replaced by 8 U.S.C. § 1324a of the Immigration Reform and Control

Act (IRCA).    IRCA, much like § 1816 before it, generally prohibits

an employer from knowingly hiring an unauthorized alien.           8 U.S.C.

§ 1324a(a)(1)(A).        Good faith compliance with the prescribed

verification procedures is an "affirmative defense" to a charge

that one has hired or recruited unauthorized aliens.           8 U.S.C. §

1324a(a)(3).16       The legislative history explains how the IRCA

affirmative defense works as follows.        If an employer proves that

he   checked   the   required   documents   and   retained   the   attested

verification forms, he has established a "rebuttable presumption"

that he did so in "good faith."     At this point the burden shifts to

the government to prove lack of good faith.

      It should be noted that this is not an absolute defense,
      and the government could rebut the presumption by
      offering proof that the documents did not reasonably
      appear on their face to be genuine, that the verification
      process was pretextual, or that the employer . . .
      colluded with the employee in falsifying documents, etc.
           Of course, even if the employer does not seek to
      establish an affirmative defense, the burden of proving
      a violation of the hiring, recruitment, or referral
      prohibition always remains on the government--by a
      preponderance of the evidence in the case of civil
      penalties and beyond a reasonable doubt in the case of
      criminal penalties.

H.R. Rep. No. 99-682(I), 99th Cong., 2d Sess. 57 (1986), reprinted

in 1986 U.S.C.C.A.N. 5649, 5661.      The close similarity between the


16
  Interestingly, farm labor contractors are given special treatment
under IRCA. Compliance with the prescribed verification procedures
is   now   mandatory   for   such   employers.      8   U.S.C.   §§
1324a(a)(1)(B)(ii), 1324a(b).

                                  - 18 -
scheme set forth in IRCA for most employers and that set forth in

§ 1816 for farm labor contractors strongly suggests that they

should operate the same way.   Thus, as the majority concludes, the

burden of proving that Garcia had actual knowledge that he was

hiring unauthorized aliens remained at all times on the government.

                       Substantial Evidence

     I disagree with the majority's conclusion that there is no

substantial evidence in the record to support the Secretary's

finding that Garcia knowingly hired unauthorized aliens.        The

majority concedes that evidence exists to support a finding that

Garcia hired illegal aliens.   What the records lacks, according to

the majority, is substantial evidence that he did so knowingly.   I

turn first to the evidence that Garcia hired illegal aliens because

the sheer volume of that evidence, in my view, raises an inference

that he did so knowingly. Under the substantial evidence standard,

the Secretary was entitled to draw that inference, and under the

applicable standard of appellate review, we should defer to her

decision to do so.

     Two witnesses testified at the hearing before the ALJ that

they were Mexican citizens not authorized to work in this country

and that they had worked for Garcia.    Texas Employment Commission

Agent Eli Vera also testified that he repeatedly found unauthorized

aliens working for Garcia (up to four or five on any given day) and

that he informed Garcia of his discoveries on multiple occasions.

     The exact number of unauthorized aliens that Garcia actually

hired during the period in question is more difficult to discern.


                               - 19 -
By stipulation, several government exhibits were admitted into

evidence.   One exhibit was a collection of some forty I-213 forms,

all dated April 11, 1985, many of which listed Garcia as the

employer of deportable aliens.           Another was a list of names of

aliens deported during the period of the investigation totalling

some 1800 names in all.    The person who compiled the list testified

that the list included the names of only those deported aliens

whose I-213 forms listed Garcia as their employer.           A second list

showed the names of those unauthorized aliens whose names appeared

on the first list more than once--almost 300 names.              The majority

gives slight credence to these exhibits because the government did

not offer evidence to explain how the agents who prepared the I-213

forms determined that Garcia was the employer of the particular

alien being deported.      Admittedly, this evidence would carry far

more weight if it were supported by the independent investigation

of a border patrol agent than if it were merely the product of a

brief interrogation of an illegal alien just prior to deportation.

Without such support, it is difficult to attach a great deal of

weight to the Secretary's documentary evidence.            Nevertheless, I

believe   that   a   reasonable   mind    could   accept   the   documentary

evidence as adequate to support the conclusion that Garcia employed

numerous unauthorized aliens, and that he in fact employed many of

them on more than one occasion.          These conclusions in turn permit

the inference that Garcia employed unauthorized aliens knowingly.17

17
  Many courts, it may be noted, accept "willful ignorance" as the
equivalent of knowledge. See, e.g., Garcia v. Donovan, 101 Lab.
Cas. ¶ 34,574 (CCH) (M.D. Fla. 1984) (interpreting § 1816). See

                                  - 20 -
     Thus, on the whole, I believe that substantial evidence

supports the Secretary's finding in this case.            The substantial

evidence standard, it is well known, is a very low standard indeed.

It requires evidence that amounts to more than a mere scintilla,

but less than a preponderance. Additionally, under the substantial

evidence standard we may not reweigh the evidence, nor may we try

the issues de novo.         Conflicts in the evidence are for the

Secretary to resolve, not the courts.      Spellman v. Shalala, 1 F.3d

357, 360 (5th Cir. 1993).        In any event, the conflict in the

evidence in the instant case is not great.           Garcia denied any

knowledge of the fact that he was employing unauthorized aliens, a

denial belied by the evidence that he actually employed such aliens

in droves.   If the government's evidence is accepted that Garcia

employed   some   1800   unauthorized   aliens   during   the    period   in

question, this amounts to some 36% of his total work force during

that time.   The Secretary was entitled to trust the documentary

evidence as circumstantial evidence of Garcia's knowledge over

Garcia's self-serving denial.     The Secretary was also entitled to

discount Vera's testimony that Garcia lacked such knowledge.          Even

if we take Vera's credibility for granted, he could not have had

direct knowledge of Garcia's mental state, and in fact he testified

only that he had no reason to believe that Garcia had ever

knowingly or intentionally employed any illegal aliens.                   The




generally   Robin  Charlow,   Willful   Ignorance          and    Criminal
Culpability, 70 Tex. L. Rev. 1351 (1992).

                                 - 21 -
Secretary could reasonably have resolved the conflict in the

evidence against Garcia.

     As the majority notes, the disagreement between the ALJ and

the Secretary does not modify in any way the substantial evidence

standard.    See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496

(1951).     Although Garcia's credibility was certainly a factor in

the ALJ's decision that the Secretary could not lightly dismiss,

she was entitled to discount it in light of the conflict between

Garcia's testimony and the "obvious inferences from the remainder

of the record."     Delchamps, Inc. v. NLRB, 588 F.2d 476, 480 (5th

Cir. 1979).      The Secretary is not bound to accept an ALJ's

credibility determination over conflicting evidence, particularly

when the ALJ relies on "testimony given by an interested witness,

relating to his own motives."       Russell-Newman Mfg. Co. v. NLRB, 407

F.2d 247, 249 (5th Cir. 1969).               Thus, the ALJ's credibility

determination as to Garcia was not binding on the Secretary in the

instant case.    The ALJ's credibility determination as to Vera was

certainly not binding; Vera's testimony, after all, was necessarily

limited to his own beliefs about Garcia's knowledge.

     Because a reasonable mind could accept the evidence presented

by the government as adequate to support the conclusion reached by

the Secretary,     her   findings    should    be   affirmed.   Selders   v.

Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).




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