                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-15-1997

Getahun v. Ofc Chief Admin
Precedential or Non-Precedential:

Docket
96-3531




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Recommended Citation
"Getahun v. Ofc Chief Admin" (1997). 1997 Decisions. Paper 217.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/217


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Filed September 15, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3531

ZELLEKA GETAHUN,
       Petitioner

v.

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING
OFFICER OF THE EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW OF THE UNITED STATES
DEPARTMENT OF JUSTICE

       DUPONT MERCK PHARMACEUTICAL
       COMPANY,
       Intervenor-Respondent

On Petition for Review of Final Order of the
Office of the Chief Administrative Hearing Officer
of the Executive Office for Immigration Review
of the United States Department of Justice
(OCAHO Case No. 94B 00187(1996))

Submitted Pursuant to Third Circuit LAR 34.1(a)
July 24, 1997

Before: SCIRICA and NYGAARD, Circuit Judges
and DEBEVOISE, Senior District Judge*

(Filed: September 15, 1997)



_________________________________________________________________
*Honorable Dickinson R. Debevoise, United States Senior District Judge
for the District of New Jersey, sitting by designation.



       ANN M. BADMUS, ESQUIRE
       260 Chapman Road, Suite 100C
       Newark, Delaware 19702

        Attorney for Petitioner

       ROBERT J. SMITH, ESQUIRE
       Morgan, Lewis & Bockius
       1800 M Street, N.W.
       Washington, D.C. 20036
        Attorney for Intervenor-Respondent

OPINION OF THE COURT

DEBEVOISE, Senior District Judge.

Petitioner, Dr. Zelleka Getahun, filed a complaint with
the United States Department of Justice's Executive Office
for Immigration Review, Office of the Chief Administrative
Hearing Officer ("OCAHO") pursuant to 8 U.S.C.
S 1324b(d)(2), charging that her former employer,
Intervenor-Respondent DuPont Merck Pharmaceutical
Company ("DuPont Merck"), committed "document abuse"
in violation of 8 U.S.C. S 1324b(a)(6) when it terminated her
employment on October 27, 1993. The Administrative Law
Judge to whom the case was assigned granted DuPont
Merck's motion for summary decision, holding that Dr.
Getahun was not authorized to accept employment in the
United States and thus lacked standing to assert a claim
under S 1324b. Dr. Getahun filed a petition for review in
this Court.

We will reverse the order of the ALJ dismissing Dr.
Getahun's complaint and remand the case for further
proceedings in accordance with this opinion.

A. The Facts

On January 10, 1991 Dr. Getahun began employment
with DuPont Merck. She had previously applied for political
asylum and had received an employment authorization
document which had a November 1991 expiration date. At

                                2



the time of her employment with DuPont Merck she
completed the mandatory INS Form I-9 and submitted her
Maryland driver's license and her Social Security number
card as evidence of her employability. She attested on the
Form I-9 that she was an alien authorized by the INS to
work in the United States but did not complete the blank
space calling for the expiration date of her employment
authorization.

On October 25, 1991 Dr. Getahun's application for
political asylum was granted. Pursuant to 8 C.F.R.
S 208.20, as in effect in 1991, employment authorization
was automatically granted or continued for persons granted
asylum:

       When an alien's application for asylum is granted, he
       is granted asylum status for an indefinite period.
       Employment authorization is automatically granted or
       continued for persons granted asylum or withholding of
       deportation unless the alien is detained pending
       removal to a third country. Appropriate documentation
       showing employment authorization shall be provided
       by the INS.

However, 8 C.F.R. S 274a.12 provides that an alien
granted asylum "who seeks to be employed in the United
States, must apply to the Service for a document evidencing
such employment authorization."

In November 1991 Dr. Getahun informed DuPont Merck's
Human Resources Department that her application for
political asylum had been granted. A department
representative informed her that DuPont Merck would
assist her in adjusting her status to permanent resident.
Dr. Getahun applied neither for permanent residency nor
for a new EAD based upon the grant of political asylum.

In October 1993 DuPont Merck's Human Resources
Department, in conjunction with its Legal Department,
instituted an internal audit of the Form I-9 of each
employee to ensure that it was in compliance with the
Immigration Reform and Control Act of 1986 ("IRCA"), 8
U.S.C. S 1324. Dr. Getahun's Form I-9 was among those
found to be defective. It failed to set forth the date on which
her EAD expired.

                                3



On October 21 Mary Beth Desmond of DuPont Merck's
Human Resources Department brought this to Dr.
Getahun's attention. The next day Dr. Getahun met with
other members of the department. The parties' accounts of
what was said differ. Dr. Getahun asserts that she was
informed that she had to obtain a receipt evidencing her
application for permanent residence and that if she did not
provide such a receipt by October 27, 1993 she would be
terminated.

Whatever the substance of the conversation, on October
25, 1993 Dr. Getahun gave a certified copy of the
Memorandum of Decision and Order granting her political
asylum to the Human Resources Department. She also
went to the INS office in Philadelphia to apply for
permanent residence. The INS clerk would not accept her
application because she did not have her birth certificate
from Ethiopia. However, on the advice of the clerk she
applied for an EAD based upon her political asylum status
and obtained a document fee receipt. On the morning of
October 27 Dr. Getahun returned to the INS with her birth
certificate and filed for permanent residence, obtaining the
appropriate document fee receipt.

Also on October 27 DuPont Merck's Human Resources
Department called Dr. Getahun to schedule an
appointment. When Dr. Getahun appeared she provided the
fee receipts for the applications for permanent residence
and for the EAD. Nevertheless the Department proceeded
with the termination.1 It provided Dr. Getahun with a letter
of termination which stated that even though she had
presented a valid U.S. driver's license and Social Security
card containing no limitation on engaging in authorized
employment, because her interim EAD had expired,
"DuPont Merck is required by law to ask you for additional
documents to establish your eligibility to engage in lawful
employment with DuPont Merck."
_________________________________________________________________

1. Six weeks after her termination Dr. Getahun received her EAD
evidencing her work authorization pursuant to her asylum status, and
on April 14, 1994 she was granted permanent residence, effective
February 1, 1993.

                                4



DuPont Merck rejected Dr. Getahun's two document
receipts evidencing her application for permanent residency
and for an asylum-based EAD purportedly on the advice of
an official at the INS office of the General Counsel in
Washington, D.C., with whom DuPont Merck's legal counsel
had communicated. The letter of termination stated that
DuPont Merck had been "advised that an employer may
accept a receipt for a replacement document if the employee
completes section 1 on Form I-9 by indicating either that he
or she is a U.S. permanent resident or a foreign national
authorized to work until a specified date." The letter further
stated, in effect, that since Dr. Getahun could not provide
an expiration date of her work authorization, she could not
rely on the receipts. As will be described below, DuPont
Merck's rationale with respect to the document receipts
constituted a misapplication of the INS legal memorandum
upon which it apparently relied and an erroneous
interpretation of the applicable law and regulations.

B. The ALJ's Decision

Dr. Getahun filed a charge of document abuse against
DuPont Merck with the United States Department of
Justice's Office of Special Counsel ("OSC") as permitted by
8 U.S.C. S 1324b(b)(1). The OSC decided not to issue a
complaint, finding that DuPont Merck had not violated the
provisions of IRCA because Dr. Getahun, as an asylee, had
failed to timely file for and obtain a required work
authorization document. Thereupon Dr. Getahun filed a
complaint against her former employer with the OCAHO as
permitted by 8 U.S.C. S 1324b(d)(2).

Each side filed a Motion for Summary Decision supported
by memoranda and affidavits. The rules of practice and
procedure for administrative hearings before ALJs in cases
involving allegations of unfair immigration related
employment practices provide for entry of a summary
decision if the pleadings, affidavits, material obtained by
discovery or otherwise, show that there is no genuine issue
as to any material fact. 28 C.F.R. S 68.38(c).

The ALJ noted that 8 U.S.C. S 1324 b(a)(1), which defines
unfair immigration related employment practices, excludes

                                5



from its protections an unauthorized alien, as defined in
S 1324a(h)(3). An "unauthorized alien" is defined in
S 1324a(h)(3) as an alien who "is not ... either (A) an alien
lawfully admitted for permanent residence, or (B)
authorized to be so employed by this chapter or by the
Attorney General."

Dr. Getahun was not admitted for permanent residence
at the time DuPont Merck terminated her employment. The
ALJ found that in addition Dr. Getahun was not authorized
to be employed in the United States. He reasoned that
"[o]nce [Dr. Getahun's] interim EAD expired in November
1991, she was affirmatively obligated to obtain a new EAD.
... It is undisputed that [Dr. Getahun] did not apply for or
receive a replacement document evidencing her work
authorization. Therefore, as she lacked INS-issued
documentation evidencing her work authorization, she was
not eligible to accept employment in the United States, and
thus was not eligible for the document abuse protections of
IRCA set forth at 8 U.S.C. S 1324b(a)(6)."

On the ground that, lacking work authorization, Dr.
Getahun did not have standing to proceed with an
immigration related employment discrimination claim, the
ALJ granted DuPont Merck's motion for summary decision
but denied its request for attorneys' fees. This petition for
review followed.

C. Decision

The OCAHO had jurisdiction of this case pursuant to 8
U.S.C. S 1324b(d)(2). This court has jurisdiction to review
the order dismissing Dr. Getahun's complaint pursuant to
8 U.S.C. S 1324b(i)(1).

The standards governing the entry of summary judgment
under Fed.R.Civ.P. 56(c) in federal court cases are applied
in determining whether summary decision under 28 C.F.R.
S 68.38(c) is appropriate in OCAHO cases. Alvarez v.
Interstate Highway Construction, 3 OCAHO 430 at 17
(1992). Consequently, as in the case of a review of a district
court's granting a motion for summary judgment, we
exercise plenary review of the OCAHO decision resolving a
motion for summary decision. Summary judgment is

                                6



appropriate only when, after consideration of the evidence
in the light most favorable to the non-moving party, no
genuine issue of material fact remains in dispute and the
moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
In this petition for review there is no issue of material fact.
Rather, the question is whether on October 27, 1993 under
the applicable statutes and regulations Dr. Getahun was
authorized to be employed in the United States. OCAHO's
conclusion that she was not so authorized is a question of
law subject to plenary review.

Dr. Getahun seeks relief under 8 U.S.C. S 1324b(a)(1) and
S 1324b(a)(6). Section 1324b(a)(1) provides in general terms
that, except as to unauthorized aliens, "[i]t is an unfair
immigration-related employment practice ... to discriminate
against any individual with respect to hiring ... of the
individual for employment or the discharging of the
individual from employment...."

Under S 1324b(a)(6) it is an unfair immigration related
employment practice relating to the hiring of individuals to
request "more or different documents than are required
under [S 1324a(b)] or refusing to honor documents tendered
that on their face appear to be genuine...."

The ALJ concluded that Dr. Getahun was not entitled to
assert a claim under these provisions because she was an
"unauthorized alien", i.e., an alien not authorized to work.
We apply a de novo standard of review to an agency's
conclusions of law, although some deference is given to an
agency's reasonable construction of a statute it is charged
with administering. Mester Mfg. Co. v. I.N.S., 879 F.2d 561
(9th Cir. 1989). No amount of deference, however, would
permit the conclusion that an alien who had been granted
asylum and who had applied for (but had not received) an
EAD was not authorized to work.
The ALJ's conclusion that Dr. Getahun was not
authorized to work in the United States on October 27,
1993 because she had not applied for a renewal of her
interim EAD when it expired in November 1991, failed to
give effect to the October 25, 1991 order granting her
application for political asylum. Pursuant to 8 C.F.R.

                                7



S 208.20 (as it read in 1991), "[w]hen an alien's application
for asylum is granted, he is granted asylum status for an
indefinite period. Employment authorization is automatically
granted or continued for persons granted asylum...."
(Emphasis added.) It is true that 8 C.F.R. S 274a.12
requires that an alien granted asylum who seeks to be
employed must apply for an EAD. This is different from an
interim EAD granted to a person who has an application for
asylum pending.

By the time Dr. Getahun's interim EAD expired in
November 1991, her application for asylum had already
been granted. By virtue of the grant of asylum her
employment authorization was "automatically" granted or
continued. There would have been no reason thereafter to
apply for a replacement of her interim EAD when it expired
the following month. The ALJ was clearly in error when he
ruled that Dr. Getahun was not authorized to be employed
because she "did not apply for or receive a replacement"
interim EAD.2

Dr. Getahun argues with considerable persuasiveness
that 8 C.F.R. S 208.20 as it existed in 1991 was self-
executing and that it provided employment authorization
_________________________________________________________________

2. The ALJ's rationale would have been applicable only if Dr. Getahun's
application for asylum had not been granted. In that situation Dr.
Getahun would have been an alien who had filed an application for
asylum which had not been decided and who "must apply for work
authorization." 8 C.F.R. S 274a.12(c)(8). Only "[i[f authorized" could
such
person accept employment. In that case "authorization ... shall
automatically terminate upon ... [t]he expiration date specified [by the
EAD]." 8 C.F.R. S 274a.14(a)(1)(i). However, at the time in question these
provisions had no relevance to Dr. Getahun, because she was no longer
an applicant for asylum "whose application has not been decided."

The OSC who initially received Dr. Getahun's complaint reached his
determination on a different ground from that of the ALJ, but it was
equally meritless. He recognized that Dr. Getahun's application for
asylum had been granted but rejected her claim because "she did not
timely apply for the [EAD]." There is nothing in the regulations either as
they existed in 1991 or after the amendment of S 208.20 which imposes
time limitations for applying for an EAD after being granted asylum. The
ALJ appropriately did not rely on this ground.

                                8



whether or not the asylee applied for a new EAD. 3
According to this view, authorization was automatic (as
S 208.20 specifically stated) and an EAD was simply
evidence of such authorization. However, this question need
not be addressed, because before DuPont Merck terminated
Dr. Getahun she had applied for a new EAD as required by
8 C.F.R. S 274a.12. She had received a document receipt
evidencing the application, and she presented the
document receipt to DuPont Merck.

In accordance with 8 C.F.R. S 274a.2(b)(vi), the Form I-9
states that "[i]f employees are authorized to work, but are
unable to present the required document(s) within three
business days, they must present a receipt for the
application of [sic] the document(s) within three business
days and the actual document(s) within ninety (90) days."
Dr. Getahun fully met the requirements of the option of
presenting a document receipt in lieu of an EAD. She was
authorized to work by virtue of S 208.20, and she presented
a receipt for the application for an EAD. By the same token
she had met any condition imposed by S 208.20 that she
apply for an EAD, and she had met the requirement of
S 274a.12 that she apply for an asylee EAD.

DuPont Merck's reason for demanding further
documentation - the actual EAD - is meritless. It apparently
relied on an undated communication written by R. Michael
Miller, Acting Assistant Commissioner, to John L. Shaw,
Assistant Commissioner Investigations (App. at 81). The
question had been raised whether in the case of an F-1
student who had applied for employment authorization, a
fee receipt was an acceptable document for employer
verification purposes. Mr. Miller's response was that "a fee
_________________________________________________________________

3. The language of S 208.20 has been amended to impose an obligation
(without any time limitation) upon an asylee who intends to be employed
to apply for an EAD:

        An alien granted asylum and eligible derivative family members
       are authorized to be employed in the United States pursuant to
       S 274a.12(a)(5) of this chapter and if intending to be employed,
must
       apply to the INS for a document evidencing such authorization. The
       INS shall issue such document within 30 days of the receipt of the
       application therefor.
                                9



receipt is acceptable ... only if the alien indicates that
he/she is authorized to accept employment in the United
States at the time of hire." On the other hand, "an alien
seeking an initial period of employment authorization is not
authorized to work in the United States nor to present a fee
receipt as evidence of work authorization for purposes of
employer verification." This advice was in accordance with
the provision of 8 C.F.R. S 274a.2(b)(vi) permitting use of
document receipts, which states that "[t]his section is not
applicable to an alien who indicates that he or she does not
have work authorization at the time of hire."

DuPont Merck erroneously equated Dr. Getahun with the
student who was applying for authorization to work, an
authorization which might or might not be granted. In such
a situation a fee receipt would be inadequate. Dr. Getahun,
on the other hand, had an absolute right to work, having
been granted asylum and having applied for an EAD.
DuPont Merck was required to accept a document receipt in
lieu of the applied for EAD.

To justify its termination of Dr. Getahun's employment
DuPont Merck relies upon its continuing obligation under
applicable statutes and regulations to verify the
employment eligibility of alien employees. Initial verification
of employment eligibility is accomplished through the
completion of INS Form I-9. 8 C.F.R. S 274a.2(a). This form
contains two sections. The top section requires that the
employee set forth information about herself including, if
an alien, the expiration date of any employment
authorization. The bottom section of the form requires the
employee to produce and the employer to examine either a
List A document or one document from List B and one
document from List C. At the time of her employment in
January 1991 Dr. Getahun did not provide the expiration
date of her EAD at the top of the form. She provided a
Maryland driver's license, a List B document, and she
provided an unrestricted Social Security number card, a
List C document.

IRCA requires that employers verify the identity and
employment authorization of all employees hired after
November 6, 1986. IRCA makes it unlawful to continue to
employ an alien knowing that the alien is or has become

                                10
unauthorized to accept employment. 8 U.S.C. S 1324a(a)(2).
An employer is obligated to reverify the employment
eligibility of its employees not later than the date the work
authorization expires. 8 C.F.R. S 274a.2(b)(vii). Employers
are subject to penalties for failure to comply with their
obligation to verify employment eligibility in the manner
provided by the statute and regulations. 8 U.S.C.
SS 1324a(e)(4), 1324a(e)(5), 1324a(f).

In light of these statutory responsibilities DuPont Merck
was fully authorized, in fact required, to question Dr.
Getahun and seek supplemental documentation when,
during the course of its 1993 internal employee audit, it
learned that the Maryland driver's license which Dr.
Getahun had originally produced had expired and, in
particular, when it learned that the interim EAD pursuant
to which she had been employed had expired in 1991. Dr.
Getahun responded to these inquiries and produced
documentation establishing that she was authorized to
accept employment. The fact that DuPont Merck was
performing its obligation to verify employment eligibility did
not insulate it from a charge of document abuse.

The ALJ never reached the question whether DuPont
Merck's actions constituted document abuse. He stopped
after arriving at the clearly erroneous conclusion that Dr.
Getahun was not authorized to be employed and that
therefore Dr. Getahun did not have standing to bring an
action pursuant to 8 U.S.C. S 1324b(d)(2). There are facts in
the record which would support a finding that the refusal
to accept the documents which Dr. Getahun presented
constituted document abuse in violation of 8 U.S.C.
S 1324b(a)(6). However, this is an issue which the OCAHO
should address in the first instance.

Conclusion

For the reasons set forth above the order dismissing Dr.
Getahun's complaint will be reversed and the case
remanded to the OCAHO for reconsideration of Dr.
Getahun's motion for summary decision and for further
proceedings consistent with this opinion.

                                11



A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                12
