Before: Mary M. Schroeder and Robert R. Beezer, Circuit Judges, and William W Schwarzer,* District Judge.
The opinion of the court was delivered by: Schroeder, Circuit Judge
Petition to Review a Decision of the Immigration and Naturalization Service
Argued and Submitted September 12, 1997--Seattle, Washington
This is a petition for review of a decision of an Administrative Law Judge in the Executive Office of Immigration Review. The ALJ ruled that Petitioner, Robison Fruit Ranch, violated the "document abuse" provision of the Immigration Reform and Control Act (IRCA), 8 U.S.C. S 1324b(a)(6), as it existed before its 1996 amendment.
The ALJ held that Robison violated the Act by requesting specific documents from job applicants when completing Immigration and Naturalization Service Form I-9 for verification of employment eligibility. Robison asked both alien and citizen applicants to show two items of identification when a single document, such as a passport or alien registration card, would have sufficed. The ALJ imposed a $60,000 fine.
Robison requested documents that virtually all applicants had in their possession and in fact commonly used to fill out other required employment forms. No authorized alien had any difficulty complying with the request. The question is whether, in the absence of any showing of discrimination, Robison violated the statute. We conclude it did not.
The statute in question is 8 U.S.C. S 1324b(a)(6) as it existed during the 1990-93 period, when the events in question occurred. It then provided in pertinent part:
[an employer]'s request, for purposes of satisfying the requirements of [8 U.S.C. S 1324a(b)], for more or different documents than are required under such subsection or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice relating to the hiring of individuals.
The statute was amended in 1996 to add an express requirement of discrimination. It now provides that the described documentary requests shall be treated as unfair employment practices "if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)." Paragraph (1) is the statute's general anti-discrimination provision, which prohibits discrimination on the basis of national origin or citizenship status, except, of course, against an alien who is not authorized to work. See 8 U.S.C. S 1324b(a)(1). This provision constitutes a key protection against unfairness in the ...