Employer Solutions Staffing Group II, L.L.C. v. Office of the Chief Administrative Hearing Officer

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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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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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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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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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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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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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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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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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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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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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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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.

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