Review of Final Order in Alien Employer Sanctions Cases

Review of Final Order in Alien Employer Sanctions Cases

The Immigration and Naturalization Service cannot appeal to the Attorney General or seek

judicial review o f a final order in an alien em ployer sanctions case under 8 U.S.C. § 1324a.

December 5, 1989

M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l

I m m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e

Your office has requested our advice on whether the Immigration and

Naturalization Service (the “Service”) can seek review o f a final order in

an employer sanctions case under 8 U.S.C. § 1324a. See Memorandum for

William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from

Raymond M. Momboisse, General Counsel, Immigration and Naturali­

zation Service (June 21, 1989). For the reasons below, we conclude that

the Service can neither seek judicial review o f such an order nor appeal

to the Attorney General.

Section 1324a(a) makes it unlawful for a “person or other entity” know­

ingly to hire, recruit or refer for a fee, or continue to employ an “unau­

thorized alien.” Section 1324a(g)(l) prohibits a “person or other entity”

from requiring an individual to post a bond against any liability that might

arise with respect to hiring, recruiting, or referring for employment. The

statute also establishes an administrative scheme for prosecuting viola­

tions o f these subsections. Under section 1324a(e), a “person or entity”

charged with such a violation is entitled to a hearing before an adminis­

trative law judge (“ALJ”), who may issue a cease and desist order and

assess a civil penalty.1 The ALJ’s order becomes the final order o f the

Attorney General unless, within thirty days, the Attorney General modi­

fies or vacates the order, in which case the Attorney General’s order

becom es the final order. Id. § 1324a(e)(7). The Attorney General has del­

egated his authority to review and revise an ALJ’s order to the Chief

Administrative Hearing Officer (“CAHO”) in the Executive Office for

Immigration Review, whose decision on the matter stands as the final

order o f the Attorney General. See 28 C.F.R. §§ 68.2(d); 68.52(a). Section

1324a(e)(8) provides that “[a] person or entity adversely affected by a

1 If the person or entity does not request a heanng before an AU , “the Attorney General’s imposition

o f the order shall constitute a final and unappealable order" 8 U S C. § 1324a(e)(3)(B)

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final order ... may, within 45 days after the date the final order is issued,”

seek review in the appropriate court o f appeals.

We think it apparent from the statutory language that the Service does

not qualify as a “person or entity” that may seek judicial review o f a final

order under section 1324a(e)(8). Although the phrase is not expressly

defined in section 1324a,2 it is clear from the context in which it is used

that “person or entity” refers to the employer being prosecuted. The

phrase appears numerous times — sixteen times in subsection (e) alone

— in ways that indicate that this is so.3 See, e.g., 8 U.S.C. § 1324a(a)(l)

(making it unlawful for “a person or other entity to hire ... an unautho­

rized alien”); id. § 1324a(e)(3)(B) (hearing to be held “at the nearest prac­

ticable place to the place where the person or entity resides”); id. §

1324a(e)(4) (discussing application o f sanctions to “a person or entity

composed o f distinct, physically separate subdivisions”). Indeed, a con­

struction o f subsection (e)(8) that would allow the Service to seek judi­

cial review o f a final order o f the Attorney General would raise serious

constitutional questions. Such review would interfere with the

President’s authority under Article II o f the Constitution to supervise his

subordinates and resolve disputes among them, see Myers v. United

States, 272 U.S. 52, 135 (1926) (President “may properly supervise and

guide” Executive officers in “their construction o f the statutes under

which they act in order to secure that unitary and uniform execution of

the laws which Article II o f the Constitution evidently contemplated in

vesting general executive power in the President alone”), and would

implicate the general rule that a lawsuit between two members o f the

executive branch does not give rise to a justiciable “case or controversy”

under Article III. See Constitutionality o f Nuclear Regulatory

Commission’s Imposition of Civil Penalties on the Air Force, 13 Op.

O.L.C. 131 (1989) (discussing rule that lawsuits between two federal

agencies are generally not justiciable).4

We also conclude that the Service cannot seek review by the Attorney

General o f the CAHO’s order. The regulations clearly provide that the

CAHO’s order is the final order o f the Attorney General in an employer

sanctions case. 28 C.ER. § 68.52(a)(1). Neither the statute nor the regu­

lations provide for any further administrative review.

WILLIAM P. BARR

Assistant Attorney General

Office of Legal Counsel

2 Section 1101(b)(3) o f title 8 defines “person" as simply “an individual or an organization ”

3 We also note that when Congress sought to refer to the Service in subsection (e), it did so explicitly.

See 8 U S C. § 1324a(e)(l)(D) (directing Attorney General to establish procedures “for the designation in

the Service o f a unit” whose primary duty is the prosecution o f cases under subsections (a) and (g)(1)).

4 Because we conclude that the Service may not seek judicial review under section 1324a(e)(8), we do

not address whether such review should be sought as a matter o f policy.

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