1 District Judge of the Eastern District of Louisiana, sitting

by designation. 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, an d 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1816(a) (repealed 1986), turns on the Secretary's interpretation of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 su fficiency of the evidence supporting that

decision, which was contrary to that reached by the Administrative

Law Judge. We AFFIRM.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 Garc ia 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 d istrict 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 ap peal. The Secretary also reversed the award of

attorney's fees; that decision was not before the district court.

- 2 - I.

Garcia provided workers for several farm owners in the "Lower

V alley" 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 AL J, 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). 23 It goes without saying that delay of this magnitude is of

great concern.

4 Whe n 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

registratio n 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 revi ew is

necessarily confined. S ee 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 - More than four ye ars later, 3 the Secretary reversed this

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

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

cer tificate 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 illega l workers. 5

After carefully e ssaying 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.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 - 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

i ndividual 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 subsect ion (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. S ee 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 unde r § 1816(a).

Accordingly, she asserts that the "Department need only establish7 Garcia testified that he asked workers for a social security

card or p assport, 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

e ducation and is not conversant in English, "constructively

complied with this requirement to the ext ent that could be

realistically expec ted." 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 o f the statute and

regulation, we need not reach the issue of constructive compliance.

- 5 - 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 deferenc e 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 construc tion 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 i ssue. If the intent of Congress is

cle ar, that is the end of the matter; for the

court, as well as the ag ency, must give effect to

the unambiguously expressed intent of Congress....

[I]f the statute is s ilent 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. S ee

Nicklos Drilling Co. v. Cowart

, 927 F.2d 828, 831-32 (5th Cir.8 This language requires a particular subjective mental state in

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

,

4 67 U.S. at 843 n.9 ("The judiciary is the final authority on

issues of stat utory construction and must reject administrative

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

Insofar as th e 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 pr escribed documents (though,

certainly, they would benefit from doing so). 9- 7 -

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." S ee Counterman v. United States Department of

Labor

, 776 F.2d 1 247, 1248 (5th Cir. 1985). C ounterman 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.

U nlike either the statute or regulation in issue here , §

40.51(p) required that a farm labor contr actor " m ust 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); s ee 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

employe d illegal workers must be, i nter 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) (quoting10 Garcia quit school in Mexico after the sixth grade; he neither

speaks nor reads English.

- 8 - 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." S ee 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 workin g as a farm labor contractor in 1983. 1 0

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 investigating11 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 prehearing order required the exchange of proposed exhibits, but the

Department had not provided the statements t o 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 - 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, t he 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 time12 Indeed, the record supports the i nference that Perea was no

longer working for Garcia. Garcia affirmed that Perea "was" one of

his workers, suggesting that Perea no longer i s

. This would be

consistent with Garcia's standard operating procedure upon discovering illegal workers in his employ: "let them go."

- 10 - 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 em ployed 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 (I213s), all dated April 11, 1985. The I-213s reflect that they are

prepared by Border Patrol officers prior to deporting illegal13 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;

c onflict only arises concerning the weight to be given the

exhibits.

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

d e portable 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 deportatio n, with the names of persons deported (total of

approximately 1800) on those dates. (As discussed i nfra

, 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 b order patrol station", with the

names being those shown in the logs as em ployed 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 knowing14 W e do not doubt their admissibility; Garcia stipulated to

that.

- 12 - 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 employe d 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 surroundi ng any one particular deportation." S ee United

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

Nevertheless, the Department should have called someo ne with

sufficient knowledge to give "testimony relating to the procedures

followed in keeping the records". See id.15 The Secretary once again cit es Counterman , claiming that it

compels us to reverse the distric t 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

complia nce officer." C ounterman

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

probative weight of these documents is assured by

... the integrity

of publ ic 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

count ry and make an independent finding that Garcia had employed

the illegal worker; or, did the agent put Garcia's name on the I213 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. 15Secretary's conclusion in this case is support ed by substantial

evidence.

- 14 - 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. S ee Spellman

, 1

F.3d at 3 60. 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." U niversal Camera

, 340 U.S. at 496; see also

Texas World Svc. Co. v. NLRB

, 928 F.2d 1426, 1431 (5th Cir. 1991).

The Secretary doe s not dispute the ALJ's credibility

determinations; rather, she disagreed with the probative weight the

ALJ afforde d the documentary evidence. Accordingly, we attach

particular significance to the ALJ's credibility determinations in

this case.

Garcia tes tified 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 Gar cia never knowingly employed an illegal worker.

Because Vera, a state officer, visited the fields in which Garcia's- 15 -

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.

Be cause the ALJ found Vera and Garcia credible, their

testimony detracts from the weight to be afforded the evidence

presented by the Department. S ee Universal Camera

, 340 U.S. at 488

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

the record fairly detracts from its weigh t."); T exas 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 subs tantial evidence in support of the Secretary of- 16 -

Labor's deter mination 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 viola tes § 1816(a) if he knows or should

reasonably know that he is hiring or recr uiting aliens not

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

terms appears to make actual knowledg e that one is hiring

unauthorized aliens an element o f 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

k nowledge should arise if a farm labor contractor is found to be

employing unauthorized aliens in an area in which illegal

immigrati on of agricultural workers is widespread, and that this

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

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

(pres cribing the documents a farm labor contractor may use to

verify employment status).- 17 -

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 languag e of the statute, while the

Secretary's i nterpretation 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 e nforced its regulation against Contract Courier

Services. I d. 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.16 Interestingly, farm labor contractors are given special treatment

under IRCA. Compliance with the prescribed verification procedures

i s now mandatory for such employers. 8 U.S.C. §§

1324a(a)(1)(B)(ii), 1324a(b).

- 18 - 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 "affir mative 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 re tained 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 reb ut 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 t he employer . . .

colluded with the employee in falsifying documents, etc.

Of course, even if the employ er does not seek to

establish an affirmative defense, the burden of proving

a violation of the hiring, recrui t ment, 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- 19 -

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

m ajority concedes that evidence exists to support a finding t hat

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 appel late 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.17 Many courts, it may be noted, accept "willful ignorance" as the

equivalent of knowledge. S ee, e.g.

, Garcia v. Donovan

, 101 Lab.

Cas. ¶ 34,574 (CCH) (M.D. Fla. 1984) (interpret ing § 1816). S ee

- 20 - By stipulatio n, several government exhibits were admitted into

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

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

emp loyer of deportable aliens. Another was a list of names of

aliens de ported 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 d eported. Admittedly, this evidence would carry far

more weight if it were supported by the independent investigation

of a border patrol ag ent than if it were merely the product of a

brief interrogation of an illegal alien just prior to deportation.

Wi thout such support, it is difficult to attach a great deal of

w eight to the Secretary's documentary evidence. Nevertheless, I

b elieve that a reasonable mind could accept the documen tary

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. 17generally Robin Charlow, Willful Ignorance and Criminal

Culpability , 70 Tex. L. Rev. 1351 (1992).

- 21 - Thus, on the whole, I believ e 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 n o vo. Conflicts in the evidence are for the

Secretary to resolve, not the courts. S pellman 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

e vidence 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 gra nted, he could not have had

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

only th a t he had no reason to believe that Garcia had ever

knowingly or intentionally employed any illegal aliens. The- 22 -

Secretary could reasonably have r esolved 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 decisio n that the Secretary could not lightly dismiss,

she was entitled to discount it in light of the confl ict between

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

of the record." D elchamps, 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." R ussell-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. S elders v.

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