William H. Rehnquist: We will hear argument first this morning in No. 86-1128, Immigration and Naturalization Service versus Assisi Abudu. Mr. Klonoff, you may proceed whenever you are ready.
Robert H. Klonoff: Thank you. Mr. Chief Justice, and may it please the Court, this case raises the issue of when a reviewing court can compel the immigration authorities to reopen a deportation proceeding for an evidentiary hearing after the alien has already been given a hearing and after an order of deportation has been entered. The context in which the issue arises is as follows. Respondent has been here illegally for almost 12 years, since 1976. His deportation hearing was held in 1982, and involved five appearances before the immigration judge between 1981 and 1982. Respondent, who was represented by competent counsel at the hearing, declined to seek asylum despite specific questioning by the immigration judge on the issue. In 1985, respondent filed a motion to reopen to apply for asylum and withholding of deportation based on an event that occurred in 1984, namely, a visit to respondent by a Ghanian official who was also respondent's personal friend, and I will have more to say about this event later in the argument. The issue of the extent of deference in the context of a motion to reopen has been addressed by this Court three times in the immigration context, in Jong Ha Wang, in Rios-Pineda, and in Phinpathya. These cases emphasize the great deference that must be given to the Board of Immigration appeals in its decision not to reopen. The Court has emphasized the importance of finality and has pointed out that in this context reopening is not required by statute but is purely a product of regulation, and in fact the regulation itself does not mandate reopening in any particular circumstance, but rather, as the Court noted, is framed in the negative.
William H. Rehnquist: Mr. Klonoff, then reopening is not a procedure provided for by statute?
Robert H. Klonoff: That's correct. It is purely a matter of regulation. And this Court has made that clear in Jong Ha Wang in its discussion. Notwithstanding this Court's decision, the Ninth Circuit held, contrary to the BIA, that respondent had alleged a prima facie case of eligibility for asylum, and that an evidentiary hearing was therefore required. As a result of the Ninth Circuit's holding, the entire process will begin anew, including possible appeals, even though the deportation hearing was held more than five years ago, and even though the only fact that was offered by respondent in support of his motion to reopen is one that even the Ninth Circuit itself said could be viewed as ambiguous or benign. Now, if I could just elaborate briefly on some of the facts that are critical to this case, as I said, respondent entered the United States originally in 1965, approximately ten years ago. He left briefly during the summer of 1973, and the returned on a visa that was good until 1976. In 1981, while respondent was here illegally, he pleaded guilty to three narcotics offenses, and based on his plea of guilty to those offenses, the Immigration and Naturalization Service instituted deportation proceedings and those proceedings in fact resulted in hearings that occurred between November and July, November, 1981, and July, 1982. There were five separate appearances. The continuances on each occasion being at respondent's request. One of the continuances in the case, from November 10th, 1981, to January 11th, 1982, appears to have been requested in part so that respondent could prepare an application for asylum and withholding of deportation, and in fact respondent's counsel specifically represented to the immigration judge that such an application would be filed. Respondent ultimately chose not to seek asylum or withholding of deportation, and he was consequently found deportable in July, 1982, and that decision was affirmed by the BIA in 1984. In February, 1985, while that appeal was pending in the Ninth Circuit, respondent filed a motion to reopen with the Board of Immigration Appeals. As respondent concedes, the only new fact that relates to the respondent other than just the general events in Ghana was this visit from the Ghanian official, and it is significant to note that although this visit occurred in the spring of 1984, respondent waited almost an entire year until February, 1985, before seeking reopening. There is no dispute that this individual who made the visit is someone who respondent had known for many years. The additional fact which--
Sandra Day O'Connor: Mr. Klonoff, is that new evidence not available before within them engaging of the regulation, do you suppose?
Robert H. Klonoff: --It probably was not. Since the deportation hearing occurred in 1982, and since the visit did not occur until 1984, this was new evidence. We have a serious dispute with the Ninth Circuit's conclusion that it was material evidence.
Sandra Day O'Connor: So you think it was new evidence not available before, but you take the position that it just wasn't material.
Robert H. Klonoff: That's exactly correct. The old facts which were in existence at the time respondent chose not to play or as you in essentially involved allegations involving his brother and other close associates in terms of their associations with prior regimes in Ghana and the fact that those individuals may well be in danger. It is important to note, as the BIA pointed out in its opinion, that respondent doesn't explain how the risk to those individuals would necessarily translate into a risk to respondent. Respondent now concedes--
Thurgood Marshall: Didn't that become clearer when this man came over from Ghana?
Robert H. Klonoff: --We don't think so. We are not sure what import ought to be--
Thurgood Marshall: I am not sure, either, but it could be argued, couldn't it? It was quite obvious that he was trying to get him back there for one purpose only.
Robert H. Klonoff: --Well, we don't think that is obvious, Justice Marshall.
Thurgood Marshall: What is the other reason?
Robert H. Klonoff: Well, the reason--
Thurgood Marshall: That a man would spend that amount of money to come over here.
Robert H. Klonoff: --Oh, but it... certainly there is no allegation in the motion to reopen that his man came forth sole purpose of visiting respondent, and in fact he didn't even know where to locate respondent, and had had to contact respondent through his brother. The more reasonable inference is that he was here for another purpose, perhaps an official government purpose, and decide to contact the respondent. That is one of the ambiguities, in fact, in the evidence.
Thurgood Marshall: You mean, they is trying to kill his own family but they are going to bring him back and let him live?
Robert H. Klonoff: We don't know if they are trying to kill his whole family. All we know--
Thurgood Marshall: That was the testimony.
Robert H. Klonoff: --There was no testimony... the only reference to the brother were very brief statements in the motion to reopen, a one-line sentence indicating that the brother's house had previously been surrounded, and then a vague allegation that the brother had made his way out of Ghana, but let me respond--
Thurgood Marshall: And was still out and was still wanted.
Robert H. Klonoff: --According to the conclusory allegation, with no explanation as to why, but let me respond, justice Marshall, to your--
Thurgood Marshall: Well, the way to get around and find out whether a conclusory allegation is correct is one way only, and that is to hold a hearing. Isn't that right?
Robert H. Klonoff: --We don't think so.
Speaker: Isn't that right?
Robert H. Klonoff: We don't think so. We think that the purpose of an evidentiary hearing is not to give the alien an opportunity to flesh out the motion to reopen. It is not a preview of things to come. We think that the purpose of an evidentiary hearing is to see if respondent can prove the facts that he alleges in the motion to reopen. And let me give you an example in the criminal context, in the context of a motion for a new trial on the grounds of newly discovered evidence. Every court would agree that it is inadequate for a defendant to come in after trial and say, I have found a new witness who is going to exonerate me. I am not going to tell you all the details now, but if you give me a new trial and vacate my conviction, we will tell you all about it. That is simply not the proper way to go about it. The case law was clear at the time in every circuit that respondent needed to lay out in detail exactly what his theory was or he would risk denial of the motion to reopen on the ground that it was conclusory, but let me, Justice Marshall, get back to your original question, because there is a very important reason why this individual may have wanted the respondent to return to Ghana, and that is because he was a medical doctor who was trained in the United States, was highly educated, and in fact respondent's own evidence in the motion to reopen indicates that the prior Ghanian regimes had also tried very, very hard to get respondent back. He was highly sought after regardless of the regime in power, and we don't think that there is anything that can be viewed--
Thurgood Marshall: They had kept up with the history, hadn't they?
Robert H. Klonoff: --I am sorry?
Thurgood Marshall: He had kept up with the doctor and what he was doing and all.
Robert H. Klonoff: Well, we don't know. Apparently not, because the visitor didn't know where he was--
Thurgood Marshall: That is what I am saying, so why do they want him back if they don't know where he is?
Robert H. Klonoff: --Well, we think that, as I said, this is a situation, you have a developing country.
Thurgood Marshall: That is not clear one way or the other.
Robert H. Klonoff: Admitted. That's correct. And consequently it is the kind of fact that cries out for additional facts before an individual would have a well founded fear. Certainly at least given the ambiguity of the fact, given the colloquy that we have had right now, it seems to me quite clear that this is simply not enough for the extraordinary remedy of reopening a deportation proceeding five years later in a situation in which the individual has already been found deportable, has already had a full opportunity to assert his claim for asylum and chose not to do so. The Board of Immigration Appeals in its holding held, Number One, that respondent did not adequately explain his failure to apply for asylum and withholding during the deportation hearing and that consequently he failed to comply with the regulatory requirements. 8 CFR 208.11 specifically requires that an alien give an adequate explanation. Secondly, the board held that the new fact as alleged by respondent was ambiguous, just as we have recognized here today. It could be viewed as benign but it could be viewed as threatening. And when you have a fact like that that could be viewed so many different ways, it is not the kind of fact that would compel the immigration authorities to reopen for a deportation hearing. The Ninth Circuit reversed and remanded the case for an evidentiary hearing.
Antonin Scalia: Excuse me. Is it at least the kind of fact that establishes a prima facie case?
Robert H. Klonoff: We don't think it is. As I said, and again, this is just to dovetail the question that was asked by Justice Marshall, we agree with the definition of prima facie case given by the Ninth Circuit on Page 7A of the petitioner's appendix that it is a case in which... where the affidavits on other evidentiary material, if true, would satisfy the requirements for substantive relief, so we don't view a prima facie case as being enough to show that a hearing might be useful.
Antonin Scalia: Wait a minute. He has conclusory allegation, as you say, and he had in addition a fact to support that which you claim was ambiguous. Now, that may not be enough to carry the day, but isn't that enough to establish prima facie case?
Robert H. Klonoff: We don't think it is. We think that what a prima facie case means is that if he came in and proved everything that he alleged, he would be entitled to the relief, or at least would have established eligibility for the relief. And again, that is now the Ninth Circuit itself uses prima facie case. We don't think... if it were true that a prima face case was somehow less, that only required you to somehow get in the door or provide a nonfrivolous case, then in almost every situation it would be very difficult for the board to say this is not enough, because the existence of even--
Antonin Scalia: But that is just one of the conditions. I mean, it isn't as though the only thing standing before the board and reopening is the prima facie case requirement. There are other requirements, as you are urging upon us, right?
Robert H. Klonoff: --Well, that is true, and as we have argued, we believe it is quite clear that the board was within its discretion in denying reopening on the separate ground that the explanation was inadequate.
William H. Rehnquist: Do the regulations in any way define what a prima facie case is?
Robert H. Klonoff: They do not, Chief Justice.
William H. Rehnquist: So then it is really up to the BIA to determine what a prima facie case is?
Robert H. Klonoff: That is exactly right, and there is really no dispute here about prima facie case. I don't think the Ninth Circuit was applying the test in the manner suggested by Justice Scalia where it is simply enough to show that you might be able to prove a case. We think a prima facie case means, if the facts alleged could be proved at an evidentiary hearing, would you be eligible for the relief? The Ninth Circuit, we think it is quite significant, simply ignored one of the two grounds relied upon by the BIA. The Ninth Circuit didn't even address the issue of whether respondent had met the regulatory requirement 208.11 in his adequate explanation. We think that that ground alone is basis for reversal. In addition, we submit--
John Paul Stevens: May I as... I am a little puzzled now about what the exact issue is. Do you think we have to decide whether the motion to reopen states a prima facie case or not?
Robert H. Klonoff: --Well, at least... well, not... technically the Court doesn't have to reach that issue. The case could be reversed solely on the ground that respondent did not meet the regulatory requirements for reopening. One thing that is important to point out is that even the Ninth Circuit did not decide that here was a prima facie case for withholding.
John Paul Stevens: In other words, are you arguing that because he didn't meet the regulatory requirements for failing to explain why he didn't make the point earlier, that ends the case and we don't even have to look at the motion to see--
Robert H. Klonoff: That very well could end the case. That is a separate and independent ground.
John Paul Stevens: --But is that your principal submission? What is your principal submission? I have a little difficult with these question presented--
Robert H. Klonoff: Well, there are two grounds. This case is quite analogous to John Haw Lang, in which the Court reached both the regulatory requirement issue and the prima facie case issue.
John Paul Stevens: --You certainly don't have to reach both, do you?
Robert H. Klonoff: You don't have to. That is correct.
John Paul Stevens: My question is, which is your principal claim? What are you really asking us to decide?
Robert H. Klonoff: Our principal concern deals with the way the Court analyzed and came to the conclusion that there was a prima facie case, the standard that has to be applied. One approach for this Court would be to rule on those two points--
John Paul Stevens: I understand we have alternative ways of doing it. I am trying to find out what you are... if you could write the opinion, what would you say in the opinion? Do you put it on one ground only.
Robert H. Klonoff: --The one ground would be that the Ninth Circuit improperly second guessed the BIA's holding that there was no prima facie case, and it did so for two reasons.
John Paul Stevens: So that you mainly wanted to decide whether the motion states a prima facie case. And if that is true, I don't even find the motion in the papers before me.
Robert H. Klonoff: The motion is there, Justice Stevens. We submitted a lodging with the clerk which has the entire motion to reopen, and--
John Paul Stevens: But it is not in the printed materials.
Robert H. Klonoff: --No, because we always--
John Paul Stevens: Why isn't there a joint appendix within it?
Robert H. Klonoff: --This is a substitute for the joint appendix. We have filed a motion to waive the printing. We thought that particularly since--
John Paul Stevens: At that time you apparently didn't think we'd need to even read the motion.
Robert H. Klonoff: --No, that was not true. We felt that because the entire administrative record was reproduced in this volume, and since we had already submitted it to the clerk--
Speaker: I see.
Robert H. Klonoff: --counsel did not pose that. Obviously, the Court may well wish to read the motion to reopen.
John Paul Stevens: Well, I think we would have to read it to decide your theory of the case.
Robert H. Klonoff: The Court could--
William H. Rehnquist: Where does the term "prima facie" case come in here? It is not in the regulations. It is not in the statute. Does the BIA use it in its opinions?
Robert H. Klonoff: --It does. The history of that was discussed in Wang. There were two cases in which the BIA stated that a prima facie case is a requirement for a motion to reopen. And this Court noted that in Jong Ha Wang, and in fact has reaffirmed those requirements.
William H. Rehnquist: So that is really is interpretation then of the applicable regulations?
Robert H. Klonoff: That's correct. And the board would be, we submit, entitled to deference, and if I could follow up on Justice Stevens' question, this Court doesn't necessarily have to reach the final issue of whether or not there is a prima facie case. What the Court could decide is that the Ninth Circuit applied the erroneous standard in analyzing the standard and simply send the case back. We would urge the Court to reach the issue. But let me explain the two points--
Antonin Scalia: Let me ask, while we were trying to decide what we have on our plate here, even assuming that we disagreed with you and thought the Ninth Circuit was correct on the prima facie case point, and on ignoring the regulatory requirements, do you concede then that if they were right about that, the proper relief that the Ninth Circuit should have afforded was to require a reopening?
Robert H. Klonoff: --We don't concede that at all.
Antonin Scalia: Because those regulatory requirements and the prima facie case are conditions to a reopening, but there is nothing that I know of that says that if you meet those there must be a reopening.
Robert H. Klonoff: That is absolutely correct, and in fact--
Antonin Scalia: So that is another piece on our plate. We could go off on that ground, too.
Robert H. Klonoff: --That is correct, and in that regard, Justice Scalia, I would ask the Court to look at Page 20A, Footnote 2 of the petitioner's appendix, where it points out that another ground that the board did not decide but could have would be the impact of this individual's criminal convictions. The board could have decided here that this individual as a matter of discretion did not merit asylum and therefore that reopening could be denied without an evidentiary hearing. So that again is another group. There was simply no warrant for the Ninth Circuit to jump to the conclusion that an evidentiary hearing was appropriate. The Court of Appeals adopted two principles that enabled it to reach the conclusion that respondent had made a prima face case. The first was, it held that in ruling on it, when the Court of Appeals rules on the issue of whether there is a prima facie case, it considered the issue de novo. The agency is not given any deference whatsoever in its judgment. The second point that the Ninth Circuit held in reviewing these cases is that when the board reviews a motion to reopen, it has to give the alien all inferences or all benefits of the doubt. It was only by A, reviewing the case de novo, and B, reading every inference in the alien's favor, that even the Ninth Circuit was able to hold that there as a prima facie case, and we would submit that if this Court disagrees on those two points, we think it necessarily follows that there is no prima facie case. If the board is not required, for example, to draw the inferences in the alien's favor. Now, if I could just very briefly discuss why it is that we disagree with the Court--
John Paul Stevens: May I ask you one other question about the prima facie case? When this was before the Board of Immigration Appeal, had we decided Cardoza-Fonseca yet?
Robert H. Klonoff: --No, the Court had not. However--
John Paul Stevens: So they had the case at a time when the law was somewhat unclear as to what the prima facie case might be.
Robert H. Klonoff: --Well, that is corrected except let me note a number of points in that regard. First of all, on page 19A of the petitioner's appendix, in the board's opinion, the board cites the Ninth Circuit's opinion in Cardoza-Fonseca, which was affirmed by this Court. We would submit that the board understood the difference between the standards and applied it here. There is nothing in the opinion to suggest that the board was applying the same standard here, and a couple of other points are quite significant in that regard. As we have noted in our reply brief, in the Court of Appeals, respondent clearly indicated... I believe it was Page 28 of his Court of Appeals brief... that he had no objection whatsoever to the legal principles applied by the BIA. We noted in our Court of Appeals brief that in our interpretation of the BIA's opinion the BIA's was correctly applying the lower standard for asylum. We made that quite clear in our brief, and respondent in his reply brief never challenged that and the Court of Appeals never questioned the fact that the Ninth Circuit... or the fact that the Board of Immigration Appeals understood and was applying a lower standard for asylum. So would submit that that is simply riot an issue in this case. If I could make a few points as to why we disagree on the de novo review point, first of all, as I have noted, this Court has made clear on several occasions that it is not appropriate for the Court to engage in de novo review in these contexts. Rios-Pineda could not have been clearer in stating that it is not the function of a court to review the attorney General's decision de novo. That was at 471 U.S. at Page 452.
John Paul Stevens: Yes, but that was a decision after a hearing, wasn't it? It wasn't a review of a pleading. Or was it? I don't--
Robert H. Klonoff: Well, there... no, that--
John Paul Stevens: --There is a difference between reviewing whether a leading is sufficient to state a cause of action or prima facie case on the one hand and reviewing whether the evidence made out a case on the other.
Robert H. Klonoff: --Rios-Pineda was also a question whether the lower court had ordered that the case be sent back for an evidentiary hearing.
John Paul Stevens: Had there been no evidentiary hearing before?
Robert H. Klonoff: I don't believe there had been, and this Court said that there did not need to be because the board had denied relief to the aliens as a matter of discretion. And there are numerous... the same thing is true in Jong Ha Wang, by the way. There is not a hearing. The Ninth Circuit held that even though no affidavits had been submitted, that the alien had made out a prima facie case that required a hearing, and again the Court held that no evidentiary hearing was required, that same circumstance, by the way, is present in numerous Court of Appeals cases. We have cited cases from circuits throughout the country involving a situation exactly like this in which there is a motion to reopen, alleging prima facie eligibility for asylum and withholding of deportation, and the Courts of Appeals prior to this case have unanimously held that under this Court's decisions in Rios-Pineda and Jong Ha Wang, the decision on whether or not there is a prima facie case for reopening is one that must be given deference to the administrative agency, and that is all we are asking for here. The Ninth Circuit has held--
John Paul Stevens: Let me just also get something straight. A prima face case for reopening in other words, is a different... something different from a prima face case for eligibility for withholding of deportation or asylum?
Robert H. Klonoff: --It is the same thing.
John Paul Stevens: Is it the same, the same facts would... if facts A, B, and C in an original claim would constitute a prima facie case for a claim of asylum, that would also constitute a prima facie case for reopening after?
Robert H. Klonoff: Well, as Justice Scalia correctly pointed out, the fact that you allege a prima facie case does not mean you are entitled to a hearing. It just means that you have met one of the requirements that the board has set for a hearing. The board has not said that a hearing is required in any circumstance, however, and again, I would point out, even if a prima facie case has been alleged, the board held that its regularly requirements have not been met for a different reason.
Thurgood Marshall: You keep using the word "deference". Do you mean that a decision of the BIA on the question of a prima facie case is unappealable?
Robert H. Klonoff: No, we don't mean that, Justice Marshall.
Thurgood Marshall: Well, what do you mean by deference?
Robert H. Klonoff: What we mean is that the Court of Appeals--
Speaker: Abandon?
Robert H. Klonoff: --What we mean is that the Court of Appeals should not substitute its judgment for that of the immigration authorities. If reasonable minds could differ, if the board's opinion is a reasonable analysis of the evidence, then it must be affirmed. If the board's opinion makes no sense whatsoever, if there is something egregiously wrong about it, then obviously there is a role for the Court to play. We are not arguing that it is totally unreviewable, and we don't think that the Court has to reach that issue. It is really the difference between how the circuits other than this case have approached the issue and how this Court approaches the issue. This Court says that the inquiry is whether or not the board's assessment is correct.
Thurgood Marshall: What you mean by us using deference--
Robert H. Klonoff: Deference means, in our view--
Thurgood Marshall: --Abandonment?
Robert H. Klonoff: --No, it just means as generally in administrative law, that there ought to be weight given to the administrative agency's views, and even if the Court independently--
Thurgood Marshall: Well, can't I give weight to them and rule against them--
Robert H. Klonoff: --Only if the decision--
Speaker: --Can I?
Robert H. Klonoff: --You could, but only if the decision is so extreme as to be unreasonable. If the decision would reasonably go either way, we think that the role of the Court is to simply affirm.
Antonin Scalia: Mr. Klonoff, I have a problem with deference to a judgment about a prima facie case or not. I mean, it is one thing to say that on the ultimate question, the ultimate factfinding, you go along with the agency if there is substantial evidence. Reasonable minds could go either way and therefore you let the agency go the way it wants so long as it is reasonable. But the whole notion of a prima facie case is rock bottom. It means a reasonable mind. If the phrase means anything, it means a reasonable mind could find for someone one these allegations, giving them the benefit for the doubt, interpreting doubts in favor of the person making the allegations. Isn't that what a prima facie case means, and then to say you have a sort of applying a reasonableness standard to a reasonableness standard. It is once removed. I don't know.
Robert H. Klonoff: But our point is, again, we do not disagree with the definition of prima face used by the Court. The question is whether or not the Court can simply ignore what the agency has done, and decide independently whether there is enough or whether it has to give deference, as we have said, to what the agency has said, and as I have indicated, ever circuit that has analyzed this issue has explained that the agency's view has to be given great weight in this context.
Antonin Scalia: Is it any different form, in civil cases, we defer to the factfinders, let's say, a case tried to a judge. We defer to the judge's findings of fact. Unless there is no reasonable basis for them, we accept them. But do we defer to the trial judge's determination that summary judgment could be granted.
Robert H. Klonoff: The Court does defer--
Antonin Scalia: Do we? Do we say, well, you know, maybe summary get could be granted, maybe it couldn't. It is a close question. We defer to the trial judge. We don't do that. Summary judgment is rock bottom, and so, it seems to me, is prima facie case.
Robert H. Klonoff: --We think the better analogy is a reopening for an administrative hearing or a motion for a new trial in either a civil or a criminal case, and there the courts repeatedly give great weight or deference to--
Antonin Scalia: Not to factfinding, though. You are referring... we defer to them because we defer to their judgment about whether they want to reopen or not. You are asking us to defers to factfinding about whether there is a prima facie case or not. I am perfectly willing to defer to the board's determination that it doesn't want to reopen for policy reasons, for whatever else, but you are asking us not to defer to that, you are asking us to defer to their determination that there was or was not a prima facie case. And that seems to me like deferring to a district judge's determination that there was enough evidence or was not enough evidence to grant a summary judgment.
Robert H. Klonoff: --We think it is more like deferring to a court's determination that the newly discovered evidence is not enough to warrant a new trial, and there there is substantial deference. If there are no more questions, I would like to refers the balance of my time for rebuttal--
William H. Rehnquist: Thank you, Mr. Klonoff. Ms. Harper, we will hear from you now.
Dorothy A. Harper: Mr. Chief Justice, may it please the Court, we would like to first state our view of what the Ninth Circuit did in this case. When we look at the finding of the Circuit Court, we remember basic rules, basic things that we were supposed to be studying in law school, the approach to a case, the approach to resolving a conflict. In Pullman Standard versus Swint this Court did make reference to this in the context of discussing whether there are mixed questions of law and fact. The approach that was discussed and which we remember from those days, three steps. First, there is the establishing of the historical facts. Second, there is selecting the applicable rule of law. And third is applying the rule of law to the established facts. In the prima facie case test, however, I think one comes through the same steps, but at the first step of establishing the historical evidentiary facts, in the traditional prima facie case test, the adjudicator of the tests does not determine the facts, he or she accepts the facts that have been offered.
William H. Rehnquist: Ms. Harper, that may well be true in the context of, say, a motion to dismiss under the Rules of Civil Procedure or the analog in the Rules of Criminal Procedure, but why should the BIA be governed by that kind of a strict legal mode that we allege certain things, and then if there is a contest we have a hearing?
Dorothy A. Harper: Mr. Justice, we believe that is because the BIA chose the prima facie case test, chose prima facie case. This is not in the regulations, as came out in the earlier discussion, when the Attorney General made the regulations he did not state in what instance motions to reopen should be granted. The Board of Immigration Appeals in 1972 in the case of In re Sipus said ordinarily we would grant reopening if this person would have given us a prima facie case. And it is our view that because the board selected it wasn't imposed upon the board by the courts. They voluntarily selected prima facie case, a term that has general meaning that they should--
William H. Rehnquist: And you think it should be analyzed just as if we were in a Federal District Court on a motion to dismiss with the Rules of Civil Procedure?
Dorothy A. Harper: --No, I don't think foursquare exactly on all of the Federal Rules of Civil Procedure. No, Mr. Justice, I certainly don't, because we are not talking about exactly the same thing. I am talking about the underlying principle. I am talking about the basics of what a prima facie case is and the basic approach in any context of deciding if there has been a prima facie case, but I am not arguing the Federal Rules for Civil procedure.
Sandra Day O'Connor: Ms. Harper, do you think that at bottom in this immigration setting, that the BIA had discretion to decide whether to decide whether to grant someone status to remain or not and discretion to decide whether to grant rehearing or not?
Dorothy A. Harper: Madam Justice, I think the board of Immigration Appeals certainly can exercise its discretion in the discretionary aspect of the case, but in this case they didn't. They did not address or examine any discretionary factors. I don't think that the fact... the standard as announced by--
Sandra Day O'Connor: You don't think that if they decide... if the BIA decides to deny rehearing, that that could be an exercise of discretion?
Dorothy A. Harper: --If the BIA denies, period, without announcing a standard, simply in essence, if you will, we just don't want to hear this one today, that is arbitrary, and even if it is discretion, it is an arbitrary exercise of discretion.
Sandra Day O'Connor: Well, yes, certainly it could be, but you are not arguing that that was the situation here.
Dorothy A. Harper: No, we are arguing that the Board of Immigration Appeals chose not to examine the discretionary factors, chose not to exercise that discretion, which it has. Instead, it chose to make the decision that there had not been a prima facie case shown and that is the finding that was reviewed. The Ninth Circuit did also review and made very brief reference to the establishing of new facts. If we very carefully examine the BIA decision, we find that the manner in which they interpreted, they, one, chose to interpret, chose to determine, and the manner in which they did determine the motive of the caller from the Ghanian government was the fact that led to their conclusion that this was not... that there had not been a sufficient explanation. The Board of Immigration Appeals said we don't think that by itself this visit sufficiently explains failure to raise this earlier. And when the Ninth Circuit found that they had determined a fact they shouldn't have determined, and that the facts should be interpreted otherwise, then it became an explanation. That answered the question, and there was reference to that in the Circuit Court opinion. It was not a lengthy reference because it did sort of emerge as self-proving fact. It is our opinion that when we look at these steps in resolving the prima facie case test, we find that what the Ninth Circuit said here basically was, you determined a fact when you weren't supposed to determine it. You went wrong on the first step. The Circuit Court did not go on to examine the application of the selection of the correct rule of law as applied to the refuge law. The Circuit Court did not do an examination of the application of the laws to the facts. Now, this is the area where if there is discretion, deference to be given to the BIA, it would be in the last area of applying the facts to the law, an this was not examined by the Circuit Court. What they examined was... what they found to be the error was the very first step. They were supposed to accept the facts and not decide them. We talk about he prima facie case test, where it came from, the regulations, where they came from. It is respondent's position that this must begin with an analysis of what Congress did in refugee law. Prior cases have been before this Court dealing with immigration cases. This has been probably the central lesson, the common lesson. We look at what Congress has done in the area. That was done in Wang. It was done in Phinpathya, it was done in Stevic, it was done in Cardoza-Fonseca.
Sandra Day O'Connor: Well, of course, Congress didn't provide for rehearing motions at all.
Dorothy A. Harper: No, that is correct, Madam Justice. What Congress did, Congress mandated that the Attorney General shall provide a procedure for aliens to apply for asylum irrespective of status. Dr. Abudu's status was a deportable alien. Irrespective of status, he has the right or should have an opportunity to apply. Now, thy didn't say reopening, but Congress not only considered changes of circumstances, Congress wrote changes of circumstances into the law, not the refugee law. Subsection B of the... this section 208(a) provides that if you are granted asylum status and you lose your status as a refugee, your asylum status is terminated. Throughout they talk of refugee status. You have to have refugee status to be eligible to apply. You lose your asylum status if you lose your refugee status. In the following section, section 209 of the Immigration and Nationality Act, after you have been... you have been in refugee or asylum status for one year, you may apply to become a permanent resident, but you must also show that you have not lost your refugee status. And they use the word, they include the phrase, charge of circumstances. If Congress foresaw that people would lose asylum status, not be able to become permanent residents because of changes of circumstances, certainly Congress also foresaw that one would acquire refugee status because of change of circumstances and would qualify upon events that occurred after they came into the country and after various events may have happened to change their status.
Speaker: But Congress did not do it.
Dorothy A. Harper: Pardon?
Thurgood Marshall: But Congress did not do it. Congress left it to the Attorney General.
Dorothy A. Harper: Yes.
Thurgood Marshall: Well, I don't understand your argument at all. They left it to the Attorney General. They could have taken it over.
Dorothy A. Harper: I am sorry, Mr. Justice. Would you repeat that, Mr. Justice?
Thurgood Marshall: I said, Congress could have said it and be reopened.
Dorothy A. Harper: Yes.
Thurgood Marshall: Instead, Congress said the Attorney General shall decide whether it can be reopened.
Dorothy A. Harper: I agree somewhat, Mr. Justice. They certainly did not say that it should be reopened. They left it up to the Attorney General to devise procedures, and then Attorney General devised procedures, including procedures for reopening, and these procedures for reopening were followed in this case, and incidentally, counsel would like at this point to point out a little correction. I understand that in preparing these cases the government is certainly no different from I and they make mistakes, but this is where we said we have no problems with the principles of the laws. In our brief to the Ninth Circuit on Page 28 discussing the regulations for reopening, 8 CFR 208.11 requires the alien to reasonably explain failure to request asylum prior to the completion of deportation, citation, and then we go on to say we have no quarrel with the principles of law. This is where we have no quarrel, and we have no quarrel with the regulations. We believe these regulations are proper. It is simply our position that we complied with the regulations. We respect them. Dr. Abudu played by the rules. He didn't bring this case when the law as it was being interpreted at that time together with the facts would not support all of the elements necessary for the trial. The government now says... well, now that your case has ripened, your case should be... reopening should be denied because you didn't bring it when it was premature. This is--
John Paul Stevens: May I ask you, are you in effect conceding that if there had not been the visit by this gentleman from Ghana after, you know, that you use as a basis for the new evidence of well-founded... without that visit you would not state a prima facie case for reopening then?
Dorothy A. Harper: --Under the law as it was when he was before the immigration judge in 1982 it would not have met... would not have met the requirements at that time. At this time it is the visit that--
John Paul Stevens: And what is the change of law that you rely on?
Dorothy A. Harper: --Pardon?
John Paul Stevens: And how is the law different than it was in 1982?
Dorothy A. Harper: This Court addressed the distinctions between clear probability, well founded fear in the Stevic case. Now, that case, I am well aware, of course, that was not the case that made the definitive ruling on well founded fear, but when this Court spoke in Stevic, those of us out there on the front lines trying to bring justice to our clients saw, we saw rays of hope that there was in fact a ground, that we had a sound legal basis to in good faith advance our theories that a well founded fear was different. Therefore what we would have brought in 1984, 1985 is quite different from what we would bring in 1982. We didn't have the solid law, but this Court had spoken, and had given some guidance, we felt, in dictum, and as... there also had been decision in the Circuit Courts that were beginning to develop. But to answer your question, yes, it was the visit which created the... or gave the last of the elements that we believe clearly puts the case within the prima facie case test.
Antonin Scalia: What about the regulatory requirements, Ms. Harper? Why were they met here?
Dorothy A. Harper: The regulatory requirements were met by virtue of the fact the events that provided the objective evidence that this man's fear is reasonable didn't even happen until after deportation proceedings were concluded. That, of course, met... it meant a two-fold requirement. One, it met the requirement of new material, and two, in and of itself it explains why he didn't bring it in 1982, because it hadn't happened in 1982. Also, I would like to just briefly mention, and I understand this record can get a little confusing. All of these continuances and how long this case has been going on. November 10, 1981, was when Dr. Abudu first stood before the immigration judge and he said, I am afraid to go back to, Ghana. November 10, 1981, according to the record, and I understand there was somewhat of a problem here, but on that date, he was appearing on what we call a master calendar, sort of like an arraignment or plea court, and his attorney announced that they would be disputing, they were not conceding deportability, so the case was set for hearing. It was not continued to give him an opportunity to file asylum. He was told, well, then we will have to set it at a time when we have more time to hear the issues on the issue of deportability. That is why it was continued the first time and set for another date. That is on Page 45 of Volume 1 of the record. The second time they went in, ready to contest and go over the issue of deportability, and the government was there with a new charge, so here was something new that had to be answered.
Antonin Scalia: Ms. Harper, let's come back to the regulatory requirements. This visit by Al Hassan, it isn't just that this was new evidence demonstrating a need for asylum that had been asserted earlier. He had never asserted a need for asylum earlier. He had never even claimed that he was going to be persecuted if he went back in the earlier hearing. It isn't that this was a new piece of evidence to support a prior claim. What he was asking the board to believe is that he had no reason whatever to believe he was going to be persecuted until this visit by Al Hassan occurred, that that alone is enough to explain why he never raised the asylum request before. Is the board really compelled to accept that as a reasonable proposition?
Dorothy A. Harper: Mr. Justice, I think this again goes back to the problem with the record. On the November 10 hearing, he asked to... if you are... it is a standard part of the procedure to be asked if you have to be deported, what country would you wish to be deported to, and he named first Canada and was told he couldn't name Canada, and he named England, and he said, and the judge said, do you feel your life of freedom would be threatened in Ghana on accountant of race, religion, nationality, membership in a particular social group, or a political opinion? Answer from Dr. Abudu. I can say my life, yes. On which of these groups? Political opinion. This is all that was said. At that time he asserted his fear. The first attempt to--
Speaker: But didn't claim asylum.
Dorothy A. Harper: --He did not make an actual application. He did not pursue an application.
Antonin Scalia: So he comes to the board now and he says, the one enormous thing that... it is not just an additional piece of evidence, but what has made me charge my mind about whether I need asylum or not is this possibly innocuous visit by Al Hassan. The board really must reopen because of that, and must believe that that one event is what suddenly changed this man from a person who didn't need asylum to one that did?
Dorothy A. Harper: Yes, if we examine what elements of--
Antonin Scalia: And it is irrational to conclude otherwise?
Dorothy A. Harper: --Yes, Mr. Justice, I believe so. If we examine the elements of the case, in 1981, when he first went before the judge, the government in Ghana was in shaky condition. It was still being led, at least figuratively, by Dr. Abudu's brother and friends. Two months later, they were ousted in a violent coup, and Flight Lieutenant Rawlings took over the government. Dr. Abudu is still in deportation proceedings. Dr. Abudu's friend, the minister of state, was put in jail. His lifelong friend, Lieutenant Colonel Hamidu, was declared Number One Enemy. And his brother got out of the country and went into to exile. That is what we have by the end of deportation proceedings We do not have any evidence, and what we have today shows that none of this existed to show that the government of Ghana knew who Dr. Abudu was, knew where he was, that they were interested in him in any way, and he had not taken a stand against the government of Ghana. That is what was missing in 1982. And those were the element's that were--
Byron R. White: Didn't the doctor through his counsel affirmatively say in April that he did not intend to apply for asylum, even though he had previously said he did intend?
Dorothy A. Harper: --Yes, he did not intend to apply.
Byron R. White: And he never submitted his--
Dorothy A. Harper: And he did not file an application.
Byron R. White: --in the deportation proceeding, although he had been reminded many times that he wanted to, he had better do it. Isn't that right?
Dorothy A. Harper: That is correct, Mr. Justice.
Byron R. White: And instead, he just applied for an adjustment of status.
Dorothy A. Harper: That is correct, Mr. Justice.
Byron R. White: So now the board has to reopen that proceeding, because... why?
Dorothy A. Harper: Because he has stated new facts that were not in existence at that time that now support a case.
Byron R. White: One fact.
Dorothy A. Harper: The visit from the Ghanaian official combined with--
Speaker: One fact.
Dorothy A. Harper: --combined with the fact that when this man came to see him, Dr. Abudu's brother and his lifelong friend, Lieutenant Colonel Hamidu, just the year before had been named as suspects in a plot to overthrow the Ghanian government on two separate occasions. Then the... that was '83, one year after deportation proceedings. Eighty-four, somebody comes to see Dr. Abudu and wants to know about his brother, about Lieutenant Colonel Hamidu. One fact by itself does not a case constitute. It is the attacking of the facts as they occur one after the other.
William H. Rehnquist: But you say one fact by itself requires the BIA to reopen.
Dorothy A. Harper: If that fact adds the last of the needed ingredients for the case, yes, Mr. Justice. If that fact--
William H. Rehnquist: Even though there was no application for asylum previously?
Dorothy A. Harper: --Yes, Mr. Justice.
William H. Rehnquist: So how can you say the facts are stacked when the facts previously were never used as a basis to apply for asylum?
Dorothy A. Harper: Mr. Chief Justice, I would like to... in response to that, I would like to inquire and make a rhetorical question. Had he filed an application in 1982, what would have happened to it? Would it have been granted? We know by looking at the cases that that would not have been granted. We looked at the precedent decisions. So where would he have been in 1984 with an application for asylum which had been denied that he wanted reopened for additional fact? What I am saying, Mr. Chief Justice, is that I don't believe that our justice system, that our efficient running of the administrative and judicial system is served by requiring people to bring it, if it has any-type of remotely colorable basis, bring it when you are in court, because if you don't bring it when you are in court, we are going to deny you later.
Antonin Scalia: I agree with you on that. That seems to me quite reasonably, that if he didn't think he had a case then or a case that would be denied, we shouldn't penalize him for that. But the problem I am having with your case is the assertion that this one fact does make so much of a difference, I mean, one might argue that it makes enough of a difference to just tip the scales, but the argument you are making to us is that it so clearly make that difference that it is arbitrary--
Dorothy A. Harper: Mr. Justice, I understand--
Antonin Scalia: --for INS to... not to allow it to--
Dorothy A. Harper: --I understand, Mr.--
Antonin Scalia: --That is a hard case.
Dorothy A. Harper: --But when we look at the elements, when we compare what happened in his one time in 1984 and we compare it to the elements, this visit is what let D. Abudu know, what gave him objective evidence of what he had felt, but you can prove your case on what you fuel, it gave him the objective evidence that the government of Ghana was interested in him, the government of Ghana wanted to talk to him.
Sandra Day O'Connor: But, Ms. Harper, why can't the BIA hearing officer say, let's accept this statement, and let's recognize that the visit had been made by the Ghanian official, but even recognizing that, I don't think that is enough to justify granting rehearing. I don't think that is enough to change this person's status. Now, isn't there some leeway there for the BIA to take that position?
Dorothy A. Harper: There is leeway to exercise discretion. They chose not to do it. Their decision has to rise or fall on the basis stated. I see my light, and in conclusion, I would like to say--
Antonin Scalia: You have some time still, Ms. Harper. Don't panic. Assuming that you are right about the prima facie problem, and assuming that you are right about the regulatory requirements, assuming, in short, that the Ninth Circuit was right on all of the points it decided, why was its proper action to direct an evidentiary hearing? Why shouldn't it have just remanded to have the board do it right next time?
Dorothy A. Harper: --Or reasons advanced--
Antonin Scalia: As I understand it, there is no requirement in law that there been an evidentiary hearing. All that the Ninth Circuit decided is that the board gave the wrong reasons for denying an evidentiary hearing, but why could it command an evidentiary hearing? Where in the status or even in the board's regulation does it say your client is entitled to an evidentiary hearing if he makes out an evidentiary case and comes within the regulatory requirements? It is still within the board's discretion, isn't it?
Dorothy A. Harper: --The Board of Immigration Appeals has told us we would ordinarily grant, if you give us a prima facie case we will grant reopening.
Antonin Scalia: Where is that?
Dorothy A. Harper: And on reopening--
Antonin Scalia: Where is that?
Dorothy A. Harper: --In re Sipus. First case it talked about the prima facie case. It is also mentioned In matter of Garcia, which was cited by the American Immigration Lawyers Association in their amicus brief.
Antonin Scalia: You are claiming it is the board's laws that if you meet these two requirements, prima facie case and meet the regulatory requirements, you will get an evidentiary hearing.
Dorothy A. Harper: They have stated, it is what we want, when we grant it... I don't wish to be misleading. I fully recognize that subsequent to that time there has been the modification of this Court that the board may deny on the exercise of discretion, but the board gave us the test. They told us what they wanted, and we give them what they want. We meet... we represent he facts that we believe are necessary to meet the prima facie case test. I would like to say that I think that Congress has told us what their... they have laid a narrow path for the Attorney General on refugee law. They have mandated that there be a procedure. The board has told us... the Attorney General gave us regulations. The board told us what they were looking for. And I think that all of the use segments of the law--
Thurgood Marshall: What were you prepared to show at the hearing?
Dorothy A. Harper: --Pardon?
Thurgood Marshall: What were you prepared to put on in evidence at the hearing--
Dorothy A. Harper: Additional--
Thurgood Marshall: --if you have been granted a hearing?
Dorothy A. Harper: --Additional evidence.
Thurgood Marshall: What? On what particulars?
Dorothy A. Harper: Additional possibly witnesses--
Thurgood Marshall: Not possibly, what you could do.
Dorothy A. Harper: --Okay.
Thurgood Marshall: What you had in hand, ready to do.
Dorothy A. Harper: Okay. We have in hand Dr. Abudu's testimony. We have documents. We have some letters. I believe, and I do not wish to misrepresents, so I have to say I believe that we have a copy of the Ghanian newspaper with headlines, number one, about Hamidu being declared Number One Enemy, and a price on his head--
Thurgood Marshall: Could you have put that in your original motion?
Dorothy A. Harper: --We did not have it. It took us two months to get the evidence we were searching on three continents in order to meet our prima facie entry level of evidence. We didn't receive affidavits, and we were able to get the affidavits. We got materials from England. This did not come in, and this is one reason that it took two months to get the case together. We were waiting to try to get that.
William H. Rehnquist: Your time has expired, Ms. Harper.
Dorothy A. Harper: Thank you.
William H. Rehnquist: Mr. Klonoff, you have two minutes remaining.
Robert H. Klonoff: Ultimately, as Justices Scalia and O'Connor recognized, the issue is whether the BIA must reopen because of a new fact, whether it is compelled now. Now, the BIA accepts the fact that the visit occurred, and the questions whether or not that fact is so significant that the BA must give compelling weight to it, and the reason that we are arguing that he BIA should be given leeway in making these judgments is, Number One, because of the expertise that it has in reviewing thousands of cases, an expertise in fact recognized in Cardoza-Fonseca in the decision, making clear that there is a difference between a straight question of statutory interpretation and a question of applying the law to the facts of the particular case. I believe it is Slip Opinion Page 26. And finally, the greatest deference of all because in this situation, as counsel concedes, Congress did not specify the reopening had to be required in any situation whatsoever, and for that reason we would submit a particular degree of deference should be given to the body. Consequently, unless there are any further questions, we would urge that the judgement of the Court of Appeals be reversed.
William H. Rehnquist: Thank you, Mr. Klonoff. The case is submitted.


William H. Rehnquist: We'll hear argument now in Number oh oh fifteen ninety-five, Hoffman Plastic Compounds, Inc. versus The National Labor Relations Board. Mr. McCortney.
Ryan D. McCortney: Mr. Chief Justice, and may it please the Court. The issue in this case is whether the award of back pay to an undocumented alien who never was legally present or legally authorized to work in this country conflicts with this Court's holding in Sure-Tan or with this country's immigration laws and policies. In Sure-Tan, this Court held that the discriminatees in that case must be deemed unavailable for work and the accrual of back pay therefore tolled during any period when they were not lawfully entitled to be present and employed in the United States. The Sure-Tan Court's back pay limitation is consistent with the INA's dual requirement that to be employed in this country an alien must be both legally present and legally authorized to work. Despite this dual requirement, the board contends that Castro is entitled to back pay even though he never was legally present or legally authorized to work in this country during the back pay period. The fatal flaw in the board's position lies in its adherence to its physical availability doctrine. The board contends that this C- Court denied back pay to the discriminatees in Sure-Tan only because they had left the country and were physically unavailable for work. If the board is right, the Sure-Tan discriminatees could have illegally reentered the country to establish physical presence and to commence the accrual of back pay. However, such reentry would violate the immigration laws of this country and be contrary to this Court's holding in Sure-Tan.
William H. Rehnquist: Have the immigration... Well, didn't...
William H. Rehnquist: laws changed at all in any re- relevant respects since our decision in Sure-Tan?
Ryan D. McCortney: Yes, Your Honor, the passage of IRCA in nineteen eighty-six.
William H. Rehnquist: And how how w- what what relevant changes did IRCA make?
Ryan D. McCortney: IRCA was an amendment to the INA that made the employment, the knowing employment of un- undocumented aliens unauthorized from the employer's perspective.
Anthony M. Kennedy: And and is it correct that when Sure-Tan was argued, aricka [: IRCA] if that's the way you pronounce it, was being considered by Congress and the Government in its argument told us that if aricka [: IRCA] had been passed, back pay would not be available?
Ryan D. McCortney: That's correct, Your Honor.
Speaker: country to claim back pay.
Antonin Scalia: conditioned it on legal presence, I mean, in fact they were not present.
Ryan D. McCortney: That's correct, Your Honor.
Antonin Scalia: So you have to acknowledge that it was dictum.
Ryan D. McCortney: Well, Your Honor, I I would I would not call it dicta only because the Court set forth the conditions upon which the discriminatees might receive back pay, if any, if they were to legally reenter...
Speaker: the country.
Antonin Scalia: but but but it only had to say one condition in order to decide the case.
Speaker: and it...
Antonin Scalia: went on to say, and in addition you have to be available t- to work, but but that was really unnecessary to the decision.
Ryan D. McCortney: Well, the threshold condition was legal reentry, and that was the starting point of the analysis.
Speaker: McCortney if I i-
Ruth Bader Ginsburg: If that is so, then why did the Court make the comment on page nine oh one of the opinion in footnote eleven, talking about the board has said that it's it will make it this arbitrary number of weeks, and the Court said the board has never intemp- attem- attempted to impose a minimum back pay award that the employer must pay regardless of the actual evidence as to such issues as the employee's availability to work th- All of that would have been unnecessary if it were just this blanket rule, right?
Ryan D. McCortney: Well, Your Honor, I think in footnote eleven what the Court was addressing was the minimum back pay award of six months that the court of appeals had imposed and the board had adopted, and then the board tried to defend that award by arguing that they had in other cases had estimates of back pay, despite the fact that the discriminatee was unable est- unable to establish with any certainty the probable length of the back pay period.
Anthony M. Kennedy: Well, if if the opinion in Sure-Tan we think equivocal, if it's a wash either way, what what is your principal argument for reversal here?
Ryan D. McCortney: Assuming that Sure-Tan is equivocal?
Anthony M. Kennedy: Yes.
Ryan D. McCortney: That the board's award of back pay conflicts with the immigration laws and policies of this country as embodied in the INA and IRCA.
David H. Souter: Well, what do you what do you say of the the argument that the board makes that even even if the the the the dictum in in Sure-Tan were a were a a holding as as you say it it should be treated, that the statute has changed the landscape, and that the board's rule in effect is is in aid of the statute, because the board is saying the illegality on the part of the employer comes when the employer knowingly employs these people despite knowledge of of their illegal character, so in effect we're going to say that the obligation to pay back pay stops when the employer knows that the alien in fact is illegally there.
Ryan D. McCortney: Your Honor, the just the mere prospect of receiving back pay in this case encouraged Castro to extend his illegal stay by more than four years and to continue...
Speaker: using...
David H. Souter: I I think I think you're right, but the board is saying, yeah, there's that inducement on one side, but there's a very powerful employer inducement if we come out the other way, and although I don't think the board put it in these words, I take it the board is saying, we think the employers are going to make a rational decision about inducements more clearly or more obviously than employees, the illegal aliens might do, so we're going to prefer the the inducement or the policy that is going to have the strongest effect on the employers.
Ryan D. McCortney: No, Your Honor.
David H. Souter: But the board is saying we can't have it both ways.
Ryan D. McCortney: Y- Your Honor, I don't believe that those ind- the the deterrence of the employer to that knowingly hires illegal aliens or employs them, that awarding back pay is necessary in light of the the sanctions under IRCA that now subject employers that do so to civil and criminal sanctions, and so...
Antonin Scalia: Well, would- wouldn't it also be the case that that if the employer, by reason of this inducement, hired su- supposed inducement hired somebody whom he knew at the time of the hiring to be an unlawful, an illegal alien, even applying the board's rule, he wouldn't have to pay any back pay.
Ryan D. McCortney: That's correct, Your Honor.
Stephen G. Breyer: What i- what is th- here I I think Justice Souter is we said in our cases just what Justice Souter said, I take it, INS V Lopez-Mendoza, you know quoting what Sure-Tan says.
Speaker: And if this...
Stephen G. Breyer: doesn't, what would?
Ryan D. McCortney: Your Honor, what it doesn't address is the violation of the INA.
Stephen G. Breyer: I'm sorry.
Ryan D. McCortney: Your Honor, I think what the sentent- sentence means, at least my reading of it, is that retrospective sanctions may be imposed, but not necessarily,
Stephen G. Breyer: Fine.
Speaker: What other what other ones are there, is is is what what other retrospective sanctions are there?
Antonin Scalia: Can the board fine can the board fine the employer?
Ryan D. McCortney: No, Your Honor.
Antonin Scalia: What else can the board do to punish the employer for for the unfair labor...
Speaker: practice?
Ryan D. McCortney: and desist order, as in this case, with the threat of contempt sanctions.
Speaker: That's a that's a prospective...
Antonin Scalia: sanction, isn't it?
Ryan D. McCortney: Yes.
Antonin Scalia: So you really don't have any explanation for that for that language .
Ryan D. McCortney: All I would say, Your Honor,
Speaker: is that...
Antonin Scalia: I I suppose your explanation is that that's as much dictum as as as your your opponent says Sure-Tan was.
Ryan D. McCortney: That's correct, Your Honor.
Speaker: So it's a wash, right?
Stephen G. Breyer: I take it that Sure-Tan was dealing with a case where the employer did know in respect to the sanction that the employee, the alien, was illegal so Sure-Tan did not consider the kind of sanction here at issue, which is a sanction that applies only to the period where the employer did not know that the employee was an illegal, hence the employer was not violating the immigration law.
Ryan D. McCortney: It still doesn't address, Your Honor, the fact that the illegal presence and the use of fraudulent documents and working without authorization is a violation of the INA.
Speaker: Irres-
Antonin Scalia: That's the question I was going to ask you.
Ryan D. McCortney: Yes, Your Honor.
Antonin Scalia: Well what now I I...
Speaker: I know I know the use of the...
Antonin Scalia: green card is, but is the is the working and getting pay unlawful under the immigration laws?
Ryan D. McCortney: Yes, it is.
Speaker: I thought...
Sandra Day O'Connor: I thought IRCA itself enacted a provision making it illegal for aliens to provide false documentation to get employment.
Ryan D. McCortney: Yes, it was, Your Honor.
Speaker: eight USC eleven...
Sandra Day O'Connor: did IRCA add provisions and impose obligations on prospective employers to require them to review the documents and make sure that they appear to be regular on their face?
Ryan D. McCortney: Yes, Your Honor.
Sandra Day O'Connor: And that was a new provision?
Ryan D. McCortney: That was a new provision.
Sandra Day O'Connor: And is there any allegation in this case that the employer failed to comply with that?
Ryan D. McCortney: No, Your Honor.
Anthony M. Kennedy: I- It's i-
Speaker: May I ask if...
John Paul Stevens: your position would apply if this were a violation of the Fair Labor Standards Act instead of the m- labor act? If the employer had underpaid the employee, would he have a right to legal back pay?
Ryan D. McCortney: Your Honor, I in the amicus brief of the States they seem to equate back pay under the NLRA with back pay under the FLSA when they're two different things.
Speaker: Back pay under...
John Paul Stevens: they're two different I just want to know what your position is on that.
Ryan D. McCortney: No, we would not advocate at all, and we have not, taking wages away from undocumented aliens that have been earned for work already performed.
Ruth Bader Ginsburg: Even though they it it was a crime to do any work? Why i- if if you're s- sticking with your theory that everything that this person did on that job, from presenting the false documentation on, was unlawful, so why should he be paid anything for unlawful activity? You're making a distinction between the Fair Labor Standards Act and the NLRA, but your theory, I think, would cover both.
Ryan D. McCortney: Well, Your Honor, we give certain rights and benefits to undocumented aliens that are already in this country, and we do that to level the playing field between undocumented aliens and American workers so that unscrupulous employers won't prefer undocumented aliens over American workers.
Anthony M. Kennedy: Well, furthermore, just from the standpoint of equity, I suppose the employer has benefitted from the services in in in the case that Justice Ginsburg puts,
Speaker: and there's there's there's no...
Anthony M. Kennedy: benefit here save, arguably, from the from illegal lab- labor practice, but there's there's no benefit for work received.
Ryan D. McCortney: That's that's absolutely correct, Your Honor.
Speaker: In fact th-
Anthony M. Kennedy: would you clarify one thing for me?
Ryan D. McCortney: Sure.
Anthony M. Kennedy: Do I understand that if the employer and the employee both know of the illegality, that then there's no back pay?
Ryan D. McCortney: Yes, Your Honor.
Anthony M. Kennedy: I mean it seems to me that's absolutely upside down.
Ryan D. McCortney: Well, Your...
Speaker: Honor s-
Anthony M. Kennedy: the and of course, you don't this is the Government's position, you don't have to defend it, but in in other words, as I understand the Government says once the employer knows that there's a violation and continues it, then he's no longer liable for back pay.
Ryan D. McCortney: Well, Your Honor, that's the problem with the rule, is that it in some ways rewards the unscrupulous employer in Sure-Tan and penalizes the innocent pl- employer, as in Hoffman.
Speaker: get him deported, and cut off back pay.
Stephen G. Breyer: difference is, the of course, that if the employer knowingly hires this alien, he's subject to a lot of other penalties under the immigration law.
Speaker: That's correct, Your Honor.
Stephen G. Breyer: who, you know, all he does, he says, I've checked their cards, I've checked their cards, the cards say they're here legally, and he runs some God-awful sweatshop.
Antonin Scalia: Well, he has to pay for the sweat, though, doesn't he?
Speaker: Abolutely.
Stephen G. Breyer: and it's pretty low cost, because he's violating every labor law under the sun.
Antonin Scalia: Well, i- if, indeed, the worker, u- u- under this scheme you're proposing, there's no doubt that if the document i- undocumented alien works, he's going to get paid for the work.
Ryan D. McCortney: Absolutely, Your Honor, no doubt, and we have...
Speaker: never advocated...
Anthony M. Kennedy: there's an OSHA violation.
Ryan D. McCortney: Could be.
Ruth Bader Ginsburg: What about title seven?
Ryan D. McCortney: Under title seven, i- th- if it's back pay exactly like back pay under the National Labor Relations Act, where it's unearned wages for work not performed during the back pay period, then that would be a...
Speaker: problem.
Ruth Bader Ginsburg: this the allegation is, they kept me in this entry-level job, although I was qualified for the next steps, because I was a woman and they never promote women.
Ryan D. McCortney: In that situation, Your Honor, if it were discovered that that the u- illegal that this person was an illegal alien...
Ruth Bader Ginsburg: Make it just like this case.
Speaker: Then there are other remedies...
Ryan D. McCortney: available under title seven to effectuate the policies of the act and to enforce compliance.
Ruth Bader Ginsburg: I'm asking about back pay for title seven.
Ryan D. McCortney: It would be bracketed if in your situation, you would get back pay, and let me explain the difference in this case.
Ruth Bader Ginsburg: So in title seven, if she were laid off, say, because they laid off all the women before they la- laid off any men, so sh- she would also have a duty to mitigate in those circumstances, would the result be different?
Ryan D. McCortney: No.
Speaker: this country.
Antonin Scalia: complaint, if it were if it were complete, should should read something like, you know, I shouldn't have been working at all, and it was illegal for me to be working at all, and I'm complaining because I only got twelve thousand dollars in illegal illegal wages.
Ryan D. McCortney: No, Your Honor, I don't.
Ruth Bader Ginsburg: But you just told me that you would bracket the title seven with the FLSA.
Ryan D. McCortney: I Yes, because I notwithstanding Justice Scalia's very good example that I don't find that appealing, that there is a way that this Court can distinguish between the National Labor Relations Act, which is remedial in nature, and all these other State and Federal discrimination laws that have punitive features to it that are not dependent on the undocumented alien's ability to work in this country.
David H. Souter: Well, I don't have any doubt that there are other ways for us to distinguish this, and it may very well be that if this were an original matter with us we wouldn't have sort of struck the balance where the board did, but you've got the element here, the added element here of of the board's decision, and I suppose we owe some kind of respect to it.
Speaker: Well, Your HonorIf...
John Paul Stevens: I could just supplement that, don- do we owe any deference to the views of the Attorney General of the United States, who is responsible for enforcing these a- both statutes?
Ryan D. McCortney: Your Honor, I don't believe so.
Speaker: We don't give a deference...
Antonin Scalia: to administrative agencies as to what damages are available in court.
Speaker: extraordinary.
David H. Souter: were there agency adjudications here?
Ryan D. McCortney: In what way, Your Honor? There was...
Speaker: there was a...
Ryan D. McCortney: back pay hearing, there was a underlying unfair labor practice proceeding.
David H. Souter: Which and and the result of which was?
Ryan D. McCortney: That the employer was found to have violated the National Labor Relations Act.
Speaker: hearing...
David H. Souter: I mean, there was an administrative order to pay, wasn't there?
Ryan D. McCortney: Yes.
Speaker: That's what I thought.
Ryan D. McCortney: law judge did find that did not award any back pay to Castro because it conflicted with Sure-Tan had found that it conflicted with IRCA.
David H. Souter: Th- fu- the but the board did.
Ryan D. McCortney: Yes.
David H. Souter: Yeah.
Stephen G. Breyer: If he I guess you're quite right that if the if the board's award violates the immigration law, that's the end of the case.
Speaker: That's correct.
Stephen G. Breyer: But suppose that the immigration law doesn't forbid that award in terms, but its policy would, in fact, be hindered, while the labor law, actually the policy is furthered, though it doesn't insist on this kind of award, wouldn't we defer to the board when it seeks to reconcile, or the Attorney General when they seek to reconcile the policies of the two statutes?
Speaker: Because...
Ryan D. McCortney: I I would I would respectfully disagree, and this in Sure-Tan this Court said in devising remedies for unfair labor practices the board is obliged to take into account another equally important congressional objective, to wit, the objective of deterring unauthorized immigration that is embodied in the INA.
William H. Rehnquist: Well, that goes back as far as Southern Steamship Company, where you're talking about the mutiny statute, that the board can't just go ahead without any reference to competing statutes.
Ryan D. McCortney: Well, Your Honor, I would agree, if if the board's remedy conflicts with the policies of another statutory scheme, then it it's they're owed no deference.
Ruth Bader Ginsburg: The board did take that into account, though.
Ryan D. McCortney: The APRA Fuel case?
Ruth Bader Ginsburg: Yes.
Ryan D. McCortney: Okay.
Speaker: and that a pr-
Ruth Bader Ginsburg: go back to one thing it also said in Sure-Tan, which is that the court of appeals here made an estimate without any evidence as to the period of time these employees might have continued working before apprehension by the INS, and that sounds working before apprehension by the INS, that sounds very close to what the board did in this case?
Ryan D. McCortney: Well, Your Honor, also in Sure-Tan, in the last sentence of the remedial section of the opinion it states, by directing the board to impose a minimum back pay award without regard to the employee's actual economic losses or legal availability to work, the court of appeals plainly exceeded its limited authority under the act.
Ruth Bader Ginsburg: So then, th- what what do you make of the the condition about the period between the violation and when the employees might have continued working before apprehension by the INS?
Ryan D. McCortney: I Your Honor, I don't know, because the discriminatees in that case were left the country the same day...
Speaker: their employment terminated.
Ruth Bader Ginsburg: the outcome of that particular case, where they were in Mexico, but a case where they were here, and the question was, how much back pay, and there's a reference to not a flat six weeks or six months or whatever, but the time period from the unlawful employment practice until one would expect the INS would pick up these people.
Ryan D. McCortney: Your Honor, again I think that that is inconsistent with the other language in the Sure-Tan decision which is repeated over and over again about legal availability to work, and being legally authorized to work, and why would the Court use that language if it didn't have to? So I getting back to the policy of this that underlies the immigration laws of this country, is to preserve jobs for American workers.
William H. Rehnquist: Thank you, Mr. McCortney.
Ryan D. McCortney: Thank you, Your Honor.
Antonin Scalia: Mr. Wolfson before you get to the substance of the matter I I want to ask a question sort of relates to something that Justice Stevens asked Stevens asked.
Speaker: in this matter?
Antonin Scalia: when when when it was told that that it want that that you're you're going to argue that courts should pay illegal aliens money that it was unlawful for them to earn? What what did the INS say to that? breath>
Paul R. Q. Wolfson: Justice Scalia, may it please the Court: the the position in our brief has been developed in consultation with the Immigration and Naturalization Service.
Antonin Scalia: I understand that.
Paul R. Q. Wolfson: The INS has agreed with it and accepts it, and I'm...
Speaker: here representing -- Right right. Well, I...
Antonin Scalia: Well, I mean, if i- if they agreed with it, I mean, and just thought...
Speaker: The INS...
Antonin Scalia: i- I have no I it explains why we have a massive problem of illegal immigration, if that's if that's how the INS feels about this.
Paul R. Q. Wolfson: I have I I must disagree with that, Justice Scalia, and the point is, as the board recognized both in this decision and in the APRA Fuel decision which preceded it, the essential problem is that there is, as the board pointed out, an inseverable connection between illegal immigration, the availability of jobs, and poor working conditions for employees for i- that illegal immigrants are wiling to take in the United States.
Speaker: What it could...
Stephen G. Breyer: in IRCA didn't the legisla- history of the report say that IRCA is not meant to undermine or diminish in any way labor protections in existing law, or to limit the powers of labor relations board to remedy unfair practices committed against undocumented employees?
Paul R. Q. Wolfson: That is that is exactly right, so...
William H. Rehnquist: What is exactly right, that's what a legislative...
Speaker: history...
Paul R. Q. Wolfson: legislative history says.
Speaker: [Inaudible]
Antonin Scalia: history was that? I...
Speaker: mean,
Antonin Scalia: was this a really powerful portion of...
Speaker: Yes, it is.  Well, it's two committee reports.
Paul R. Q. Wolfson: Committee House Judiciary Committee and the Education and Labor Committee, but I...
Speaker: don't just have a...
Paul R. Q. Wolfson: Of the House.
Antonin Scalia: Both...
Speaker: of...
Antonin Scalia: the House?
Speaker: But I- But I don't have just legislative history as a matter of fact...
Paul R. Q. Wolfson: I think it is important also to note that in IRCA Congress also wrote into law authorization of increased resources for enforcement of of Federal labor laws by the Department of Labor by the Wage and Hour Division and the Office of Federal Contract Compliance.
Speaker: in order --
William H. Rehnquist: it include the National Labor...
Speaker: Relations Board?
Paul R. Q. Wolfson: it did not refer to the National Labor Relations Board, but the point is, Congress knew that the Department of Labor sh- was enforcing and should enforce Federal labor laws at the behest of and for the benefit of illegal aliens to obtain back pay for them.
Antonin Scalia: They wanted to be sure that that aliens who had no right to be here, had no right to be earning any money...
Paul R. Q. Wolfson: Well...
Antonin Scalia: should should get paid for periods that they didn't work? It It's not a matter of their having worked and and and provided the employer with with a benefit, which you're then reimbursing them for, but they haven't worked.
Paul R. Q. Wolfson: It it's n- it it is it does not just periods for which they have worked, which might arguably distinguish the Fair Labor...
Speaker: Standards Act...
Antonin Scalia: Right.
Paul R. Q. Wolfson: minimum you know, maximum hours and minimum wage.
Speaker: provisions,
Paul R. Q. Wolfson: routinely seeks back pay for alien for aliens and others who have been terminated in violation of executive orders .
Antonin Scalia: Even though it's unlawful for them...
Speaker: to to receive that--
Paul R. Q. Wolfson: even though it is.
Speaker: The and a...
Paul R. Q. Wolfson: funda- a a...
Speaker: very...
Paul R. Q. Wolfson: fundamental part of the Feder- Fair Labor Standards Act.
Antonin Scalia: I In In most back pay situations where the employer has committed an unfair labor practice and dismisses an employee improperly, the amount he's going to be stuck with for back pay is limited by the fact that the person unlawfully fired has to mitigate.
Paul R. Q. Wolfson: Well...
Antonin Scalia: Mitigation is quite impossible, isn't it?
Paul R. Q. Wolfson: I- I- I'm not sure I agree with that exactly, Justice...
Speaker: Scalia. Here's...
Paul R. Q. Wolfson: w- here's a I wouldn't say that the unlaw- I wouldn't say that the undocumented alien has a duty to mitigate.
Speaker: is not I...
Paul R. Q. Wolfson: I I I will agree with that.
Speaker: And that is...
Paul R. Q. Wolfson: quite...
Speaker: consistent with...
Antonin Scalia: unlawfully obtains another job,
Speaker: that'll be...
Antonin Scalia: deducted?
Paul R. Q. Wolfson: Yes, and that is quite...
Speaker: consistent with the whole...
Antonin Scalia: need not do that.
Speaker: Not nece-
Antonin Scalia: he'd say, how can I mitigate, it's unlawful for me to get another job.
Speaker: Justice Justice Scalia--
Antonin Scalia: home and eat chocolates and get my back pay...
Paul R. Q. Wolfson: I don't agree that the board would have to accept such a representation.
Speaker: should. Should have...
Paul R. Q. Wolfson: not benefit from the fact that he is an undocumented alien and being relieved of and getting more back pay than the similarly situated authorized worker.
Speaker: Is it consistent with the --
William H. Rehnquist: d- does the does the board have to reconcile the Fair Labor Standards Act and the Office of Contract Compliance? I would think that it's responsibility as the National Labor Relations Act and the Immigration Act in this case.
Paul R. Q. Wolfson: That is correct, Mr. Chief Justice, but I but the board did look to IRCA and the Court can look to IRCA, which includes these other provisions in the Department of Labor, to determine what Congress was attempting to achieve in IRCA, and those are, I think, reasonable indicators of what Congress' objectives were and how far it intended to go along with the legislative...
Speaker: history  just...
Anthony M. Kennedy: makes makes its calculus and when the Government made its calculus, did it give any consideration to the fact that a union ought not as a matter of policy to use illegal aliens for organizing activity, or do you think the union can do that?
Speaker: Well...
Anthony M. Kennedy: consistent with the labor laws of the United States for the union say it knowingly uses an alien for organizing activity?
Paul R. Q. Wolfson: I I don't know that the board has addressed the point of knowingly using illegal aliens.
Speaker: they weren't...
Anthony M. Kennedy: and that doe- that doesn't d- in- induce illegal immigration?
Paul R. Q. Wolfson: Well,
Anthony M. Kennedy: It seems to me that's a far more direct link than the very tenuous idea that you have that there's going to be more illegal immigration because they know they're going to get back pay.
Paul R. Q. Wolfson: Well, I don't know I would suggest that the the more powerful inducement towards illegal migration is the availability of the job, union or no.
Speaker: is the employer--
Ruth Bader Ginsburg: cases we're only talking about a situation where the employer, and presumably the union, too, doesn't know, because if if the employer knows, then the employer's obligation is to dismiss that person, as I assume it would be the union's, too, but in all these cases the issue comes up only because the employer didn't know of the illegality, isn't that so?
Paul R. Q. Wolfson: Well, in this case the employer did not know.
Antonin Scalia: But not back pay.
Speaker: I mean...
Paul R. Q. Wolfson: does order back pay up to the point where up to the point where either the employee is reinstated, or it terminates at a reasonable i- if the employee fails to put himself in compliance with the immigration laws and become qualified, the board cuts off back pay as of that As of the end of a reasonable period.
Speaker: And that is consistent...
Antonin Scalia: even even I thought I thought that the rule was, as soon as the employer knows of the illegality we're not going to allow any back pay from then on.
Paul R. Q. Wolfson: Well, that is because in a case like this, what the what the board is doing is affording the employer the benefit of its general,
Speaker: after-acquired evidence rule.
Antonin Scalia: he knows about illegality from the very beginning, then we will...
Paul R. Q. Wolfson: Well, in...
Speaker: a situ- in a situation...
Antonin Scalia: order back pay?
Paul R. Q. Wolfson: Yes, because in a situation like that the employee the employer is not well-situated to claim the benefit of the after-acquired evidence rule, because it cannot claim that it wouldn't have hired the alien...
Speaker: anyway t- t- to use an example.
Speaker: Well, there are two people violating...
Paul R. Q. Wolfson: the law here, Justice Scalia.
Speaker: properly, sir.
Antonin Scalia: of the initial hiring up...
Speaker: until his...
Antonin Scalia: violation.
Paul R. Q. Wolfson: Well, the board is the board is charged with the responsibility of of developing a workable implementation of the National Labor Relations Act pursuant to its authority under section ten C.
Speaker: law, but there is no...
Sandra Day O'Connor: doing though, really is kind of odd, because the the result is that back pay awards to illegal workers are likely to be greater than to legal ones under this board's policy, and that's so odd, and it gives the illegal alien an incentive to try to phony up more documents and to extend for the longest possible time the charade that the worker is here lawfully, and that's that's surely strongly against the policies of the immigration act at the very least.
Paul R. Q. Wolfson: The the problem, Justice O'Connor, is that the immigration act, the policies come down on both sides.
Speaker: Well, but you y-
William H. Rehnquist: You say it comes down on both sides, and it it makes certain acts by illegal immigrants illegal, the even the entry and it makes certain acts by the employer illegal.
Paul R. Q. Wolfson: That is correct, Mr. Chief Justice, but the board is attempting to fashion the board doesn't know in advance which employer will violate the law by hiring undocumented aliens knowingly and which will not, or which employer will,
Speaker: you know posel- I  I...
Paul R. Q. Wolfson: I think that the that the rule the board isn't is fashioning a rule that is implementing Congress' policy...
Speaker: objective er i- across the board...
Sandra Day O'Connor: be looked at after the fact, let's find out who violated what and then fashion the appropriate remedy?
Paul R. Q. Wolfson: Well, the Court has not said that the board has to only fashion its remedies in a case in which the precise situation in the pr- e- i- you know in the precise situation into which it's it's dedicated.
Speaker: large...
Antonin Scalia: prosecution for viola- if if they know that it's it's an illegal...
Paul R. Q. Wolfson: It's not just the problem of their knowing of their knowing that they're illegal hiring.
Speaker: Well well it's just not reasonable to...
William H. Rehnquist: Why should why should the board be responsible for making sure that the employer documents his material about illegal aliens?
Paul R. Q. Wolfson: I I don't think that it's not that the board is implementing IRCA, Mr. Chief Justice.
Speaker: discussing. Th-
Sandra Day O'Connor: here's the thing.
Speaker: None at all. If...
Sandra Day O'Connor: is an incentive, it seems to me, for the employee to continue to conceal the facts, the facts that he's here illegally and has no right to work, and that the documents are false, and the board's rule fosters both those...
Paul R. Q. Wolfson: But one does have to take into account I think what would be the consequence of an opposite rule.
Speaker: But why should they be used tif- to-  to organize a bargaining unit...
Anthony M. Kennedy: if they're ill if they're illegal employees? I'm baffled by that.
Paul R. Q. Wolfson: Because it well, because the labor laws benefit everybody, and it's not just I mean, they are when I say they're organizing a bargaining unit, obviously there are there may be in this case there were other citizens and authorized aliens who are interested in organizing for the purpose of vindicating their rights under section seven of the Labor Relations act.
Speaker: You see...
Antonin Scalia: I would have thought, I would have thought Mr. Wolfson, that when you said, you know, there are seven million illegal aliens in this country, that what you would follow that with is not, that's an awful lot of people not to give back pay to.
Speaker: And what...
Antonin Scalia: And what you don't want to do to reduce it is to give them back pay.
Paul R. Q. Wolfson: Now, there is no question that there is a serious problem of illegal immigration, and the INS and the Attorney General dedicate substantial resources to attempting to resolve that problem.
Speaker: another worker.
David H. Souter: Mr. Wolfson the ar- if every time-- And I I understand that argument.
Paul R. Q. Wolfson: I I wouldn't say that the board has limited its it certainly hasn't limited its remedy to that situation...
Speaker: after the comment because...
Stephen G. Breyer: why in the question-- because I have exactly the same question.
Paul R. Q. Wolfson: W- we are not suggesting that the Court has to decide that case here.
Speaker: fuel program but but...
Stephen G. Breyer: Souter said I had taken to be the precise rationale for the narrow set of cases we're supposed to to d- decide.
William H. Rehnquist: Clearly you haven't missed your opportunity.
Paul R. Q. Wolfson: Justice Bergam, [: Breyer] my point is that the board in a case like the board did rely on its APRA Fuel decision in this case, but what it it held in this case was that an employer, once an employer learns that an alien is undocumented and therefore he cannot be hired, and in addition that the board accepts that that employer would not have would not have hired that alien and would have discharged the alien when it found out that he was undocumented, then the employer should surely get the benefit of the after-acquired evidence rule that is applied in m- many, many kinds of Federal labor laws, including the Age Discrimination Act, for example.
Antonin Scalia: On- once you adopt that rule, however, it seems to me that the asserted benefit to the immigration laws that you're claiming this rule has disappears.
Speaker: You're you're...
Antonin Scalia: trying to deter the employer who hires an immigrant apparently with with this in the back of his mind, I know this guy's an immigrant and I can commit an im- unfair labor practice upon him.
Speaker: to people who don't know.
Paul R. Q. Wolfson: whether or not he may not know in the face of having clear, irrefutable evidence before him.
Speaker: the verification system. Because because...
Paul R. Q. Wolfson: Well, that of course, that's not...
Speaker: But but your isn't isn't...
David H. Souter: another way to describe the class that you're dealing with is, he may not know in the sense that the Government can prove...
Speaker: that...
David H. Souter: he knew, but there is a class of employers as to whom the evidence is not clear, and it is that class that we want to provide the negative inducement for.
Speaker: answer?
Paul R. Q. Wolfson: I think at at a m- I I would say at a minimum that is the...
Speaker: answer, and the board and the board cannot know in advance--
William H. Rehnquist: Why should the board take over responsibility for those provisions that are basically immigration law provisions?
Paul R. Q. Wolfson: Mr. Chief Justice, the board does not view itself as enforcing the immigration laws.
Antonin Scalia: What you just agreed to in your colloquy with Justice Souter does contradict the the the immigration I I I remember when this statute was passed about what the responsibility of the employer was.
Paul R. Q. Wolfson: The- They don't have any liability under IRCA.
Speaker: or to...
Antonin Scalia: more than what the statute requires.
Paul R. Q. Wolfson: I I do want to I do want to touch a bit on Sure-Tan, which I haven't had much of a chance to discuss.
Antonin Scalia: Mr. Wolfson, do do you think a State court could enforce a contract for employment by an illegal alien?
Paul R. Q. Wolfson: I do not think that a State court...
Speaker: could r- could Right.
Antonin Scalia: contract with an employer then it it is he sues because the employer doesn't go ahead with it, and and could a State court say, well, you made the contract, you should be liable for damages?
Paul R. Q. Wolfson: I I think a State court could award damages, and State courts have done so.
Speaker: have...
Antonin Scalia: doctrine that that contracts in violation of the law are unenforceable?
Paul R. Q. Wolfson: Th- they're not necessarily completely void.
Antonin Scalia: But all of that is for work done?
Paul R. Q. Wolfson: No.
Antonin Scalia: or injury suffered, not to enforce a contract which has not been executed, which is what's going on here.
Paul R. Q. Wolfson: Well, there may perhaps there is a difference between tort and contract damages, but it is not just for work done.
William H. Rehnquist: Thank you, Mr. Wolfson.