By Gary Endelman
Dear Answer Man:
I have a problem. This past week, I took one of my best clients in for what I confidently anticipated would be a quiet and uneventful naturalization examination at our local USCIS office. Mid-way through the examination, the USCIS officer asked to see a copy of my client’s Form I-9 (Employment Eligibility Verification) form just to make sure everything was in order. Not anticipating this request, I asked for some time to provide it. We were given until the following week. Now, my client tells me that a few years ago, I think it was 2010, when he was desperate for a job, he claimed to be an American citizen on his I-9! What do I do? If I do not turn it over, the examiner might delay or deny the N-400. If I provide the I-9, my client may find himself in removal! This is beyond my pay grade, Answer Man, but not beyond yours. What should I do?
Looking for the light,
Puzzled in Pittsburgh.
Be strong and of good courage my anxious admirer. Enlightenment will soon be yours. Let’s start at the beginning, always a good jumping off point for any journey. While a false claim to U.S. citizenship is a ground of inadmissibility/removal, it is NOT a bar to naturalization! Be on guard: my worried friend. Make sure your client does not lie during the interview. Do not allow your client to sign a sworn statement in which he or she admits to a false claim and then attempt to claim it was an involuntary act, especially if you have reviewed and approved it! Matter of Vicente Somera Espino, III, A 087 081 219 (BIA Aug. 5, 2013), available at http://www.scribd.com/doc/160229759/Vicente-Somera-Espino-III-A087-081-219-BIA-Aug-5-2013 This may well be what the wily naturalization examiner is trying to achieve: namely, entice your unsuspecting client into making a false statement under oath and then use THAT as the basis to deny the N-400. Do not fall for that trap. Cutting through all the legal niceties, which the Answer Man is naturally reluctant to do, it all comes down to this: the Form I-9, and the information in it and appended to it, “may not be used for purposes other than for enforcement of this Act and sections 1001, 1028, 1546, and 1621 of title 18, United States Code.” 8 U.S.C. § 1324a(b)(5), INA § 274A(b)(5). See also, 8 C.F.R. § 274a.2(b)(4) and Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968, 179 L.Ed.2d 1031, 2011 U.S. LEXIS 4018, 79 U.S.L.W. 4350 (2011).
If you examine the I-9 Form itself, wisdom will come. Let’s assume, for argument’s sake (but verify!) that the alleged false claim dates from 2010, after the April 3, 2009 Form I-9 revision that separated the disjunctive terms United States “national” and “citizen” from a single check box. See Adjudicator’s Field Manual 40.6.2, available at www.uscis.gov > LAWS > Immigration Handbooks, Manuals and Guidance. Before then, the false claim charge was harder to prove. See U.S. v. Karaouni, 379 F.3d 1139 (9th Cir. 2004); Adjudicator’s Field Manual, supra. See also National Immigrants Right Law Center, 9th Circuit Vacates Noncitizens’s Cirminal Conviction for False Claim to U.S. Citizenship on I-9 Form, 18 Immigrants’ Rights Update No. 7, p. 12 (Nov. 8, 2004), available at http://v2011.nilc.org/index.htm.
The purpose of the I-9 is to verify the right to work in the United States. In fact, if you look at what Chief Justice Roberts said in Chamber of Commerce of the United States v. Whiting, supra at 179 L.Ed.1044 (2011), we find this golden nugget: the I-9 form itself “and any information contained in or appended to (it)…may not be used for purposes other than for enforcement” of the Immigration Reform and Control Act of 1986 (IRCA) and other specified provisions of federal law related to fraud and criminal conduct. 8 U.S.C. § 1324a(b)(5); 8 C.F.R. § 274a.2(b)(4). Now the Answer Man wants to be cooperative, but his advice here is to stand firm and politely remind the USCIS that their request constitutes an impermissible use of the I-9 form. My friend and mentor Margaret Stock brought this to my attention. Give them copies of the statute, the regulation and the Whiting case and highlight the relevant language. Under no circumstances should you obtain and provide to them the Form I-9. If they persist, contact the Office of Special Counsel in the DOJ to protect your client’s civil rights. Any false claim to U.S. citizenship came after IRCA and was not a ground of inadmissibility when IRCA was enacted in 1986. The false claim language was added to the INA ten years after IRCA by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). That is why, in most cases, it is impossible to contend that any statement concerning citizenship on an I-9 is legally or logically related to IRCA enforcement.
Now, if your client had a false claim conviction under 18 U.S.C §.1546(b) or 18 U.S.C. § 911, and he is trying to prevent the USCIS from finding out about that, then we have a very different story. In my opinion, the N-400 should not be an occasion for IRCA scrutiny. On the other hand, if your client is prosecuted under IRCA and found guilty of misrepresentation, then the full force of INA § 212(a), including the false claim ground set forth in INA §212(a)(6)(C)(ii), comes into play for inadmissibility purposes, and not only on misrepresentation grounds, but also on criminal grounds. Not a happy state of affairs. Until we get there, however, the Answer Man is quite sure that the USCIS’ use of the I-9 form to deny naturalization, or even bar admissibility, in connection with an application for adjustment of status is sadly, but flagrantly, misplaced.
You have to decide, Puzzled, if the naturalization case is the proper forum to assert whatever Privacy Act rights your client may possess. While the USCIS is not a private vendor, turning over I-9s to a Service Center adjudicator or District Office interviewer for a purpose wholly unrelated to worksite enforcement does not seem in keeping with the guidance provided by a recent technical assistance letter this past May from the Office of Special Counsel in response to a query resting on different, but nonetheless arguably related, facts: Opinion letter from Department of
Justice, Office of Special Counsel for Immigration- Related Unfair Employment Practices, Deputy Special Counsel Seema Nanda, to Attorney Deanna L. Forbush, (May 30, 2013), reprinted at 18 Bender’s Immigr. Bull. 841 (Appendix I) (July 1, 2013). While not directly on point, the following comments, Puzzled, should buck up your courage: “The Act’s replication of the federal affirmative defense of I-9 compliance is not prohibited by 8 U.S.C. §1324a(b)(4) and (5). These provisions protect persons’ privacy rights from employer misuse, and ensure that the government cannot expand use of the I-9 Form to prosecutions other than for employment of unauthorized aliens.” Arizona Contractors Ass’n, Inc. v. Candelaria 534 F.Supp.2d 1036, 1054, FN 3 (D.Ariz.,2008) (emphasis added).
The Form I-9 is to be kept by the employer, not the worker. How can your client be expected, indeed compelled, to produce something that he does not possess? Out of an abundance of caution, it might be prudent to document that your client made an attempt to contact his employer, perhaps by forwarding a certified letter requesting the I-9. If the employer replied and refuses to disclose or proffer the I-9, you can then provide a copy of such response to the USCIS. Additionally, if the I-9 is no longer available since it has been more than one year after termination of employment or three years since date of hire, I would either ask the employer for a letter to this effect or draw attention to it in my response. Even the USCIS cannot reasonably expect someone to produce an I-9 that no longer exists!
My teacher Margaret Stock reminds me that “the I-9 form is highly regulated. . . . The employee has no right to go get it, or to copy it, and for USCIS to ask the employee to do that is kind of like the IRS asking an employee of BP to go ask the BP tax department for a copy of the tax forms that BP is filing with the State of Texas to show that it is paying employer taxes for the employee. The IRS isn’t allowed to do that. The IRS has to follow the rules for requesting information from employers about taxes they are paying for employees, not solicit employees to be agents of the IRS in order to get that information in an irregular fashion.” Your client has no access to this document in the way that he has no access to the W-4 form he completed at time of hire. He might ask for a copy of the I-9 but the employer is under no obligation to provide it outside of litigation. The I-9 is not part of your client’s personnel file. Even if the employer did give him a copy, it is doubtful that the USCIS would accept it. If USCIS really wanted the original I-9, why not have them refer the matter to Immigration and Customs Enforcement (ICE) so that ICE could compel production of this document through service of an administrative subpoena on the employer and a Notice of Inspection? If they want your client’s I-9 that bad, make them follow the law! Maybe they will lose interest. After all, it is your client’s employer who is the rightful custodian of this record. Besides, the Answer Man believes that for you that voluntary disclosure of your client’s I-9 which contains his Social Security Number contradicts your client’s right to privacy and should not be done for that very good reason. Yet, justice sometimes comes at a high price. An overzealous naturalization examiner might go so far as to hold up a naturalization case indefinitely until ICE gets involved and investigates the alleged false claim charge. The Answer Man has heard of select instances where this happened.
Had Congress intended the Executive Branch to use the Form I-9 for purposes other than enforcement, then they would have revised the law to allow for such use. The Answer Man cannot find any regulatory basis for this at the present time. I would rely on Whiting to suppress any attempt by the USCIS naturalization examiner, who is not involved in worksite enforcement, to use your client’s I-9 as a basis to deny his naturalization application. It is precisely because the Whiting court held fast to such a strictly limited interpretation of the I-9 that it sustained the Arizona law as coming within the scope of IRCA’s savings clause against a pre-emption challenge. In this sense, as Margaret Stock correctly observes, far from being dicta, the comments on the I-9 by Chief Justice Roberts in Whiting are absolutely central to the logic of the Court’s holding. Had Arizona deviated from the strict purpose of the I-9, arguably the result in Whiting would have been fundamentally different. You have to be on guard for any attempt by your ever-vigilant adversaries to dredge up pre-Whiting case law in order to argue that use of the I-9 is not limited to IRCA enforcement. It is very much in doubt as to whether all or any such expansive interpretations survive the careful pruning and well – considered modesty provided to us by Whiting, which has restored the I-9 to its proper and more limited place in our jurisprudence.
One final but gentle warning, Puzzled. You are on the verge of an ethical minefield when dealing with this USCIS request to turn over your client’s I-9s. The full measure of this danger can best be appreciated by remembering what Margaret Stock recently reminded the attendees at the 2013 national conference of the American Immigration Lawyers Association: your client has a fiduciary duty to his employer who completed the I-9 and, in good faith, accepted his citizenship claim. Turning over this I-9 voluntarily may well violate this continuing duty of loyalty and fair dealing, as well as expose both your client and his employer to civil and criminal liability. Do you really want to do that?
There is a growing appreciation under state law of the extent to which unauthorized disclosure of the I-9 and its content might impinge upon preservation of identity and protection of privacy rights. My friend and I-9 guru Josie Gonzales shared with the Answer Man insightful research done in 2010 that might help you:
Opinions of the Attorney Generals of Texas and Tennessee also make it clear that use of the I-9 for purposes other than immigration enforcement is prohibited by the above law. The Opinions of the Attorney General of Texas also make it clear that it is against Texas privacy law to disclose the I-9. See Opin. of the Tex. Att. Gen, no 0R2008-11879 (“Release of this form under the Act would be “for purposes other than for enforcement” of the referenced federal provisions. Accordingly, the submitted I-9 form is confidential and may only be released in compliance with the federal laws and regulations governing the employment verification system.”) California’s Identity Theft laws may also restrict disclosure of personal information, including information in the I-9 and social security numbers. See Civil Code section 17989.85(a). As set out by the California Office of Privacy Protection, Recommended Practices on Protecting the Confidentiality of Social Security Numbers (April 2008), “Avoid sharing SSNs with other companies or organizations except where required by law” http://oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ssn_rec.pdf.
Email to author from Jose Gonzales in possession of author (August 23, 2013).
So there you have it, Puzzled. Take a stiff drink and do your duty. By the way, please leave room at the bar. When faced with such a bracing display of courage, the Answer Man plans to join you.
Special thanks are due and gladly given to Margaret Stock, Josie Gonzales, Ira Kurzban, Rick Gump, Robert Loughran, Alexandre Afanassiev and Ann Cun for their friendship and their wisdom.