Luis Duenas-Rodriguez
v.
The Industrial Commission
of the State of Colorado, Ex-Officio
Unemployment Compensation Commission of Colorado, and
Colorado State Division of
Employment and Training
No. 79SA96
199 Colo. 95; 606 P.2d
437
Supreme
Court of Colorado,
En Banc.
January 21, 1980.
Henry C. Frey, for petitioner-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy,
Edward G. Donovan, Solicitor General, Ann Sayvetz, Assistant
Attorney General, Human Resources Section, for respondents-appellees.
LEE , Justice.
This is an appeal from an order of the Industrial Commission of
the State of Colorado holding that appellant, Luis Duenas-Rodriguez,
was overpaid $2,242 in unemployment compensation benefits. During
the time appellant received those benefits, from January 7, 1975,
through January 1, 1977, he was illegally residing in the United
States.
At the hearing, the referee for the Colorado Department of Labor
and Employment, Division of Employment and Training, heard evidence
and held that because of appellant's illegal alien status he was not
legally "available for work" during that period. The Industrial
Commission agreed, and ordered that the overpayment be offset
against future benefits for which appellant may become eligible.1
We affirm the order of the Commission.
I.
Appellant argues that he was entitled to receive the unemployment
benefits at issue here since, during the time he received them,
there was no federal or state law prohibiting receipt of
unemployment benefits by illegal aliens.2 Such
law did not come into effect in Colorado until July 7, 1977.3
Although no specific statute prohibiting the payment of
unemployment compensation benefits to illegal aliens existed at the
time appellant collected such benefits, appellant did not
necessarily qualify for benefits. Section 8-73-107(1)(c), C.R.S.
1973, required that, to qualify for unemployment benefits, an
applicant be "available for all work . . . ."
A determination of an individual's availability for employment
"is one for which an all-inclusive rule cannot be stated, but rather
must be made within the context of the factual situation presented
by each case." Couchman v. Indust. Comm., 33 Colo. App. 116,
515 P.2d 636 (1973). The burden of proof is on the employee to
establish eligibility for unemployment benefits. Denver Symph.
Ass'n v. Indust. Comm., 34 Colo. App. 343, 526 P.2d 685 (1974).
Appellant testified that he entered this country eight or nine
years prior to commencement of this action in 1978. He married a
United States citizen in November 1976, and in January 1977 he
received his alien registration card, permitting him to remain in
this country and authorizing his employment here. Until that time,
however, he was here illegally.
Appellant contends that his illegal status is irrelevant to the
issue of availability for work, and that the only question is
whether, at the time he collected the benefits, he was physically
able to work. Since he was physically capable of working, appellant
asserts that he was qualified to receive benefits under section
8-73-107(1)(c).
The courts have consistently held that aliens who enter the
United States on nonimmigrant visas and aliens who enter illegally
have no constitutional right to work. See Pilapil v. Immigration
and Naturalization Service, 424 F.2d 6 (10th Cir. 1970);
Ojeda-Vinales v. Immigration & Naturalization Serv., 523 F.2d
286 (2d. Cir. 1975); Zapata v. Levine, 50 App. Div. 2d 681,
375 N.Y.S.2d 424 (1975). An illegal alien is also subject to
deportation. 8 U.S.C. § 1251 (1976).
Such an individual is legally unable to work,4
and "legal inability to work is as disqualifying as physical
inability to work." Pinilla v. Bd. of Rev. In Dept. of L. & I.,
155 N.J. Super. 307, 382 A.2d 921 (1978). Accord, Alonso v. State,
50 Cal. App. 3d 242, 123 Cal. Rptr. 536 (1975), cert. denied
425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976); Zapata v.
Levine, supra. See Annot., 87 A.L.R.3d 694 (1978).
Thus, appellant, who was legally unavailable for work, did not
qualify for benefits under section 8-73-107(1)(c).
In addressing the issue before us -- whether an illegal alien is
entitled to unemployment compensation benefits -- the California
Court of Appeals concluded that "[t]o allow an illegal alien to
collect unemployment benefits would reward him for his illegal entry
into this county. In essence, his entry into this country is
fraudulent, and as such he should not be allowed to profit from the
illegal act." Alonso v. State, supra. We agree with this
reasoning.
II.
Appellant also challenges the Industrial Commission's conclusion
that it would not be against equity and good conscience to offset
the amount he was held to have been overpaid ($2,242) against future
unemployment benefits to which he might become entitled.5
The authority of the Commission to collect sums paid to
individuals who were not entitled to such payments is defined in
section 8-81-101(4)(a), C.R.S. 1973. The statute reads in pertinent
part:
"Any person who has received any sum as
benefits under articles 70 to 82 of this title to which he
was not entitled other than by reason of his false
representation or willful failure to disclose a material
fact, if so found by the division, shall be liable to repay
such amount to the division for the fund or to have future
benefits to which he may become entitled cancelled to offset
such overpayment if such recovery would not, in the opinion
of the division, be against equity and good conscience.
The division may waive the recovery or adjustment of all or
part of the amount of any such overpayment which it finds to
be noncollectible, or the recovery or adjustment of which it
finds to be administratively impracticable." (Emphasis
added.)
When appellant initially claimed unemployment benefits, he was
assisted in filling out the forms by another applicant. Appellant
does not speak or write English. The man who assisted him did not
ask if appellant was a United States citizen, but merely checked the
box on the application form indicating that appellant was a citizen.
It was not until appellant reapplied for benefits in 1977 that he
was requested to submit evidence of citizenship, which he was unable
to do.
After hearing testimony, the referee found that appellant did not
willfully misrepresent his citizenship status, and thus should not
be subject to a 10% penalty. The referee held, however, that the
$2,242 in benefits received by appellant must be repaid.
The Industrial Commission agreed that imposition of a penalty in
this case would be inappropriate. It also concluded, after reviewing
all the evidence, that "it would be against equity and good
conscience to require repayment by the claimant, but that it would
not be against equity and good conscience to offset the overpayment
against future benefits to which the claimant may become eligible."
The phrase "equity and good conscience" is "an elastic expression
. . . ." City of Leadville v. Sewer Co., 47 Colo. 118, 107 P.
801 (1909) (Gabbert, J., dissenting). This same statutory phrase has
been held to be "language of unusual generality" which "anticipate[s]
that the trier of fact, instead of attempting to channelize his
decision within rigid and specific rules, will draw upon precepts of
justice and morality as the basis for his ruling." Gilles v.
Department of Human Resources Develop., 11 Cal. 3d 313, 521 P.2d
110, 113 Cal. Rptr. 374 (1974) (discussing language in the
Unemployment Insurance Code of California).
It was there noted that the reference to "equity and good
conscience" has its probable source in section 204 of the Social
Security Act, 42 U.S.C. § 404 (1974). For purposes of that act, the
phrase is defined in 20 C.F.R. 404.509 (1979):
"'Against equity and good conscience'
means that adjustment or recovery of an incorrect payment .
. . will be considered inequitable if an individual, because
of a notice that such payment would be made or by reason of
the incorrect payment, relinquished a valuable right . . .
or changed his position for the worse . . . . In reaching
such a determination, the individual's financial
circumstances are irrelevant."
Although we are not bound by that definition, we consider it
indicative of the generally understood meaning of "equity and good
conscience."
In the case here before us, appellant presented no evidence that
he relinquished any valuable right or changed his position for the
worse because he received unemployment benefits. Indeed, as an
illegal alien, he was not legally entitled to work in this country
at the time he was receiving benefits to compensate him for being
unemployed. We find no equitable reason for allowing appellant to
avoid future setoffs, as ordered by the Commission.
III.
Appellant finally argues that section 8-81-101(4)(a), C.R.S.
1973, is unconstitutional in that the Industrial Commission had not
promulgated rules and regulations to spell out what standards and
considerations are to be applied in deciding whether it would be
against equity and good conscience to recover unemployment benefits
where such benefits are found to have been overpaid. Appellant
relies on Elizondo v. Motor Veh. Div., 194 Colo. 113, 570
P.2d 518 (1977).
In Elizondo, the court held that section 42-2-123(11),
C.R.S. 1973, providing for probationary drivers' licenses, was
unconstitutional as applied by the Department of Revenue, Motor
Vehicle Division. The statute authorizes the division to adopt
specific rules and regulations to limit the exercise of discretion
by individual hearing officers in granting or denying probationary
drivers' licenses. The division had failed to promulgate such rules.
The rationale in Elizondo is not applicable to section
8-81-101(4)(a). The General Assembly did provide guidelines for
application of the penalty provisions of that statute. The
Commission was directed to apply the principles of equity in
determining whether improperly paid benefits were to be repaid or
set off against future benefits.
The Commission is not required to take evidence in addition to
that taken by the referee, but may base its decision "on the basis
of the evidence previously submitted in such case. . . ." Section
8-74-105, C.R.S. 1973. The order of the Commission was issued after
it had "reviewed the entire file," including all the evidence
presented at the hearing before the referee. Based on that record,
the Commission applied the principles of equity and good conscience
in reaching its decision. We find ample evidence to support that
decision. See Allmendinger v. Industrial Comm., 40 Colo. App.
210, 571 P.2d 741 (1977); Morrison Bar v. Ind. Comm., 138
Colo. 16, 328 P.2d 1076 (1958); Ward & Co. v. Industrial Comm.,
128 Colo. 465, 263 P.2d 817 (1953).
The cause is remanded to the Industrial Commission with
directions to reduce the offset by $190, to $2,052. In all other
respects, the order is affirmed.
Footnotes
1. In February 1977, appellant married a
United States citizen and became a resident alien, entitled to
collect unemployment compensation benefits. On appeal, the
Commission concedes that appellant became legally available for work
in February 1977, and thus is entitled to reduce the $2,242
overpayment by $190, the amount of benefits he received in February
1977. The Commission now submits that its final order requiring an
offset of $2,242 should be modified to require an offset of $2,052.
2. But see, 8 C.F.R. § 214.1(c)
(1975) & (1976), providing that a nonimmigrant "may not engage in
any employment unless he has been accorded a nonimmigrant
classification which authorizes employment or he has been granted
permission to engage in employment . . . ."
3. Section 8-73-107(7), C.R.S. 1973
(1978 Supp.), prohibiting the payment of unemployment benefits to
aliens not lawfully admitted for permanent residence in the United
States. This amendment was in response to the Federal Unemployment
Tax Act, 26 U.S.C. § 3304 (a)(14)(A) (1976) (effective "with respect
to certifications of States for 1978 and subsequent years . . . ."
26 U.S.C. § 3304 (a)(14)(A), at p. (886).
4. See 8 C.F.R. § 214.1(c)
(1976); 26 U.S.C. § 3306 (c)(18) (1976), Unemployment Tax Act.
5. But see footnote 1.
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