Martin Sandoval, Petitioner,
v.
Colorado Division of
Employment and Industrial Claim
Appeals Office of the State
of Colorado, Respondents
No. 87CA0319
757 P.2d 1105
Court of
Appeals of Colorado,
Div. II.
May 5, 1988
Rehearing
Denied June 9, 1988;
Petition for Writ of
Certiorari Denied Oct. 17, 1988.
Colorado Rural Legal Services, Inc., Dani Lisa Arck, Brian
Patrick Lawlor, Denver, Colorado, Attorneys for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy
Attorney General, Richard H. Forman, Solicitor General, Mary Ann
Whiteside, Assistant Attorney General, Denver, Colorado, Attorneys
for Respondents.
PLANK, Judge.
Claimant, Martin Sandoval, seeks review of a final order of the
Industrial Claim Appeals Office (Panel) holding that he was
monetarily ineligible for benefits because of his immigration status
during the base period. We set aside the order.
As a child, claimant accompanied his parents into the United
States without inspection. About four years later, in 1978,
claimant's parents, but not claimant, were issued work authorization
permits by the Immigration and Naturalization Service (INS).
In early 1984, the INS initiated deportation proceedings against
claimant, but claimant challenged that action pursuant to 8 U.S.C. §
1254 based on seven years continuous presence in the U.S., good
moral character, and extreme hardship to the applicant or legally
present family members.
On December 14, 1984, claimant married a U.S. citizen, and on
March 7, 1985, his wife filed a petition in his behalf for immediate
relative immigration status. The petition was granted on May 16,
1985. On February 20, 1986, claimant's status was adjusted to lawful
permanent resident.
Meanwhile, claimant was separated from his employment, and on
April 29, 1986, applied for unemployment compensation benefits based
on wages earned in the period from January 1, 1985, to December 31,
1985.
The Panel denied claimant's request for benefits on the grounds
that at all times during his base period claimant failed to meet the
criteria set forth in § 8-73-107(7)(a), C.R.S. (1986 Repl. Vol. 3B).
Claimant contends that the provisions of § 8-73-107(7)(a)(I)
through (VI), C.R.S. (1986 Repl. Vol. 3B) are illustrative rather
than exhaustive of the categories of aliens "permanently residing in
the United States under color of law," and that he fell within the
definition at all times during his base period. We agree.
Section 8-73-107(7)(a), C.R.S. (1986 Repl. Vol. 3B) provides
that:
"Benefits shall not be payable on the
basis of services performed by an alien unless such alien is
an individual who was lawfully admitted for permanent
residence at the time such services were performed, or was
lawfully present for purposes of performing such services,
or was permanently residing in the United States under color
of law at the time such services were performed."
Effective July 1, 1985, before claimant filed his claim, the
following provisions were added.
"For purposes of the 'Colorado Employment
Security Act', 'permanent resident under color of law' shall
mean:
(I) An alien admitted as a refugee under
section 207 of the 'Immigration and Nationality Act', 8
U.S.C. § 1157, in effect after March 31, 1980;
(II) An alien granted asylum by the
attorney general of the United States under section 208 of
the 'Immigration and Nationality Act', 8 U.S.C. § 1158;
(III) An alien granted a parole into the
United States for an indefinite period under section
212(d)(5)(B) of the 'Immigration and Nationality Act', 8
U.S.C. § 1182 (d)(5)(B);
(IV) An alien granted the status as a
conditional entrant refugee under section 203(a)(7) of the
'Immigration and Nationality Act', 8 U.S.C. § 1153 (a)(7),
in effect prior to March 31, 1980;
(V) An alien who entered the United
States prior to June 30, 1948, and who is eligible for
lawful permanent residence pursuant to section 249 of the
'Immigration and Nationality Act', 8 U.S.C. § 1259; or
(VI) An alien who has been formally
granted deferred action or nonpriority status by the
immigration and naturalization service.
Claimant falls within none of these provisions, and thus, if they
represent a complete listing of all who qualify as being permanent
residents under color of law, he is not eligible for any
unemployment benefits.
In order to continue to receive federal incentives, each state's
unemployment insurance program must be in substantial conformity
with the federal statutory requirements. Industrial Commission v.
Arteaga, 735 P.2d 473 (Colo. 1987). For example, 26 U.S.C. §
3304 (a)(10) (1976) provides that "compensation shall not be denied
to any individual . . . . for any cause other than discharge for
misconduct connected with his work . . . ." The state statutory
scheme in § 8-73-108(5)(e), C.R.S. (1986 Repl. Vol. 3B) enumerates
specific examples of "misconduct connected with . . . . work," but
retains the federal statute's broad meaning by means of the catchall
provision of § 8-73-108(5)(e)(XX), "for other reasons including, but
not limited to" the enumerated examples of misconduct.
However, the General Assembly did not include a "catchall"
provision in § 8-73-107(7)(a)(I) through (VI), C.R.S. (1986 Repl.
Vol. 3B). Therefore, the subsections can be considered exhaustive
rather than illustrative only if the six enumerated categories
substantially cover the categories contemplated by Congress in the
phrase "permanently residing in the United States under color of
law." See 26 U.S.C. § 3304 (a)(14)(A) (1976).
Congress has defined "permanently" for purposes of the
Immigration and Nationality Act as a "relationship of continuing or
lasting nature, as distinguished from temporary, but a relationship
may be permanent even though it is one that may be dissolved
eventually at the instance either of the United States, or of the
individual, in accordance with law." 8 U.S.C. § 1101 (a)(31) (1976).
Congress, however, has not enacted a statutory definition of
"color of law," and thus, to determine the meaning of that phrase,
we examine federal case law, especially case law closely
contemporaneous with Congress' enactment of the statute. See
Industrial Commission v. Arteaga, supra.
Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977), cert.
denied, 435 U.S. 947, 98 S. Ct. 1532, 55 L. Ed. 2d 545 (1978),
decided the year after 26 U.S.C. § 3304 (a)(14)(a) (1976) was
enacted, is the leading federal case defining the phrase. In
Holley, the court defined "under color of law" as meaning:
"that which an official does by virtue of
power, as well as what he does by virtue of right. The
phrase encircles the law, its shadows, and its penumbra.
When an administrative agency or a legislative body uses the
phrase "under color of law" it deliberately sanctions the
inclusion of cases that are, in strict terms, outside the
law but are near the border."
This definition of "permanently residing in the United States
under color of law" has been applied by the federal courts for ten
years, see, e.g., Esparza v. Valdez, 612 F. Supp. 241 (D.
Colo. 1985), and Congress has not, even in enacting the
comprehensive Immigration Reform and Control Act of 1986, acted to
change or reject it through legislation. See Industrial
Commission v. Arteaga, supra (fn. 8).
The six categories listed in § 8-73-107(7)(a)(I) through (VI)
represent some of the categories covered by the Holley
definition. However, Industrial Commission v. Arteaga, supra;
Division of Employment & Training v. Turynski, 735 P.2d 469
(Colo. 1987) are examples of cases dealing with aliens covered by
the federal definition of permanently residing in the United States
under color of law, but not covered by any of the provisions of §
8-73-107(7)(a)(I) through (VI).
If we were to rule that § 8-73-107(7)(a)(I) through (VI) is an
exhaustive definition of permanently residing in the United States
under color of law, our state statute would exclude many aliens
which Congress intended to cover by its use of the phrase, and our
statute, thus, would not substantially comply with the federal
standards set forth in 26 U.S.C. § 3304 (a)(14)(A). Therefore, we
construe § 8-73-107(7)(a)(I) through (VI) as merely being
illustrative of the categories of persons included within the
meaning of the phrase "permanently residing in the United States
under color of law."
Next, we must determine whether claimant falls within the federal
definition of "permanently residing in the United States under color
of law." That definition was adopted by our state in Industrial
Commission v. Arteaga, supra, and Division of Employment &
Training v. Turynski, supra.
In Arteaga and Turynski, the court found that
individuals who had filed petitions for adjustment of status, but
had not yet been granted that adjustment were "permanently residing
in the United States under color of law." Here, claimant had pending
at all times during his base period at least one petition which
would result in the adjustment of his status to lawful permanent
resident. Thus, we conclude that claimant did as a matter of law
have the necessary status to receive unemployment benefits.
Although the Panel found that claimant, unlike the claimants in
Arteaga and Turynski, did not have a valid INS work
authorization during his base period, claimant's lack of such an
authorization is merely one factor to consider in determining
whether he met the requirements of "permanently residing in the
United States under color of law." See Ibarra v. Texas Employment
Commission, 645 F. Supp. 1060 (E.D. Tex. 1986), rev'd on other
grounds, 823 F.2d 873 (5th Cir. 1987). Because the other evidence so
overwhelmingly establishes claimant's "permanent resident under
color of law" status, we hold that here the lack of a work
authorization permit is not determinative.
Claimant contends he is entitled to compensation on two
additional statutory grounds. In view of our conclusion we need not
address these contentions.
The order of the Industrial Claim Appeals Office is set aside,
and the cause is remanded with directions to award claimant all
benefits to which he is otherwise entitled based on the wages earned
by him during the base period from January 1, 1985, to December 31,
1985.
Judge Tursi concurs.
Judge Babcock, dissenting.
I respectfully dissent because, in my view, the General Assembly
intended the provisions of § 8-73-107(7)(a)(I) through (VI), C.R.S.
(1986 Repl. Vol. 3B) to be exhaustive of the categories of aliens
"permanently residing in the United States under color of law."
Because claimant did not meet the criteria for inclusion in any of
these categories during his base period, I would affirm.
Section 8-73-107(7)(a)(I) through (VI), became effective on April
30, 1985. Colo. Sess. Laws 1985, ch. 82 at 366-367. Before this
statute's adoption, this court announced Arteaga v. Industrial
Commission, 703 P.2d 654 (Colo. 1985), aff'd,
Industrial Commission v. Arteaga, 735 P.2d 473 (Colo. 1987).
Arteaga adopted the reasoning of Holley v. Lavine, 553
F.2d 845 (2d Cir. 1977), that "color of law" did not necessarily
mean affirmative action, but could be evidenced by inaction by INS
with full knowledge of the alien's illegal status.
In my view, the General Assembly's amendment of § 8-73-107(7)(a)
"overruled" Arteaga to specify the only circumstances under
which an alien may receive unemployment compensation benefits. The
majority's interpretation of this statute as being non-exclusive
represents a usurpation of the General Assembly's legislative
function and renders its 1985 amendment meaningless.
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