Review of Final Order in Alien Employer Sanctions Cases
The Immigration and Naturalization Service cannot appeal to the Attorney General or seek
judicial review o f a final order in an alien em ployer sanctions case under 8 U.S.C. § 1324a.
December 5, 1989
M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l
I m m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e
Your office has requested our advice on whether the Immigration and
Naturalization Service (the “Service”) can seek review o f a final order in
an employer sanctions case under 8 U.S.C. § 1324a. See Memorandum for
William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from
Raymond M. Momboisse, General Counsel, Immigration and Naturali
zation Service (June 21, 1989). For the reasons below, we conclude that
the Service can neither seek judicial review o f such an order nor appeal
to the Attorney General.
Section 1324a(a) makes it unlawful for a “person or other entity” know
ingly to hire, recruit or refer for a fee, or continue to employ an “unau
thorized alien.” Section 1324a(g)(l) prohibits a “person or other entity”
from requiring an individual to post a bond against any liability that might
arise with respect to hiring, recruiting, or referring for employment. The
statute also establishes an administrative scheme for prosecuting viola
tions o f these subsections. Under section 1324a(e), a “person or entity”
charged with such a violation is entitled to a hearing before an adminis
trative law judge (“ALJ”), who may issue a cease and desist order and
assess a civil penalty.1 The ALJ’s order becomes the final order o f the
Attorney General unless, within thirty days, the Attorney General modi
fies or vacates the order, in which case the Attorney General’s order
becom es the final order. Id. § 1324a(e)(7). The Attorney General has del
egated his authority to review and revise an ALJ’s order to the Chief
Administrative Hearing Officer (“CAHO”) in the Executive Office for
Immigration Review, whose decision on the matter stands as the final
order o f the Attorney General. See 28 C.F.R. §§ 68.2(d); 68.52(a). Section
1324a(e)(8) provides that “[a] person or entity adversely affected by a
1 If the person or entity does not request a heanng before an AU , “the Attorney General’s imposition
o f the order shall constitute a final and unappealable order" 8 U S C. § 1324a(e)(3)(B)
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final order ... may, within 45 days after the date the final order is issued,”
seek review in the appropriate court o f appeals.
We think it apparent from the statutory language that the Service does
not qualify as a “person or entity” that may seek judicial review o f a final
order under section 1324a(e)(8). Although the phrase is not expressly
defined in section 1324a,2 it is clear from the context in which it is used
that “person or entity” refers to the employer being prosecuted. The
phrase appears numerous times — sixteen times in subsection (e) alone
— in ways that indicate that this is so.3 See, e.g., 8 U.S.C. § 1324a(a)(l)
(making it unlawful for “a person or other entity to hire ... an unautho
rized alien”); id. § 1324a(e)(3)(B) (hearing to be held “at the nearest prac
ticable place to the place where the person or entity resides”); id. §
1324a(e)(4) (discussing application o f sanctions to “a person or entity
composed o f distinct, physically separate subdivisions”). Indeed, a con
struction o f subsection (e)(8) that would allow the Service to seek judi
cial review o f a final order o f the Attorney General would raise serious
constitutional questions. Such review would interfere with the
President’s authority under Article II o f the Constitution to supervise his
subordinates and resolve disputes among them, see Myers v. United
States, 272 U.S. 52, 135 (1926) (President “may properly supervise and
guide” Executive officers in “their construction o f the statutes under
which they act in order to secure that unitary and uniform execution of
the laws which Article II o f the Constitution evidently contemplated in
vesting general executive power in the President alone”), and would
implicate the general rule that a lawsuit between two members o f the
executive branch does not give rise to a justiciable “case or controversy”
under Article III. See Constitutionality o f Nuclear Regulatory
Commission’s Imposition of Civil Penalties on the Air Force, 13 Op.
O.L.C. 131 (1989) (discussing rule that lawsuits between two federal
agencies are generally not justiciable).4
We also conclude that the Service cannot seek review by the Attorney
General o f the CAHO’s order. The regulations clearly provide that the
CAHO’s order is the final order o f the Attorney General in an employer
sanctions case. 28 C.ER. § 68.52(a)(1). Neither the statute nor the regu
lations provide for any further administrative review.
WILLIAM P. BARR
Assistant Attorney General
Office of Legal Counsel
2 Section 1101(b)(3) o f title 8 defines “person" as simply “an individual or an organization ”
3 We also note that when Congress sought to refer to the Service in subsection (e), it did so explicitly.
See 8 U S C. § 1324a(e)(l)(D) (directing Attorney General to establish procedures “for the designation in
the Service o f a unit” whose primary duty is the prosecution o f cases under subsections (a) and (g)(1)).
4 Because we conclude that the Service may not seek judicial review under section 1324a(e)(8), we do
not address whether such review should be sought as a matter o f policy.
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