United States: Office Of The Chief Administrative Hearing Officer Rejects DACA Recipient's Document Discrimination Claim

The U.S. Office of the Chief Administrative Hearing Officer (OCAHO) recently published Gonzalez-Hernandez v. Arizona Family Health Partnership,¹ an interesting decision that illustrates the conflict between state laws and the administration's deferred action policies that provide work authorization to undocumented immigrants. 

Brian Emilio Gonzalez-Hernandez received work authorization through the administration's Deferred Action for Childhood Arrivals (DACA) program.² Although Gonzalez-Hernandez had work authorization, he was unable to obtain a driver's license in Arizona.³ Since Gonzalez-Hernandez had received work authorization, he applied for a "navigator" position with Arizona Family Health Partnership (AFHP).  A "navigator" assists individuals in signing up for the Affordable Care Act, and AFHP required navigators to travel extensively, "have a valid Arizona State driver's license, automobile liability insurance, and a clean DMV report."⁴  AFHP initially offered Gonzalez-Hernandez a job, but before his first day of employment, and before the completion of his Form I-9, AFHP rescinded the job offer because Gonzalez-Hernandez did not have an Arizona driver's license.⁵ 

When AFHP offered the job to another individual, Gonzalez-Hernandez filed a charge of document abuse with the OCAHO.  The OCAHO found that Gonzalez-Hernandez was unable to establish a prima facie case of document abuse because the request for his driver's license was separate from the Form I-9 process.  Even if Gonzalez-Hernandez had established a prima facie case of document abuse, AFHP provided a legitimate, nondiscriminatory reason for requiring an Arizona license, even though AFHP incorrectly believed Gonzalez-Hernandez was required to have an Arizona license.  The OCAHO further found that Gonzalez-Hernandez, as an alien present without admission or parole, could not bring an action for citizenship status discrimination under the Immigration and Nationality Act.⁶  The anti-discrimination provisions of the Immigration and Nationality Act only protect citizens and nationals of the United States, lawful permanent residents, temporary residents, refugees and asylees.  Thus, both his document abuse and citizenship-status claims failed.

As the administration's deferred action program possibly expands in the coming months, it is likely employers will face more situations where applicants may be authorized to work, but may not be able to meet other bona fide job requirements.

Footnotes

1 DOJ OCAHO, No. 14B00085 (6/30/15).

2 President Obama's administration has also proposed granting deferred action to a larger class of undocumented immigrants with its Deferred Action for Parental Accountability program, but it has been enjoined by the U.S. Court of Appeals for the Fifth Circuit.  For more information on this issue, see  Administration's Plan to Grant Work Authorization to Millions of Individuals on Hold,  Littler ASAP (Mar. 6, 2015).

4 See Gonzalez-, DOJ OCAHO, No. 14B00085, p. 2. 

5 AFHP apparently was under the mistaken belief that everyone who worked in Arizona is required to have an Arizona driver's license, when in fact there was an exception for some out-of-state students, but it was not clear whether Gonzalez-Hernandez could have fit into this exception, and OCAHO did not address this issue.

6 8 U.S.C. § 1324b.

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