Galindo v. OCAHO

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 9, 2021
• Docket: 20-9601
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 9, 2021 _________________________________ Christopher M. Wolpert Clerk of Court AURELIO GALINDO,

Petitioner,

v. No. 20-9601 (Petition for Review) OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; SMITHFIELD FOODS; YUMA COUNTY,

Respondents. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges. _________________________________

Aurelio Galindo, a foreign national from Mexico proceeding pro se, 1 seeks review

of an order from the Office of the Chief Administrative Hearing Officer (“OCAHO”).

The order granted two motions to dismiss Galindo’s claims of citizenship-status

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Galindo appears pro se, we liberally construe his pleadings but will not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (citation omitted). discrimination, which he asserted under 8 U.S.C. § 1324b. For the following reasons, we

deny his petition.

BACKGROUND

Galindo is a Mexican foreign national authorized to work in the United States

under a TN visa. 2 On May 10, 2019, Galindo filed a charge with the Department of

Justice’s Immigrant and Employee Rights Sections (“IER”) against Respondents

Smithfield Food (“Smithfield”) and Yuma County. Galindo filed this charge under the

antidiscrimination provisions of the Immigration and Nationality Act (“INA”) as

amended by the Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C.

§ 1324b. In his charge, he alleged that Respondents had discriminated against him based

on his citizenship and national-origin status, had retaliated against him for asserting his

§ 1324b rights, and had committed unfair documentary practices.

On October 15, 2019, the IER sent Galindo a letter of determination informing

him that it was dismissing his charge for four reasons. First, the IER concluded that

Galindo is an “Alien Authorized to Work” and thus is not a protected individual for

citizenship status discrimination. R. at 13. Specifically, it explained that “individuals

protected against citizenship status discrimination are limited to only U.S. citizens,

nationals, certain lawful permanent residents, aliens lawfully admitted for temporary

residence under [8 U.S.C. §§] 1160(a) or 1255a(a)(1) . . . and persons admitted as asylees

This type of visa is available to temporary professionals from Mexico and 2

Canada under the North American Free Trade Agreement (NAFTA). Temporary (Nonimmigrant) Workers, https://www.uscis.gov/working-in-the-united-states/temporary- nonimmigrant-workers (last visited Apr. 8, 2021). 2 or refugees.” Id. Second, it determined that it lacked jurisdiction over the national-origin

claim against Smithfield. Third, it stated that Galindo hadn’t provided facts supporting

his claims for unfair documentary practices and retaliation. And fourth, it explained that

Galindo hadn’t provided details identifying how Yuma County had been involved in the

alleged discriminatory or retaliatory acts. It also advised Galindo that he could challenge

the decision by presenting his claims to the OCAHO.

On January 24, 2020, Galindo filed a pro se complaint with the OCAHO using a

standard form, in which he similarly alleged that Smithfield had discriminated against

him based on his citizenship status and national origin in violation of § 1324b(a)(1), had

retaliated against him in violation of § 1324b(a)(5), and had committed document abuse

in violation of § 1324b(a)(6). 3 Specifically, Galindo alleged the following:

Discrimination in Hiring, Recruitment, or Referral for a Fee under § 1324b(a)(1):

• On March 5, 2018, Smithfield refused to hire him for the position of “product resource specialist,” even though he was qualified for the job and Smithfield was looking for workers, R. at 6;

• He does not know the reasons why he was not hired, R. at 7 (“never call me back no give reasons.”);

• The job remained open and Smithfield continued to take applications from other people after he was not hired; and

• Someone else (whom he does not know) was hired for the position.

Discrimination-in-Firing under § 1324b(a)(1):

• On October 2, 2013, he was fired for: “broken safety procedures” and a “fake signature in [a] complaint” R. at 8;

Without providing any detail, Galindo identifies Andrea Anderson, a Smithfield 3

employee, as the person who discriminated against him. 3 • He was qualified for the job, and yet other workers in a similar position with different nationalities or citizenship were able to continue working;

• He wants to be rehired;

• Earlier, he was fired “without reason (gay person)” but was rehired, id.; and

• After the rehiring, Andrea Anderson told him that she needed “[an]other person to give her point of view about [him],” and later someone “down[ed] [his] level,” id.

Intimidation, Threats, Coercion, or Retaliation under § 1324b(a)(5):

• In July 2013, he was retaliated against for an event seemingly involving assistant manager Jesus Ross, a missing “board,” and an alleged fake signature that wasn’t Galindo’s. R. at 9.

Documentation Practices under § 1324b(a)(6):

• On July 2, 2013, Smithfield asked him for more or different documents than required for the employment-verification process to show his eligibility to work in the United States;

• On October 2, 2013, Smithfield refused to accept the documents he presented to prove his identity and authorization to work in the United States; and

• Someone working under Andrea Anderson asked Galindo for the card that USCIS gave him for work authorization, asked him when his card would expire, and asked him when he would become a permanent resident.

Galindo mentions Yuma County only in his handwritten addendum. There, he

alleges various types of “harassment” by the “Police of Yuma, IC3 of FBI and other

lawyers & Agenc[ies].” R. at 12. He seems to claim that from March 5, 2018 to January

20, 2020, this group “intimidated” him by:

• Taking “electronic emails” that he used “for [the] purpose of Department of State (USA)”;

• Accessing certain email addresses;

• Taking “original letters of work” from his home in Yuma, including “letters of 4 employment offer[s]”;

• Listening to calls from his phone. Id.

Galindo also mentions blocked communications, terrorism, and human trafficking, again

without identifying any specific actors in Yuma County.

On March 2, 2020, Smithfield filed an answer in the OCAHO proceeding in which

it denied all material allegations and raised several affirmative defenses. It also filed a

motion to dismiss Galindo’s complaint. A month later, Yuma County filed its answer in

the OCAHO proceeding in which it denied all material allegations and raised several

affirmative defenses, and it too filed a motion to dismiss.

On August 18, 2020, the Chief Administrative Law Judge (“ALJ”) of the OCAHO

granted both motions to dismiss, dismissing Galindo’s entire complaint. Addressing the

claims against Smithfield, the ALJ concluded that the claims were time-barred because

Galindo filed the charge more than 180 days after the alleged discriminatory acts. The

ALJ noted that the last alleged wrongful acts by Smithfield occurred on March 5, 2018,

but more than 180 days had elapsed before Galindo filed his IER charge on May 10,

2019. In addition, the ALJ found that neither of the exceptions to the normal timing

requirements applied, so there were no grounds for tolling it.

Addressing the claims against Yuma County, the ALJ concluded that the OCAHO

lacked jurisdiction over the claims because Galindo had not alleged that Yuma County

had committed an unfair immigration-related employment practice under § 1324b. The

ALJ explained this was so because § 1324b covers claims “that involve the hiring,

recruitment, or discharge of employees, retaliation for engaging in protected conduct, and 5 document abuse.” R. at 305 (citations and internal quotation marks omitted) (“Nothing in

the language of § 1324b suggests that it could encompass claims regarding police

harassment that are unrelated to employment.”). The ALJ also concluded that Galindo

had not alleged a retaliation claim against Yuma County, because § 1324b is “not a catch-

all statute” but one that prohibits retaliation “only when that retaliation is engaged in for

the purpose of discouraging activity related to the filing of [IER] charges or interfering

with rights or privileges” secured under § 1324b. Id. (citation omitted).

On September 9, 2020, Galindo filed a petition for this court to review the ALJ’s

decision. He later moved for leave to proceed in forma pauperis. We exercise jurisdiction

under 8 U.S.C. § 1324b(i)(1).

DISCUSSION

I. Legal Background

In 1986, Congress amended the INA by enacting the IRCA. See 8 U.S.C. § 1324b.

The amended statute establishes “an extensive employment verification system,

§ 1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in

the United States, or (b) are not lawfully authorized to work in the United States,

§ 1324a(h)(3).” Split Rail Fence Co., v. United States, 852 F.3d 1228, 1232 (10th Cir.

2017) (citation and internal quotation marks omitted). It also makes it unlawful for an

employer (1) “to hire . . . an alien knowing the alien is an unauthorized alien,” 8 U.S.C.

§ 1324a(a)(1)(A); (2) “to hire . . . an individual without complying with” the employment

verification system, id. § 1324a(a)(1)(B); and (3) “to continue to employ [an]

alien . . . knowing the alien is (or has become) an unauthorized alien,” id. § 1324a(a)(2).

6 The amended statute also includes an anti-discrimination provision under which an

employer’s “request, for purposes of satisfying the requirements of section 1324a(b) of

this title, for more or different documents than are required under such section or refusing

to honor documents tendered that on their face reasonably appear to be genuine shall be

treated as an unfair immigration-related employment practice if made for the purpose or

with the intent of discriminating against an individual.” Id. § 1324b(a)(6).

The OCAHO has jurisdiction to hear alleged INA violations. 28 C.F.R. § 68.2.

ALJs in the OCAHO issue orders stating their findings of law and fact. 8 U.S.C.

§ 1324a(e)(3)(B)–(C). An ALJ’s order becomes the final agency decision unless appealed

to the Chief Administrative Hearing Officer. 28 C.F.R. § 68.52(g). A party adversely

affected by a final order may then petition a circuit court for review. Id. § 68.56.

We review the OCAHO’s decisions on questions of law de novo. Liaosheng

Zhang v. Off. of Chief Admin. Hearing Officer, 441 F. App’x 524, 525 (9th Cir. 2011).

II. Claims Against Smithfield

The ALJ dismissed the complaint against Smithfield after concluding that the

claims were time-barred. We agree.

Under § 1324b, “[n]o complaint may be filed respecting any unfair immigration-

related employment practice occurring more than 180 days prior to the filing of the

charge with the [IER].” § 1324b(d)(3). Claims based on events occurring more than 180

days before the filing of an IER charge are barred by operation of law unless a tolling

exception applies. See Ndzerre v. Wash. Metro. Area Transit Auth., 13 OCAHO no. 1306,

8–9 (2017). One such exception inures when the petitioner “shows (1) that he has been

7 pursuing [his] rights diligently, and (2) that some extraordinary circumstance stood in

[his] way and prevented timely filing.” Id. at 8–9 (citing Dyson v. District of Columbia,

710 F.3d 415, 421 (D.C. Cir. 2013)). A second exception permitting tolling arises when a

claim has been inadvertently filed with the EEOC (or possibly another incorrect

subsidiary of the OCAHO) when it should have been filed with the IER. Id. at 9 (citing

Caspi v. Trigild Corp., 6 OCAHO no. 907, 957, 964 (1997)).

Galindo filed his charge with IER on May 10, 2019. This means that the

challenged conduct had to have occurred within the preceding 180 days to be timely. See

§ 1324b(d)(3). Stated otherwise, any conduct that occurred before November 11, 2018

would be statutorily barred unless Galindo showed that an exception applies. See id. But

as the ALJ noted, Galindo did not allege any conduct that occurred between November

11, 2018 and May 10, 2019. Rather, all of the alleged conduct occurred on or before

March 5, 2018. Accordingly, Galindo’s allegations are all statutorily time-barred.

Further, we agree with the ALJ that none of the exceptions to the timing

limitations apply in this case. None of the allegations or facts in the record show that (1)

Galindo was diligently pursuing his rights or that (2) some extraordinary circumstance

stood in his way. See Ndzerre, 13 OCAHO no. 1306, at 9. Similarly, Galindo

undoubtedly filed his charge in the correct venue from the outset. See id. Accordingly,

Galindo’s claims against Smithfield are time-barred.

III. Claims Against Yuma County

The ALJ dismissed Galindo’s claims against Yuma County for lack of subject-

matter jurisdiction. After reviewing the entire record, we agree with the ALJ’s

8 conclusion.

The rules and procedures for ALJs to use in the OCAHO are governed by 28

C.F.R. § 68. Under § 68.10(a), a respondent “may move for a dismissal of the complaint

on the ground that the complainant has failed to state a claim upon which relief can be

granted.” Under § 68.10(b), an ALJ may dismiss a complaint “based on a motion by the

respondent or without a motion from the respondent, if the [ALJ] determines that the

complainant has failed to state a claim upon which relief can be granted.”

Although § 68.10 mirrors the federal standard for motions to dismiss under

Fed. R. Civ. P. 12(b)(6), the regulations do not have a rule that is analogous to

Fed. R. Civ. P. 12(b)(1). In situations in which the OCAHO rules are lacking, § 68.1

instructs that “[t]he Federal Rules of Civil Procedure may be used as a general guideline

in any situation not provided for or controlled by these rules, by the Administrative

Procedure Act, or by any other applicable statute, executive order, or regulation.”

Therefore, as is common in OCAHO proceedings with other procedural rules, we assess

subject-matter jurisdiction by relying on federal jurisprudence interpreting

Fed. R. Civ. P. 12(b)(1). See, e.g., Torres v. Pac. Cont’l Textiles, Inc., 10 OCAHO no.

1203, 4 (2013) (“OCAHO jurisprudence accordingly looks to federal case law

interpreting that rule for guidance in determining when summary decision is appropriate.”

(citation omitted)).

Under federal law, Fed. R. Civ. P. 12(b)(1) motions take one of two forms. Rural

Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citation

omitted). A facial attack accepts as true the factual allegations in the complaint, but a

9 factual attack “goes beyond the factual allegations of the complaint and presents evidence

in the form of affidavits or otherwise to challenge the court’s jurisdiction.” Id.

Here, the ALJ relied on allegations within Galindo’s complaint to find that

Galindo did not establish subject-matter jurisdiction because he neither alleged an

employment relationship nor a protected activity:

• “It does not appear from the complaint that any of this alleged conduct was linked to a protected act from Complainant”;

• “This forum does not have jurisdiction to hear Complainant’s claims against Yuma County because the Complainant does not allege an unfair immigration- related employment practice under 8 U.S.C. § 1324b”;

• “Moreover, the complaint does not allege that Yuma County retaliated against Complainant for engaging in a protected act”; and

• “Given that Complainant did not allege an existing or prospective employment relationship with Yuma County, it is unclear how Yuma County could have retaliated against Complainant for any conduct that would be protected under 8 U.S.C. § 1324b.”

R. at 305 (emphases added).

We too need not look beyond the four corners of the complaint to conclude that

the OCAHO lacked subject-matter jurisdiction to resolve Galindo’s complaint as to

Yuma County. The anti-discrimination provision of the INA proscribes unfair

immigration-related employment practices. 8 U.S.C. § 1324b. But here, neither Galindo’s

complaint nor his written addendum alleges an existing or prospective employment

relationship between himself and Yuma County.

In addition, none of the conduct Galindo describes involving Yuma County is

protected conduct under the statute. At best, Galindo alleges that “the police of Yuma,

10 IC3 of FBI and other lawyers & agenc[ies]” took employment letters from Galindo’s

residence, surveilled his calls and emails, blocked his communications, and engaged in

terrorism and human trafficking. R. at 12. None of these acts involve § 1324b rights. The

ALJ thus correctly held that it lacked jurisdiction over these claims.

CONCLUSION

For the reasons discussed above, we DENY Galindo’s petition for review. Further,

because Galindo has not presented a reasoned, non-frivolous argument for appeal, he is

not entitled to proceed without payment of the filing fee, and his additional application to

proceed in forma pauperis is likewise DENIED.

Entered for the Court

Gregory A. Phillips Circuit Judge