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Pinilla v. Board of Review

Decided: January 4, 1978.

ALICIA PINILLA, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW IN THE DEPARTMENT OF LABOR AND INDUSTRY OF NEW JERSEY, AND HARTZ MOUNTAIN CORPORATION, RESPONDENTS



Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.

Botter

On this appeal we are asked to determine whether appellant, an alien residing illegally in this country, is entitled to unemployment compensation benefits when her employment was terminated following an arrest by immigration officials.

Appellant is a citizen of Colombia, South America. According to her testimony she came to this country in October 1969 on a nonimmigrant visa which expired in 1973, four years after her arrival. She sought legal assistance in extending her stay lawfully and in gaining permanent immigration status but was advised that "she had to go back to [Colombia], because she had to get a passport." She did not have an alien registration card and offered no proof of permission to work in this country.

Appellant began her employment with Hartz Mountain Corporation (Hartz) on January 6, 1970, shortly after her arrival. She continued with Hartz until March 18, 1976 when she was taken into custody by agents of the United States Immigration and Naturalization Service. After being released on her own recognizance pending a deportation hearing, appellant returned to Hartz on March 19 but was told

she could not continue her employment without a work permit or documentation of permanent residence.

Thereafter, in April 1976, appellant filed a claim for unemployment benefits. The claim was denied at all levels of agency review on the ground that, lacking permission to work legally, appellant was unavailable for work within the meaning of N.J.S.A. 43:21-4. This statute provides that an unemployed person is eligible for benefits "only if it appears that"

(c) He [or she] is able to work, and is available for work, and has demonstrated that he [or she] is actively seeking work * * *.

Appellant contends that she is entitled to unemployment compensation because there is no provision in New Jersey or federal statutes or regulations which expressly disqualifies illegal aliens of her class from such benefits, and it is not illegal for employers to hire such aliens.

Prior to an amendment of § 245 of the Immigration and Nationality Act of 1952 (the Act), 8 U.S.C.A. § 1255,*fn1 effective January 1, 1977, there was no provision in the Act which referred to the impropriety of a nonimmigrant, here temporarily for pleasure, engaging in gainful employment. See Londono v. Immigration and Naturalization Service , 433 F.2d 635, 636 (2 Cir. 1970). Indeed, while 8 U.S.C.A. § 1324(a)(3) makes it a felony for any person "to harbor" or attempt "to harbor" any alien not lawfully entitled to reside within the United States, the statute provides that "employment * * * shall not be deemed to constitute harboring." But this provision has been termed "at best evidence of a peripheral concern with employment of illegal entrants * * *," DeCanas v. Bica , 424 U.S. 351, 360, 96 S. Ct. 933, 939, 47 L. Ed. 2d 43, 51 (1976), and

the design of the Act has been interpreted to exclude employment of nonimmigrants who have been admitted temporarily for pleasure. Londono v. Immigration and Naturalization Service, supra. Moreover, 8 C.F.R. 214.1(c) provides:

A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure * * * may not engage in any employment. Any other 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 in accordance with the provisions of this chapter. * * * Any unauthorized ...


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