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Vlad Y. Makutoff v. Board of Review and Society General

July 23, 2012


On appeal from the Board of Review, Department of Labor, Docket No. 213,337.

The opinion of the court was delivered by: Alvarez, J.A.D.



Submitted April 30, 2012 -

Before Judges Parrillo, Grall and Alvarez.

The opinion of the court was delivered by ALVAREZ, J.A.D.

Vlad Y. Makutoff, who is self-represented, appeals from the January 24, 2011 final decision of the Board of Review of the Department of Labor (Board). The Board found him ineligible for unemployment benefits because he was not "available for work," a requirement of N.J.S.A. 43:21-4(c). This unavailability results from his limited work authorization, issued by the Department of Homeland Security (DHS), under the North American Free Trade Agreement (NAFTA). See 19 U.S.C.A. §§ 3301-3473; 8 U.S.C.A. § 1184(e)(2); 8 U.S.C.A. § 1101(a)(15)(H). In addition to being found ineligible, Makutoff was ordered to reimburse the unemployment benefits paid to him. We affirm.

The Deputy Director of the Division of Unemployment and Disability Insurance (Director) informed Makutoff that he was ineligible, and demanded a return of benefits, by letter dated December 30, 2008. Makutoff appealed, and the Appeal Tribunal initially reversed the Director. The Director then appealed to the Board, which remanded the matter for additional testimony to clarify Makutoff's employment status. Hearings were conducted on October 22, 2009, and February 2, 2010, as a result of which the Tribunal affirmed the Director's decision denying benefits. Makutoff appealed to the Board, which affirmed on January 24, 2011.

An explanation of the legal context developed during the second Appeal Tribunal proceeding is warranted. Makutoff is a Canadian citizen holding a degree in economics, who has been employed in the United States as an accountant. DHS must issue written work authorization before he, like any other person not a citizen of this country who is a non-immigrant professional, can accept any position in the United States. See 8 U.S.C.A. § 1184(e)(2); 8 C.F.R. § 214.6 (2008). Such authorization was granted to Makutoff when he was accorded "trade NAFTA" (TN) status from September 13, 2008, through September 13, 2009. To obtain the designation, however, Makutoff had to present the appropriate documentation provided by his prospective employer Society General (SG) and apply for admission with a DHS officer at a port-of-entry, international airport, or pre-clearance/pre-flight station. See 8 U.S.C.A. § 1184(e)(2); 8 C.F.R. § 214.6(d) (2004); North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 289 art. 1603 app. 1603.D.1.

Once a non-immigrant professional, such as Makutoff, obtains the necessary authorization, he or she is permitted to work only for that identified employer. In other words, Makutoff was only authorized to work in the United States for SG. See ibid. Makutoff was laid off by SG on October 21, 2008, and according to the record presented on appeal, received unemployment benefits for the week ending November 1, 2008, in the amount of $560.*fn1

During the second hearing, the Appeal Tribunal also considered a letter dated February 24, 2009, written by M.F. Global Holdings USA, Inc. (Global), requesting approval from DHS to retain Makutoff's services for three years during which he would "perform the professional duties of a [b]usiness [a]nalyst functioning in the capacity of an [e]conomist[,]" with a start date of March 2, 2009.*fn2 The letter, written by Global's attorney, is addressed to the "United States Customs and Border Protection[,] U.S./Canadian Border . . . ." Makutoff asserts that the letter is nothing more than a job offer, while the Board contends that Global provided the letter in order to obtain authorization from DHS to employ Makutoff.

Makutoff also alleges that during the Appeal Tribunal hearings poor phone reception resulted in significant distortions and omissions in the record, and that the hearings should have been postponed for this reason. Additionally, he claims that a conflict of interest resulted when the same examiner conducted both the initial and remand Appeal Tribunal hearings. Lastly, Makutoff avers that the unemployment benefits "safety net" should be extended to him because unemployment taxes were deducted from his pay at SG.

In any event, Makutoff's points of error are immaterial to the issue presented by these facts. The real question is whether Makutoff's status between sponsoring employers made him "available for work" within the meaning of N.J.S.A. 43:21-4(c). We conclude it does not.

The burden of proof rests upon the claimant to establish his or her right to unemployment compensation. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). Our standard of review of agency determinations is limited. See In re Stalworth, 208 N.J. 182, 194 (2011); In re Taylor, 158 N.J. 644, 656 (1999); Brady, supra, 152 N.J. at 210. We defer to such decisions, unless upon consideration they appear to be arbitrary, capricious, or unsupported by substantial credible evidence in the record as a whole. See Russo v. Bd. of Trs., Police & Fire Retirement Sys., 206 N.J. 14, 27 (2011); In re Carter, 191 N.J. 474, 482 (2007). We determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a ...

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