*fn*,ANN M. BADMUS, ESQUIRE 260 Chapman Road, Suite 100C Newark, Delaware 19702 Attorney for Petitioner,ZELLEKA GETAHUN, PETITIONER v. OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OF THE UNITED STATES DEPARTMENT OF JUSTICE, DUPONT MERCK PHARMACEUTICAL COMPANY, INTERVENOR-RESPONDENT" />

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Getahun v. Office of Chief Administrative Hearing Officer of Executive Office For Immigration Review of U.S. Dept. of Justice

September 15, 1997

ZELLEKA GETAHUN, PETITIONER

v.

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OF THE UNITED STATES DEPARTMENT OF JUSTICE, DUPONT MERCK PHARMACEUTICAL COMPANY, INTERVENOR-RESPONDENT



On Petition for Review of Final Order of the Office of the Chief Administrative Hearing Officer of the Executive Office for Immigration Review of the United States Department of Justice

(OCAHO Case No. 94B 00187(1996))

Senior District Judge *fn*

Filed September 15, 1997

Submitted Pursuant to Third Circuit LAR 34.1(a) July 24, 1997

OPINION OF THE COURT

DEBEVOISE, Senior District Judge.

Petitioner, Dr. Zelleka Getahun, filed a complaint with the United States Department of Justice's Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer ("OCAHO") pursuant to 8 U.S.C. Section(s) 1324b(d)(2), charging that her former employer, Intervenor-Respondent DuPont Merck Pharmaceutical Company ("DuPont Merck"), committed "document abuse" in violation of 8 U.S.C. Section(s) 1324b(a)(6) when it terminated her employment on October 27, 1993. The Administrative Law Judge to whom the case was assigned granted DuPont Merck's motion for summary decision, holding that Dr. Getahun was not authorized to accept employment in the United States and thus lacked standing to assert a claim under Section(s) 1324b. Dr. Getahun filed a petition for review in this Court.

We will reverse the order of the ALJ dismissing Dr. Getahun's complaint and remand the case for further proceedings in accordance with this opinion.

A. The Facts

On January 10, 1991 Dr. Getahun began employment with DuPont Merck. She had previously applied for political asylum and had received an employment authorization document which had a November 1991 expiration date. At the time of her employment with DuPont Merck she completed the mandatory INS Form I-9 and submitted her Maryland driver's license and her Social Security number card as evidence of her employability. She attested on the Form I-9 that she was an alien authorized by the INS to work in the United States but did not complete the blank space calling for the expiration date of her employment authorization.

On October 25, 1991 Dr. Getahun's application for political asylum was granted. Pursuant to 8 C.F.R. Section(s) 208.20, as in effect in 1991, employment authorization was automatically granted or continued for persons granted asylum:

When an alien's application for asylum is granted, he is granted asylum status for an indefinite period. Employment authorization is automatically granted or continued for persons granted asylum or withholding of deportation unless the alien is detained pending removal to a third country. Appropriate documentation showing employment authorization shall be provided by the INS.

However, 8 C.F.R. Section(s) 274a.12 provides that an alien granted asylum "who seeks to be employed in the United States, must apply to the Service for a document evidencing such employment authorization."

In November 1991 Dr. Getahun informed DuPont Merck's Human Resources Department that her application for political asylum had been granted. A department representative informed her that DuPont Merck would assist her in adjusting her status to permanent resident. Dr. Getahun applied neither for ...


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