Advertise on ILW
Connect to us
Make us Homepage
Chinese Immig. Daily
The leadingimmigration lawpublisher - over50000 pages offree
Copyright© 1995-ILW.COM,AmericanImmigration LLC.
By: Bruce Buchanan, Sebelist Buchanan Law
The Office of Chief Administrative Hearing Officer (OCAHO) issued an interesting decision involving “document abuse” which was recently renamed “unfair documentary practices” in the new regulations. U.S. v. Mar-Jac Poultry, Inc., 12 OCAHO no. 1298 (March 2017). It was a split decision with the Administrative Law Judge (ALJ) for OCAHO finding Mar-Jac Poultry committed many document abuse violations while other allegations were not document abuse.
The case started with a charge filed by Edwin Morales, a TPS recipient, with the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) alleging document abuse. Thereafter, OSC informed Mar-Jac that it was expanding its investigation to include “a possible pattern or practice of document abuse against non-U.S. citizens.”
Based on its investigation, the OSC filed a complaint with OCAHO alleging in Count I – Mar-Jac committed document abuse against Morales and “other similarly situated persons” and Count II – Mar-Jac engaged in a “pattern or practice of discrimination in the hiring and Employment Eligibility Verification Process.”
In its Motion for Summary Judgment, Mar-Jac argued the statute only prohibits document abuse as it relates to protected individuals - U.S. citizens (USCs), recent lawful permanent residents (LPRs), refugees and asylees. Since Morales was a TPS recipient with an Employment Authorization card (EAD), Mar-Jac argued he was not protected regarding the document abuse allegations. The ALJ determined that “claims of document abuse with an intent or purpose of discriminating against an individual based on citizenship status is limited to claims against statutorily-defined protected individuals as defined in 8 U.S.C. § 1324b(a)(6).” Since Morales was on TPS, the ALJ agreed with Mar-Jac’s defense that Morales was not a protected individual.
Concerning Count II – whether Mar-Jac engaged in a pattern or practice of discrimination, Mar-Jac conceded its HR employees required potential applicants to present a photo ID and a Social Security card in order to obtain an employment application. Without such, Mar-Jac did not provide them with an application.
Also, if a person checked a box on Section 1 of the I-9 form as a LPR or authorized to work and presented Lists B and C documents, such as a driver’s license and Social Security card, respectively, the Mar-Jac HR employee would request the LPR card or EAD. Mar-Jac’s witnesses stated this request was made to make sure the card was valid and they believed E-Verify required non-USCs to present their LPR card or EAD. The witnesses acknowledged they were mistaken in their beliefs. Mar-Jac conceded USCs were not requested to present a particular document.
Mar-Jac argued it had a legitimate, non-discriminatory reason, to verify the correct box was marked in Section 1, when its HR employees asked non-USCs to see their List A document – LPR card or EAD. Mar-Jac asserted it followed this practice in order to have Sections 1 and 2 accurately completed and to avoid non-compliance with the completion of the I-9 form, which could cause civil and criminal liability. Mar-Jac also argued it required non-USCs to present a List A document because of a mistaken belief that E-Verify required it; thus, it had no discriminatory intent. Furthermore, Mar-Jac asserted requests related to E-Verify are not covered by 8 U.S.C. § 1324b; thus, no violations should be found.
To establish a case of document abuse, the decision stated a complainant must show (1) “that, in connection with the employment verification process required by 8 U.S.C. § 1324a(b), an employer has requested from the employee more or different documents than those required or has rejected otherwise acceptable valid documents and (2) that either of these actions was undertaken for the purpose or with the intent of discriminating against the employee on account of the employee’s national origin or citizenship status.”
One of the issues in the case was the requisite intent required to prove the violations. The OSC asserted U.S. v. Life Generations, a 2014 OCAHO decision, stated an intent to discriminate means that a person “would have acted differently but for the protected characteristic.” Mar-Jac argued it had no intent to discriminate because a significant portion of its workforce were non-USCs. Furthermore, their actions were merely designed to “assist the applicant in satisfying the requirements of the Form I-9.” The ALJ stated discriminatory intent does not require “malice, ill will, or a malevolent nature.” Thus, Mar-Jac’s arguments were without merit.
The ALJ concluded the testimony of Mar-Jac’s HR employees established direct evidence of discriminatory intent – the requests to see a DHS-issued document, LPR card or EAD, was motivated by the individual’s LPR or work-authorized status. Thus, the ALJ found the company “engaged in prohibited documentary practices by virtue of both specifying the kind of document that a new hire had to present, and requesting an additional document when a new hire sufficiently presented Lists B and C documents. Moreover, Mar-Jac’s documentary practices were carried out for the purposes of satisfying employment verification requirements of 8 U.S.C. § 1324a(b).”
As for Mar-Jac’s remaining defense that it completed Section 1 as the preparer/translator and thus it needed to verify the information listed to avoid civil and criminal liability, the ALJ stated, “Although the preparer/translator attestation in Section 1 requires an attestation that the information contained therein is true and correct to the best of the preparer/translator’s knowledge, that standard does not require absolute metaphysical certainty – or even actual knowledge – regarding the information from the preparer/translator and in no way requires an employer to ask to see a document to verify the information.”
Therefore, the OCAHO ALJ found Mar-Jac committed the violations alleged in Count II. A determination on the civil penalties and back pay were left for a later time. Furthermore, Mar-Jac has the right to appeal the ALJ’s decision to the Chief Judge of OCAHO.
This decision shows employees can be mistaken on the proper manner to complete the I-9 form. Therefore, it is crucial that employers obtain regular training from immigration counsel on immigration compliance issues.
By Bruce Buchanan, Sebelist Buchanan Law
Although the Office of Chief Administrative Hearing Officer (OCAHO) found Metropolitan Enterprises committed 189 violations and were fined $151,200, it could have been worse as OCAHO dismissed 20 allegations for the failure of ICE to establish employment during the audited period. U.S. v. Metropolitan Enterprises, Inc., 12 OCAHO no. 1297 (March 2017).
The case started in the usual way with Immigration and Customs Enforcement (ICE) serving a Notice of Inspection (NOI), seeking I-9 forms for current and terminated employees for a two-year period. Nine months later, ICE issued a Notice of Intent to Fine with Count I alleging 156 violations for various errors in completion of the I-9 forms – no employee signature, no employer signature, blank section 2, and no status box checked, and Count II – failure to prepare/present 53 Form I-9s.
ICE sought a penalty of $195,649 based upon a baseline penalty of $935 (over 50% of the I-9 forms were in error). It aggravated the penalty by 5% for the seriousness of the violation and mitigated the penalty by 5% for good faith. ICE also alleged five employees were undocumented and aggravated by 5% for those 5 Form I-9s.
Although ICE proffered a company payroll register for the two-year period of the NOI, this document did not provide hiring and termination dates. Without such, it is impossible to determine whether Metropolitan was required to retain the I-9 forms of the terminated employees, (Remember if the employee has worked there for over three years, an employer is only required to retain the I-9 form for a year from termination). The ALJ stated “mind reading is not an accepted tool of judicial inquiry.” Despite this shortcoming, OCAHO could discern the applicable dates for 189 employees out of the 209 employees.
However, OCAHO could not discern the hiring and termination dates of 20 employees; therefore, it could not determine whether Metropolitan was required under the law to retain their I-9 forms. Based on this, OCAHO dismissed 20 of the allegations.
Concerning the mitigation of the penalties, OCAHO did not find good faith based upon “wide spread, fundamental errors, which as a whole, have undermined the purpose of the employment verification system.” Furthermore, OCAHO declined to find five employees were undocumented because the ICE auditor did not identify the databases that he searched nor provided any details regarding how he conducted the searches.
OCAHO concluded the penalties proposed by ICE “while arguably defensible, are slightly disproportionate to the overall extent of the violations.” Thus, OCAHO set the penalties at $800 per violation rather than $935 per violation.
This decision was interesting because it detailed ICE’s failure to provide the appropriate facts to established some of the allegations and OCAHO’s astonishment that ICE considered Metropolitan’s conduct would warrant good faith mitigation.
By Bruce Buchanan, Sebelist Buchanan Law
In another decision involving a small restaurant in Hamburg, the Office of Chief Administrative Hearing Officer (OCAHO) reduced the restaurant’s penalty from $46,657 to $33,725 for four violations of failing to prepare and/or present I-9 forms and 67 violations for failing to properly complete I-9 forms. See U.S. v. 3679 Commerce Place, Inc. d/b/a Waterstone Grill, 12 OCAHO no.1296 (2017).
Since Waterstone Grill admitted liability, the only issue before OCAHO was the amount of the penalties. Immigration and Customs Enforcement (ICE) used $935 as the baseline penalty per violation based on a violation rate of over 50%. In an unusual twist, ICE found a 25% mitigation was warranted based upon the restaurant’s good faith in preparing the I-9 Forms. Normally, the five statutory factors, including good faith, are worth the 5% mitigation or aggravation. ICE also mitigated by 5% each due to the restaurant’s small size and the 67 employees in Court II were determined to be eligible for employment. ICE aggravated by 5% for the seriousness of the violations.
Waterstone Grill asserted it deserved mitigation for three of the four employees in Count I because they were authorized to work and several non-statutory factors, including general public policy of leniency toward small businesses, its cooperation with ICE during the investigation, including enrolling in E-Verify, and its inability to pay the $47,000 penalty.
OCAHO found 25% mitigation for good faith was unwarranted, especially where ICE offered no explanation for the size of the mitigation. However, some mitigation, which was not defined, was warranted. Concerning its inability to pay, OCAHO found it failed to show it could not pay the penalty, but found the proposed penalty should be viewed in light of the company’s financial situation. Although OCAHO found an employer’s post-inspection remedial measures may support mitigation, it declined to find such here.
OCAHO found ICE failed to prove the employees in Count I were unauthorized to work. OCAHO stated “it does not always follow that a factor found not to be aggravating (which is normally where the factor of unauthorized workers is found) must necessarily and automatically be mitigating.” However, in this case, OCAHO decided this was a mitigating factor.
OCAHO determined the proposal penalty should be reduced to $475 each for a total penalty of $33,725. As the facts demonstrate, if Waterstone would have performed an internal I-9 audit before ICE arrived with the NOI, most of the I-9 violations could have been corrected and not subject to a penalty.
By Bruce Buchanan, Sebelist Buchanan Law
An individual’s claim of document abuse by a company was dismissed by Office of Chief Administrative Hearing Officer (OCAHO) because the company was abiding by E-Verify laws in declining a List B document without a photograph. See Johnson v. Progressive Roofing, 12 OCAHO no. 1295 (Jan. 2017).
Michael Johnson was hired by Progressive Roofing and thereafter presented his documents in the process of completing his I-9 form – voter registration card (List B document) and two List C documents- a birth certificate and a social security card. Progressive Roofing told Johnson that the documentation was insufficient because the voter registration card did not contain a photograph. Although unclear whether Progressive Roofing explained the insufficiency, the company was enrolled in E-Verify which requires a List B document, if presented, to contain a photograph. (Alternatively, an employee may present a List A document.)
Johnson filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (since renamed the Immigrant and Employee Rights Section) alleging document abuse for the company’s failure to accept his List B and C documents. OSC dismissed the charge for insufficient evidence of a violation but advised him of the right to file his own complaint with OCAHO. Johnson did so, alleging the same violation. Thereafter, Progressive Roofing filed an Answer and Motion for Summary Decision asserting it did not violate the law because it was following E-Verify practices and procedures by requiring a List B document containing a photograph or List A be presented. Johnson did not respond to the company’s motion.
OCAHO explained document abuse occurs when an employer requests more or different documents than necessary or rejects valid documents and does so for the purpose of discriminating on the basis of citizenship status or national origin. Thus, document abuse takes two elements, an act and intent. It has not been a strict liability offense since the amendments to 8 U.S.C. §1324b(a)(b) in 1996.
OCAHO found Johnson did not establish a prime facie case of discrimination because Progressive Roofing was an enrolled participant in E-Verify, which requires any List B document presented to contain a photograph, and did not request more or different documents than required by law. Assuming arguendo, Johnson established a prime facie case, Progressive Roofing met its burden by showing it had a legitimate nondiscriminatory reason for requesting a List B document with a photograph – to be in compliance with federal law. Finally, Johnson did not allege this defense was pretextual. Therefore, OCAHO dismissed Johnson’s complaint.
This decision reminds employers that the use of E-Verify requires following certain rules, including only accepting List B documents with a photograph. In rejecting Johnson’s List B document, Progressive Roofing was merely following the applicable law.
By: Bruce Buchanan, Sebelist Buchanan Law
In one of its last decisions of 2016, the Office of Chief Administrative Hearing Officer (OCAHO) reduced the penalty of a restaurant from $96,398 to $58,850 for 107 violations. See U.S. v. Pegasus Family Restaurant, Inc.,12 OCAHO no. 1293 (Dec. 2016).
This case stated almost three years ago – in December 2013 – when Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on Pegasus, a small restaurant in Hamburg, New York. Pegasus provided approximately 81 Form I-9s. Thereafter, ICE filed a Notice of Intent to Fine (NIF) alleging Pegasus failed to prepare and/or present 31 Form I-9s and failed to properly complete 76 Form I-9s - it failed to record any documents in section 2, only recorded a List B document, a driver’s license or state ID card, or failed to ensure the completion of Section 1 with a signature or attesting to the employee’s status, U.S. citizen, permanent resident, etc. Pegasus admitted liability on all the I-9 violations. Thus, the only issue before OCAHO was the amount of the penalty.
In seeking a penalty of $96,398, ICE used a baseline penalty of $935 per violation due to Pegasus having a violation rate of over 90%. ICE found Pegasus’s small size and the individuals in Count I as eligible for employment to be mitigating factors while the seriousness of the violations to be an aggravating factor. The remaining statutory factors of history of violations and good faith were considered neutral.
Pegasus asserts its lack of history of violations and no conclusive evidence that any of the employees were unauthorized to work were mitigating factors. Furthermore, it asserts the following non-statutory factors warrant mitigation – general public policy of leniency toward small businesses, company’s high turnover rate, its cooperation with ICE during the investigation, including enrollment in E-Verify, and its inability to pay the proposed penalty.
OCAHO agreed with Pegasus that the government failed to prove any of the employees were unauthorized to work. In an unusual finding, OCAHO stated this was a mitigation factor, rather than a neutral factor, although it recognized that it could have been accepted as a neutral factor. However, OCAHO declined to find the lack of a history of I-9 violations as a mitigating factor.
Concerning its inability to pay, OCAHO found it failed to show it could not pay the penalty, but found the proposed penalty was “unduly punitive.” Thus, OCAHO considered the company’s financial situation.
Although OCAHO found an employer’s post – inspection remedial measures may support mitigation, it declined to final such in this case. Furthermore, it declined to view a high turnover rate as a mitigating factor.
In conclusion, OCAHO found the penalty should be reduced from between $888 and $935 per violation to $550 per violation. Thus, this total penalty was $58,850. As the facts demonstrate, if Pegasus would have performed an internal I-9 audit before ICE arrived with the NOI, many of the I-9 violations could have been corrected and not subject to a penalty.