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After litigating before Office of Chief Administrative Hearing Officer (OCAHO), Modern Disposal, Inc., a New York company, was unable to receive any reduction of the $33,275 penalty. Modern Disposal employed 168 workers at the time of the NOI in November 2009.
ICE alleged Modern Disposal failed to timely prepare I-9 forms for 55 current employees. The company conceded they were not completed until after receipt of the NOI.
ICE set the baseline penalty at $605 per violation, based upon a 34% substantive error rate. ICE aggravated the penalty by 5% based on the size of the company - it "failed to use its personnel and financial resources to comply with the law" and lack of good faith by not timely completing the I-9 forms. However, it mitigated the penalty by 5% based on lack of seriousness and lack of any unauthorized workers. Thus, the aggravating and mitigating factors cancelled each other out.
The company argued ICE did not explain its rationale for $605 per violation. OCAHO found the penalty per violation was based upon ICE's matrix of the percent of substantive errors. A 34% error rate equals a penalty of $605 per violation. However, OCAHO failed to fully explore factors such as employer's overall revenues, profitability, and amount of the payroll.
In an unusual situation, OCAHO rejected ICE's attempt at leniency. Specifically, it rejected ICE's assertion that the company failed to use its personnel and financial resources to comply with IRCA, citing OCAHO decisions dating back to 1996 with the same holding. OCAHO also rejected the finding of lack of good faith, citing a 1990 OCAHO decision that found tardy completion of I-9 forms was not "necessarily an indication of bad faith." OCAHO also rejected ICE's mitigation on the lack of seriousness, stating "failure to prepare an I-9 in a timely fashion is . . . . always a serious violation because an employee could potentially be unauthorized for employment." In this case, the delays were between 3 and 10 years.
OCAHO concluded the penalties assessed were well within the statutory parameters; therefore, it upheld them. In so doing, OCAHO noted Modern Disposal characterized the penalties as "inappropriate and excessive" but failed to provide any evidence to support their position. Thus, an important point, if you are going to argue the penalties are excessive, explain why.
"They're working on something dealing with border security. I'm not
telling anyone what to do other than tell them to do it as quickly as
you can," Reid said. "This may not be one of our normal weekends where
we shoot out of town."
Corker said on Monday that the group of senators working on a
compromise on border security that could appeal to both Democrats on
Republicans is getting close, but wouldn't tip his hand.
"There are a number of folks who are working together to try to
attempt to get to that place that answer the border security issue but
also does it in the way that's objective, so there's not a worry about
the goalposts being moved down the road," Corker told reporters. "I
think we're getting close. But again there's a number of conversations
underway and it continues to be slightly fluid. I just have a sense that
there's a good chance."
I know some of the pro-immigration community thinks that it's only important to get 60 votes in the Senate, but I believe that getting a sizable portion of Republicans to vote for the bill would send a powerful message to the House and would mean a better bill in the end. So I think the efforts to find a compromise on border security are important.
The Office of the Chief Administrative Hearing Officer (OCAHO) recently issued two decisions involving Subway restaurants in North Carolina - Siwan & Sons d/b/a Subway, #35029 & #23095, and Siwan & Brothers, Inc. d/b/a Subway, #37616. In these two cases, Immigration and Customs Enforcement (ICE) sought penalties of $82,280 and $49,368, respectively. In both cases, OCAHO drastically reduced the penalties - by about 8o%. This result is similar to the result in 2010 when OCAHO decided another case involving a Subway franchisee in North Carolina. (Word to North Carolina Subway franchisees - carefully review your current I-9 forms or better yet have an immigration compliance attorney conduct an audit.)
In December 2009, ICE served each company with a Notice of Inspection (NOI) requesting the I-9 forms of current employees and former employees in the past two years. Although the companies produced 88 Form I-9s and 52 Form I-9s, respectively, they only had less than 10 employees at each facility. ICE charged Subway, #'s 35029 and 23095, with 65 violations, involving failing to complete the I-9 forms in the required three-day period and backdating the I-9 forms, and eight violations of failure to present the I-9 forms of former employees. In Subway, # 37616, ICE charged the company failing to complete 45 employees' I-9 forms in a timely manner, backdating the I-9 forms, failing to produce the I-9 forms of three current or former employees and/or failing to complete Section 2 or 3.
ICE found each company's I-9 forms had over 80% error rate; thus, the baseline fine per violation was set at $935. As for the five factors, ICE argued the companies were not entitled to the 5% mitigating factor of being a small employer even though they had few current employees because Subway franchise owners had the benefit of corporate human resources training, including I-9 compliance. Rather, it treated the size of the employers as a neutral factor. Moreover, it aggravated the fines by 5% each for lack of good faith - backdating the I-9 forms and seriousness of the violations.
The franchisee owner conceded the I-9 forms produced by the companies appeared to have been backdated. He explained he copied the employees' original I-9 forms onto new I-9 forms when the USCIS introduced a new version in 2009 because he thought all of the employees' I-9 forms had tobe on the new version. Thereafter, he apparently destroyed the original I-9 forms. (Never destroy an I-9 form of a current or former employee unless it can be legally purged.) The owner blamed his error on his limited knowledge of English. OCAHO accepted the franchisee's explanation concerning the appearance of backdating the I-9 forms and refused to find this was evidence of lack of good faith.
The Subway franchisee also argued IT was a small employer, that the size of the franchisor was irrelevant; thus, they should receive the 5% mitigation. OCAHO agreed, as it has previously held, the size of the franchisor is not relevant to the determination as to the size of the franchisee.
Furthermore, Subway asserted the penalties were unjust and would force the closing of the businesses. OCAHO essentially agreed in finding "the penalties were excessive in light of the record as a whole", especially since the requested penalties were "so near the maximum possible as to appear out of proportion to the size and resources" of the small family restaurant operations. OCAHO cited prior case law that proportionality is critical to setting penalties and the penalties cannot be "unduly punitive." Therefore, OCAHO reduced the penalties to $200 per violation, thereby reducing the penalties to $15,800 and $9600, respectively.
Employers, especially smaller employers, continue to receive favorable results through litigation at OCAHO.
"Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold." -Former INS spokeswoman Karen Kraushaar, Washington Post on April 24, 2001.
Remember in life, you get what you pay for.
I once represented a Russian woman who paid a notario (or whatever
you call the Russian equivalent of a notario) $10,000.00 to concoct a
phony story about how the woman was a lesbian who faced persecution in
her home country. The application was denied, in part because the
notario failed to inform the asylum seeker about the contents of her
application, and the woman was referred to Immigration Court.
Admit your mistakes and you may get asylum... or even a seat in Congress.
By the time I got the case, the woman had married a United States
citizen (a man) and was facing deportation. We had to decide how best to
approach the case, given the client's previous lies. What we did is the
same approach I have used many times since, because it tends to work.
We admitted that she lied, explained how the lie happened (basically, a
naive young woman following the advice of a high-paid crook), accepted
responsibility for what she did wrong, and apologized.
In the end, the client received her green card based on the marriage.
My favorite part of the case was when I informed the Immigration Judge
that I would have an expert at trial to testify concerning country
conditions in Russia: The husband was African American, and if his wife
was deported, he planned to follow her to Russia, where he would likely
face problems with skinheads and other racists. The Judge, who was also
black, told me, "I don't need an expert to tell me that there is racism
in Russia." We skipped the expert and won the case.
This basic formula-admit the lie, take responsibility, and
apologize-is one that has worked for my clients on numerous occasions.
Just last month, for example, we completed the case of an asylee who
had been convicted of stealing money from his employer. The crime was an
aggravated felony under the Immigration and Nationality Act (because he
was sentenced to more than one year in prison). The refuge waiver,
under section 209(c) of the INA, is one of the rare waivers that allows
an aggravated felon to adjust status from asylum or refugee to lawful
permanent resident. It's not an easy waiver to get, and really isn't
that common (which-I hope-means that asylees rarely commit aggravated
In that case we used the same formula.* The client took
responsibility for his crime, apologized, and promised that he would not
engage in such behavior again. We also submitted evidence of
rehabilitation. The waiver was granted, the client was released from
detention (after a good eight months in jail), and he received his green
This same strategy can be used for clients who lied to obtain a visa
or who entered the country illegally. The fact finders want to hear that
the alien accepts responsibility for what she did. And in asylum cases,
there really is little to gain from covering up such lies, as people
who falsely obtain a visa (or enter the U.S. illegally) in order to
escape persecution are not ineligible for asylum.
The point of all this is not that the client can say the magic words
and win permission to remain in the United States. Rather, the alien who
accepts responsibility for what he did (and tries to turn his life
around) is much more likely to receive relief than the alien who tries
to cover it up or blame someone else.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 07-16-2013 at 01:19 PM by JDzubow