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I-9 E-Verify Immigration Compliance

OCAHO Remands ALJ Decision That Criticized ICE; by Bruce Buchanan, Siskind Susser

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Two recent decisions from the Office of the Chief Administrative Hearing Officer (OCAHO) in United States v. Crescent City Meat Company Inc. reached very different conclusions as to the conduct of Immigration and Customs Enforcement (ICE) counsel.

Initially, Administrative Law Judge Ellen K. Thomas found ICE had ignored evidence that two of Crescent City’s employees were hired before November 7, 1986 when ICE tried to issue a penalty for the company’s failure to have I-9 forms for those two employees. (Note: A company is not required to have an I-9 form for any employee hired before November 7, 1986.)

ALJ Thomas stated “it is doubly important that the government act with scrupulous fairness” when a party is unrepresented by counsel. Due to the ALJ’s belief that ICE counsel had failed to engage in good faith, she lowered the penalties from $935 per violation to the minimum of $110 each for 15 violations, totaling $1650.

ICE counsel filed a Request for Administrative Review, arguing the ALJ erred in concluding that ICE had overreached in issuing the NIF and filing the complaint; and the ALJ abused her discretion by reducing the penalty to the statutory minimum based on incorrect findings of fact and conclusions of law.

ICE counsel asserted that its Memorandum to Case File, the document in question, stated Crescent City identified nine current employees, two of whom were hired prior to November 1986, and eight former employees who were employed by the company within the previous year, as not having an I-9 form. Consequently, ICE charged the Respondent with 15 violations – seven violations pertaining to the current employees who were hired after November 6, 1986, and eight violations pertaining to the employees employed within the previous year.

Therefore, ICE counsel asserted that they never fined or alleged that they would fine Respondent for the two employees hired before November 1986, contrary to the ALJ’s assumption that ICE “chose to disregard the information that two of Respondent’s current employees worked for the company since before the effective date of the statute.”

Rather than undermining the company’s admissions of liability, as the ALJ decision stated, ICE’s Memorandum to Case File actually supports the number of violations it alleged in the NIF and complaint. Therefore, OCAHO held ICE did not appear to have overreached in issuing the NIF and filing the complaint in this case.

OCAHO concluded although the ALJ has the discretion to reduce the civil penalties to the statutory minimum, in this case the reduction to the minimum amount was based in part on a finding that was not substantiated by the record –the alleged overreach by ICE did not exist. Thus, OCAHO vacated the ALJ’s decision and remanded the case for reconsideration of the penalty assessment.

A copy of this second decision is available here. Cite as United States v. Crescent City Meat Company, Inc., 11 OCAHO no. 1217 (2014).

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