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I-9 E-Verify Immigration Compliance

OCAHO Issues Third Crescent City Decision; by Bruce Buchanan, Siskind Susser

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In OCAHO’s third decision concerning the amount of penalties that Crescent City Meat Company owes for its failure to prepare/present I-9 forms for 15 employees, it assessed the company $6,750 in penalties.

As discussed in prior articles, OCAHO ALJ Ellen K. Thomas initially decided Crescent City only owed $1,650 in civil penalties because ICE had failed to engage in good faith during the investigation and litigation. ICE appealed to Chief Administrative Hearing Officer (CAHO) Robin M. Stutman, who found ALJ Thomas had drawn this conclusion from a misreading of the record. Thus, the CAHO vacated the decision and remanded for reconsideration of the penalties.

Since Crescent City’s error rate was 50% or greater, the baseline penalty was set at $935 per violation. ICE mitigated the penalty by 5% based on Crescent City’s small size, but aggravated the penalty by 5% for the seriousness of the violations. Thus, ICE set the total penalties at $14,025 ($935 x 15 violations).

Crescent City raised three arguments for a reduction in the penalties – 1) it was unaware of the I-9 requirement, 2) the violations were not that serious, and 3) the company suffered losses over the last 25 years. Crescent City did not provide any records to support its arguments.

In this decision, ALJ Thomas found ICE’s proposed penalties to be excessive. Although the ALJ found the violations to be serious, she found the remaining statutory factors – size of the company, good faith, employment of unauthorized workers and history of violations – to be favorable to Crescent City. The ALJ especially found Crescent City’s small size to be “precisely the type of business Congress intended to benefit from the general public policy of leniency to small entities” under the Small Business Regulatory Enforcement Fairness Act. Based on this analysis, the ALJ set each of the 15 violations at $450 for a total penalty of $6,750.

This probably ends the Crescent City saga although ICE could file another appeal to CAHO. This appears unlikely. Thus, after all of the litigation has concluded, Crescent City had its penalties reduced by a little more than 50%, which is slightly more than the average reduction by OCAHO.

A copy of this third decision is available here. Cite as United States v. Crescent City Meat Company, Inc., 11 OCAHO no. 1223 (2014) .

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