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I-9 E-Verify Immigration Compliance

OCAHO Raises Doubts on ICE’s Arguments

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By Bruce Buchanan, Sebelist Buchanan Law PLLC
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In U.S. v. SKZ Harvesting, Inc., 11 OCAHO no.1266 (Feb. 4, 2016), the Office of Chief Administrative Hearing Officer (OCAHO) faced a number of issues concerning what is knowledge of unauthorized status of workers, whether the loss of many I-9 forms is a viable defense, whether Immigration and Customs Enforcement’s (ICE) possession of I-9 forms from a previous Notice of Inspection is a viable defense, and whether an employer has to complete new I-9 forms for seasonal workers.

ICE had previously issued a Notice of Inspection (NOI) to SKZ, a seasonal cherry harvesting business, in 2010 and as a result of the investigation, ICE issued a Notice of Suspect Documents (NSD) involving 71 employees. At the conclusion of the inspection, ICE issued SKZ a written warning.

In 2013, ICE returned with another NOI and issued another NSD with 62 employees, including five workers whose names had appeared on the 2010 NSD. Additionally, ICE served SKZ with a Notice of Intent to Fine (NIF) seeking $74,587 in penalties.

Concerning the five employees who appeared on each of the NSDs, SKD did not respond to the first NSD nor contest their inclusion on the list. Unbeknownst to ICE, those five employees were no longer working for SKZ when the first NSD was served. Furthermore, during employment at a later date, some of the employees in question presented different documents reflecting their authorized status, such as permanent resident cards, although the green cards showed had been issued before the previous green cards presented. Three of the individuals used the same Social Security numbers as used in 2010.

SKZ admits it failed to present I-9 forms for any of the employees. SKZ asserts four of the individuals never worked for SKZ and the remaining I-9 forms could not be presented because the owner had inadvertently destroyed a box containing I-9 forms. Furthermore, ICE had some of the I-9 forms from the 2010 NOI. As for proof that the four individuals never worked, SKZ had no payroll records to demonstrate they had worked and been paid.
Besides these arguments, SKZ asserted the proposed penalties are too drastic and will cripple their business. Furthermore, SKZ argued that a number of mitigating factors should be utilized to reduce the penalties. First, it is a small business and thus should be eligible for 5% mitigation. Second, SKZ asserts the totality of the circumstances demonstrated the company’s good faith. OCAHO agreed with both of these arguments.

ICE argues for a 5% aggravating factor for a history of previous violations. However, OCAHO held a “prior Written Notice is not sufficient to show there was a previous violation” because “absent a formal judgement or an admission, no previous violation has been shown.”

As for the alleged employment of unauthorized workers, ICE asserted certain individuals were not in databases utilized by ICE. However, OCAHO chastised ICE for arguing over social security mistakes because many arise for a variety of reasons and the appearance of a name on a NSD is insufficient to establish a worker’s unauthorized status. Thus, OCAHO found SKZ did not knowingly employ any unauthorized workers.

Overall, OCAHO said the penalties should be adjusted to the midrange of permissible penalties and total penalties assessed were $29,600.

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