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I-9 E-Verify Immigration Compliance

OCAHO Orders Restaurant, Which Kept No I-9 Forms, to Pay Over $33,000

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By Bruce Buchanan, Sebelist Buchanan Law

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In a very interesting decision which involved the smuggling of individuals into the United States to work for restaurants, the Office of the Chief Administrative Hearing Officer (OCAHO) ordered Para Tacos La Chilanga to pay $33,379.50. See U.S. v. Para Tacos La Chilanga, 12 OCAHO no. 1286 (2016).

Immigrations and Customs Enforcement (ICE) started this case before the issuance of the Notice of Inspection (NOI); rather, it started with meeting with one of the restaurant’s employees, who stated nine employees working at one of the restaurants were undocumented, were paid in cash and had money deducted to pay for their smuggling fees. One of these undocumented workers confirmed this information, including he was smuggled into the United States. Another undocumented worker stated one of the restaurant owners assisted with smuggling him into the United States and garnished wages to pay for the smuggling fees. Thereafter, ICE served a search warrant at one restaurant location and consent searches at the other restaurant location. The searches led to detention of eight employees, who admitted to undocumented status.

Only after ICE had gathered all of this information did it serve the restaurant with a NOI. In response, the employer provided no I-9 forms or any employment records. The only employment records provided to ICE were through a search warrant and consisted of two notebooks which listed employee’s names and days worked.

Based upon this evidence, ICE issued a Notice of Intent to Fine (NIF). ICE set the baseline penalty to $935 per violation due to a 100% error rate – no I-9 forms were presented for any employees. ICE enhanced the penalties by 15 per cent based on lack of good faith, seriousness of the violations, and employment of 32 unauthorized workers. Thus, ICE set the penalties at $1075.25 per violation.
Because there was no issue on the number of violations by the employer, the only issue was the amount of the penalties. OCAHO agreed to the aggravation of the penalties for lack of good faith based upon its failure to keep basic employment records which appeared to be an intentional effort to subvert the I-9 requirements. OCAHO also agreed that the violations were serious.
As for the employment of unauthorized workers, the lack of records assisted the restaurant. OCAHO found ICE could only prove 10 out of the 32 employees were undocumented. OCAHO stated it understood ICE’s frustration that the lack of documentation caused it not to be able to prove unauthorized status for 22 workers but it had to follow the law.

Thus, OCAHO ordered the restaurant to pay $33,379.50. As a side note, an arrest warrant was issued for one of the restaurant’s owners for “alien smuggling.”

This case is a textbook on how an employer should not conduct business. The civil penalties may be the least of the owner’s problems after being charged with “alien smuggling.”
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