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I-9 E-Verify Immigration Compliance

OCAHO Finds No Fruit of Poisonous Tree

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By: Bruce Buchanan, Sebelist Buchanan Law

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In one of the most interesting recent decisions, the Office of Administrative Hearing Officer (OCAHO) rejected the company’s argument that the I-9 forms in error or missing were the “fruit of the poisonous tree” and should be excluded from the evidence considered. See U.S. v. Frimmel Management, LLC, 12 OCAHO no. 1271c (October 2016).

This case arises out of the notorious Maricopa County, Arizona and Sheriff Joe Arpacio. The Maricopa County Sheriff’s Office (MCSO) conducted a criminal investigation into Frimmel Management alleging it knowingly hired or employed unauthorized workers. A state court dismissed the criminal complaints for a variety of reasons involving misdeeds by the MCSO.

Because of MCSO’s investigation, Frimmel Management’s identity was disclosed to Immigration and Customs Enforcement (ICE), who decided to issue a Notice of Inspection (NOI). Thus, in August 2013, ICE issued a NOI and subpoena on Frimmel Management. The company provided the I-9 forms that it possessed but many employees did not have any I-9 forms and others had I-9 forms fraught with errors.

As a result, ICE filed a Notice of Intent to Fine, a Complaint and Amended Complaint alleging numerous errors. Count I alleged 225 violations for failure to ensure employees properly completed Section 1 and/or the company failed to complete Sections 2 and 3 of employees’ I-9 forms. Count II alleged the same type of violation except all the employees were unauthorized to work. Counts III and IV alleged Frimmel Management failed to prepare and/or present I-9 forms for 63 employees, 29 of which were alleged to be unauthorized.

ICE sought a $935 baseline penalty based upon 84% error rate and aggravated the violations for lack of good faith and the employment of some unauthorized workers.

Frimmel Management argued all of the violations violated their 4th and 5th Amendment rights as the evidence was gathered illegally; thus, asserting the documents were the “fruit of the poisonous tree.” However, OCAHO declined to exclude this evidence because the only information that ICE obtained from the MCSO investigation was the identity of the company. OCAHO cited Supreme Court caselaw that this did not constitute grounds for exclusion as “fruit of the poisonous tree.” OCAHO agreed. OCAHO also stated even assuming ICE’s evidence was the “fruit” of MCSO’s illegal conduct, the evidence was not a “direct result” of MCSO’s conduct. Thus, this argument also failed.

There was very little dispute about the I-9 form errors – Frimmel Management committed numerous substantive paperwork violations, including failure to prepare I-9 forms, failure to ensure the employees checked an appropriate box as to their work authorization – U.S. Citizen, permanent resident, etc., failure to ensure employees signed the attestation, and failure to provide appropriate information in Lists A, B or C.

Thus, ICE determined Frimmel Management committed 380 violations. The company was successful in showing ICE could not establish 38 employees were unauthorized. ICE relied on several documents, including a Notice of Suspect Documents, which were insufficient to prove unauthorized status.

OCAHO did lower the baseline penalty to $900 for most of the violations and $1000 for the ones involving unauthorized workers.; thus, the total penalty was $347,500.

This case demonstrates the need for employers to be aware of their I-9 obligations and to take them seriously. If Frimmell Management had been more careful in the completion of the I-9 forms and had completed I-9 forms on all employees hired, their penalties would have been much lower.

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