OCAHO Assesses Half the Penalty Amount ICE Sought for I-9 Violations

July 15, 2014

Practitioner Insights thumbnail 2(Editor’s Note: This post is an excerpt from an article appearing in Practitioner Insights on WestlawNext)

The Office of the Chief Administrative Hearing Officer (OCAHO), one of three adjudicative components within the Executive Office for Immigration Review (EOIR), has jurisdiction over three types of civil penalty cases arising under the INA: (1) employer sanctions (INA § 274A [8 USCA § 1324a]), (2) unfair immigration-related employment practices (INA § 274B [8 USCA § 1324b]),  and (3) immigration-related document fraud (INA § 274C [8 USCA § 1324c]). In its most recent § 274A precedent decision, U.S. v. Golf International d/b/a Desert Canyon Golf, 11 OCAHO 1222 (June 13, 2014), OCAHO reduced the penalties assessed for I-9 violations from the $113,742.05 U.S. Immigration and Customs Enforcement (ICE) sought to $57,650.

Earlier this year, in U.S. v. Golf International d/b/a Desert Canyon Golf, 10 OCAHO 1214 (Mar. 26, 2014),OCAHO found the employer, Golf International d/b/a Desert Canyon Golf (Golf), a golf club located in Fountain Hills, Arizona, liable for all 129 I-9 violations alleged in ICE’s amended complaint. In this latest decision, the proper amount of the penalties to be assessed was addressed.

ICE set the baseline fine at $935 because 87% of Golf’s I-9s were inaccurate, incomplete, or missing. ICE then mitigated the penalty by 5% for the Golf’s small size and another 5% for its lack of a history of prior violations. ICE treated the good faith factor a neutral and, with the exception of the I-9s for three individuals found to be unauthorized to work, treated the unauthorized alien factor as neutral. ICE then aggravated the penalty by 5% for two of the counts based on the seriousness of the violations, stating that failure to prepare an I-9 form at all and failure to record or review employment and identity documents frustrate the purpose of the I-9 requirements. Thus, the total penalties sought for all the violations was $113,742.05. Golf argued that the proposed penalty was “excessive, unwarranted, and completely inappropriate.”

Administrative Law Judge (ALJ) Ellen K. Thomas, observed that the only penalty factor about which the parties disagreed was the seriousness of the violations. ICE contended that all 129 violations were serious. The violations included failure to sign section 2 of the form for 110 employees, failure to ensure that fifteen employees properly completed section 1 or failure to properly complete section 2 of their forms, and failure to present I-9s for four employees. ALJ Thomas concurred in ICE’s view that all these violations were serious, but observed that not all were equally so. She pointed out that (1) failure to prepare an I-9 form at all is one of the most serious violations because it completely subverts the purpose of the employment verification requirements and (2) failure to sign the section 2 attestation for nearly all its employees was not, as Golf contends, a “single, benign error,” but instead reflects a pattern of serious violations on multiple I-9 forms. Further, she pointed out that Golf’s participation in the E-Verify program does not relieve it of its obligation to properly complete I-9s for its employees and that an employer’s failure to ensure that an employee properly completes section 1, or its own failure to properly complete section 2, while less serious, are nonetheless also considered serious violations.

Nevertheless, she said, apart from the seriousness of the violations, the statutory factors inclined in Golf’s favor. In addition, she observed that the proposed penalty was near the maximum amount permitted, a result ordinarily reserved for the more egregious violations than those committed by Golf. She therefore adjusted the penalty assessed to an amount closer to the midrange of permissible penalties, setting a penalty of $500 for failing to present I-9s for four employees and for the I-9s of the three workers who were unauthorized. She set the penalty at $450 for the remaining 107 violations involving failure to sign the section 2 attestation, and $400 each for the 15 violations involving failure to properly complete section 1 or 2 of the form. The total penalty assessed came to $57,650.


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