This is the first of a series of blogs in which will report on recent trends at The Office of the Chief Administrative Hearing Officer (OCAHO), the agency responsible for reviewing and making final determinations on Immigration Customs and Enforcement’s (ICE’s) penalty assessments from I-9 inspections.  We will provide information on a selection of newly published cases with a link to the actual decisions.

Recently published cases appear to demonstrate a distinct trend at OCAHO in severely reducing ICE’s penalty assessments, particularly when the employer is a small business and acted in good faith.  One commonality we see in decisions is the consistent cite to, “Penalties approaching the maximum permissible should be reserved for egregious violations.  See United States v. Fowler Equipment Co., 10 OCAHO no. 1169, 6 (2013); United States v. La Hacienda Mexican Cafe, 10 OCAHO no. 1167, 3 (2013)”.  This appears to be a clear message that ICE’s “baseline” methodology for assessing violations is not acceptable, as is, to the court.

1)  On August 7, OCAHO lowered penalties, stating that ICE’s assessed fine of 30% of the company’s annual profit is an extremely high fine for any employer, especially a small restaurant that acted in good faith and had high employee turnover.  See United States v. New Sun Transit, Inc. D/B/A LA Tolteca Mexican Restaurant, OCAHO Case No. 12A00072.

2)  On August 15, 2013 OCAHO Reduces Penalties from $26,881 to $10,000 stating that while the company is liable for producing newly-created and backdated I-9s at the time of inspection, it is inappropriate to enhance penalties across the board based on the presence of some unauthorized workers.  See United States v. Natural Environmental, Inc. OCAHO Case No. 11A00126.

Stay tuned for more recent developments.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.