UNITED STATES DEPARTMENT OF JUSTICE

21 OCAHO no. 1657a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

UNITED STATES OF AMERICA,

Complainant,

v.

A-1 ROOFING & CONSTRUCTION, CO.,

Respondent.

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8 U.S.C. § 1324a Proceeding

OCAHO Case No. 2024A00054

Appearances: Hazel L. Gauthier, Esq., for Complainant

A-1 Roofing & Construction, Co., Respondent

ORDER ON SERVICE OF COMPLAINT AND

NOTICE AND ORDER TO SHOW CAUSE REGARDING ANSWER

I.

PROCEDURAL HISTORY

This case arises under the employer sanctions provisions of the Immigration and

Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986,

8 U.S.C. § 1324a. On February 23, 2024, Complainant, the United States Department

of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), filed a

complaint with the Office of the Chief Administrative Hearing Officer (OCAHO) against

Respondent, A-1 Roofing & Construction, Co. The complaint alleges that Respondent

failed to prepare and/or present the Employment Eligibility Verification Form (Form

I-9) for two individuals and failed to timely prepare the Form I-9 for two individuals, all

in violation of 8 U.S.C. § 1324a(a)(1)(B). Compl. ¶ 3.

Complainant attached to the complaint the Notice of Intent to Fine Pursuant to

Section 274A of the INA (NIF) it personally served on Respondent through Mr. Felipe

Martinez on July 6, 2022, seeking a fine of $8,524 for the alleged violations, and a

request for a hearing before an Administrative Law Judge (ALJ) signed by Mr. Martinez

on behalf of Respondent on July 13, 2022 (“request for hearing”). 1 Compl. Exs. A–B.

Mr. Felipe Martinez signed Respondent’s request for hearing, however, OCAHO’s

Rules of Practice and Procedure for Administrative Hearings, being the provisions

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Complainant also attached to the complaint a request that OCAHO serve the complaint

on Respondent through Mr. Martinez at an address in El Paso, Texas. 2 Id. at 6 (citing

28 C.F.R. § 68.7). Complainant did not identify Mr. Martinez’s relationship to the

Respondent business.

On February 28, 2024, using the United States Postal Service (USPS) certified

mail, the Chief Administrative Hearing Officer (CAHO) mailed the complaint, the NIF,

the request for hearing, and a Notice of Case Assignment for Complaint Alleging

Unlawful Employment (NOCA) (together, the “Complaint package”) to Mr. Martinez at

the El Paso, Texas, address for the Respondent business listed in the complaint’s

attachment.

The USPS certified mail tracking service reflected that on March 4, 2024,

Respondent’s address was “vacant,” but also that the Complaint package was “delivered,

left with individual.” OCAHO did not receive a USPS Domestic Return Receipt Form

(PS Form 3811) for the Complaint package mailed to Respondent.

Consequently, on April 10, 2025, the Court issued an Order Directing

Complainant to Serve Complaint. United States v. A-1 Roofing & Constr., Co.,

21 OCAHO no. 1657 (2025). 3 Because “the record [was] ambiguous as to service of the

Complaint package on Respondent at the address provided by Complainant,” the Court

ordered Complainant “to personally serve the Complaint package on Respondent in a

manner that complies with 28 C.F.R. § 68.3(a)(1).” Id. at 4 (citing United States v. DJ’s

contained in 28 C.F.R. part 68 (2024), require that he file a notice of appearance if he

intends to represent Respondent in this case. See 28 C.F.R. § 68.33(f). Likewise, should

Respondent retain counsel in this matter, its counsel shall file a notice of appearance.

See id. OCAHO’s Rules, which generally govern these proceedings, are available on the

United States Department of Justice’s website. See https://www.justice.gov/eoir/officeof-the-chief-administrative-hearing-officer-regulations.

This address matches the address on the request for hearing and the address at which

DHS personally served the NIF on Respondent.

2

Citations to OCAHO precedents reprinted in bound Volumes 1 through 8 reflect the

volume number and the case number of the particular decision, followed by the specific

page in that volume where the decision begins; the pinpoint citations which follow are

thus to the pages, seriatim, of the specific entire volume. Pinpoint citations to OCAHO

precedents after Volume 8, where the decision has not yet been reprinted in a bound

volume, are to pages within the original issuances; the beginning page number of an

unbound case will always be 1 and is accordingly omitted from the citation. Published

decisions may be accessed in the Westlaw database “FIM–OCAHO,” the LexisNexis

database “OCAHO,” or on the United States Department of Justice’s website at

https://www.justice.gov/eoir/office-of-the-chief-administrative-hearing-officer-decisions.

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21 OCAHO no. 1657a

Transp., 18 OCAHO no. 1488, 4–5 (2023)).

Additionally, the Court ordered

Complainant to “file proof of personal service with the Court” once service was

accomplished. Id. This proof was to contain an attestation of the personal service, the

name and title of the individual who effected service, the name, title, and relationship

to Respondent of the individual served, the date service was made, and that it was made

in accordance with 28 C.F.R. § 68.3(b). Id. (citing United States v. Vector Xpress, Inc.,

16 OCAHO no. 1431, 4 (2022); United Staes v. Dolan, 2 OCAHO no. 388, 727, 728

(1991)). Finally, the Court ordered Complainant “to confirm in its filing whether the

El Paso, Texas, address listed in the attachment to the complaint is the best address for

Respondent or, if it is not, to provide OCAHO with a functional U.S. mailing address for

Respondent . . . .”

Id. at 5 (citing United States v. Vector Xpress, Inc.,

16 OCAHO no. 1431a, 3 (2022)). The Court directed Complainant to personally serve

Respondent with the Complaint package no later than thirty days from the date of the

Order and required it to file its submission with the Court five days after service. Id.

On May 14, 2025, Complainant filed a Notification of Service of Process, along

with the cover letter dated May 13, 2025, in which it explained that it had to resubmit

the filing “[d]ue to a clerical error” that resulted in the incorrect case number being used.

Not. Serv. Process 6. 4 Complainant explained that, “[i]t was not undersigned counsel’s

intention not to comply with the court’s scheduling order.” Id.

Complainant’s

Notification of Service of Process affirmed that, on April 30, 2025, Complainant

personally served the Complaint package on Respondent, through Mr. Felipe Martinez,

at the El Paso, Texas, address listed on the attachment to the complaint. Id. at 1.

According to Complainant, Mr. Martinez confirmed that the El Paso, Texas, address on

file with the Court is Respondent’s correct mailing address. Id.

II.

LEGAL STANDARDS AND DISCUSSION

A.

Timeliness of Complainant’s Notification of Service of Process

Before the Court is Complainant’s Notification of Service of Process. Through

this filing, Complainant attests to personally serving Respondent with the Complaint

package on April 30, 2025. The Court first addresses the question of timeliness of the

filing given Complainant’s acknowledgement that a clerical error resulted in a one-day

filing delay, and its representation that it did not intend to fail to comply with the

Court’s Order requiring it to file proof of service five days after service. Not. Serv.

Process 6; see A-1 Roofing & Constr., Co., 21 OCAHO no. 1657, at 5. Given that

OCAHO’s Rules of Practice and Procedure for Administrative Hearings exclude

weekends from the computation of time periods of seven days or less, see 28 C.F.R.

§ 68.8(a), and permit an additional five days to be added to the prescribed period for

filings by mail, see id. § 68.8(b)(2), any delay here was slight. Further, Complainant

Pinpoint citations to Complainant’s Notification of Service of Process are to the page

numbers of the PDF version of the Notification on file with the Court.

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quickly corrected its filing’s clerical deficiency, and the Court credits its representation

that it sought to comply with the Court’s filing deadline. Therefore, the Court now

exercises its discretion pursuant to 28 C.F.R. § 68.11(b) and accepts Complainant’s

Notification of Service of Process as a filing in this case.

B.

Service of the Complaint Package

The Court finds that Complainant has effectuated personal service of the

complaint and accompanying materials on Respondent in accordance with the Court’s

Order dated April 10, 2025, and in a manner that complied with OCAHO’s Rules of

Practice and Procedure for Administrative Hearings. Specifically, Complainant

complied with 28 C.F.R. § 68.3(a)(1) which provides that a complaint may be served by

“delivering a copy to the individual party, partner of a party, officer of a corporate party,

registered agent for service of process of a corporate party, or attorney or representative

of record of a party[.]”

Here, as reflected in the sworn affidavit of the special agent with ICE’s Homeland

Security Investigations (HSI), Complainant served the complaint, the NOCA, the NIF,

and Respondent’s request for hearing on Respondent on April 30, 3025. Not. Serv.

Process Ex. 1. Service was effectuated through Mr. Felipe Martinez, who was identified

as Respondent’s owner, at the El Paso, Texas, address for the business. Id. According

to the HSI special agent, Mr. Martinez “kept his copy” of the Complaint package and

signed and dated the certificate of service after he was served with the Complaint

package. Id. The HSI special agent attached to his affidavit a copy of the certificate of

service with the handprinted name “Felipe E. Martinez” and a corresponding signature.

Id. The certificate of service also included a handwritten date of April 30, 2025, the

special agent’s handwritten name, and a signature next to the words “Served By” which

appeared to be consistent with the special agent’s signature on his affidavit. Id.

OCAHO’s Rules clearly state that service of a complaint is perfected “upon receipt by

[the] addressee.” 28 C.F.R. § 68.3(b). Therefore, personal service of the complaint in

this matter was perfected on Respondent through its owner, Mr. Martinez, on April 30,

2025.

C.

Answer to the Complaint

OCAHO’s Rules of Practice and Procedure for Administrative Hearings afford a

respondent thirty days to file an answer after being served with a complaint. 28 C.F.R.

§ 68.9(a). Given that Complainant effectuated personal service of the complaint on

Respondent on April 30, 2025, Respondent’s answer in this case was due no later than

May 30, 2025. See id. OCAHO’s CAHO communicated this thirty-day deadline to

Respondent through the NOCA which was served along with the complaint. See Notice

Case Assignment ¶ 4 (citing 28 C.F.R. §§ 68.3(b), 68.9). The CAHO also warned

Respondent that its failure to file an answer may lead the Court to enter a judgment by

default. Id. (citing 28 C.F.R. § 68.9(b)). To assist Respondent, the CAHO provided

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Respondent with a link to OCAHO’s Rules, its Practice Manual, and its contact

information. Id. ¶ 2. Yet Respondent, who requested a hearing before this Court, has

failed to file an answer to the complaint in this matter and has not communicated with

OCAHO.

Section 68.9(b) of OCAHO’s Rules provides that “[f]ailure of the respondent to file

an answer within the time provided may be deemed to constitute a waiver of his or her

right to appear and contest the allegations of the complaint. The [Court] may enter a

judgment by default.” Should the Court enter a default judgment, “the [respondent’s]

request for hearing is dismissed, AND judgment is entered for the complainant without

a hearing.” Nickman v. Mesa Air Grp., 9 OCAHO no. 1106, 1 (2004).

Nevertheless, it is this Court’s longstanding practice to issue an order to show

cause before entering default judgment. See United States v. Shine Auto Serv.,

1 OCAHO no. 70, 444 (1989). A party who is subject to an order to show cause must file

a response with the Court. In Shine Auto Service, the Acting CAHO explained that:

Respondent must justify [in its response to the order to

show cause] its failure to respond in a timely manner.

Based on the Respondent’s reply, the [ALJ] shall determine

whether the respondent has met the threshold for good

cause. If the [ALJ] determines that the Respondent

possessed the requisite good cause for failing to file a timely

answer, then the [ALJ] may allow the Respondent to file a

late answer.

Id. at 445–46. The Court follows that same practice in this case.

The Court now issues this Notice and Order to Show Cause. The Court orders

Respondent to file a response to this Order in which it must proffer facts sufficient to

show good cause for its failure to file a timely answer to the complaint. Additionally,

the Court orders Respondent to file an answer to the complaint simultaneously with the

filing of its response showing good cause. Respondent’s answer must comport with

28 C.F.R. § 68.9. Both filings must be received by the Court no later than twenty days

from the date of this Order. Upon receipt of Respondent’s filings, the Court will

determine whether Respondent has demonstrated the requisite good cause for failing to

file a timely answer to the complaint and will decide whether to allow its untimely

answer.

If Respondent fails to file an answer and a response, the Court may find that

Respondent has waived its right to appear and contest the allegations of the complaint.

28 C.F.R. § 68.9(b). The Court may then enter a default judgment. Id.

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If Respondent fails to respond to the Court’s orders, the Court will find that it has

abandoned its request for hearing and dismiss it pursuant to 28 C.F.R. § 68.37(b)(1).

See, e.g., United States v. Steidle Lawn & Landscape, LLC, 17 OCAHO no. 1457c, 2

(2023) (finding that the respondent abandoned its request for a hearing when it failed

to respond to the ALJ’s orders). “A final order of dismissal based on abandonment is

analogous to entry of a default judgment under the Federal Rules of Civil Procedure.”

United States v. Vilardo Vineyards, 11 OCAHO no. 1248, 4 (2015). “Abandonment will

result in DHS’s NIF becoming the final order.” United States v. DJ’s Trans.,

18 OCAHO no. 1488a, 5 (2024).

III.

ORDERS

IT IS ORDERED that, within twenty days of the date of this Order, Respondent,

A-1 Roofing & Construction, Co., shall file a response with the Court in which it must

provide facts sufficient to show good cause for its failure to timely answer the complaint

in this case.

IT IS FURTHER ORDERED that, within twenty days of the date of this Order,

Respondent shall file with the Court an answer to the complaint that comports with

28 C.F.R. § 68.9.

The Court puts Respondent on notice that its failure to file an answer and a

response to this Order to Show Cause “may be deemed to constitute a waiver of his or

her right to appear and contest the allegations of the complaint” and the Court may

enter a default judgment against Respondent as to both liability and penalties.

28 C.F.R. § 68.9(b). If Respondent fails to respond to the Court’s orders, the Court shall

conclude that Respondent has abandoned its request for a hearing and issue an order of

dismissal. Id. § 68.37(b). The NIF will be rendered the final agency order.

SO ORDERED.

Dated and entered on July 15, 2025.

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Honorable Carol A. Bell

Administrative Law Judge

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