UNITED STATES DEPARTMENT OF JUSTICE

18 OCAHO no. 1506f

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

May 27, 2025

UNITED STATES OF AMERICA,

Complainant,

v.

PASQUEL HERMANOS, INC.,

Respondent.

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8 U.S.C. § 1324a Proceeding

OCAHO Case No. 2023A00054

Appearances: Christopher Ford, Esq., for Complainant

Guillermo G. Alarcon, Esq., for Respondent

ORDER GRANTING SUMMARY DECISION – FINAL ORDER

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

(INA), as amended, 8 U.S.C. § 1324a.

On March 28, 2023, Complainant, the U.S. Department of Homeland Security, Immigration and

Customs Enforcement (ICE), filed a complaint with the Officer of the Chief Administrative

Hearing Officer (OCAHO). Complainant alleges Respondent, Pasquel Hermanos, Inc., “failed to

prepare and/or present” Forms I-9 for 22 employees in violation of § 1324a(a)(1)(B). Compl. 3.

On May 16, 2023, Respondent filed an answer. In its Answer, Respondent denies liability; and

states the proposed penalty is “clearly excessive as all listed individuals presented satisfactory

proof of citizenship or authorization for work in the United States.” Answer 1-3, 3.

On January 17, 2024, Complainant filed a Motion for Summary Decision, 1 and a separate filing,

which the Court construed as a supplement. United States v. Pasquel Hermanos, 18 OCAHO no.

1506b, 2-3 (2024). 2 The Court provided Respondent with an opportunity to submit matters in

Response. Id. at 3. On May 21, 2024, Respondent filed its Updated Opposition.

1

On May 13, 2025, the Complainant was permitted to file an Amended Motion for Summary

Decision. The Amended Motion for Summary Decision removed two pages of attached evidence

that were included erroneously. Order Accepting Amended Mot. Summ. Dec. 2.

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

18 OCAHO no. 1506f

I.

COMPLAINANT’S POSITION

Complainant argues no genuine issues of material fact exist and it is entitled to summary decision.

Complainant asserts Respondent “was informed of the three-day notice and the requirement to

provide all I-9 Forms for all current employees and employees terminated on or after October 1,

2018, and turn over select documents during the audit.” Mot. Summ. Dec. 3. “Respondent did

not present any Forms I-9 within three days for the 22 employees listed… in the Complaint.” Id.

Complainant attaches evidence to its motion (further outlined below). 3 Mot. Summ. Dec, Ex 12. 4

Complainant proposed a penalty based on “ICE guidelines.” Mot. Summ. Dec. 5. The proposed

penalty was calculated “in accordance with the five statutory factors set out in Section 274A of the

Act. The amount… was mitigated for the [small] size of the business. The fine was aggravated

for the seriousness of the violations.” Id. Complainant noted Respondent presented only one Form

I-9, meaning it presented no Forms I-9 for 22 of its 23 employees. C’s Mot. Summ. Dec. 5-6.

Complainant proposes an assessed penalty of $1,948.00 per violation (total penalty of $42,856.00).

II.

RESPONDENT’S POSITION

Respondent characterizes the 22 violations as “verification violations,” and takes issue with

Complainant’s characterization of the violations as “substantive.” 5 Response 1-2. 6 Respondent

states “[Complainant did not allege] any violation actually involving the employment of any

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 subsequent to

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,” or in the LexisNexis database “OCAHO,” or on the website at

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

3

The Motion and attached evidence total 196 pages. It has page numbers, but the attached

evidence is not paginated (either in total or individually). For ease of reference, the Court will cite

an Exhibit and then the page within the filing as a whole (i.e. a citations to the first page of Exhibit

1 would reference page 10 as it is on the tenth page of the combined file).

4

Exhibit 1 contains sub-exhibits A-G, and Exhibit 2 contains sub-exhibits A-K.

5

Respondent argues these violations should be “technical or procedural failures.” Response 6.

6

When it filed its Updated Opposition, Respondent attached a previously rejected Response as

Ex. 1. Page references are to this Exhibit 1.

2

18 OCAHO no. 1506f

unauthorized alien, let alone knowingly, to trigger any penalty under 8 U.S.C. § 1324a(e)(4)…

Nonetheless Complainant is requesting $1948.000 for each of the 22 alleged violations, as if they

were serious aggravated violations done in bad faith, even though no bad faith was actually

alleged.” Id. at 2.

On penalty, the Respondent identifies the statutory factors. Respondent’s position on the

application of the statutory factors differs from Complainant’s. Respondent takes issue with the

“good faith factor” being assessed as “neutral,” and argues that the violations are not serious as

this is a case of “paperwork omission.” Response 4-5. Respondent acknowledges some employees

are “non-citizens;” however, Complainant has not shown any non-citizen employees were

unauthorized to work in the United States. Id. at 5.

Respondent attaches no evidence to its Response.

III.

EVIDENCE CONSIDERED

At the outset, the Court will analyze the evidence offered by Complainant in support of its Motion

for Summary Decision. Respondent provided no evidence for the Court’s consideration and does

not contest the reliability or relevance of evidence offered by Complainant. 7

To conduct its evidentiary analysis, “[t]he Court must ensure that evidence is sufficiently reliable,

and then it must consider what weight, if any, to assign the evidence based on its probative value.” 8

United States v. R&SL, Inc., 13 OCAHO no. 1333b, 24 (2022). The evidence considered by the

Court will serve as the basis for factual findings made in a later section.

7

This data point notwithstanding, the Court must still ensure it meets its “obligation to hold a

moving party to its burden and must evaluate motions based on the sufficiency of the moving

papers.” Contreras v. Cavco Industries, Inc., 16 OCAHO no. 1440a, 2 (2023).

8

For documentary evidence to be reliable, its proponent must “authenticate [the] document by

evidence sufficient to demonstrate that the document is what it purports to be[.]” United States v.

Carpio-Lingan, 6 OCAHO no. 914, 1, 5 (1997) (citations omitted).

Generally, documentary evidence that is complete, signed, sworn under penalty of perjury, dated,

authenticated, laid down with foundation contain sufficient indicia of reliability. See United States

v. Psychosomatic Fitness LLC, 14 OCAHO no. 1387a, 5–7 (2021).

“Probative value is determined by how likely the evidence is to prove some fact[.]” United States

v. Commander Produce, LLC, 16 OCAHO no. 1428d, 9 n.15 (2023) (citation omitted).

3

18 OCAHO no. 1506f

A. Complainant’s Evidence

With its Motion for Summary Decision Complainant includes two evidentiary exhibits, with

associated sub-exhibits. 9 See Mot. Summ. Dec., Exs. 1-2. These exhibits contain the following

documentary evidence: an affidavit from a Homeland Security Investigations (HSI) Special Agent

(with internal exhibits attached including: Notice of Inspection, Subpoena; 10 Receipt of Property;

Notice of Technical or Procedural Failures dated July 22, 2019; Notice of Discrepancies dated July

22, 2019; Notice of Suspect Documents dated July 22, 2019; Notice of Intent to Fine served on

Respondent company on October 2, 2019; and several Reports of Investigation dated June 5,

2023), and an affidavit from an ICE forensic auditor (with internal exhibits attached, including:

Earnings History Report/payroll report for dates between October 1, 2018 and April 26, 2019 for

Respondent; Respondent’s Quarterly Federal Tax Return for Quarter 4 of 2018 including a

Schedule B form; Business Organizations Inquiries for Respondent company on the Texas

Secretary of State’s website; employee search results from a Texas State website for Respondent

for Quarter 4 of 2018; employee search results from a Texas State website for Respondent for

Quarter 1 of 2019; email communications between the ICE auditor and an employee of

Respondent’s accounting department from between June 24, 2019 and June 26, 2019; an envelope

address to the ICE auditor sent from Laredo Staff Solutions; a table listing the employees in Count

1 along with their Social Security Numbers, dates of birth, hire dates, termination dates, and the

associated violation; Forms I-9 for the individuals listed in Count 1).

In its Supplement, Complainant provides additional evidence, specifically: an attachment to the

Notice of Intent to Fine, which was not included in Ex. A of the original Complaint. 11

The Court finds almost all 12 of Complainant’s documentary evidence to be reliable (to the extent

the documents are signed, printed on the issuer’s letterhead, or published by a government agency).

In each case, it is clear “that the document is what it purports to be[.]” United States v. CarpoLingan, 6 OCAHO no. 914, 5 (1997). Moreover, each considered piece of evidence is highly

probative, as each is likely to assist the Court in making a factual determination relative to whether

Respondent met its statutory obligations.

B. Respondent’s Evidence

Respondent attached no evidence to its Response.

9

Exhibit 1 includes sub-exhibits A-G, while Exhibit 2 includes sub-exhibits A-K.

10

The subpoena was unsigned and was missing a continuation page wherein ICE supposedly

listed the documents the Respondent was required to produce. The subpoena is not sufficiently

reliable, and will not be considered.

11

The NIF attachment included in the Supplement appears to be identical to the NIF attachment

in the Motion for Summary Decision’s Ex. 1-F.

12

Supra note 9.

4

18 OCAHO no. 1506f

IV.

FINDINGS OF FACT

Based on the reliable evidence presented by Complainant through its Motion and by Respondent

in its Answer, the Court makes the following findings of fact.

1. Respondent, Pasquel Hermanos, Inc. (of Laredo, Texas) is a business specializing in freight

transportation arrangements. Mot. Summ. Dec. 11, Ex. 1.

2. Respondent employees were hired on or after November 6, 1986. Mot. Summ, Dec. 141,

Ex. 2-H; see generally Answer 2-3.

A. Inspection & Audit

3. On April 23, 2019, a Homeland Security Investigations (HSI) Supervisory Special Agent

initiated a “Form I-9 Compliance Inspection” on Pasquel Hermanos, Inc. by personally

serving the Notice of Inspection and an unsigned and incomplete subpoena on the Human

Resources Representative. Mot. Summ. Dec. 10, Ex. 1.

4. On April 23, 2019, the Human Resources Representative acknowledged receipt of both

documents by signing the “Certificate of Service” at the end of both documents. Mot.

Summ. Dec. 14, 17, Ex. 1-A.

5. The Notice of Inspection explains “[e]mployers must verify the employment eligibility of

persons hired after November 6, 1986, using the Employment Eligibility Verification Form

I-9 (Form I-9)…. [The Notice of Inspection] letter serves as advance notice that… HSI has

scheduled an inspection of your Forms I-9 for April 26, 2019… This Inspection will cover

all your current employees and those employees who were terminated on or after October

1, 2018.” Mot. Summ. Dec. 13, Ex. 1-A.

6. On April 26, 2019, the Human Resources Representative presented documents for

inspection, specifically: most recent payroll register, most recent (4th quarter 2018 federal

tax return (IRS Form 941), and photocopies of driver’s licenses and social security cards

for 26 terminated employees. Mot. Summ. Dec. 11, Ex 1; id. at 59-110, Ex. 2-A (payroll

records); id. at 113-17, Ex. 2-B (4th quarter 2018 federal tax return); id. at 47, Ex. 1-G

(Report of Investigation discussing April 26, 2017 investigation listing documents handed

over by Respondent).

7. The HSI Supervisory Agent prepared and provided a “Receipt for Property” DHS Form

6051R and provided it to the Human Resource Representative. Mot. Summ. Dec. 11, 19,

Ex. 1, Ex. 1-B.

8. The Receipt lists two entries for “Description of Item(s);” the first item is “copy of drivers

license & SSN card” with an amount or quantity of “26,” and the second item is “Misc

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18 OCAHO no. 1506f

Business Documents” with no amount or quantity provided. 13 Mot. Summ. Dec. 19, Ex.

1-B.

9. The Receipt does not list any Forms I-9 (even though one was ultimately provided). 14 Mot.

Summ. Dec. 19, Ex. 1-B; id. at 22-28, Ex. 1-C; id. at 54, Ex. 2; id. at 139-140, Ex. 2-G.

10. The HSI Supervisory Special Agent provided the payroll, tax, and photocopied identity

documents to the HSI auditor. Mot. Summ. Dec. 11, Ex. 1.

11. The HSI Auditor checked the Texas Workforce wage reports for the 4th Quarter 2018 and

1st Quarter 2019 in order to reconcile the wage and employee status information. Mot.

Summ. Dec. 54, Ex. 2.

12. Following her review, the HSI Auditor initially anticipated 25 employees generating Forms

I-9, based on the “current employees at the time of inspection and the employees terminated

on or after October 1, 2018.” Mot. Summ. Dec. 54, Ex. 2.

13. On June 26, 2019, the HSI Auditor confirmed (for Respondent) via email receipt of one

Form I-9, and inquired whether there were any additional Forms I-9; the HSI auditor

received a response via email confirming there were no other forms. Mot. Summ. Dec. 54,

Ex. 2; id. at 133-34, Ex. 2-F.

14. The HSI Auditor determined that two other individuals should be excluded from count of

anticipated Forms I-9 (the business owner and another former employee), which caused

her to adjust the number of anticipated Forms I-9 to 22. Mot. Summ. Dec. 54, Ex. 2.

13

Complainant must be cautioned that such a cursory description in a receipt could, in a different

case, make it difficult to establish liability. Complainant need look no further than OCAHO

precedent on this issue. See United States v. R&SL Inc., 13 OCAHO no. 1333b, 30-31, 31 n.47

(2022).

“Indeed, it would have been a labor-intensive process for one auditor to account for thousands of

I-9 forms by herself. However, on balance, Complainant also valued each of those forms at

$1,457.30 per form, and thus valued the missing I-9 forms in this case at $744,680.30. If the boxes

contained the cash equivalent, it seems unfathomable that such a receipt [which described the

property received by DHS only as “3 large boxes of original Forms I-9”] from the federal

government would be sufficient.” Id. at 31 n.47.

14

This Form I-9 was sent via the mail (postmark June 21, 2019) to Complainant from a different

entity, Laredo Staff Solutions. Mot. Summ. Dec. at 54, Ex. 2-.

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18 OCAHO no. 1506f

B. Complainant Identifies Issues and Deficiencies with Forms I-9 – Notice of Intent to Fine Issued

15. On July 22, 2019, the HSI Supervisory Special Agent personally served a Notice of

Technical or Procedural Failures on Respondent’s Human Resources Representative. Mot.

Summ. Dec. 11, Ex 1.

16. The Notice of Technical or Procedural Failures acknowledges one Form I-9 was presented.

Mot. Summ. Dec. 22, 28 Ex. 1-C.

17. The Notice of Technical or Procedural Failures was issued “to notify [Respondent] of the

technical or procedural failures identified 15 and to provide [Respondent] with [an

opportunity] to correct these failures [within 10 business days].” Mot. Summ. Dec. 22, Ex

1-C.

18. On July 22, 2019, the HSI Supervisory Special Agent personally served a Notice of

Discrepancies on the Human Resources Representative. Mot. Summ. Dec. 11, Ex. 1, id. at

30, Ex. 1-D.

19. The Notice of Discrepancies informs Respondent, “there is a discrepancy related to the

identity and employment authorization of [one named] employee…” and requests

Respondent contact the Special Agent “to discuss information necessary to reconcile [the]

discrepancies.” Mot. Summ. Dec. 30, Ex. 1-D.

20. On July 22, 2019, the HSI Supervisory Special Agent personally served a Notice of Suspect

Documents on the Human Resources Representative. Mot. Summ. Dec. 11, Ex., 1; id. at

33, Ex. 1-E.

21. The Notice of Suspect Documents informs Respondent that two named employees “appear,

at the present time, not to be authorized to work in the United States.” 16 Mot. Summ. Dec.

33, Ex. 1-E.

15

The Notice identifies the deficiency as “No document expiration date of a List A, or List B and

C document in Section 2 where a copy of the document(s) is retained with the Form I-9 and

presented at the time of inspection.” MSD Ex 1, p. 24-28.

The Notice was accompanied by a page identifying the employee at issue, a photocopy of her

Permanent Resident Card and Social Security Card, and a Form I-9 for the employee. The Form

I-9, completed on the first date of her employment, lists her birthdate in the “expiration date” blank

on the Form. The photocopied Permanent Resident Card shows an expiration date of April 2027.

Mot. Summ. Dec., Ex 1, 24-28.

16

The letter explains:

The documents submitted to [Respondent] were found to pertain to

other individuals, or there was no record of the documents being

issued, or the documents pertain to the individuals, but the

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18 OCAHO no. 1506f

22. On October 2, 2019, the HSI Supervisory Special Agent personally served the Notice of

Intent to Fine (Form I-763) on the Human Resources Representative. Mot. Summ. Dec.

11, id., at 38-42, Ex. 1-F.

23. The Notice of Intent to Fine lists 22 individuals (with two individuals proposed to be

“unauthorized workers” 17), and alleges Respondent “failed to prepare and/or present the

Forms I-9 for the individuals listed… after being requested to do.” Mot. Summ. Dec. 41,

Ex. 1-F.

24. The Notice of Intent to Fine also provides a penalty of $1,948 per violation with a total

proposed penalty of $42,856. Mot. Summ. Dec. 42, Ex. 1-F.

25. The HSI auditor proposed a penalty assessment based on her application of statutory factors

at 8 U.S.C. 1324a(e)(5) and additional guidance from the “Worksite Enforcement: Guide

to Administrative Form I-9 Inspections and Civil Monetary Penalties”, dated November

25, 2008 at page 31. Mot. Summ. Dec. 55, Ex. 2.

26. In her application of her agency’s guidelines, she noted as to “unauthorized workers,” that

“two noncitizens were identified during the inspection,” and she “did not aggravate this

factor.” Mot. Summ. Dec. 56, Ex. 2.

individuals are not employment authorized, or their employment

authorization has expired . . . .

Unless these employees present valid identification and

employment eligibility documentation acceptable for completing

the Form I-9, other than the documentation previously submitted to

[Respondent], [these two employees] are considered by HSI to be

unauthorized to work in the United States.

Mot. Summ. Dec. 33, Ex. 1-E.

The letter provides no further detail to assist the Respondent (and eventually the Court) in

understanding how Complainant determined these two individuals are or were possibly

unauthorized to work in the United States. The language in the letter leaves open the possibility

that these individuals are authorized to work, and could present more or different documents

demonstrating such.

Complainant places no further evidence in the record on this issue, but later refers to these two

individuals (in the affidavit of the HSI auditor) as “noncitizens” and not “unauthorized workers.”

Mot. Summ. Dec. at 55, Ex. 2. Complainant also does not offer an alternate or additional charge

predicated on Respondent’s employment of unauthorized workers. See generally Compl.

17

The same two individuals identified in the Notice of Suspect Documents. Mot. Summ. Dec.

41, Ex. 1-F; id. at 33, Ex. 1-E.

8

18 OCAHO no. 1506f

C. OCAHO Proceedings Commence

27. On October 11, 2019, Respondent requested a hearing. Compl. 10, Ex. B.

28. On March 28, 2023, Complainant filed its Complaint. Compl. 1.

29. On May 16, 2023, Complainant filed its Answer. Answer 1.

30. On or about August 29, 2023, Respondent’s counsel presented 22 Forms I-9 18 to

Complainant’s counsel. Mot. Summ. Dec. 55, Ex. 2.

31. On August 29, 2023, the HSI Auditor reviewed the 22 Forms I-9 provided by Respondent,

and concluded the Forms were incomplete (missing pages and signatures), and she

questioned the timing of the Forms I-9 creation (i.e., she believed them to be backdated. 19)

Mot. Summ. Dec. 55, Ex. 2.

V.

CONCLUSIONS OF LAW

A. Propriety of Summary Decision – Law & Analysis

OCAHO regulations allow for resolution of cases via summary decision when “the pleadings,

affidavits, material obtained . . . show that there is no genuine issue as to any material fact 20 and

that [the moving] party is entitled to summary decision.” 28 C.F.R. § 68.38(c).

“Once the moving party satisfies its initial burden of demonstrating both the absence of a material

factual issue and that the party is entitled to judgment as a matter of law, the nonmoving party

must come forward with contravening evidence to avoid summary resolution.” United States v.

Four Seasons Earthworks, Inc., 10 OCAHO no. 1150, 3 (2012) (citing Celotex Corp. v. Catrett,

18

These Forms I-9 were included with Complainant’s Motion for Summary Decision as an

attachment to the HSI Auditor’s affidavit (at page 144-65).

19

Ostensibly, she came to this conclusion because the Human Resources Representative informed

her in 2019, during the audit there was only one Form I-9; however, these Forms I-9 all had dates

which preceded the investigation timeframe. Additionally, some Forms I-9 provided were the

2017 version of the form; however, they are dated in 2015, 2016 or the first half of 2017, prior to

the version’s existence. Mot. Summ. Dec. 167-70, Ex. 2-J.

20

“An issue of material fact is genuine only if it has a real basis in the record” and “[a] genuine

issue of material fact is material if, under the governing law, it might affect the outcome of the

suit.” Sepahpour v. Unisys, Inc., 3 OCAHO no. 500, 1012, 1014 (1993) (first citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986), and then citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 284 (1986)).

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477 U.S. 317, 323 (1986)). The Court views all facts and inferences “in the light most favorable

to the non-moving party.” United States v. Primera Enters., 4 OCAHO no. 615, 259, 261 (1994)

(citations omitted).

Only Complainant submitted evidence. This leaves the Court to infer Respondent believed the

evidentiary record submitted to be sufficiently established. Additionally, after receipt and review

of Complainant’s evidence, Respondent did not argue genuine issues of material fact exist in this

case. There are no genuine issue of material fact.

The analysis now turns to whether Complainant is entitled to judgment as a matter of law on

liability.

B. Liability – Law & Analysis

In cases arising under 8 U.S.C. § 1324a, the government has the burden of proving by a

preponderance of the evidence that the respondent is liable for committing a violation of the

employment eligibility verification requirements. See United States v. ABCO Solar, Inc., 17

OCAHO no. 1465a, 2 (2023) (citing United States v. Metro Enters., Inc., 12 OCAHO no. 1297, 7

(2017)).

Employers must prepare and retain Forms I-9 for employees hired after November 6, 1986, and

are required to produce the I-9 Forms for inspection by the government upon three days’ notice.

8 C.F.R. § 274a.2(b)(2)(ii).

Forms must be retained for current employees. United States v H&H Saguaro Specialists, 10

OCAHO no. 1144, 6 (2012) (first citing 8 U.S.C. § 1324a(b)(3); then citing 8 C.F.R. §

274a.2(a)(3); and then citing United States v. Ojeil, 7 OCAHO no. 984, 982, 992 (1998)). With

respect to former employees, forms must be kept “only for a period of three years after that

employee’s hire date, or one year after that employee’s termination date, whichever is later.” Id.

In the Count, Complainant alleges Respondent failed to prepare and/or present 21 a Form I-9 for 22

employees employed during the relevant period.

21

Complainant elected to pursue an “in the alternative” charging theory with its use of “and/or”

in the Charge; however, the record evidence indicates no Forms I-9 were ever completed (or at

least where never completed pre-Complaint when charging decisions were made).

While Complainant has prosecutorial discretion in choosing charging language, it should consider

that “failure to present” is functionally a lesser included offense of “failure to prepare.” A

Complainant who can prove “failure to prepare,” has also de facto proven “failure to present.” In

the simplest terms, a business cannot “present” something that does not exist, so there is no need

to charge the “present” when the evidence supports the proposition they were never “prepared.”

See United States v. El Paso Paper Box, Inc., 17 OCAHO no. 1451b, 7 (2023) (noting that certain

“preparation” charges “necessarily and inherently encompass… presentation” charges).

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As noted above, the retention period required is three years. HSI initiated an inspection on April

23, 2019. Mot. Summ. Dec. 10, Ex. 1; id. at 53, Ex. 2. HSI anticipated receiving Forms I-9 for

then-current employees as of April 26, 2019. Id. at 13, Ex. 1-A (Notice of Inspection giving three

days’ notice for inspection of Respondent’s Forms I-9). No Forms I-9 were prepared by this

Respondent 22 for the 22 individuals referenced in the Complaint and Motion for Summary

Decision these employees; thus, Respondent is liable for the violations alleged in the Count.

C. Penalty Law & Analysis

Because Respondent is liable, the Court must now consider the appropriate penalty. “The

government has the burden of proof with respect to the penalty . . . , and must prove the existence

of any aggravating factor by a preponderance of the evidence . . . ).” United States v. Niche, Inc.,

11 OCAHO no. 1250, 6 (2015) (citations omitted).

22

It is true that some incomplete and otherwise problematic Forms I-9 arrived much later in these

proceedings (not only post-Complaint, but also post-Answer); however, these Forms I-9 have no

impact on liability. See United States v. Liberty Packaging, Inc., 11 OCAHO no. 1245, 5-6 (2015).

OCAHO precedent has considered how to view or treat late-provided Forms I-9. But in those

cases, the Forms I-9 were provided post-Notice of Inspection (NOI) but pre-Notice of Intent to

Fine (NIF) or complaint. See El Paso Paper Box, Inc., 17 OCAHO 1451b at 7; see also United

States v. John Ferguson Moving and Storage, LLC, 21 OCAHO 1651, 24 n. 28 (2025).

This case is distinct in that the Forms I-9 were presented post-NIF and post-Complaint - that

distinction matters.

The NOI informs a respondent that complainant will investigate and audit (in the future) for

compliance with the law. When the NOI is issued, it is unknown to Complainant whether they

will find a violation. Inspections are of varying durations, but, in cases that come to this forum,

they ultimately conclude with the Complainant issuing a NIF. That NIF (and eventually

complaint), memorialize what are (at the time of issuance or filing) past instances where a

respondent business has allegedly violated the law. Moreover, the Respondent’s request for

hearing, which precipitated this action, is a request for hearing based on the alleged violations

listed in the NIF.

Those allegations (and the liability captured in them) cannot be overcome by superseding events,

like the provision of Forms I-9 which post-date the NIF and/or complaint. In any event, even if

the Court were to take an alternate view (i.e. one where a Respondent business could provide

Forms I-9 at any time pre-final order), OCAHO precedent and regulations empower an ALJ to use

a commonsense approach to evaluating liability. See El Paso Paper Box, Inc., 17 OCAHO no.

1451b, at 7 (CAHO Order) (noting “an ALJ, under certain circumstances, [has the authority] to

conform [a charge] to the evidence and find liability[.]”); see also 28 C.F.R. § 68..9(e).

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The penalty range depends on the date of the violations and the date of assessment. See 28 C.F.R.

§ 68.52(c)(8); 28 C.F.R. § 85.5. 23

As the Court has previously noted:

[T]here is . . . no single method mandated for calculating civil

money penalties for violations of 8 U.S.C. § 1324a(a)(1)(B). See

United States v. Senox Corp., 11 OCAHO no. 1219, 4 (2014); see

also United States v. The Red Coach Rest., Inc., 10 OCAHO no.

1200, 3 (2013) (affirmance by the CAHO noting decisions using

varied approaches to calculating penalties); cf. United States v. Int'l

Packaging, Inc., 12 OCAHO no. 1275a, 6 (2016) (noting that

nothing in 8 U.S.C. § 1324a(e)(5) requires the five statutory factors

to be considered exclusively on a binary scale); United States v.

Romans Racing Stables, Inc., 11 OCAHO no. 1232, 5 (2014)

(affirmance by the CAHO) (noting a failure to establish a statutory

factor as aggravating does not require that the factor necessarily be

treated as mitigating).

United States v. HDB Network, 18 OCAHO no. 1483a, 10 (2024) (citing R&SL Inc., 13 OCAHO

no. 1333b, 36 (2022)).

“The civil penalties for violations of § 1324a are intended ‘to set a meaningful fine to promote

future compliance…’” United States v. 1523 Ave. J Foods Inc., 14 OCAHO no. 1361, 3 (2020)

(quoting United States v. 3679 Com. Place, Inc., 12 OCAHO no. 1296, 7 (2017)).

As the Court noted in United States v. HDB Network, there are five statutory factors the Court

must consider when assessing a penalty: 1) the size of the employer's business; 2) the employer's

23

28 C.F.R. § 68.52(c)(8) provides: “For civil penalties assessed after August 1, 2016, whose

associated violations ... occurred after November 2, 2015, the applicable civil penalty amounts are

set forth in 28 C.F.R. 85.5.” When a penalty for a “paperwork violation” is assessed after February

12, 2024, the minimum penalty is $281.00 per individual, and the maximum is $2,789.00 per

individual.

The Chief Administrative Hearing Officer observed “for purposes of 28 C.F.R. § 85.5(d), OCAHO

does assess civil money penalties, those penalties are assessed through the issuance of a final order,

and the date of assessment is the date of the OCAHO final order.” United States v. Edgemont

Grp., LLC, 17 OCAHO no. 1470e, 26 (2023). The Court issues this Order after February 12, 2024,

making the appropriate penalty range between $281.00 and $2,789.00 per individual.

12

18 OCAHO no. 1506f

good faith; 24 3) the seriousness of the violations; 25 4) whether or not the individual was an

unauthorized alien; and 5) the employer's history of previous violations. 18 OCAHO no. 1483a,

at 11; see also 8 U.S.C. § 1324a(e)(5).

While Complainant proposes a fine amount in its Complaint, its proposed penalty is “not binding

in OCAHO proceedings, and the ALJ may examine the penalties de novo if appropriate.” United

States v. Alpine Staffing, Inc., 12 OCAHO no. 1303, 10 (2017) (citing United States v. Ice Castles

Daycare Too, Inc., 10 OCAHO no. 1142, 6 (2011)).

Although 8 U.S.C. § 1324a(e)(5) “requires due consideration 26 of

the enumerated factors, it does not mandate any particular outcome

of such consideration, and nothing in the statute or the regulations

requires in OCAHO proceedings either that the same weight be

given to each of the factors in every case, or that the weight given to

any one factor is limited to any particular percentage of the total.”

Id. (quoting Ice Castles Daycare Too, Inc., 10 OCAHO no. 1142, at 6–7). Indeed, the weight

placed on each factor varies depending on the facts of case. Id. (citing United States v. Raygoza,

5 OCAHO no. 729, 48, 51 (1995)).

24

A good faith analysis can encompass “the steps the employer took before the investigation to

reasonably ascertain what the law requires and the steps it took to follow the law.” United States

v. Exec. Cleaning Servs. of Long Island Ltd., 13 OCAHO no. 1314, 3 (2018) (emphasis in original);

see also United States v. Frio Cnty. Partners, Inc., 12 OCAHO no. 1276, 16 (2016).

A poor compliance rate alone may be insufficient to find bad faith. See United States v. Maverick

Constr., 15 OCAHO no. 1405a, 7 (2022); United States v. Azteca Dunkirk, Inc., 10 OCAHO no.

1172, 4 (2013). A low compliance rate and additional culpable conduct may permit Court to make

a finding of bad faith. See United States v. Integrity Concrete, Inc., 13 OCAHO no. 1307, 13–14

(2017) (additional culpable conduct of backdating); United States v. Karnival Fashions, Inc., 5

OCAHO no. 783, 477, 480 (1995) (explaining that bad faith involves an additional finding of

knowing disregard for verification requirements). “[T]he absence of bad faith does not show good

faith.” United States v. Visiontron Corp., 13 OCAHO no. 1348, 8 (2020) (citing United States v.

Guewell, 3 OCAHO no. 478, 814, 820 (1992)).

25

“[N]ot all violations are equally serious[,]” and “the seriousness of violations may be evaluated

on a continuum[.]” United States v. Senox Corp., 11 OCAHO no. 1219, 9 (2014) (citations

omitted). “[V]iolations for failure to prepare I-9 forms . . . are more serious than are the paperwork

violations . . . because the failure to prepare the forms completely subverts the purpose of the law.”

Id. (citing United States v. Skydive Acad. of Hi. Corp., 6 OCAHO no. 848, 235, 246 (1996)).

26

The statute does not require mathematical offsetting, rather each statutory factor must receive

“due consideration.” 8 U.S.C. § 1324a(e)(5).

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18 OCAHO no. 1506f

1. Statutory Factors Analysis

A penalty may be mitigated when a respondent is a small business. See, e.g., United States v.

Eriksmoen Cottages, Ltd., 14 OCAHO no. 1355a, 5 (2020) (citing United States v. Carter, 7

OCAHO no. 931, 121, 162 (1997)). “OCAHO has generally considered companies with fewer

than 100 employees 27 to be small businesses.” 1523 Ave. J Foods, Inc., 14 OCAHO no. 1361, at

6 (citation omitted). Respondent is a small business, a factor which will serve to mitigate the

penalty.

Here, there is no qualifying evidence of bad faith; however, the absence of bad faith does not result

in de facto conclusion that a respondent has acted in good faith. The Court can “consider the

overall circumstances of a respondent’s action in complying with an NOI in assessing a penalty.”

Alpine Staffing, 12 OCAHO no. 1303, at 15. While the good faith analysis’ “primary” focus is

one centered on pre-inspection conduct, nothing in statute requires pre-inspection conduct to be

the only consideration. Id. (citing United States v. New China Buffet Rest., 10 OCAHO NO. 1133,

5 (2010)). 28

On one side of the ledger, this employer had a poor compliance rate – demonstrating it took

virtually no steps to comply with the law before the inspection. 29 However, there is nothing to

27

The Court considers many factors when determining the size of a business (number of

employees, revenue or income, payroll, nature of ownership, or length of time in business). See

United States v. Fowler Equip. Co., Inc., 10 OCAHO no. 1169, 6–7 (2013). While business size

is mitigating here, it does not necessarily outweigh the other statutory factors.

28

In Alpine Staffing, the CAHO noted “post-investigation behavior warrant[ed] some

consideration in assessing an appropriate penalty.” 12 OCAHO no. 1303, at 20. While the CAHO

did not place his discussion of that consideration within the “rubric of ‘good faith,’” he seems to

signal it would or could be evaluated in the same way. Id.

29

It is worth noting that, based on the state of the post-Answer provided forms that the Respondent

may still not understand what the law requires. While it does seem like these incomplete forms

may have evidence of backdating (which can contribute to a finding of bad faith) Complainant (the

party with the burden) does not argue these late-provided Forms merit an aggravation of the

penalty. See HDB Network, 18 OCAHO no. 1483a, at 27 (finding bad faith where the “employer

took no steps to learn what the law requires,” had a poor compliance rate, and engaged in

backdating). And, even if it were argued as such, excluding these incomplete and likely backdated

forms from penalty assessment consideration is also consistent with OCAHO precedent. See

United States v. Natural Environmental, Inc., 10 OCAHO 1197, 4 (2013). In Natural

Environmental, the Court determined:

The fact that there are substantive violations in some of the laterproduced I-9s will not be considered as relevant to the penalty in

this case, because the I-9s to be penalized based on the complaint

are the twenty-five backdated forms that Natural Environmental

initially presented in response to the NOI, each of which will be

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18 OCAHO no. 1506f

indicate that during the inspection and in the time preceding the receipt of the Notice of Intent to

Fine this employer engaged in concerning behavior; rather, the record shows the employer was

forthcoming about the number of Forms I-9 available for inspection (either zero or one), and

seemed to otherwise comply expeditiously with the HSI auditor’s requests. Without more, this

statutory factor is duly considered, but it does not serve, in this case, to aggravate or mitigate the

penalty.

The violations here are serious violations. Respondent failed to prepare any Forms I-9 for the

employees named in the Count. Failure to prepare any Forms I-9 completely “subverts the purpose

of the law.” Senox Corp., 11 OCAHO no. 1219, at 9 (citing United States v. Skydive Acad. of Hi.

Corp., 6 OCAHO no. 848, 235, 246 (1996)). The penalty assessed will be aggravated in light of

the serious nature of the violations.

This record certainly raises the specter of unauthorized workers; however, on these filings,

Complainant has not met its burden with respect to unauthorized workers as it relates to the penalty

analysis. Complainant certainly notes the prospect Respondent may have employed individuals

unauthorized to work in the United States (which is foreseeable when a business completes

virtually no employment authorization checks via the Form I-9 at onboarding); however,

Complainant does not provide sufficient record evidence 30 to assist the Court in understanding

how it came to its initial conclusion about the unauthorized workers. Respondent does not concede

it ever hired unauthorized workers. Finally, the HSI auditor, who presumably would have

reviewed whatever documents or records were or were not provided eventually shifted her

description of the two from “unauthorized worker” to “noncitizen.” Mot. Summ. Dec. 56, Ex. 2.

She did not recommend penalty aggravation based on this factor, id., and when the Complaint was

drafted, Complainant did not include a charge pertaining to unauthorized workers, see generally

Compl. Without more, this statutory factor is duly considered, but it does not serve, in this case,

to aggravate or mitigate the penalty.

penalized only once. In other words, no additional penalties will be

assessed based on the existence of violations on a different set of

forms that were never addressed in a NIF.

Id.

Applying the reasoning provided in that precedential case, a complainant has the benefit of arguing

aggravation on a record where no Forms I-9 were ever completed, which will certainly drive a

higher penalty assessment than a case where Forms were incomplete or untimely. It cannot

compound or bolster its argument using Forms I-9 that were later provided but also backdated. To

this Complainant’s credit, it does not seek to make such an argument here.

30

Compare with HDB Network, where the Court found “[t]he Respondent knowingly employed

someone on a B-2 visa, and continued to employ her even after she overstayed that visa. After she

departed and remained abroad (unable to re-enter the United States), this Respondent chose to

maintain her on payroll for a period of years.” 18 OCAHO no. 1483a, at 13.

15

18 OCAHO no. 1506f

The record does not indicate a history of violations. “This factor neither mitigates nor aggravates

the penalty.” United States v. Kodiak Oilfield Servs., LLC, 16 OCAHO 1436b, 5 (2023); see also

United States v. New China Buffet Rest., 10 OCAHO no. 1133, 6 (2010) (“[N]ever having violated

the law before does not necessarily warrant additional leniency[.]”).

2. Non-Statutory Factors Analysis

No party presented evidence or made argument pertaining to any non-statutory factors in this case.

VI.

CONCLUSION

Respondent is liable for all 22 violations alleged in the Count. The Court has given each statutory

factor due consideration in assessing a penalty.

The Court will impose a penalty of $1450.00 per violation, for a total penalty of $31,900.

The Court ORDERS Respondent to pay $31,900 for failing to prepare and present 22 Forms I-9.

SO ORDERED.

Dated and entered on May 27, 2025.

__________________________________

Honorable Andrea R. Carroll-Tipton

Administrative Law Judge

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18 OCAHO no. 1506f

Appeal Information

This order shall become the final agency order unless modified, vacated, or remanded by the Chief

Administrative Hearing Officer (CAHO) or the Attorney General.

Provisions governing administrative reviews by the CAHO are set forth at 8 U.S.C. § 1324a(e)(7)

and 28 C.F.R. pt. 68. Note in particular that a request for administrative review must be filed with

the CAHO within ten (10) days of the date of this order, pursuant to 28 C.F.R. § 68.54(a)(1).

Provisions governing the Attorney General’s review of this order, or any CAHO order modifying

or vacating this order, are set forth at 8 U.S.C. § 1324a(e)(7) and 28 C.F.R. pt. 68. Within thirty

(30) days of the entry of a final order by the CAHO, or within sixty (60) days of the entry of an

Administrative Law Judge’s final order if the CAHO does not modify or vacate such order, the

Attorney General may direct the CAHO to refer any final order to the Attorney General for review,

pursuant to 28 C.F.R. § 68.55.

A petition to review the final agency order may be filed in the United States Court of Appeals for

the appropriate circuit within forty-five (45) days after the date of the final agency order pursuant

to 8 U.S.C. § 1324a(e)(8) and 28 C.F.R. § 68.56.

17