UNITED STATES DEPARTMENT OF JUSTICE

18 OCAHO no. 1516a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

UNITED STATES OF AMERICA,

Complainant,

v.

MENDOZA MAINTENANCE

GROUP, INC.,

Respondent.

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8 U.S.C. § 1324a Proceeding

OCAHO Case No. 2023A00064

Appearances: Ricardo A. Cuellar, Esq., for Complainant

Javier Mendoza, pro se, Respondent

ORDER ACCEPTING UNTIMELY ANSWER AND RESPONSE AND

DISCHARGING ORDER TO SHOW CAUSE

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. The United States Department of Homeland Security,

Immigration and Customs Enforcement (ICE) filed a complaint with the Office of

the Chief Administrative Hearing Officer (OCAHO) on June 6, 2023. Complainant

alleges that Respondent, Mendoza Maintenance Group, Inc., failed to prepare

and/or present the Employment Eligibility Verification Form (Form I-9) for nine

individuals and failed to ensure proper completion of Forms I-9 for seventeen

individuals, all in violation of 8 U.S.C. § 1324a(a)(1)(B). Compl. ¶ 6.

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

to Section 274A of the INA (NIF) that it personally served on Respondent through

Mr. Javier Mendoza, Respondent’s president, on July 24, 2019, seeking a fine of

$46,954.70 for the alleged violations. Id., Ex. A. Also attached to the complaint was

Respondent’s signed request for a hearing (request for hearing). Id., Ex. B.

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Complainant asked OCAHO to serve the complaint on Respondent through

Mr. Javier Mendoza at an address in Laredo, Texas. Compl. Attach. (citing

28 C.F.R. § 68.7.). 1 On June 12, 2023, the Chief Administrative Hearing Officer

(CAHO) served Respondent via United States certified mail with the complaint, a

Notice of Case Assignment for Complaint Alleging Unlawful Employment (NOCA),

the NIF, and Respondent’s request for hearing (collectively “the Complaint

package”). Through the NOCA, the CAHO informed Respondent that these

proceedings would be governed by OCAHO’s Rules of Practice and Procedure for

Administrative Hearings and applicable case law. Notice Case Assignment ¶ 1.

The CAHO included links to OCAHO’s Rules and Practice Manual, 2 along with

contact information for OCAHO. Id. ¶ 2. Pursuant to 28 C.F.R. § 68.9(a), the

CAHO directed Respondent to answer the complaint within thirty days and

informed Respondent that failure to timely answer the complaint could lead to

judgment by default or other appropriate relief. Id. ¶ 4 (citing 28 C.F.R. § 68.9(b)).

The United States Postal Service’s certified mail tracking service indicated

that the Complaint package was delivered to Respondent’s address on June 17,

2023. Respondent’s answer therefore was due no later than July 17, 2023. See

28 C.F.R. §§ 68.3(b), 68.9(a). On July 11, 2023, Respondent filed a Motion to

Dismiss on Grounds of Violations of Procedures (Motion to Dismiss), but it failed to

file an answer to the complaint by the regulatory deadline.

The Court issued an Order to Show Cause on January 11, 2024. See United

States v. Mendoza Maint. Grp., Inc., 18 OCAHO no. 1516 (2024). 3 The Court

OCAHO’s Rules of Practice and Procedure for Administrative Hearings, being the

provisions contained in 28 C.F.R. part 68 (2024), are available on the United States

Department of Justice’s website. See https://www.justice.gov/eoir/office-of-the-chiefadministrative-hearing-officer-regulations. OCAHO’s Rules require Complainant to

identify “the party or parties to be served by [OCAHO] with notice of the complaint

pursuant to § 68.3.” 28 C.F.R. § 68.7(b)(5). After receiving this information,

OCAHO will serve the complaint via delivery, personal service, or mail. Id.

§ 68.3(a)(1)–(3). Whichever method is chosen, “[s]ervice of [the] complaint . . . is

complete upon receipt by [the] addressee.” Id. § 68.3(b).

1

The OCAHO Practice Manual, which is part of the Executive Office for

Immigration Review’s Policy Manual, provides an outline of the procedures and

rules applicable to cases before OCAHO. It is likewise available on the U.S.

Department of Justice’s website.

See https://www.justice.gov/eoir/eoir-policymanual/part-iv-ocaho-practice-manual.

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

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explained that Respondent’s Motion to Dismiss did not excuse or toll the regulatory

deadline for filing an answer. Id. at 3–4 (citing, inter alia, 28 C.F.R. § 68.10(a)).

The Court ordered Respondent to file by January 31, 2024: (a) an answer

comporting with the requirements of 28 C.F.R. § 68.9 and (b) a filing setting forth

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

at 4.

On January 25, 2024, Respondent, through Mr. Jaime Mendoza, 4 filed an

Answer to Complaint (Answer), an Amended Motion to Dismiss on Grounds of

Violations of Procedures (Amended Motion to Dismiss), and a filing entitled

“Responses for failure to answer complaint in timely manner” (Response). Due to

filing deficiencies, OCAHO staff rejected these filings on the date of receipt.

Respondent remedied the deficiencies, and on March 5, 2024, it re-filed its Answer,

Amended Motion to Dismiss, and Response.

II.

LEGAL STANDARDS

A.

Default Judgments

OCAHO’s Rules of Practice and Procedure for Administrative Hearings

provide that a respondent’s failure to file an answer may “constitute a waiver of his

or her right to appear and contest the allegations of the complaint.” 28 C.F.R.

§ 68.9(b). The Court then “may enter a judgment by default.” Id. Nevertheless,

OCAHO courts, like federal courts, generally disfavor default judgments. See, e.g.,

United States v. R & M Fashion Inc., 6 OCAHO no. 826, 46, 47–48 (1995). For

instance, the United States Court of Appeals for the Fifth Circuit has held that

“[d]efault judgments are a drastic remedy, not favored by the Federal Rules and

resorted to by the courts only in extreme situations.” Sun Bank of Ocala v. Pelican

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-thechief-administrative-hearing-officer-decisions.

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Mr. Jaime Mendoza has identified himself as Mr. Javier Mendoza’s brother.

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Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989) (citations omitted). 5 It is

preferable that cases are resolved on their merits, rather than through default

judgments. See 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2681 (4th ed. 2021). As such, OCAHO Administrative Law Judges

(ALJs) generally will enter a default judgment only when “the inaction or

unresponsiveness of a particular party is unexcusable and the inaction has

prejudiced the opposing party.” D’Amico, Jr. v. Erie Cmty. Coll., 7 OCAHO no. 927,

61, 63 (1997).

B.

Good Cause

When a respondent fails to timely answer a complaint, the Court may issue

an order to show cause as to why a default judgment should not be entered and ask

the respondent to justify its failure to file its answer on time. United States v. Shine

Auto Serv., 1 OCAHO no. 70, 444, 445–46 (1989) (CAHO order). In deciding

whether to accept a late-filed answer, the Court reviews the respondent’s response

to its order and determines whether “the [r]espondent possessed the requisite good

cause for failing to file a timely answer[.]” Id. at 446.

To determine whether good cause exists in this case, the Court will consider

the following non-exhaustive factors: “(1) whether the failure to act was willful;

(2) whether setting the [order to show cause] aside would prejudice the adversary;

and (3) whether a meritorious claim has been presented.” Effjohn Int’l Cruise

Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 563 (5th Cir. 2003); see also Kanti v.

Patel, 8 OCAHO no. 1007, 166, 168 (1998) (applying factors). The Court need not

consider all these factors and may consider other factors. See In re Dierschke,

975 F.2d 181, 183–84 (5th Cir. 1992). For example, the Court may consider whether

the public interest was implicated, there was a significant financial loss to the party

in default, and if the party acted expeditiously to correct the default. Id. at 184. As

the Fifth Circuit Court of Appeals has explained, “[w]hatever factors are employed,

the imperative is that they be regarded simply as a means of identifying

circumstances which warrant the finding of ‘good cause’ to set aside a default.” Id.

III.

DISCUSSION AND ANALYSIS

A.

Respondent’s Untimely Submissions

As a threshold matter, the Court must determine whether to accept

Respondent’s Answer and Response, given that they were filed after the deadline

The Fifth Circuit Court of Appeals is the appropriate circuit for review of this

matter. See 28 C.F.R. § 68.56. As such, its precedent provides instructive guidance.

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the Court set in the Order to Show Case. The Court ordered Respondent to file by

January 31, 2024, an answer to the complaint and a response setting forth facts

demonstrating good cause for the failure to timely answer the complaint. While

Respondent attempted to file its Answer and Response on January 25, 2024,

OCAHO staff rejected the filings due to filing deficiencies, and the Answer and

Response were not successfully filed until March 5, 2024.

“The Court has discretion to accept late filings.” United States v. Chilitto

Pikin LLC, 18 OCAHO no. 1486a, 5 (2024) (citing Villegas-Valensuela v. INS,

103 F.3d 805, 811 n.5 (9th Cir. 1996)); see also 28 C.F.R. § 68.11(b) (“[T]he [OCAHO]

ALJ maintains discretion to accept pleadings within a time period he may fix.”).

The Court now exercises its discretion and accepts Respondent’s filings. In

exercising this discretion, the Court has considered that Respondent attempted to

file the Answer and Response before the Court’s deadline, but OCAHO staff rejected

the filings due to their deficiencies. The Court weighs heavily the fact that

Respondent then corrected the deficiencies and re-filed its Answer and Response.

Although the corrected Answer and Response were filed thirty-four days after the

deadline the Court set in its Order to Show Cause, the length of the delay is

mitigated by Respondent’s pro se status, the serious medical issues of its president

which have apparently affected the operations of the family-run business, and its

efforts, although unsuccessful, to hire legal counsel in this matter. Resp. 1–2. See

United States v. De Jesus Corrales-Hernandez, 17 OCAHO no. 1454, 4 (2022)

(exercising discretion favorably to accept an answer and response to order to show

cause filed seven days after the deadline, considering, inter alia, the short time

elapsed and the respondent’s pro se status).

B.

Discharge of Order to Show Cause

Next, the Court exercises its discretion and considers whether good cause

exists to discharge the Order to Show Cause against Respondent. Given the

information before the Court, including Respondent’s Response, the Court finds that

the Effjohn Int’l Cruise Holdings, Inc., factors weigh in favor of finding good cause

for the late filings and discharging the Order to Show Cause.

First, the record does not reflect that Respondent willfully failed to timely

answer the complaint. See Effjohn Int’l Cruise Holdings, Inc., 346 F.3d at 563.

Respondent submitted a filing within thirty days of service of the Complaint

package, however, it was a Motion to Dismiss, rather than an answer. Respondent’s

actions reflect its intention to defend itself in this litigation, albeit it acted without

an understanding of OCAHO’s Rules of Practice and Procedure for Administrative

Hearings. See 28 C.F.R. § 68.10(a) (explaining that “[t]he filing of a motion to

dismiss does not affect the time period for filing an answer.”). Further, Respondent

has presented to the Court additional factual circumstances that may have

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contributed to its failure to timely answer the complaint, including Mr. Mendoza’s

serious medical issues, the effect on the day-to-day operation of the business, and

Respondent’s inability thus far to hire a lawyer to represent it in these proceedings.

Resp. 1–2.

Second, the record does not reflect that Complainant will be prejudiced if the

Court discharges its Order to Show Cause. See Effjohn Int’l Cruise Holdings, Inc.,

346 F.3d at 563. Although Respondent filed its Answer on March 5, 2024—232 days

after the original regulatory deadline—OCAHO ALJs “have made it clear that

‘[m]ere delay alone does not constitute prejudice without any resulting loss of

evidence, increased difficulties in discovery, or increased opportunities for fraud and

collusion.” United States v. MRD Landscaping & Maint. Corp., 15 OCAHO no.

1407c, 8 (2022) (citing Nickman v. Mesa Air Grp., 9 OCAHO no. 1106, 3 (2004), and

then citing Wright & Miller, supra, § 2699 (discussing types of prejudice and costs

to the non-defaulting party)). While the delay here is significant, Complainant has

not identified any prejudice it would suffer, and the delay will not affect the time

available to the parties for discovery.

Third, Respondent raises several defenses to the complaint’s allegations in its

Answer. See Effjohn Int’l Cruise Holdings, Inc., 346 F.3d at 563. Respondent

generally denies the allegations in the complaint, asserts that it is a small business,

and that it relied on statements by ICE that it did not need to fill out Forms I-9.

Answer 1–2. “The purpose of looking at this factor is to ‘determine whether there is

some possibility that the outcome of the suit after a full trial will be contrary to the

result achieved by default.’”

MRD Landscaping & Maint. Corp.,

15 OCAHO no. 1407c, at 9 (quoting Sinha v. Infosys, 14 OCAHO no. 1373a, 5

(2021)). Given the defenses Respondent raises in its Answer, which pertain both to

Respondent’s liability and the appropriateness of Complainant’s fine assessment,

the Court finds that this factor weighs in favor of discharging the Order to Show

Cause, given that the Answer raises defenses sufficient to “give the factfinder some

determination to make.” Kanti, 8 OCAHO no. 1007, at 171 (citations omitted).

Therefore, after weighing the appropriate factors, considering OCAHO’s

strong preference for resolving cases on their merits, and having accepted

Respondent’s Answer and Response as filings in this case, the Court finds that good

cause exists for Respondent’s failure to timely file an answer to the complaint and

discharges the Order to Show Cause.

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IV.

ORDERS

IT IS SO ORDERED that the untimely Response for Failure to Answer

Complaint in Timely Manner and Answer to Complaint filed by Respondent,

Mendoza Maintenance Group, Inc., are ACCEPTED as filings in this matter.

IT IS FURTHER ORDERED that, having found that good cause exists, the

Order to Show Cause dated January 11, 2024, against Respondent, Mendoza

Maintenance Group, Inc., is DISCHARGED.

SO ORDERED.

Dated and entered on June 18, 2025.

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Honorable Carol A. Bell

Administrative Law Judge

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