# UNITED STATES DEPARTMENT OF JUSTICE

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URL: https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Aa486875731de774d

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

18 OCAHO no. 1500b
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

January 14, 2026
UNITED STATES OF AMERICA,
Complainant,
v.
KLEIN’S KOSHER PICKLE COMPANY,
D/B/A MRS. KLEIN’S KOSHER PICKLE
COMPANY,
Respondent.

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8 U.S.C. § 1324a Proceeding
OCAHO Case No. 2023A00066

Appearances: Lisa Dubowski, Esq., for Complainant
Gregory Wald, Esq., for Respondent
ORDER GRANTING SUMMARY DECISION – FINAL ORDER 1
This case arises under the employer sanctions provisions of the Immigration and Nationality Act
(INA), as amended, 8 U.S.C. § 1324a.
On June 6, 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 across two separate counts that Respondent
“failed to… properly complete” various sections of the Forms I-9 in 97 total instances, in violation
of § 1324a(b) Compl. 3-6. The Complaint included the Notice of Intent to Fine Form (I-763) and
Respondent’s written request for a hearing. Compl 10-17.
On July 28, 2023, Respondent filed an answer. In its Answer, Respondent admits liability for nine
individuals, but denies liability for the remaining individuals. Answer 2.
On February 9, 2024, Complainant filed a Motion for Summary Decision.
On March 11, 2024, Respondent filed its Opposition.
1

See 28 C.F.R. § 68.52(c)(5).

18 OCAHO no. 1500b
I.

COMPLAINANT’S POSITION

Complainant argues no genuine issues of material fact exist and it is entitled to summary decision.
C’s Mot. Summ. Dec. 2. Specifically, “[t]he Forms I-9 [Respondent] provided… demonstrate that
[Respondent] failed to properly verify that ninety-six (96) 2 of its employees were eligible to work
in the United States in violation of Section 274(a)(1)(B) of the [INA].” Id.
According to Complainant, “[b]ased on a review of the 165 Forms I-9 provided, the Complainant
determined that [Respondent] failed to properly verify the employment authorization of 97 3
employees.” C’s Mot. Summ. Dec. 3. The Complainant further explained that Count I is
comprised of 91 allegedly insufficient Forms I-9, and Count II is comprised of five allegedly
insufficient Forms I-9 wherein the employees were also “determined to be unauthorized workers.”
C’s Mot. Summ. Dec 5-6. Complainant attaches evidence to its motion (further outlined below). 4
Complainant proposed a penalty based on “the amended penalty structure set forth in the Code of
Federal Regulations, 8 C.F.R. 274a.10… and the statutory penalty factors contained in Title 8 of
the United States Code, section 1324a(e)(5).” Mot. Summ. Dec. 5-6. As to Count I, “Complainant
mitigated the base penalty by 5% because [Respondent] is a small business. The fines were then
aggravated by 5% due to the seriousness of the violations and the error rate. This resulted in a total
fine for Count I in the amount of $196,052.00.” Id. at 6. As to Count II, “Complainant utilized
the same method of calculation, but aggravated the base penalty by an additional 5%, due to the
employment of unauthorized workers.” Id. at 7.
Complainant proposes an assessed penalty of $2131.00 per Count I violation, with a total Count I
proposed penalty of $193,921.00. Id. at 4.
Complainant proposes an assessed penalty of $2,237.55 per Count II violation, with a total Count
II proposed penalty of $11,187.75. Id.
The grand total (of Count I and Count II) proposed penalty is $205,108.75. Id.

2

This is one employee less than what was alleged in the Complaint.

In the Motion for Summary Decision, Complainant later explained that, “[o]n January 25, 2024,
Complainant agreed to remove [one] employee… from the calculation, [resulting] in a total of 96
violations.” C’s Mot. Summ. Dec. 4.
3

The Motion and attached evidence total 1044 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 the page within the
filing as a whole (i.e. a citations to the first page of Exhibit 1 would reference page 10 if it is on the tenth
page of the combined file).
4

2

18 OCAHO no. 1500b
II.

RESPONDENT’S POSITION

Respondent opposes summary decision because “there are genuine issues of material fact.”
Opposition 2. 5 As to Count I, Respondent argues it should be found not liable in several instances.
As to employees S.L. 6 and J.P., 7 Respondent argues the Forms I-9 were properly completed, and
Respondent cites Complainant’s exhibits (specifically the Forms I-9 and the E-Verify Case
The Opposition Brief and attached evidence total 140 pages. For ease of reference, the Court will cite
the page within the filing as a whole (i.e. a citations to the first page of Exhibit 1 would reference page 10
if it is on the tenth page of the combined file).
5

6

According to Respondent,
[T]he Company filed the Form I-9 for [this employee] See [Complainant Exhibit]. Section
1 shows that [this employee] signed the Form I-9 on April 26, 2021 and the E-Verify report
shows that the report was prepared on April 27, 202[1], which was also the first day of
employment. Id. at [page numbers omitted].
Section 2 shows that the Company signed and dated the Form I-9 on April 27, 2022. Id. at
[page numbers omitted]. The Company prepared the Form I-9 within three days of hire but
failed to sign and date Section 2 within this timeframe. Id. at [page numbers omitted].
Based on the Virtue Memorandum, this delay is considered a technical or procedural
violation rather than a substantive violation. [Complainant Exhibit] For this reason,
summary decision should be denied as to the Form I-9 of [this employee].

Opp’n at 4-5.
7

According to Respondent,
Complainant failed to establish [this employee’s] Form I-9 presented substantive errors.
See [Complainant Exhibit]. There is a five-year statute of limitations for an action brought
for the enforcement of a penalty. 28 U.S.C. § 2462; U.S. v. WSC Pluming Inc., 9 OCAHO
1061 (2000). The five-year period runs from the moment when the action accrued. Id. The
action begins to accrue depending on which section of the Form I-9 was not completed in
a timely manner. Id. at 11-12.
Failure to complete Section 1 of the Form I-9 in a timely manner occurs on the day after
the employee is hired and failure to complete Section 2 in a timely manner occurs on the
day after the third business day after hire. Id. (citing United States v. Curran Eng.’g Co.,
Inc., 7 OCAHO No. 975 at 897 (1997)).
Here, the statute of limitations constitutes a bar to the Company’s liability with respect the
untimely completion of [this employee’s] Form I-9. [His] first day of employment was
January 8, 2007, and statute of limitations began to run the day after the third business day
after hire. [Complainant Exhibit]. Complainant’s opportunity to bring an action based on
[this] Form I-9 expired in January of 2012. For this reason, Complainant is barred from
recovering a penalty for the untimeliness of the completion of [this employee’s] Form I-9.

Opp’n at 5.

3

18 OCAHO no. 1500b
Reports) as evidence of such. Opp’n 2. Respondent also notes that one employee named in the
Complaint was never hired, and thus “[the] Company was not required to maintain a [Form] I-9
for [him].” Id. Respondent contests a total of two employees named in this Count. 8
As to Count II, Respondent argues that “at the time of hire, the Company obtained E-Verify results
that show [two named employees] were authorized for employment [citing Complainant
exhibits].” Id. Further, Respondent notes that it terminated one named employee “once the EVerify tentative and final non-confirmation procedures were completed.” Id. Respondent contests
a total of 3 employees named in this Count.
On penalty, Respondent takes issue with a penalty aggravated due to unauthorized workers. Opp’n
6. Further, Respondent notes the method by which Complainant calculated the penalty (percentage
of violations based on employee count) creates, in Respondent’s estimation, an unfairly high
penalty assessment. Id. at 7. Respondent argues the statutory factors as applied should be
weighted as either neutral or mitigating. Id.
As to non-statutory factor consideration, Respondent notes the Court can and should “take into
consideration the Company’s ability to pay.” Opp’n 9. Respondent further explained:
Paying the assessed fine will impact the financial status of [this] small business…
The Company is in a process of financial recovery after the pandemic. In 2020, the
Company’s ordinary income was negative ($80,478) and in 2022 Company also
suffered negative ordinary income of ($2,374,101) and although 2023 looks to be
an improvement, the Company is still recovering from these two years of significant
losses. See attached [Affidavit], including Company’s 2022 1120-S U.S. Income
Tax Return.
[I]f the Company were to incur the penalty assessed by Complainant of $207,000,
it would be forced to make drastic cost cuts such as the reduction of its workforce.
Respectfully, the Company asks this Court to reduce the penalty in light of these
mitigating factors.
Id. at 9.
Respondent acknowledged that Complainant “‘agreed to remove [the potential employee] from the
calculation, which [would] result in a total of 96 violations.’” Opp’n 2; citing C’s Mot. Summ. Dec. 6.
Respondent takes the position that Complainant must then amend the Complaint. Respondent’s assertion
is not unreasonable, given the Court’s prior decisions (see e.g. United States v. Pasquel Hermanos, Inc., 18
OCAHO 1506b (2024)); however, from a practical standpoint, amendment seems unnecessary where a
Complainant seeks to reduce liability, and would only serve to further delay adjudication of the case on the
merits.

8

Stated a different way, the Court does not find a “determination of a controversy on the merits will be
facilitated” by amending the Complaint. 28 C.F.R. § 68.9(e). To be sure, a scenario where a Complainant
seeks to add individuals, and/or propose new or alternate theories of liability could result in the Court
coming to a different conclusion.

4

18 OCAHO no. 1500b
Finally, Respondent requests the Court make a specific factual finding as to the location of the
Forms I-9 at issue in this case. “Based on the record… DHS should have possession of the original
Forms I-9. [citing the HSI Auditor Receipt for Property, dated April 21, 2022].” Opp’n 9.
Respondent further explained that, during discovery, Complainant “was unable to admit or deny”
a request for admission that “to date, [Complainant] hold[s] the original version of the I-9 Forms
inspected.” Id at 10.
Respondent attaches evidence to its Opposition (further outlined below).
III.

EVIDENCE CONSIDERED

At the outset, the Court will analyze the evidence offered by both parties. 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.” 9 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.
A. Complainant’s Evidence
With its Motion for Summary Decision, Complainant provided exhibits for the Court’s
consideration, including: a “Memorandum to Case File,” which is an internal memorandum
(unsigned and undated) providing rationale for the penalty assessment; a Notice of Inspection
dated April 1, 2022, signed by the Assistant Special Agent in Charge (including a Certificate of
Service showing receipt on April 7, 2022); a DHS Receipt for Property (signed and dated April
21, 2022) showing receipt of 107 Forms I-9 for “active employees,” and 54 Forms I-9 for “termed
employees;” a copy of Forms I-9 10 and some identification documents and E-Verify Reports;
Arizona Department of Economic Security’s Unemployment Tax and Wage Report Documents
for 2018-2022 (including a Certificate of Authentication from the Records Custodian); a Notice of
Suspect Documents dated May 20, 2022, signed by the Assistant Special Agent in Charge
(including a Certificate of Service showing receipt on May 27, 2022); a Notice of Technical and/or
Procedural Failures dated May 20, 2022, signed by the Assistant Special Agent in Charge
(including a Certificate of Service showing receipt on May 27, 2022); a Report of Investigation
(including interim Reports); email correspondence between the Respondent business and
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).

9

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).
10

With some Forms I-9 having highlighted markings or red circles placed on certain sections or spaces.

5

18 OCAHO no. 1500b
Complainant; email correspondence between a contractor (with workers onsite at Respondent
business) and Complainant; a Memorandum providing “Interim Guidelines” for “Section
274A(b)(6)” signed by Paul W. Virtue, Acting Executive Commissioner, Programs (often referred
to as “the Virtue Memorandum); and the Notice of Intent to Fine (served on October 14, 2022 via
personal service).
The Court finds almost all 11 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 reliable document is highly probative, as
each is likely to assist the Court in making a factual determination relative to whether Complainant
can meet its burden on liability and penalty.
B. Respondent’s Evidence
With its Opposition, Respondent provided exhibits for the Court’s consideration, including: a
signed, sworn affidavit from the Respondent’s Vice President of Operations, and various tax and
financial documents from 2022. The Opposition also includes Respondent’s discovery requests,
and Complainant’s responses.
The Court finds Respondent’s documentary evidence to be reliable. The documents are sworn and
signed, and financial documents appear complete, and some are forms published by a government
agency. In each case, it is clear “that the document is what it purports to be[.]” United States v.
Carpo-Lingan, 6 OCAHO no. 914, 5 (1997). Moreover, each is highly probative, as each is
likely to assist the Court in making factual determinations, including those relative to the location
of the Forms I-9, and penalty.
IV.

FINDINGS OF FACT

Based on the reliable evidence presented by the parties, the Court makes the following findings of
fact.
1. Respondent is an Arizona business engaged in food manufacturing. Mot. Summ. Dec. 536.
2. Respondent business was incorporated in 1984. Opp’n 17.
3. Respondent is a “small business,” with less than 100 employees. Mot. Summ. Dec. 21.
4. In some instances, Respondent uses E-Verify, and has done so since 2007. Opp’n 15.
A. Inspection & Audit Resulting in Issuance of Notice of Intent to Fine

Excluded from this conclusion is the “Memorandum to Case File,” which is an internal memorandum
(unsigned and undated).

11

6

18 OCAHO no. 1500b
5. On April 7, 2022, a Homeland Security Investigations (HSI) Special Agent personally
served a Notice of Inspection on Klein’s Kosher Pickle Company (Respondent) on
Respondent’s Vice President of Operations. Mot. Summ. Dec. 24-6.
6. At the time of service of the Notice of Inspection, the HSI auditor informed the Respondent
it would be required to produce Forms I-9 for “all current employees, and any employee
terminated on or after March 31, 2021.” Mot. Summ. Dec. 539.
7. On April 21, 2022, an HSI Auditor received “107 Forms I-9 Active Employees,” and “54
Forms I-9 Termed Employees;” memorialized on a “Receipt of Property – DHS Form
6051R.” 12 Mot. Summ. Dec. 28.
8. On May 27, 2022, an HSI Auditor personally served a “Notice of Suspect Documents” 13
letter on Respondent (which identified seven individuals). Mot. Summ. Dec. 525-8.
9. On May 27, 2022, an HSI Auditor personally served a “Notice of Technical and/or
Procedural Failures Violations” 14 letter on Respondent Mot. Summ. Dec. 529-32.

Germane to the whereabouts of these original Forms I-9 referenced in the receipt, Complainant
submitted, as part of its Motion, email correspondence related to the location of the forms. Specifically,
the Auditor implicitly confirmed that Complainant retained “the original hardcopy Forms I-9,” and
explained they would not be returned until the matter was resolved. Mot. Summ. Dec. 602. Absent any
additional evidence or communication, the Court finds (as Respondent requested) that Complainant
possessed the Forms I-9 for its inspection, and has not shown (as a part of this record) the Forms were ever
returned to Respondent.
12

The Notice informs Respondent: “The identity and/or employment documents presented for such
employee(s) were found to relate to other individuals or have no record of issuance, or, if the documents
relate to the employees in question, such employees do not appear to have valid and/or current U.S. work
authorization.” Mot. Summ. Dec. 525.

13

When presenting this Notice, the Auditor informed Respondent that “in each case, the employee had
presented a fraudulent document to complete the Form I-9.” Mot. Summ. Dec. 545. The Respondent
business informed the Auditor (on June 7, 2022) that the individuals were previously terminated (six prior
to May 27, 2022 and one on June 2, 2022). Mot. Summ. Dec. 548.
14

The Notice informs Respondent:
This Notice and accompanying documents are to notify [Respondent] of the technical
and/or procedural failures violations identified and to provide a period of not less than 10
business days within which to correct these failures. Enclosed are copies of 37 Forms I-9
that contain technical and/or procedural failure violations. The technical and/or procedural
violations have been highlighted or circled in ink. They include one or more of the
following technical and/or procedural violations: [use of outdated or Spanish version of the
Form], [missing identification information or dates in Section 1], [no document or
identification title in Section 2], [missing identification information in Section 2], and
[missing identification information in Section 3].

7

18 OCAHO no. 1500b

10. On June 7, 2022, the Respondent provided a responsive submission to the Notice of
Technical or Procedural Violations which the Auditor concluded “adequately resolved” the
issues raised in the Notice. Mot. Summ. Dec. 552.
11. In conducting the audit, the HSI Auditor referenced and reviewed the following: State of
Arizona Corporation Commission website, “[databases],” Unemployment Insurance Tax
wage submissions filed with the Arizona Department of Economic Security, company
payroll records” against the provided Forms I-9. Mot. Summ. Dec. 550-2.
12. Following the review and cross-reference, the Auditor determined Respondent should have
produced 165 Forms I-9. Mot. Summ. Dec. 552.
13. Ultimately, the Auditor concluded that, in his estimation, 97 Forms I-9 contained
substantive paperwork violations, “including the failure of the employee to sign Section 1,
the failure of the employer to sign Section 2, the failure to record document information in
Section 2…, the failure of the employer to perform reverification of temporary employment
authorization required by Section 3…, [and] the failure to prepare the Form I-9 within the
statutory time requirement.” Mot. Summ. Dec. 552.
14. After conducting his review, the Auditor noted “the inspection did not result in any
information proving that the company knowingly hired, or knowingly employed
unauthorized workers.” Mot. Summ. Dec. 552.
15. On October 14, 2022, an HSI Special Agent personally served the Notice of Intent to Fine
(Form I-763) on the Human Resources Representative. Mot. Summ. Dec. 1038-43.
16. The Notice of Intent to Fine identifies two Counts, both Counts allege Respondent failed
to ensure that the employee properly completed Section 1 and/or 2 or 3 of the Form I-9 for
97 employees. Mot. Summ. Dec. 1041-43.
B. OCAHO Proceedings Commence
17. On November 8, 2022, Respondent requested a hearing. Compl. 17.
18. On June 6, 2023, Complainant filed its Complaint. Compl. 1.
19. The Complaint adopts the charging language of the Notice of Intent to Fine, which is to
say that for Count I, Complainant alleges that either Section 1 or Section 2 or Section 3 of
the Form I-9 was not “properly completed.” Compl. 3.
20. On July 28, 2023, Complainant filed its Answer. Answer 1.
[Respondent] has until June 13, 2022 to correct, or ensure the correction of, the highlighted
or circled failures on the accompanying Forms I-9. After this date, HIS will review these
forms to ensure the noted failures have been corrected. Any uncorrected technical and/or
procedural failures violations may result in the issuance of a Notice of Intent to Fine.

8

18 OCAHO no. 1500b

C. Findings of Fact Pertaining to Employment and Violations 15
21. The Court finds Respondent did employ 91 of the 92 16 individuals listed in Count I, and
each was hired after 1986. Answer 2-3.
22. The Court finds Respondent did employ all five individuals listed in Count II, and each
was hired after 1986. Answer 3.
23. Following is a table, accounting for each employee identified by number in the Complaint
with a corresponding violation (if any) as supported by the record evidence.
COUNT I TABLE
EMPLOYEE No.
1
2
3
4
5
6
7
8
9
10

VIOLATION
Section 1 missing address
Section 1 missing signature
Section 3 not completed 17
Section 2 untimely
Section 2 missing signature
Section 2 missing signature
Section 1 missing signature
Section 2 untimely
Section 2 missing signature
Section 2 incorrect signature

RECORD CITATION
Mot. Summ. Dec. 47-49
Mot. Summ. Dec. 53-56
Mot. Summ. Dec. 72-75
Mot. Summ. Dec. 83-86
Mot. Summ. Dec. 101-105
Mot. Summ. Dec. 106-110
Mot. Summ. Dec. 111-114
Mot. Summ. Dec. 115-118
Mot. Summ. Dec. 138-143
Mot. Summ. Dec. 144-146

As to Count I, Complainant provides boilerplate summations of why failures to properly complete
Section 1 and/or Section 2 violate the INA, and may be considered “serious” violations. Id. at 10. While
the recitation of the law is accurate, it does little to assist the finder of fact, who must identify the violation
at issue, and then assess an appropriate penalty for that violation. As to Count II, Complainant’s charging
language indicates the discrepancy could be anywhere on the Form I-9; however, the argument seems to
only address Section 2. See generally Mot. Summ. Dec. 11-12.
15

Along with its motion, Complainant provides the Court with an index-free pile of Forms I-9 (the order of
which does not match the order of employees in the Complaint.). Presenting Forms I-9 out of order wastes
time and limited judicial resources. Complainant must consider itself on notice that future motions of this
caliber may fair differently.
As to one of the employees listed (Employee #72), Respondent, in its Answer, states that individual was
never employed by Respondent. Answer 2. According to Complainant, “[o]n January 25, 2024,
Complainant agreed to remove [employee #72] from the calculation, which will result in a total of 96
violations.” Mot. Summ. Dec. 4. Frustratingly, the Complainant still included this Form I-9 for the Court’s
review as an attachment to its Motion for Summary Decision. Mot. Summ. Dec. 245-248.

16

This employee presented an Arizona driver’s license, a social security card noting “valid for work only
with DHS authorization,” and an employment authorization card, which expired on November 20, 2021.
Mot. Summ. Dec. 74-5.

17

9

18 OCAHO no. 1500b
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Section 2 missing signature
Section 2 missing signature
Section 2 not complete
Section 2 missing signature
Section 2 missing signature
Section 2 untimely
Section 1 missing signature
Section 2 untimely 18
Section 2 missing signature
Section 1 missing information 19
Section 1 missing information 20
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
NO VIOLATION 21
Section 1 missing information 22
Section 1 missing signature
Section 2 missing signature 23

Mot. Summ. Dec. 161-166
Mot. Summ. Dec.167-170
Mot. Summ. Dec. 171-172
Mot. Summ. Dec. 177-179
Mot. Summ. Dec. 189-192
Mot. Summ. Dec. 193-196
Mot. Summ. Dec. 205-209
Mot. Summ. Dec. 210-214
Mot. Summ. Dec. 215-218
Mot. Summ. Dec. 222-226
Mot. Summ. Dec. 240
Mot. Summ. Dec. 241-244
Mot. Summ. Dec. 252-257
Mot. Summ. Dec. 257-260
Mot. Summ. Dec. 266-268
Mot. Summ. Dec. 273-279
Mot. Summ. Dec. 287-290
Mot. Summ. Dec. 294-280

Respondent specifically referenced this employee in its Opposition filing, noting that it initiated the form
timely, and conducted an E-verify check of authorization statutes within a day of hire. Opp’n 4-5. While
a review of the Form I-9 and its supporting documents indicates these facts are accurate, there still remains
a deficiency with the Form I-9 – namely that Section 2 was signed and dated just over a year later. Mot.
Summ. Dec. 211.
18

The employee did not complete the address box; however the employee did complete all other portions
of Section 1, including signing and dating the Form I-9. Mot. Summ. Dec. 219.
19

The employee completed all of Section 1 (including signature), but failed to check the box associated
with her status; however, in Section 2, she provides a “List A” document that reveals she is a “resident
alien.” (The Form I-9 was completed in 1998 as an INS Form I-9). Mot. Summ. Dec. 240.

20

This employee completed Section 1 in its entirety (including signature), indicating she is a U.S. Citizen.
Section 2 is completed and signed on the same date of hire provided in Section 1. Complainant placed a
highlight over her “Citizenship/Immigration Status;” however, it matches the status she provided in Section
1. The documents she provided to her employer were photocopied (front and back), and were included
along with the Form I-9 for audit.

21

The employee did not provide her date of birth; however, this information is visible on the photocopied
identification included with the Form I-9. Mot. Summ. Dec. 273, 275.

22

This is the second employee Form I-9 with which Respondent takes issue in its Opposition. Opp’n 2.
Respondent notes Complainant, during the inspection, requested Respondent complete a new Form I-9 for
this employee based on a name discrepancy between the Form I-9 and payroll documents (matching social
security number). Mot. Summ. Dec. 577.

23

Respondent complied, and provided a complete Form I-9 for this individual, including a photocopy of the
identification page of his U.S. Passport. Mot. Summ. Dec. 295-297. While this revised Form I-9

10

18 OCAHO no. 1500b
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68

Section 2 missing signature
Section 1 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 1 missing signature
Section 2 missing signature
Section 2 signature untimely
Section 2 missing signature
Section 1 missing signature
Section 2 missing signature
Section 1 missing signature
Section 1 signature untimely
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 incorrect signature
Section 2 missing signature
Section 2 not completed
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 not completed
Section 2 not completed
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature

Mot. Summ. Dec. 301-306
Mot. Summ. Dec. 307-310
Mot. Summ. Dec. 315-318
Mot. Summ. Dec. 319-321
Mot. Summ. Dec. 322-327
Mot. Summ. Dec. 343-346
Mot. Summ. Dec. 347-349
Mot. Summ. Dec. 350-355
Mot. Summ. Dec. 356-359
Mot. Summ. Dec. 360-365
Mot. Summ. Dec. 377-381
Mot. Summ. Dec. 386-388
Mot. Summ. Dec. 389-392
Mot. Summ. Dec. 402-404
Mot. Summ. Dec. 415-419
Mot. Summ. Dec. 435-437
Mot. Summ. Dec. 30-34
Mot. Summ. Dec. 39-42
Mot. Summ. Dec. 43-46
Mot. Summ. Dec. 50-52
Mot. Summ. Dec. 57-59
Mot. Summ. Dec. 60-63
Mot. Summ. Dec. 64-68
Mot. Summ. Dec. 69-71
Mot. Summ. Dec. 77-82
Mot. Summ. Dec. 87-88
Mot. Summ. Dec. 89-90
Mot. Summ. Dec. 119-120
Mot. Summ. Dec. 121-123
Mot. Summ. Dec. 124-127
Mot. Summ. Dec. 128-130
Mot. Summ. Dec. 134-137
Mot. Summ. Dec. 147-157
Mot. Summ. Dec. 152-157
Mot. Summ. Dec. 158-160
Mot. Summ. Dec. 173-175
Mot. Summ. Dec. 180-183
Mot. Summ. Dec. 184-188
Mot. Summ. Dec. 197-199
Mot. Summ. Dec. 200-203

demonstrates the individual was authorized to work in the United States at the time of Form I-9 completion,
it does not absolve Respondent of liability for the missing signature in Section 2 of the original Form I-9.
Id. at 294.

11

18 OCAHO no. 1500b
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91

Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 not completed
Section 2 not completed
Section 2 missing signature
Section 1 missing signature
Section 1 signature incorrect box 24
Section 2 missing signature 25
Section 2 missing signature
Section 2 missing signature
Section 1 missing signature
Section 2 missing signature
Section 2 missing signature
Section 2 missing signature 26
Section 2 missing signature
Section 2 missing signature
Section 2 not completed
Section 2 missing signature

Mot. Summ. Dec. 227-230
Mot. Summ. Dec. 231-235
Mot. Summ. Dec. 236-239
Mot. Summ. Dec. 249-251
Mot. Summ. Dec. 261-265
Mot. Summ. Dec. 269-272
Mot. Summ. Dec. 280-283
Mot. Summ. Dec. 284-286
Mot. Summ. Dec. 291-293
Mot. Summ. Dec. 298-300
Mot. Summ. Dec. 311-314
Mot. Summ. Dec. 328-331
Mot. Summ. Dec. 332-336
Mot. Summ. Dec. 337-339
Mot. Summ. Dec. 340-342
Mot. Summ. Dec. 366-369
Mot. Summ. Dec. 370-373
Mot. Summ. Dec. 374-376
Mot. Summ. Dec. 382-385
Mot. Summ. Dec. 420-423
Mot. Summ. Dec. 424-427
Mot. Summ. Dec. 428-429
Mot. Summ. Dec. 430-434

The employee signed and dated in the “Preparer or Translator” box, and not in the “Signature of
Employee Box.” Mot. Summ. Dec. 328.

24

The employee signed as both employee in Section 1 and employer in Section 2; thus, the Court concluded
this Form I-9 is “missing” the employer signature in Section 2. Mot. Summ. Dec. 332-336.

25

The employee signed as both employee in Section 1 and employer in Section 2; thus, the Court concluded
this Form I-9 is “missing” the employer signature in Section 2. Mot. Summ. Dec. 382-383.

26

12

18 OCAHO no. 1500b
COUNT II TABLE
EMPLOYEE No.
1
2
3
4
5

VIOLATION
Section 2 missing signature 27
Section 2 documents insufficient 28
Section 2 missing signature 29
Section 2 missing signature 30
Section 2 missing signature 31

RECORD CITATION
Mot. Summ. Dec. 131-133
Mot. Summ. Dec. 393-401
Mot. Summ. Dec. 35-38
Mot. Summ. Dec. 219-222
Mot. Summ. Dec. 405-414

D. Findings of Fact Pertaining to Respondent’s Ability to Pay
24. Respondent filed tax returns each year, and provided its then most recent tax returns (2022)
for the Court’s consideration. Opp’n. 14, 17-113. 32
25. Respondent business has two shareholders, and has no pension or profit sharing (as listed
in its tax return). Opp’n. 17.
26. The shareholders took a distribution totaling $662,953. Opp’n 19.
27. Even after this distribution, the Schedule L Analysis of Total Retained Earnings Per Books
had an end of year balance of “$2,669,937. Opp’n 47.
This employee provided a California driver’s license and a social security card. The California driver’s
license has a facially implausible address (“1234 Any Street in City, CA 45267”). Mot. Summ. Dec. 133.

27

This employee provided his Cuban Passport as his List A document, and provided a driver’s license as
a List B document, and a DHS Form I-797C, Notice of Action, which provided notice of USCIS’ next
action on his pending I-765 Application for Employment Authorization (of note, the form expressly states:
“This notice does not grant any immigration status or benefit.”) Mot. Summ. Dec. 395.

28

This employee provided an Arizona driver’s license and a social security card. The Respondent also
maintained documentation from E-Verify for this employee which noted a “current case result” of
“employment authorized.” Mot. Summ. Dec. 37-8.
29

This employee presented a Texas driver’s license and a social security card. The Respondent also
maintained documentation from E-Verify for this employee which noted a “current case result” of
“employment authorized.” Mot. Summ. Dec. 222-3.

30

This employee presented a lawful permanent resident card and a social security card. Mot. Summ. Dec.
407. The Respondent also provided documentation from E-Verify – specifically, a “Further Action Notice”
for a “Tentative Nonconfirmation” as this employee’s social security number did not match DHS records.”
Id. at. 408. The tentative non-confirmation was dated September 22, 2021. Id. The Respondent also
maintained and provided to Complainant a follow-on E-Verify document which shows that, on October 14,
2021, the Respondent “terminated [employee] for receiving a Final Nonconfirmation result.” Id. at 411.

31

Unless otherwise stated, all findings of fact which follow are derived from the 2022 tax return, including
supplementing documentation.

32

13

18 OCAHO no. 1500b
28. The Respondent had “loans to shareholders” in tax year 2022 (beginning of tax year
$62,572 and end of tax year growing to $122,843). There were no corresponding loans
from shareholders reported for the tax year. Opp’n 20.
29. For tax year 2022, Respondent had total assets of $6,007,658. Opp’n 17.
30. For tax year 2022, Respondent had gross profit of $7,532,063; and total income of
$7,646,817. Opp’n 17.
31. Compensation of officers and salaries and wages were $5,248,322. Opp’n 17.
32. As to repairs and maintenance, rents, and taxes and licenses, the Respondent’s deductions
totaled $994,840. Opp’n 17.
33. Respondent deducted $2,129,481 in depreciation, 33 and took a deduction of $1,618,409 in
“other deductions.” 34 Opp’n 17.
34. As a result of the income and deductions, the Respondent reported an ordinary business
“income (loss)” of negative $2,374,101.
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 35 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.
According to the IRS Depreciation and Amortization Form (Form 4562), Respondent claimed “other
depreciation” for equipment and vehicles including several non-commercial vehicles (i.e. a “2000 Lexus…
auto-Jeep, 2011 Ford F-150, 2013 Ford F-250, 2015 Dodge, 2016 Dodge Ram [pick up], 2017 Dodge truck,
2017 Dodge Ram 1500, 2019 Toyota Highlander, 2019 [Dodge] Ram 1500, 2019 Dodge Durango, 2019
Dodge Ram 2500 [pick up], 2020 Dodge Ram, Toyota 4Runner, 2019 Cadillac Escalade, GMC Yukon
Denali, 2020 Chevy Silverado, [and a] 2021 Ram 2500). Opp’n 32-41.

33

The “other deductions” include a line item for “legal and professional” expenses of $135,153. Opp’n
45.

34

“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), then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 284 (1986)).
35

14

18 OCAHO no. 1500b
Four Seasons Earthworks, Inc., 10 OCAHO no. 1150, 3 (2012) (citing Celotex Corp. v. Catrett,
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).
While Respondent initially argues in its motion there is a genuine issue of material fact, the
substance of the motion and the exhibits which accompany it belie such a position. The
Respondent lodges several arguments pertaining to liability; however, they do not turn on the
sufficiency of the record, rather they rely on Complainant’s misinterpretation of its own submitted
exhibits.
Further, Respondent’s exhibits add to the evidentiary record (vice contradicting
evidentiary submissions of the Complainant.) There are no genuine issues of material fact.
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)).
As is set forth in the applicable regulation, 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) (internal citations omitted). 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.
Employers must ensure new employees complete Section 1 of the Form I-9 and attest to citizenship
or immigration status in the United States by signing and dating the Form I-9. 8 C.F.R. §
274a.2(a)(3) (attestation under penalty of perjury), (b)(1)(i)(A).
Employers must sign Section 2 of the Form I-9 within three days of the employee’s first day of
employment to attest under penalty of perjury that it reviewed the appropriate documents to verify
the individual’s identity and employment authorization. 8 C.F.R. § 274a.2(a)(3), (b)(1)(ii); United
States v. Psychosomatic Fitness LLC, 14 OCAHO no. 1387a, 8 (2021).
Here, the record reveals no instances of a complete failure to prepare and/or present a Form I-9 for
any current or former employee, rather the Respondent prepared Forms I-9, but did not complete
all sections, or did not complete them accurately in all but one instance. 36 The Respondent’s Forms
I-9 had deficiencies in either Section 1 or Section 2, and those deficiencies can be characterized as
either leaving the section blank in its entirety, failing to complete or fill out portions of the Section,
36

This is Charged Employee #25 in Count I. See Mot. Summ. Dec. 266-268.

15

18 OCAHO no. 1500b
or failing to sign the Section. In many instances, Respondent retained and provided with each
Form I-9 a photocopy of identification documents and/or E-Verify documentation.
C. Penalty Law & Analysis
“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).
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. 37
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
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 July 3, 2025, the minimum
penalty is $288.00 per individual, and the maximum is $2,861.00 per individual.

37

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 July 3, 2025, making the appropriate penalty range
between $288.00 and $2,861.00 per individual.

16

18 OCAHO no. 1500b
must consider when assessing a penalty: 1) the size of the employer's business; 2) the employer's
good faith; 38 3) the seriousness of the violations; 39 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 40 of
the enumerated factors, it does not mandate any particular outcome
of such consideration, and nothing in the statute or the regulations
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).
38

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)).
39

As the Court has concluded previously:
Failure to ensure that an employee checks the box attesting to his or her status in section 1
is serious because if the employee fails to provide information sufficient to disclose his or
her immigration status on the face of the form, the employee’s signature attests to nothing
at all (internal citation omitted). Failure to ensure that the employee signs section 1 is also
serious because the employee has not attested to being authorized to work in the United
States. (internal citation omitted). An employer’s failure to complete the attestation in
section 2 is also very serious because section 2 is considered “the very heart” of the
verification process. (internal citation omitted). The failure to properly verify a document
under List A or Lists B and C in section 2 is also serious. (internal citation omitted).

United States v. Alpine Staffing, Inc., 12 OCAHO no. 1303, 18 (2017).
“[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). For
example, a failure to prepare or present any Form I-9 is more serious than a failure to timely present a Form
I-9. See Alpine Staffing, Inc., 12 OCAHO no. 1303, 18 (2017).
The statute does not require mathematical offsetting, rather each statutory factor must receive “due
consideration.” 8 U.S.C. § 1324a(e)(5).

40

17

18 OCAHO no. 1500b
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)).
1. Statutory Factors Analysis
a.

Small Business Statutory Factor

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 41 to be small businesses.” 1523 Ave. J Foods, Inc., 14 OCAHO no. 1361, at
6 (citation omitted). Respondent is a small business. This status will serve to mitigate the penalty.
b.

Good Faith/Bad Faith Statutory Factor

This record presents no evidence of bad faith, indeed the Respondent attempted to complete Forms
I-9 for all its employees. However, the absence of bad faith does not result in de facto conclusion
that a respondent has acted in good faith – to assess this statutory factor the Court must consider
the unique facts presented in this case. See United States v. Pasquel Hermanos, Inc., 18 OCAHO
no. 1506f, 14 (2025).
The good faith analysis’ “primary” focus is centered on pre-inspection conduct; however, nothing
in statute requires pre-inspection conduct to be the only consideration. Alpine Staffing, 12
OCAHO no. 1303, at 15 (internal citations omitted). 42 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.
The Court finds Respondent’s pre-inspection conduct demonstrated good faith. Respondent
attempted to complete Forms I-9 for each employee. Respondent retained copies of identification
documents presented in many instances. Respondent also utilized E-Verify, 43 and retained in its
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.

41

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.

42

43

For context, the USCIS E-Verify User Manual (M-775) explains:

18

18 OCAHO no. 1500b
records proof of E-Verify usage in many instances. While none of these steps, individually or
collectively, absolve them from liability, they do provide circumstantial evidence of good faith on
the part of the Respondent. The record does not indicate instances of backdating. See United
States v. R&SL Inc., d/b/a Total Employment And Management (TEAM), 13 OCAHO no. 1333b
(2022); see also United States v. HDB Network, 18 OCAHO no. 1483a (2024). Additionally,
during the inspection and in the time preceding the receipt of the Notice of Intent to Fine this
employer engaged with Complainant, and was responsive during the investigation to Complainant
requests. 44
Overall, the reasons outlined here serve to significantly 45 mitigate the penalty where appropriate.
c.

Seriousness of the Violations Factor

The violations here are serious violations. Respondent’s errors and omissions include leaving a
section blank in its entirety, failing to complete or fill out portions of the section, or failing to sign
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA), which required the Social Security Administration (SSA) and U.S.
Citizenship and Immigration Services (USCIS), formerly the Immigration and
Naturalization Service (INS), to conduct an employment verification pilot program. Under
the U.S. Department of Homeland Security (DHS), USCIS operates the E-Verify program,
previously referred to as the Basic Pilot program. E-Verify is a free internet-based system
that implements the requirements of IIRIRA by allowing any U.S. employer to
electronically confirm the employment eligibility of its newly hired employees.
Employers are required to timely and properly complete and retain Form I-9 for each
employee they hire. The first day of employment means the first day an employee works
in exchange for wages or other remuneration. These Form I-9 requirements also apply to
E-Verify employers. With the goal of ensuring a legal workforce, employers enrolled in EVerify have chosen to take the additional step of electronically confirming that information
their employees provide match government records.
Manual at pages 2-3, 16.
E-Verify is not a substitute for the Form I-9, rather it is a tool employers may use to verify employment
eligibility. See United States v. Golden Employment Group, Inc., 12 OCAHO no. 1274, 8 (2016). While
not expressly made here, it is foreseeable that one could make the argument on this record that aggregating
E-Verify documentation alongside photocopies of identification documents could constructively
demonstrate compliance, precedential case law forecloses such an argument. “As pointed out in Ketchikan
Drywall Services., Inc. v. Immigration & Customs Enforcement, 725 F.3d 1103, 1111 (9th Cir. 2013),
“‘[f]ully’ means ‘fully,’ and not . . . ‘partially.’” The court noted that section 2 provides evidence that the
employee’s documents were examined, and “aggregation of all of the relevant information onto one form
allows for easier review of that information by ICE.” United States v. Golden Employment Group, Inc., 12
OCAHO no. 1274, 11 (2016).
For example, Complainant requested Respondent complete a Form I-9 for employee #28 post-inspection,
and Respondent business did so.
44

45

Specifically, proof of documents presented coupled with substantial use of E-Verify is highly mitigating.

19

18 OCAHO no. 1500b
the section. While it is certainly the case that these are not the most serious of all violations (i.e.
this Respondent did prepare and present some Forms I-9, albeit deficient ones), in accordance with
OCAHO precedent, they are still considered to be serious.
The penalty will be aggravated in light of the seriousness of the violations here; however, the
degree to which the penalty will be aggravated will be consistent with OCAHO precedent which
considers seriousness on a continuum. To that end, Forms I-9 which have missing or untimely
provided information or missing or incorrect signatures are less serious than Forms I-9 where
entire sections were not completed. As it relates to the seriousness of the violations, the penalty
assessed shall reflect this reality.
d. Presence of Unauthorized Aliens
As to unauthorized aliens, Complainant argued the five employees listed in Count II were
“determined to be unauthorized workers.” Mot. Sum. Dec. 6. Complainant concedes it “did not
charge [Respondent] with any knowingly hire violations,” but asserts the five employees in Count
II were unauthorized to work in the United States. 46 In support of this proposition, they argue “all
five employees were found to have been utilizing false driver’s licenses, social security numbers
that did not belong to them, or failed to produce evidence of valid authorization to work. An
example of this was [Employee 1 of Count II] who submitted a driver’s license which contained
[a patently fraudulent address.]” Mot. Summ. Dec. 12.
While it is true the statute requires a respondent verify that “an individual is not an unauthorized
alien,” such verification occurs through an “examination” of documents. (b)(1)(A). With no
additional evidence (beyond the photocopied documents) from the Complainant on how it came
to its conclusion, the Court is left to consider only those photocopied documents attached to the
Forms I-9 at issue.
On the record provided by Complainant, the Court cannot find Complainant has met its burden as
to Count II employees 3, 4, and 5 – all of whom presented facially valid documents. At best,
Complainant may be seeking to rest of the laurels of a something akin to a social security
mismatch, but social security mismatch alone is insufficient. See United States v. SKZ Harvesting,
Inc., 11 OCAHO no. 1266, 16 (2016). 47
Complainant provides a series of arguments pertaining to constructive knowledge, but these aren’t
particularly useful as they did not charge an offense which requires “knowledge” of an unauthorized alien
– constructive or otherwise. Mot. Summ. Dec. 14-16.

46

A close reading of the language of the statute requires only that the Court give “due consideration [to]
whether or not the individual was an unauthorized alien.” 8 U.S.C. § 1324a(e)(5). Functionally, whether
Respondent “knew” or not is immaterial. The focus of the analysis is, instead, whether the Complainant
has met its burden (i.e. Complainant must show, by preponderant evidence, that the individual in question
is an unauthorized alien). See generally United States v. Durable, Inc., 11 OCAHO 1229 (2014).
47

In SKZ Harvesting Inc., the Court explained:
As explained in Aramark, social security mismatches arise for a variety of reasons,
including typographical errors, name changes, compound last names, and inaccurate or

20

18 OCAHO no. 1500b

For similar reasons, the Court can conclude that Employee 2 of Count II is an unauthorized alien
based on the photocopied documents. He presents a foreign passport, and thus presumptively, he
cannot work in the United States. Alongside that foreign passport, he presents evidence he is
seeking work authorization, which allows a finder of fact to circumstantially conclude he did not
have work authorization at the time the Form I-9 was completed (Generally, an individual does
not seek something already in his possession.).
Employee 1 of Count II presents a different query. He presents a driver’s license with a suspect
address (1234 Any Street in City, CA) and a social security card. Understandably, this driver’s
license should give any human resources professional pause; however, the social security card
appears valid on its face. Again, returning to the statute, it is the social security card in this instance
which “evidence[es] employment authorization.” (b)(1)(C)(i). While this Form I-9 and its
corresponding photocopied documents demonstrate Respondent’s failure to follow the law,
Complainant here (in doing nothing other than providing the Form I-9 and the photocopy) has
failed to meet its burden to aggravate the penalty for this Form I-9 for this reason. 48
The penalty will only be aggravated as to employee 2 of Count II.
e. History of Violations Factors
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[.]”).

incomplete employer records. Aramark Facility Servs. v SEIU, Local 1877, 530 F.3d 817,
826 (9th Cir. 2008). By its own estimate, SSA’s database contains millions of errors. Id. A
social security mismatch accordingly does not serve to establish that a particular individual
is unauthorized for employment. A NSD is not sufficient in itself to establish a worker’s
unauthorized status either. United States v. Romans Racing Stables, Inc., 11 OCAHO no.
1230, 8 (2014).
11 OCAHO no. 1266, 16 (2016).
Compare with United States v. Visiontron Corp., 13 OCAHO no. 1348, 9 (2020) (“Complainant
aggravated the penalties for the violations in Count IIIA based on the presence of unauthorized workers.
Complainant provided the declaration of its auditor… who states that he ran Respondent’s employees’
names and alien numbers through several databases and the database results showed that for the individuals
in Count IIIA, the alien number provided either belonged to another individual or was never issued at all…
Complainant also provided a copy of the database results which confirm [the auditor’s] findings... As such,
Complainant has met its burden to prove the presence of six unauthorized workers listed in Count IIIA, and
the penalties are aggravated as to these workers.”)

48

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2. Non-Statutory Factors Analysis 49
Respondent asks the Court to consider its ability to pay a civil penalty and provides financial
documents from tax year 2022 in support of its position.
“The party seeking consideration of non-statutory factors ‘bears the burden of showing that the
factor should be considered as a matter of equity and that the facts support a favorable exercise of
discretion.’” United States v. R&SL Teams Inc., D/B/A Total Employment And Management
(TEAM), 13 OCAHO no. 1333b, 40 (2022). (internal quotation omitted).
As the Court previously explained:
OCAHO routinely considers “inability to pay” as a non-statutory factor. See
Psychosomatic Fitness LLC, 14 OCAHO no. 1387a, at 10 (citations omitted). “To
establish inability to pay, the employer should provide ‘detailed financial
statements so that the Court can consider the “complete picture of [the business’s]
financial health.”’” Id. (citations omitted).
If a respondent provides a sufficient quantum of evidence on a non-statutory factor,
then “as a matter of equity, the ALJ may weigh the facts to determine whether
discretion warrants adjustment of the fine.” (citations omitted). “[P]enalties are not
meant to force employers out of business or result in the loss of employment for
workers.” (citations omitted).
“[I]t is well established in our case law that a corporation’s ability to demonstrate
tax losses does not necessarily establish either a company’s poor financial condition
or its inability to pay.” United States v. Mott Thoroughbred Stables, Inc., 11
OCAHO no. 1233, 5 (2014) (citations omitted).
Id. at 40-41.
First the Court must consider the evidence presented. The evidence presented here is sufficient.
It is “detailed,” and permits the Court to consider “a complete picture of the business’ financial
health.” United States v. Eriksmoen Cottages, Ltd., 14 OCAHO no. 1355a, 7 (2020).
Ultimately, mitigating a penalty based on the financial health of a business and its ability to pay a
fine is a matter of discretion, viewed through a lens of equity. See United States v. Psychosomatic
Fitness LLC, 14 OCAHO no. 1387a, 13 (2021).

As the Court has previously concluded: “8 U.S.C. § 1324a(e)(5) does not rule out consideration of
additional factors as may be appropriate in a specific case.” Alpine Staffing, 12 OCAHO No. 1303, 10
(20##) citing United States v. Hernandez, 8 OCAHO no. 1043, 660, 664 (2000).
49

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On this record, the Court declines to mitigate the penalty for the reason requested by Respondent.
In concluding the Respondent did not meet its burden of persuasion (i.e. Respondent did not show
it would be unable to pay a civil penalty), the Court considered the following:
1. The shareholder distribution and loans to shareholders (over $784,000 combined), noting;
2. The value (over $6,000,000) and potential discretionary aspects of Respondent assets (i.e.
some of the fleet of non-commercial vehicles);
3. The Respondent’s gross profit and total income;
4. The Respondent’s total retained earnings, and
5. The likelihood Respondent’s legal fees are non-recurring 50 as they likely encompassed the
instant litigation.
VI.

PENALTY ASSESSMENT AND ORDER

Respondent is liable for 90 violations alleged in Count I and five violations in Count II. The Court
will assess a total civil penalty of $74,800.
The Court has given each statutory factor due consideration in assessing a penalty. The Court
considered the non-statutory factor of “ability to pay,” but does not find the Respondent has met
its burden to mitigate the penalty based on the evidence presented.
As to Count I, the Court concluded that, in ten instances, 51 the Forms I-9 had missing information,
or were untimely completed. These Forms I-9 will be assessed a civil penalty of $700 per Form.
As to Counts I and II, the Court concluded that, in 76 instances, 52 the Forms I-9 had a missing or
incorrect signature. Of these violations 74 of the Forms will be assessed a civil penalty of $700
per Form. Employee 80 of Count I’s Form I-9 will be assessed a civil penalty of $300, because
the signature was present, but placed in an adjacent signature box. Employee 1 of Count II’s Form
I-9 will be assessed a civil penalty of $1,500 because this employee provided a facially suspect
document.
As to Count I, the Court concluded that, in eight instances, 53 the Forms had blank or missing
sections. These Forms I-9 will be assessed a civil penalty of $1,500 per Form I-9.

50

See RSL Teams at 42.

51

These are employees: 1, 4, 8, 16, 18, 20, 21, 26, 39, 44.

These are Count I employees: 2, 5, 6, 7, 9, 10, 11, 12, 14, 15, 17, 19, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35,
36, 37, 38, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71,
72, 73, 74, 75, 78, 79, 80,* 81, 82, 83, 84, 85, 86, 87, 88, 89, 91.
52

These are Count II, 1, 3, 4, 5
53
These are employees: 3, 13, 52, 56, 57, 76, 77, 90.

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18 OCAHO no. 1500b
As to Count II, the Court concluded that Employee 2 was patently unauthorized to work in the
United States at the time the Form I-9 was completed based on the documents submitted. As noted
above, the penalty will be aggravated as to that employee. The civil penalty assessed for that Form
I-9 is $2,200.
The Court ORDERS Respondent to pay $74,800.
SO ORDERED.
Dated and entered on January 14, 2026.
__________________________________
Honorable Andrea R. Carroll-Tipton
Administrative Law Judge

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18 OCAHO no. 1500b
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Aa486875731de774d. Public record. Not legal advice.