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Immigration Law

OCAHO Reduces I-9 Fine from $87K to $17K

"ICE’s motion for summary decision sought penalties in the amount of $86,933.00 and offered in support the Declaration of Karen Rahlf, Forensic Auditor, dated October 18, 2011 and an accompanying Memorandum to Case File Determination of Civil Monetary Penalty.  The government asserts that the baseline fine was calculated at $770.00 based on the fact that 45% of March’s I-9s contained substantive violations.  The penalties were then aggravated for lack of good faith, for seriousness of the violations, and for the involvement of unauthorized aliens, resulting in an enhancement of $115.50 each for a total of $885.50 for each violation. ... While March did not file evidentiary materials in response to the government’s supplemental filings, documents previously filed by the company reflect a deteriorating financial position starting in 2009 and a precipitous drop in the number of employees at the end of 2011. The profit and loss statement accompanying its response to the motion reflects a loss of $808,306.65. ICE did not dispute March’s assertion that the company’s continued existence had become dependent upon its ability to negotiate terms with its customers and creditors. ... The presence in the workforce of suspect employees does not provide a basis for aggravating penalties across the board based on this factor.  Because ICE submitted no evidence as to whether any specific individual named in the complaint was in fact unauthorized for employment, this factor may likewise not be used as a basis upon which to aggravate the penalties. ... Considering the record as a whole, the amounts originally requested appear disproportionate to the current status and resources of the employer and the penalties will be adjusted as a matter of discretion to a more modest level.  For the most serious violations in Counts I and VII, the penalties will be set at $400.00 for each violation for a total of $4400.00 for those two counts.  For the sixty-six violations in Counts II-VI, the penalties for each violation will be assessed at the rate of $150.00 for a total of $9900.00, and for the twenty-seven violations in Count VIII the penalties will be set at the regulatory minimum of $110.00 each for a total of $2970.00. In all the penalties for these counts would total $17,270.00, but $150.00 will be deducted so that Jeffrey J. Specht’s I-9, which was included in both Counts V and VI, is not penalized twice.  The total penalty is therefore $17,120.00." - USA v. March Construction, Inc., 10 OCAHO 1158, Nov. 13, 2012.