"In order to establish liability for a particular violation, it is first necessary for the government to state with specificity what the violation is. See United States v. Stanford Sign and Awning, Inc., 10 OCAHO no. 1145, 7 (2012). ICE was accordingly directed after the prehearing conference to state with specificity each violation alleged in Count III, and it has not done so. Instead, ICE says only that Super 8 failed to correct technical or procedural errors because it did not initial and date each correction, and because the company backdated twenty-two of the corrections. The Virtue Memorandum, however, says that failure to date and sign a correction to a technical or procedural error does not alone convert the error into a substantive violation. See Virtue Memorandum, supra, at 6 n.7. ICE cited no legal authority for the proposition that failure to date and initial corrections made after being served with a notice of technical and procedural failures results in a substantive violation, or how its assertions are to be reconciled with the language of the Virtue Memorandum. Cf. Stanford Sign, 10 OCAHO no. 1145 at 8-9.
While this office is not bound by the Virtue Memorandum, ICE is so bound and failure to follow its own guidance is grounds for dismissal of claims that are not in alignment with those guidelines. See Occupational Res. Mgmt., 10 OCAHO no. 1166 at 6-7. ICE actually did little more than point to the I-9s and the “additional information written into the circled areas.” Because the original I-9s are not part of the record, I am unable to compare the corrected I-9s to the originals or to reconcile ICE’s assertions with the Virtue Memorandum.
Super 8 has asserted virtually since the onset of this case that Count III did not state with specificity what violations occurred on each I-9, therefore depriving the company of adequate notice of the alleged violations. In its first amended answer to the amended complaint, Super 8 again argued that the government failed to provide any facts identifying the alleged violations as required by 28 C.F.R. § 68.7(b)(3), and requested that these allegations be dismissed. After the prehearing conference, the government was instructed to identify with specificity each of the violations in Counts II and III; it did so for Count II but not for Count III. I have no intention of guessing what violations ICE intended to allege or how to reconcile them with the Virtue Memorandum. The government was given an opportunity to clarify its allegations. It has not done so. Count III will be dismissed. ...
... Because Super 8 is found liable only for twenty-one violations rather than the forty-one alleged in the amended complaint, the government’s calculation of the baseline fine under its guidelines would have to be commensurately reduced based on a 27% violation rate rather than the 62% rate ICE initially employed. Such a recalculation would result in a baseline penalty of $440 for each violation. While the figure appears somewhat on the low side in light of the seriousness of the violations, taking into account the business losses reflected on Super 8’s tax returns for 2010 and 2011 as well as the record as a whole, I decline to alter that amount and therefore direct that Super 8 pay civil money penalties in the amount of $9240." - USA v. Super 8 Motel & Villella Italian Restaurant, July 22, 2013.