The Curious Importance of How and When Hearing Requests Are Filed with ICE

By Dan Cadman on October 9, 2018

A few days ago, Law 360 (partially behind a paywall) published an article about a case in which a company, United Valve LP of Texas, decided to contest civil fines being levied against it by Immigration and Customs Enforcement (ICE) for the use of illegal alien workers.

Companies charged with such violations under Section 274A of the Immigration and Nationality Act (INA) have such a right via a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within the Justice Department's Executive Office for Immigration Review (EOIR).

In the instant case, the company decided at the very last moment — literally on the final day — to file the request for hearing with the charging ICE office by courier delivery. The courier was prohibited from effecting delivery to the office by security guards and, as they instructed, took it instead to a drop box, where he apparently posted a photo of himself dropping it off.

Later, the company received notice from ICE that, because of failure to file a timely request for a hearing, the fines were deemed final and payable. United Valve in turn sued in U.S. district court, where the matter is still pending.

It is clear from the undertone of the Law 360 article that there is no understanding at all as to why official government offices should decline to accept courier-carried documents; one gets the sense that it was looked upon as arbitrary and capricious. This, in turn, puzzles me. The reason is, quite simply, for the safety and security of everyone in that building, ICE employees or otherwise.

Federal agencies have become extremely cautious in a post-9/11 era about accepting anything that isn't routed appropriately through the mails. And it isn't just about improvised explosive devices (IEDs), although that is certainly a risk, as the Unabomber has showed us in the past. It is also about the potential delivery of poisons and toxic chemicals and powders in those packages.

Google the phrase "ricin in the mail" and you will see a disturbing list of the many times malefactors have attempted to deliver the deadly poison ricin by courier or mail. It happened again just last week, when a subsequently identified-and-arrested individual attempted to mail castor beans (from which ricin is made) to the White House and Pentagon. Shortly afterwards, a "white powdery substance" that turned out to be non-toxic was mailed to Sen. Ted Cruz's Houston campaign headquarters.

While nothing can completely eliminate those risks, establishing a required delivery regimen at least minimizes them, because the U.S. Postal Service exercises a tremendous amount of caution in how it handles documents and packages these days, and with good reason. Some postal collection centers now not only x-ray and bio-test packages for evidence of IEDs or trace levels of poisons, but in Washington, D.C., they even require their employees to wear hazmat suits while handling packages.

But back to the dilemma confronted by United Valve: I don't know whether the courier delivery attempt occurred during or after business hours — which certainly makes a difference in the context of timeliness of the decision to appeal, as surely as it would if one were to attempt to file an appeal with a court after the end of the day that the appeal was due. But if the courier's photo shows a timely attempt at delivery to the drop box during business hours, then it seems to me that ICE should move to dismiss the lawsuit, by agreeing to give the company its day in OCAHO court.