Tiny, Virtually Unknown Agency Dilutes Penalties for I-9 Violations

By David North on September 16, 2013

If Immigration policy-making in the United States were a huge mosaic — with large colorful splotches being the White House and Congress, with USCIS and the Border Patrol occupying major, but less prominent positions, OCAHO would be a little grey blur near the edge of the big picture.

If a falling leaf stuck to it, you would not see it at all.

Not heard of OCAHO? Are the initials pronounced "Ach ooo", as in a sneeze? I don't know, as I have never heard it discussed verbally.

 

Virtually no one outside a small subset of immigration lawyers has any knowledge of the Office of the Chief Administrative Hearing Officer, which is the smallest of the three parts of the Executive Office for Immigration Review (EOIR), the home of immigration judges and the Board of Immigration Appeals (BIA); EOIR, in turn, is an entity within the U.S. Department of Justice.

Tiny though it is, and quasi-independent as it is, OCAHO plays a dutiful role in the government-wide trend to downplay the enforcement of immigration law, as displayed in this all-too-typical headline in the immigration bar's trade paper, Interpreter Releases (IR) on September 2, 2013:

 

"OCAHO Again Slashes Penalties in Employer Sanctions Case Against Small Business"

 

One of OCAHO's roles in life is to review proposed fines laid against employers who either hire illegal aliens or fail to keep staff records (the I-9s) in keeping with the employer sanctions part of immigration law. The fines are proposed by Immigration and Customs Enforcement (ICE), a major entity within the Department of Homeland Security, and under this administration a not very gung-ho immigration law enforcement organization.

Some employers caught by ICE appeal the fines and get, at the very least, a postponement of the payments if not a reduction or an elimination of them by OCAHO.

An Interview with William Riley
on Penalties for Illegal Employment:

View the Full Interview

The misbehaving employer in the instant case is Platinum Builders of Port Charlotte, Fla. IR called it a "small, family-owned and operated construction business" despite the fact that the files show that ICE had charged it with violations involving 69 workers, some of whom were "unauthorized aliens". ICE also said that the firm operated with "bad faith".

ICE wanted to charge what sounds to me like a substantial business $70,966.50 in fines, but Administrative Law Judge Ellen K. Thomas reduced the fine by more than two-thirds, to $23,700. As usual in these articles, there were no data on the amount of money that Mr. Garza, the owner, did (or did not) save because he hired illegals. The full text of the judge's 13-page decision can be seen here.

This was not an unusual decision for either the agency or for Judge Thomas; as a matter of fact, in the period July 29 through September 2, there were six weekly issues of IR. OCAHO issued nine decisions of this type during this period, all signed by Judge Thomas. The IR headlines were, respectively, starting with the July 29 issue:

"OCAHO Again Reduces Penalties for Small Business I-9 Violations"
 

"OCAHO Substantially Reduces Penalties in Two Employer Sanction Cases"
 

"OCAHO Gives Employer Option of Paying Reduced Penalty or Accepting ICE's Offer of Three-Year Payment Plan"
 

"OCAHO Significantly Reduces Penalties in Three More Employer Sanction Cases"
 

"OCAHO Again Slashes Penalties in Employer Sanction Case Against Small Business"


"OCAHO Again Slashes Penalties in Employer Sanction Case Against Small Business"

No, your eyes are not playing tricks on you; the IR copy desk used exactly the same headline, over two different articles, in the August 26 and the September 2 issues.

Perhaps the copy desk, and the reader, will notice that there appears to be a pattern here.

My favorite case in the above articles was described in the July 29 issue, the one covered by the first headline above.

The "small business" in question is Pharaoh's Gentlemen's Club, Inc., of Cheektowaga, N.Y., a largish suburb of Buffalo. It is, according to Judge Thomas, "an adult entertainment" entity. Although no illegals were found to be working there, Pharaoh's had been more than careless with its I-9 process, and ICE wanted to levy a fine of $38,335 for failing the reporting requirements 40 times.

Pharaoh's appealed the level of the fine, citing among other things, three other brushes with the law that had proved expensive to the club, and thus a limited ability to pay the feds. This might be called the "we are sleazy" defense and was described by IR as follows:

Pharaoh's argued that the minimum penalty should be assessed because it was under extreme financial pressure due to a sales tax audit resulting in a tax liability increase of approximately $120,000, a $5 million personal injury action against it arising out of an accident involving a drunken customer, and a $63,000 unemployment insurance assessment resulting from the employee status change of the dancers from "independent contractors" to "employees".

Instead of throwing the book at the bums, Judge Thomas reduced the size of the fine, as the headline suggested, to $17,500. The text of her decision can be seen here.

As a one-time minor executive in the unemployment insurance business, I was particularly upset by the unemployment insurance (UI) reference. What Pharaoh's had done, presumably successfully for a while, was to avoid paying UI taxes to the State of New York, on the grounds that the dancers were not really employees. In that way the dancers could not collect unemployment benefits.

Returning to the mosaic image, perhaps OCAHO is not a grey blur at all, it is a small, but distinctly black mark on the big picture.