OCAHO reduces I-9 fine from $82,280 to $15,800

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In USA v. Siwan & Sons, Inc. (May 3, 2013) the Office of the Chief Administrative Hearing Officer (“OCAHO”) decided to reduces fines imposed by the Immigration and Customs Enforcement (“ICE”) agency on a rather small employer (owner of 2 subway restaurants) for 72 I-9 violations, finding that the fact that ICE chose to disbelieve the employer’s explanation for completing forms late did not constitute evidence of bad faith.  As previously stated by the OCAHO, proportionality is critical to setting penalties and the amount should be sufficiently meaningful to accomplish the purpose of deterring future violations without being “unduly punitive” in light of the respondent's resources.  An additional strong factor in favor of leniency to this small employer was the legislative policy preference expressed in the Small Business Regulatory Enforcement Fairness Act of 1996, which calls generally for reducing civil penalty assessments on small entities.  Penalties were therefore adjusted as a matter of discretion to an amount nearer the lower end of the penalty range and set at $200 for each violation. The total penalty was $15,800 instead of $82,280.