Disputes between employers and U.S. Immigration and Customs Enforcement (ICE) are heard by the U.S. Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO), which rules on issues arising under the Immigration and Nationality Act (INA) such as the known hire and ongoing employment of foreign nationals who are not authorized to work in the United States (including violations of the Form I-9 requirements), immigration-related unfair employment practices, and immigration-related document fraud.

In a recent case titled United States v. California Mantel, Inc., OCAHO addressed ICE’s persistent refusal to enter into settlement agreements with employers who receive Notices of Intent to Fine for Form I-9 violations unless the employer signs a Consent Agreement with a corresponding admission of liability. In the case, the employer was charged with several Form I-9 paperwork violations under INA § 274A(a)(1)(B) and reached a negotiated settlement to fully resolve the case. However, ICE then made the settlement contingent upon the execution of a Consent Agreement, the terms of which required an admission of liability as well as an acknowledgement that any subsequent violations by the employer would be treated as repeat violations and subject to enhanced penalties. After the employer refused that contingency, ICE withdrew from the settlement, prompting the employer to file a motion to enforce the agreement.

As evidence that the agreed settlement offer was not contingent on admitting liability, the employer presented a series of emails to confirm that an admission requirement was not part of the settlement negotiations with ICE. The OCAHO administrative law judge found that ICE never stated in the emails that the settlement would be subject to any additional terms, admission of liability, or subsequent treatment as a repeat offender. As a result, the administrative law judge concluded that since ICE agreed to a settlement, it was not free to later change its mind and repudiate the agreement, and that the settlement was binding as agreed.

While the net effect of this ruling may be to provide ICE with an added incentive to be more precise in its future settlement negotiations, especially with regard to the inclusion of an admission of liability requirement, employers and their counsel are well-advised to insist that non-admission clauses should be the norm based on this decision.