By Bruce Buchanan, Siskind Susser

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In deciding a procedural issue, the Office of Chief Administrative Hearing Officer (OCAHO) in U.S. v. Quickstuff, LLC, Maria Castillo, and A & C Staffing, LLC, 11 OCAHO no. 1265 (Nov. 20, 2015), found the employers engaged in 4964 Form I-9 violations. That may be a record.

In mid-2015, Immigrant & Customs Enforcement (ICE) issued a Notice of Intent to Fine against Quickstuff, Castillo and A & C (Respondents) seeking in excess of $5 million in penalties. Therefore, Respondents requested a hearing. On July 9, 2015, ICE issued a complaint against Respondent with an answer due by August 12, 2015. However, no answer was filed nor a request for additional time to do so. Thereafter, on September 1, 2015, OCAHO filed an order to show cause as to why no answer was filed. On the same date, ICE filed a Motion for Entry of Default. No response was filed in response to the motion.

On September 9, OCAHO received copies of bankruptcy notices for Quickstuff and A & C. On September 16, OCAHO received a letter, from Respondents’ counsel of record, wherein he explained their failure to respond to the complaint “was due to a mistaken belief that the automatic stay under the Bankruptcy Code would apply.” He acknowledged that he now was aware such a stay does not apply to an action by a governmental unit enforcing its police or regulatory powers. 11 U.S.C. 362 (a)(1). But, the letter did not offer an answer to the complaint; rather, counsel requested it to be given to a later date to file such.

OCAHO discussed applicable case law which found the failure to file a timely answer puts the employer in default and may be deemed to constitute a waiver of the right to contest the allegations. When a party makes an untimely request for an extension to answer, it must establish good cause and excusable neglect. Furthermore, a formal motion must be made for the request.

OCAHO found counsel’s letter did not constitute an answer, which it noted could “have been drafted in considerably less time than it took to prepare the three-page single-spaced letter asking for additional time.” Moreover, Respondents’ counsel failed to use due diligence in making some effort to file an answer or request an extension of time. Furthermore, an attorney’s ignorance of the law is not considered “either good cause or excusable neglect.” As OCAHO stated, “the attorney’s ignorance of readily ascertainable law simply cannot be characterized as good cause for failing to file an answer.”

In conclusion, OCAHO found Respondents’ response failed to show cause why their request for a hearing should not be deemed abandoned. Therefore, ICE’s Notice of Intent to Fine is the final agency decision in this matter.

As all employers should know, the failure to answer a complaint has serious consequences. In this case, 5 million of them. Furthermore, this decision demonstrates the importance of hiring counsel who is well-versed in immigration compliance law.