By: Bruce E. Buchanan, Sebelist Buchanan Law



In OCAHO’s first decision of 2020, United States v. Barajas Mexican Grill, 13 OCAHO no. 1338 (Jan. 6, 2020), it found the penalties imposed by ICE were “disproportionate to the Form I-9 violations” present in this case. Thus, OCAHO reduced ICE’s proposed penalties of $46,922 to $34,872 – a reduction of over 25%.

Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on the restaurant on September 26, 2017 and requested the I-9 forms and other records by September 29, 2017, the minimum time that ICE must provide to respond. Barajas Mexican Grill untimely submitted 24 Forms I-9 on October 23, 2017. Furthermore, all the I-9 forms were defective because the restaurant failed to sign or complete Section 2. Thus, ICE issued a Notice of Intent to Fine (NIF) and a Complaint alleging 24 violations of 8 U.S.C. § 1324a (I-9 violations) and sought $46,922 in penalties.

Barajas Mexican Grill’s main defense was ICE chose the restaurant for an I-9 audit in order to target them due to the nature of the business and the racial/ethnic background of its owners- in other words- racial profiling. OCAHO disposed of this assertion by stating it had not “submitted any evidence beyond an unsupported statement in the brief, which is not sufficient to raise a genuine issue of material fact.”

A second defense was the restaurant’s inability to pay penalties of $46,922. In support of this position, the owners submitted an affidavit stating it would cause “great financial hardship to their family.” However, the restaurant did not present any evidence of the hardship.

Concerning the statutory factors, ICE aggravated by 5% to each of these factors - bad faith and seriousness of the violations and mitigated by 5% due to the small size of the business. OCAHO agreed with two of these factors but found ICE had the burden to prove bad faith and it failed to do so.

In determining the penalties to be assessed, OCAHO noted ICE’s requested penalties were 89% of the maximum, which should only be for the most egregious violations. OCAHO stated these violations were not the most egregious and ICE’s proposed penalty was “disproportionate to the Form I-9 violations and mitigating factors.” Thus, OCAHO reduced the penalties to $34,872.

If you want to know more information on I-9 compliance and related issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.