In U.S. v. Silverado Stages, Inc. (May & June 2013), OCAHO declined to reduce the employer's penalties of $7480, assessed by Immigration & Customs Enforcement (ICE) or hear the employer's request for review.

Silverado Stages is the largest private motor coach operator in California with four locations, 140 employees and a gross annual income of $11 million. ICE alleged Silverado Stages failed to timely complete I-9 forms on 16 employees, two of which were undocumented workers. ICE's NIF sought penalties of $440 per violation (meaning 20 to 29 % of the I-9 forms had substantive errors).

ICE determined Silverado Stages was a mid-size company; thus, the size of the employer was a neutral factor. ICE found two aggravating factors - seriousness of the violations and the presence of two undocumented workers; but for some unexplained reason, ICE did not increase the penalties by 5% each for these aggravating factors.

Silverado Stages argued ICE does not know for a fact "that the forms were prepared but then misplaced, lost or destroyed." Thus, ICE cannot assume the I-9 forms were not initially timely prepared. OCAHO found Silverado Stages' "hypothesis" to be "no more than speculation" and held ICE is not obligated to "rebut whatever 'plausible' imaginary scenarios can be postulated."

The Administrative Law Judge concluded $440 per violation was "well within the statutory parameters" and appeared "reasonable in light of the record." Thus, OCAHO upheld the assessment of $7480. Silverado Stages unsuccessfully attempted to request OCAHO to review the ALJ's decision because OCAHO found the Request to be untimely and improperly filed and served. 

This decision is contrary to most OCAHO decisions in that OCAHO did not reduce the penalties assessed by ICE. It is only speculation to say why but two reasons may be that Siverado Stages is not a small employer and its "hypothesis" was totally discredited by OCAHO.