By: Bruce Buchanan, Sebelist Buchanan Law PLLC

Just when you thought Sheriff Joe Arpaio could not cause further trouble because he’s out of office, he strikes again in an immigration case.

This case centers on a Notice of Inspection (NOI) that was delivered to Frimmel Management after Sheriff Arpaio’s police force, Maricopa County Sheriff’s Office (MCSO), conducted raids of two Uncle Sam’s restaurants and the owner’s home. MCSO seized employment records based on suspicion that the restaurants’ workers committed identity theft and forgery. During the State of Arizona’s prosecution of Frimmel, the state court found the affidavits supporting the search warrant for the raids were “unreasonable and reckless.” Therefore, the Court dismissed the charges against Frimmel.

One day after MCSO’s raids, MCSO sent a memorandum to ICE summarizing the results of the unlawful raid. Thereafter, MCSO issued press releases publicizing their raids and stated some of the workers had been put on ICE holds.

About two and one-half weeks after the raids, ICE served a NOI/subpoena on Frimmel. After Frimmel timely produced the restaurants’ I-9 forms, ICE issued a Notice of Intent to fine (NIF) and a complaint for the case to be heard by an OCAHO Administrative Law Judge.

In response to Frimmel’s objections, this ALJ found that how Frimmel had come to the attention of ICE was “irrelevant” to the OCAHO case. Frimmel also argued the I-9 forms must be suppressed under the fruit of the poisonous tree doctrine. The ALJ disagreed and found ICE had not relied on any “evidence directly obtained from MCSO’s unlawful conduct.” Since the primary goal of suppressing evidence based on illegal conduct is to deter future unlawful police conduct, this was not a factor in question in the ICE’s NOI of Frimmel. Thus, the ALJ upheld the $347,000 penalty.

On appeal to the 9th Circuit Court of Appeals, the Court initially reviewed MCSO’s conduct. It found that MCSO’s omissions and distortions in the affidavits for the search warrant were “reckless and immaterial.” Thus, this finding led the 9th Circuit to find the raids violated the 4th Amendment to the Constitution.
Furthermore, the Count found MCSO’s conduct to be egregious.

Despite those findings, DHS argued the “ICE investigation was too attenuated from MCSO’s illegal conduct” Under the attenuation doctrine, evidence is admissible when “the connection between the illegality and challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.”

The Court rejected that argument and found there was a causal connection between MCSO’s unlawful search and the ICE audit. The identity evidence – Frimmell and his restaurants – resulted from MCSO’s raid, which “significantly directed the subsequent ICE investigation.” Thus, the I-9 forms which ICE seized were fruit of MCSO’s illegal search.

In conclusion, the 9th Circuit found for Frimmel because ICE used the fruit of the poisonous tree – the I-9 forms. Thus, Frimmell did not owe the $347,000 that OCAHO had found as penalties.

Although very few cases get litigated to the Court of Appeals, companies continue to have some success in appeals to the Courts of Appeal. Several years ago, the 5th Circuit Court of Appeals reversed OCAHO’s $227,000 penalty against Employer Solutions Staffing Group II, LLC.

If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at