By: Bruce E, Buchanan, Sebelist Buchanan Law PLLC


The Office of Chief Administrative Hearing Officer (OCAHO) has announced a mediation program called OCAHO Settlement Officer Program to mediate cases pending at OCAHO.

According to the memorandum, dated August 3, 2020, from James McHenry, Director of EOIR, any active Administrative Law Judge (ALJ) may serve as a settlement officer in any OCAHO proceeding, except that an ALJ may not serve as the presiding ALJ and a settlement officer in the same case. The settlement officer will oversee settlement conferences and negotiations, confer with the parties jointly and/or individually, and seek voluntary resolution of issues. However, the settlement officer may not render a formal decision in the case.

To utilize a settlement officer, both parties must agree. If the presiding ALJ determines that referral to settlement officer is appropriate, the presiding ALJ shall issue an order referring the case to a specific settlement officer, and specifying whether and to what extent the procedural deadlines in the case have been stayed. If settlement is not reached, the presiding ALJ shall set appropriate procedural deadlines upon termination of the settlement officer proceedings.

Settlement negotiations before a settlement officer shall not exceed 60 days from the date of referral to the settlement officer. However, with the consent of the parties, the settlement officer may seek to extend the period for negotiations for a reasonable amount of time, not to exceed an additional 30 days.

Settlement negotiations shall be terminated if a party unambiguously indicates that it no longer wishes to participate or, if in the view of the settlement officer, further negotiations would be unproductive or otherwise inappropriate. Upon such termination, the case shall be returned to the presiding ALJ for further action.

No evidence regarding statements or conduct in the settlement proceedings under this settlement officer program shall be admissible in the underlying proceeding or any subsequent administrative proceeding before OCAHO, except by stipulation of all parties. Documents disclosed in the settlement process may not be used in litigation unless obtained through appropriate discovery or subpoena.

The settlement officer program seems worthwhile. Most courts have had active mediation programs for a number of years with very good results. Although there are not a lot of cases pending at OCAHO, this should reduce the numbers litigated. I think the settlement officer program is especially advantageous to the pro se litigant, who may not have previously attempted to negotiate a settlement.

If you want to know more information on OCAHO, immigration 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.