5th Circuit Overrules OCAHO Decision Concerning $226,000 Penalty
By Bruce Buchanan
The Fifth Circuit Court of Appeals in Employer Solutions Staffing Group II, LLC v. OCAHO (August 11, 2016) reversed an OCAHO decision concerning the issue of personal versus corporate attestation of employee’s documents in Section 2 of the I-9 form; thus, it vacated the $226,000 civil penalty.
ESSG’s I-9 Procedures
ESSG is a staffing company based in Edina, Minnesota. It contracted with Larsen Manufacturing Co. in El Paso, Texas to provide employees. Then ESSG subcontracted with Flexicorps, Inc. to make all the hiring decisions for temporary employees at the Larsen facility.
In so doing, ESSG had Flexicorps supervise the completion of Section 1 of the I-9 forms by employees and examine original documents presented by the employees for Section 2. However, instead of Flexicorps completing the employer certification at that time, ESSG had Flexicorps make color copies of the documents and send the I-9 forms and color copies of the documents to ESSG’s corporate headquarters. At that point, an ESSG employee would examine the photocopies and completed Section 2, including the signed attestation that the employer examined the documents and they appeared to be genuine.
ICE’s Notice of Inspection and OCAHO’s Decision
In 2011, Immigration and Customs Enforcement (ICE) served a Notice of Inspection on ESSG for the Larsen facility and thereafter determined ESSG’s procedure in signing the certification was contrary to the law. After a hearing before an Administrative Law Judge (ALJ) of OCAHO, OCAHO agreed with ICE, found 242 violations, determined every I-9 form was in error, and assessed a penalty of over $226,000. Their reasoning was ESSG’s attestations were “patently false” because the payroll employee in Minnesota could not attest to examining original documents when they were presented in El Paso. See U.S. v. Employer Solutions Staffing Group II, LLC, 12 OCAHO no. 1234 (2014).
Fifth Circuit’s Decision and Analysis
ESSG appealed OCAHO’s decision to the Court of Appeals. The 5th Circuit analyzed the statute, the Immigration and Nationality Act (INA), the accompanying regulations, and any applicable case law. The INA states a “person or entity must attest… on a form” that it has verified the employee’s document(s). See § 1324a (b)(1)(A). Thus, ESSG argued corporate attestation is consistent with the INA.
The regulations state “an employer, his or her agent, or anyone acting directly or indirectly in the interest thereof, must” complete Section 2 on the I-9 form and sign the attestation. § 274a.2(b)(1)(ii)(B). The Court said it did not read this regulation to require the same person who met the hired employee and examined the original documents to be the one to sign the attestation.
The Court then reviewed whether ESSG had fair warning of OCAHO’s reading of the statute and regulations. It found it did not, especially given the fact there were no prior OCAHO decisions on the matter and the ALJ only cited “commonsense” for her ruling, not any statute, regulation or case law. Thus, given the language of the INA and its regulations, the Court found ESSG lacked fair notice of OCAHO’s position.
The Court concluded a “reasonable interpretation” permits corporate attestation due to the language of the INA. Thus, the Court concluded ESSG did not violate the INA. However, before employers celebrate the victory, it must be noted the Court went on to state their holding “does not address whether ICE can lawfully prohibit corporate attestations”; only that ESSG was not given fair notice.
Takeaways
Since this is a Fifth Circuit Court of Appeals decision, which covers Mississippi, Texas, and Louisiana, it does not change ICE’s and OCAHO’s position. DHS/ICE is free to clarify whether corporate attestation is prohibited and OCAHO can then decide whether to adopt DHS/ICE’s position.
Actually, DHS in the current I-9 form (effective May 7, 2013) instructions has done so by stating “The person who examines the documents must be the same person who signs Section 2.” Additionally, in the proposed new “smart I-9 form” it has a similar instruction – “The person who physically examines the employee’s original document(s) and completes Section 2 must sign his or her name in this field.”
An interesting question is whether this decision may provide an avenue to resolve the remote hire issue where the employer does not view the original documents. Obviously, it will depend on ICE’s and OCAHO’s position on this issue going forward.
Board of Immigration Appeals Rules Criminal Copyright Infringement is a CIMT
On March 18, 2015, an immigration judge issued a removal order for Raul Zaragoza-Vaquero, a man convicted of criminal copyright infringement. Mr. Zaragoza-Vaquero appealed the decision. The Board of Immigration Appeals (BIA) ruled that criminal copyright infringement is inherently a crime involving moral turpitude (CIMT) and has therefore dismissed Mr. Zaragoza-Vaquero’s appeal.
The case began when Mr. Zaragoza-Vaquero was convicted of one count of criminal infringement of a copyright on October 31, 2012. This is a felony offense for which he was sentenced to 33 months in prison and ordered to pay $36,000 in restitution.
An immigration judge ordered Mr. Zaragoza-Vaquero’s removal, at which point Mr. Zaragoza-Vaquero applied for cancellation of removal. The immigration judge concluded that Mr. Zaragoza-Vaquero was convicted of a crime involving moral turpitude, a categorization which generally refers to conduct that “shocks the public conscience as being inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” This rendered him ineligible for cancellation of removal, prompting him to file an appeal with the BIA. Because the burden of proof lies with the respondent to establish that he satisfies the eligibility requirement for cancellation of removal, Mr. Zaragoza-Vaquero would have had to prove that his conviction for criminal copyright infringement was not a crime involving moral turpitude.
Mr. Zaragoza-Vaquero admitted that he had been convicted of reproducing and distributing infringing copies for commercial advantage or private financial gain. According to the law, criminal copyright infringement requires the government to prove that the defendant willfully broke the law.
Using a former legal precedent of a case involving trafficking in counterfeit goods or services, the Board of immigration Appeals held that criminal copyright infringement is a crime that inherently involves moral turpitude because it causes societal harm and is an inherently willful offense. Therefore, Mr. Zaragoza-Vaquero did not succeed in establishing his eligibility for cancellation of removal. As such, the BIA dismissed the appeal.
To view the full decision, please click here.
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