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Ketchikan Drywall Services, Inc. v. Immigration & Customs Enforcement

United States Court of Appeals, Ninth Circuit

August 6, 2013

Ketchikan Drywall Services, Inc., Petitioner,
v.
Immigration and Customs Enforcement; Office of the Chief Administrative Hearing Officer, Respondents.

Submitted April 8, 2013 [*] Seattle, Washington

On Petition for Review of an Order of the Office of the Chief Administrative Hearing Officer OCAHO No. 10A00034

Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Ernesto H. Molina, Jr., Assistant Director, Andrew N. O'Malley, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondents.

Before: Dorothy W. Nelson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

SUMMARY [**]

Immigration

The panel denied Ketchikan Drywall Services' petition for review from an Administrative Law Judge's decision which upheld the Immigration and Customs Enforcement's finding that KDS violated the Immigration and Nationality Act and the resulting civil penalty.

The panel held that KDS violated 8 U.S.C. § 1324a(b), which requires employers to verify that their employees are legally authorized to work in the United States. The panel held that it is neither arbitrary nor capricious to require that employers complete Employment Eligibility Verification Forms ("I-9 Forms"), and that copying and retaining documents is neither necessary nor sufficient for compliance. The panel gave Skidmore deference to the classification of "substantive" and "technical or procedural" violations contained in the Virtue Memorandum, interim guidelines published in 1997 by the Immigration and Naturalization Service, and found that KDS was penalized for substantive deficiencies in its I-9 Forms.

OPINION

TASHIMA, Circuit Judge

Section 274A(b) of the Immigration and Nationality Act imposes an obligation on employers to verify that their employees are legally authorized to work in the United States. 8 U.S.C. § 1324a(b). Regulations designate the Employment Eligibility Verification Form ("I-9 Form") for this purpose, 8 C.F.R. § 274a.2(a)(2), and employers must retain these forms and provide them for inspection upon three days' notice. 8 C.F.R. § 274a.2(b)(2)(ii). This case arises out of the results of one such inspection in which Immigration and Customs Enforcement ("ICE") discovered violations of the verification requirements of § 1324a(b).

Ketchikan Drywall Services, Inc. ("KDS") petitions for review from the summary decision of an Administrative Law Judge ("ALJ") in favor of ICE on 225 out of 271 alleged violations of § 1324a(b) and the resulting civil penalty of $173, 250.00. KDS argues that it substantially complied with the requirements of the statute, that the ALJ improperly refused to consider certain documents, and that the penalty was improperly calculated. We have jurisdiction under 8 U.S.C. § 1324a(e)(8) and deny the petition.

I.

KDS is a drywall installation company incorporated in Washington State. It employs four full-time employees and approximately twenty part-time employees. It also hires additional employees as needed on a project-by-project basis. KDS does not hire workers "in the field, " but requires them to go to its main office first to fill out I-9 Forms.

Over the years, more than a dozen different employees have been responsible for collecting I-9 Forms from new hires, but until 2006, KDS did not employ any staff with training in I-9 compliance. In 2000, KDS received a Warning Notice from the Immigration and Naturalization Service[1]("INS") following an audit of its I-9 Forms. In 2006, KDS finally hired a new Controller with I-9 training who initiated efforts to improve compliance.

In March 2008, ICE served a Notice of Inspection and administrative subpoena on KDS, requesting "[o]riginal I-9 Forms . . . and any copies of attached documents presented at the time of I-9 completion for employees working from January 1, 2005 to March 25, 2008." KDS produced some I-9 Forms and other employee verification documents on April 2, 2008. On April 4, 2009, ICE served a Notice of Intent to Fine ("NIF"), and KDS subsequently made a further production of documents. ICE accepted these documents, reviewed them, and served an amended NIF on October 30, 2009.

The amended NIF contained four counts. Count I covered 43 employees for whom KDS had failed to provide any I-9 Form at all, in violation of § 1324a(b) and 8 C.F.R. § 274a.2(b). Count II covered 65 employees for whom Section 1 ("Employee Information and Attestation") of the I-9 Forms was incomplete, in violation of § 1324a(b)(2)[2] and 8 C.F.R. § 274a.2(b)(1)(i).[3] Count III covered 110 employees for whom Section 2 ("Employer or Authorized Representative Review and Verification") of the I-9 Forms was incomplete, in violation of § 1324a(b)(1)[4] and 8 C.F.R. § 274a.2(b)(1)(ii).[5] Count IV ...


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