Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DLS Precision Fab LLC v. U.S. Immigration & Customs Enforcement

United States Court of Appeals, Ninth Circuit

August 7, 2017

DLS Precision Fab LLC, DBA Di-Matrix Precision Manufacturing, Petitioner,
v.
U.S. Immigration & Customs Enforcement; Office of Chief Administrative Hearing Officer; United States of America, Respondents.

          Argued and Submitted January 13, 2017 San Francisco, California

         On Petition for Review of an Order of the Office of Chief Administrative Hearing Officer, Executive Office for Immigration Review, Department of Justice DHS No. 13A00019

          Donald Peder Johnsen (argued), Gallagher & Kennedy P.A., Phoenix, Arizona, for Petitioner.

          Suzanne Nicole Nardone (argued), Trial Attorney; Anthony P. Nicastro, Acting Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents.

          Before: J. CLIFFORD WALLACE, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.

         SUMMARY [*]

         Immigration

         The panel granted in part and denied in part DLS Precision Fab LLC's petition for review of an administrative law judge's ("ALJ") decision finding DLS liable for 504 violations of 8 U.S.C. § 1324a, which requires employers to verify that their employees are legally authorized to work in the United States and prohibits employers from knowingly continuing to employ aliens who are not authorized to work.

         The panel granted the petition as to one violation because the charge was untimely under the statute of limitations. The panel denied the petition as to the other 503 violations, concluding that DLS was not entitled to good faith defenses. The panel also denied the petition as to the ALJ's summary determination of a penalty in the amount of $305, 050, concluding that DLS' ability to pay was not a material issue of fact that would preclude summary determination of the penalty amount because it was within the power of the ALJ to decline to consider the factor at all.

         Concurring in part and dissenting in part, Judge Clifton disagreed with the majority's conclusion regarding summary determination of the penalty. Judge Clifton wrote that the determination of the penalty on the equivalent of summary judgment was improper because there was a material, unresolved factual issue regarding the ability of DLS to pay the penalty. He would grant the petition as to the amount of the penalty and remand that issue to the agency for further proceedings.

          OPINION

          PER CURIAM.

         Section 274A(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324a(b), requires employers to verify that their employees are legally authorized to work in the United States. Regulations designate use of the Employment Eligibility Verification Form, also known as the "I-9 form, " for this purpose. 8 C.F.R. § 274a.2(a)(2). Employers must retain these forms and provide them for inspection by the Department of Homeland Security upon three days' notice. 8 C.F.R. § 274a.2(b)(2)(ii). Section 274A(a)(2) prohibits employers from continuing to employ an alien "knowing the alien is (or has become) an unauthorized alien with respect to such employment." 8 U.S.C. § 1324a(a)(2).

         DLS Precision Fab LLC (DLS) petitions for review of the summary decision of the Administrative Law Judge (ALJ), Office of the Chief Administrative Hearing Officer (OCAHO), which found DLS liable for numerous violations of these sections of the INA and ordered DLS to pay civil money penalties in the total amount of $305, 050.

         For the most part, we deny DLS's petition, but we grant it in one part and disagree with the ALJ's conclusions in one important respect. With regard to the ALJ's finding that DLS was liable for 504 violations, we conclude that one charge was untimely under the applicable statute of limitations, so that violation cannot stand. We deny the petition for review as to the ALJ's finding of the other 503 violations, and as to the ALJ's determination of the penalty amount.

         I. Background

         DLS is a company located in Phoenix, Arizona, providing custom sheet metal fabrication in a variety of industries. In the late 2000s, DLS grew to about 200 employees because of the expansion of a Department of Defense program. To deal with the sudden growth of its workforce and ensure its compliance with applicable state and federal employment laws, DLS hired a well-credentialed human resources director (the "HR director"). Unbeknownst to the company, however, this individual shirked his responsibility to ensure the company's compliance with the INA to the point, as later described by DLS, "of literally stuffing the government's correspondence in a drawer and never responding."

         In November 2009, United States Immigration and Customs Enforcement (ICE) served DLS with a Notice of Inspection and an administrative subpoena. After reviewing DLS's I-9 forms and other relevant business information, ICE served DLS with a Notice of Suspect Documents in January 2010 and a Notice of Intent to Fine in October 2012. Around this time, the Department of Defense program that had fueled DLS's growth was cut back, causing a substantial reduction in DLS's business. DLS consequently reduced the number of its employees from a peak of about 200 to 77 in 2012, 34 in 2013, and 33 at the time of the summary decision proceedings.

         In response to the Notice of Intent to Fine, DLS requested a hearing before an ALJ. ICE filed a six-count complaint with OCAHO on January 4, 2013. Counts I-IV alleged that DLS failed to comply with employment verification requirements pursuant to 8 U.S.C. § 1324a(a)(1)(B), and Counts V-VI alleged that DLS continued to employ 15 individuals despite knowing that they were ineligible for employment, in violation of 8 U.S.C. § 1324a(a)(2).

         ICE moved for summary decision as to liability for all six counts and requested penalties totaling $495, 250.75. The ALJ granted ICE's motion for summary decision, finding DLS liable for 504 of the 508 alleged violations, 489 of which were I-9 paperwork violations and 15 of which involved DLS's continuing employment of ineligible aliens. DLS was ordered to pay civil money penalties in the total amount of $305, 050. The ALJ's April 22, 2014 decision became the final agency order on June 21, 2014. DLS timely petitioned for review. See 8 U.S.C. §§ 1324a(e)(7), (8).

         On May 27, 2016, DLS filed for reorganization and protection under Chapter 11 of the Bankruptcy Code. The bankruptcy proceedings are ongoing. See In re DLS Precision Fab, LLC, 2:16-bk-06109-EPB (Bankr. D. Ariz. 2016).

         II. Standard of Review

         Judicial review of an agency decision is narrow. We will not substitute our judgment for that of the agency. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989). Under the Administrative Procedure Act, we may only set aside an agency decision if it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or if it was taken without observance of procedure required by law. 5 U.S.C. § 706(2)(A), (D); Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011). "We do not overturn an agency's determination of a civil penalty unless it is either unwarranted in law or unjustified in fact." Ketchikan Drywall Servs., Inc. v. Immigration & Customs Enf't, 725 F.3d 1103, 1110 (9th Cir. 2013) (citation and quotation marks omitted).

         III. Discussion

         A. The ALJ's Summary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.