During 2012 and 2013, The Office of the Chief Administrative Hearing Officer (OCAHO) rendered an important number of decisions imposing lower fines in connection with employers’ violation of the Immigration Reform and Control Act of 1986 (IRCA). These OCAHO decisions seem to reflect a trend towards reducing fines from those sought against employers by the Immigration and Customs Enforcement (ICE). Moreover, these OCAHO decisions seem to show a "well-entrenched" preference, in the absence of egregious violations, for a “middle-of-the-road” approach when it comes to imposing fines. The OCAHO has clearly stated in several of these decisions that fines must reflect an “amount closer to the mid-range of possibilities.”

The following is a list of selected decisions issued by OCAHO during 2012 and 2013 showing a trend in the imposition of fines, which reflect an “amount closer to the mid-range of possibilities”:

U.S. v. Pagasus Restaurant, fines were reduced from $131,554 to $47,427 (1/5/12);

U.S. v. H&H Saguaro Specialists, fines were reduced from $18,700 to $3,350 (2/15/12);

U.S. v. Four Seasons Earthworks, fines were reduced from $15,361 to $9,500 (6/7/12);

U.S. v. Stanford Sign & Awning, fines were reduced from $12,523 to $9,600 (6/21/12);

U.S. v. Forsch Polymer, fines were reduced from $11,827 to $4,600 (8/24/12);

U.S. v. Santiago’s Restaurant, fines were reduced from $52,529 to $20,100 (8/24/12);

U.S. v. March Construction, fines were reduced from $86,933 to $17,120 (11/13&26/12);

U.S. v. Taste of China, fines were reduced from $13,900 to $5,100 (1/10/13);

U.S. v. Nebeker, Inc. d/b/a Aire Serv., fines were reduced from $22,627 to $10,800 (1/16/13);

U.S. v. Occ. Res. Mgmt., Inc., fines were reduced from $187,000 to $108,000 (1/23/13);

U.S. v. La Hacienda Mexican Café, fines were reduced from $22,400 to $9,600 (1/24/13);

U.S. v. Fowler Equipment Co., fines were reduced from $77,418 to $41,400 (2/20/13);

U.S. v. MEMF LLC (Black & Blue S&C), fines were reduced from $44,165 to $32,850 (3/1/13);

U.S. v. El Azteca Dunkirk, Inc., fines reduced from $11,000 to $2,200 (3/13/13);

U.S. v. Seven Elephants Distrg. Corp., fines were reduced from $34,900 to $14,500 (03/18/13);

U.S. v. Siam Thai Sushi Restaurant, fines were reduced from $16,830 to $8,350 (3/18&21/13).

Although, many employers may be relieved to read about this trend, OCAHO’s recent willingness to apply fines that are “closer to the mid-range of possibilities”, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.