Ketchikan Drywall Servs. v. ICE

Employers must fully complete I-9 forms for their employees and merely copying work authorization documents without transcription to the I-9 is a violation of the Immigration and Nationality Act.

The Immigration and Customs Enforcement (“ICE”) audited Ketchikan Drywall Services (“KDS”) and found their I-9 forms to be deficient. ICE sent KDS a Notice of Intent to Fine (“NIF”), which asserted that KDS failed to complete I-9 forms for many employees throughout the years. The Administrative Law Judge (“ALJ”) disregarded many of the documents KDS offered to provide further proof of work authorization, but lowered the fine to $173,250. KDS appealed the decision finding them in violation of the Immigration and Nationality Act (“INA”) and the accompanying penalty. The Ninth Circuit reviewed the ALJ decision under the “arbitrary and capricious” standard, but did not extend deference under Chevron U.S.A Inc. v. NRDC, Inc. because it was not clear that Congress had delegated legislative authority to ICE. However, the panel found that ICE may be granted deference under Skidmore v. Swift & Co. because of an intra-agency Virtue Memo which laid out ICE's intention to reduce some substantive errors to technical errors, specifically those involving I-9 information. KDS argued that because they copied and retained documents proving work authorization, they should not also have to complete the I-9 form, and any failure on their part was merely technical and would fall under ICE's Virtue Memo. Additionally, KDS argued that employees were responsible for the information within the I-9 and that the ALJ should not have used ICE's penalty structure. Full completion of the I-9 form is necessary to ensure compliance, and when ICE asked for the I-9 forms, KDS should have also included the copied employee documents if they wanted to claim that their error was simply technical. The panel found that the ALJ's assessment of the penalty was neither arbitrary nor capricious, and it was not required to reduce the penalty based upon proffered “good faith” evidence. PETITION DENIED.