20-1273 Visiontron Corp. v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of October, two thousand twenty-two.

PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, Circuit Judges, COLLEEN MCMAHON, District Judge. * _____________________________________

VISIONTRON CORP.,

Petitioner, v. No. 20-1273

UNITED STATES OF AMERICA,

Respondent. _____________________________________

*Judge Colleen McMahon, of the United States District Court for the Southern District of New York, sitting by designation. FOR PETITIONER: David P. Fallon, Law Offices of David P. Fallon, PLLC, Sayville, NY.

FOR RESPONDENT: Jeffrey C. Bossert, Acting Assistant Attorney General, Justin R. Markel, Paul Fiorino, Senior Litigation Counsels, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

Petition for review of a decision of the Office of the Chief Administrative

Hearing Officer for the Executive Office of Immigration Review (“OCAHO”).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the petition for review of the decision of the

OCAHO is DENIED.

Appellant Visiontron Corp. (“Visiontron”) petitions pursuant to 8 U.S.C.

§ 1324a(e)(8) for review of a final order issued by OCAHO, in which an

administrative law judge (“ALJ”) concluded that Visiontron had committed

substantive violations of section 274A of the Immigration and Nationality Act (the

“INA”), 8 U.S.C. § 1324a, and imposed a fine of $47,850. Specifically, in a March

17, 2020 written order, the ALJ found, based on a 2018 inspection of Visiontron’s

employment eligibility forms by Immigration and Customs Enforcement (“ICE”),

that Visiontron had “failed to prepare and/or present I-9[] [employment eligibility

verification forms] for nine employees,” “failed to timely prepare and/or present I-9s for three employees,” and “failed to ensure proper completion of section 1

and/or failed to properly complete sections 2 or 3 for twenty-five employees.” J.

App’x at 238. Based on these findings, the ALJ determined that Visiontron was

“liable for thirty-seven violations of [8 U.S.C.] § 1324a(a)(1)(b).” Id. ICE sought

$101,703.50 in penalties for these violations. After reviewing the record and the

relevant statutory factors set out in 8 U.S.C. § 1324a(e)(5), the ALJ rejected ICE’s

proposed penalty and instead imposed a fine of $47,850. Visiontron now

petitions for review of that decision.

“We review an order of the OCAHO issued pursuant to 8 U.S.C. § 1324a

under the arbitrary[-]and[-]capricious standard.” Buffalo Transp., Inc. v. United

States,

(2d Cir. 2016). We review an agency’s factual findings

under the substantial-evidence standard and its legal determinations de novo.

“When reviewing agency fines[,] our inquiry is limited to whether the agency

made an allowable judgment in its choice of the remedy.”

(internal

quotation marks and alteration omitted).

Section 274A of the INA requires employers to verify that their employees

are legally authorized to work in the United States. See 8 U.S.C. § 1324a(b). To

do this, employers must complete the I-9 employment eligibility verification form

3 within three business days of an employee’s hire. See Buffalo Transp.,

(citing 8 C.F.R. § 274a.2(b)(1)(ii)). Employers must provide these forms for

inspection by ICE upon three business days’ notice. See id. (citing 8 C.F.R.

§ 274a.2(b)(2)(i)–(ii)). Failure to adequately complete or provide these forms can

result in civil penalties. See id. at 384–85.

As noted above, OCAHO determined that Visiontron had committed

thirty-seven violations of section 274A. When OCAHO finds a violation of

section 274A, it must set a fine for each individual violation. For violations that

occurred on or between September 29, 1999 and November 2, 2015, the penalty

range is $110 to $1,100. See 8 C.F.R. § 274a.10(b)(2). For violations that occurred

after November 2, 2015, and which are assessed after January 29, 2018 but on or

before June 19, 2020, the penalty range is $224 to $2,236. See

. In

assessing the fine, OCAHO must give “due consideration” to five factors:

(1) “the size of the business of the employer being charged,” (2) “the good faith of

the employer,” (3) “the seriousness of the violation,” (4) “whether or not the

individual was an unauthorized alien,” and (5) “the history of previous

violations.” 8 U.S.C. § 1324a(e)(5); see also 8 C.F.R. § 274a.10(b)(2).

4 Here, the ALJ concluded that a fine of $47,850 was appropriate after

carefully considering the relevant statutory factors. Specifically, the ALJ found

that Visiontron was “a small business with fewer than 100 employees,” which was

a mitigating factor. J. App’x at 234. The ALJ further observed that Visiontron

“did not have a history of violations,” and treated this factor – along with the

“good faith” factor – as neutral. Id. at 234–35. As to the seriousness factor,

however, the ALJ noted that Visiontron committed “serious” violations, including

failing to sign the required employer attestation, failing to prepare I-9 forms, and

failing to ensure that employees attest to their immigration status. Id. at 235–36.

And as to certain of the violations (pertaining to six unauthorized workers listed

in Count IIIA), the ALJ concluded that penalties for the Count IIIA violations were

further aggravated by the presence of unauthorized workers. Id. at 236. After

balancing these factors, the ALJ determined that the following fines were

appropriate: $645 for the two violations that occurred before November 2, 2015

(out of a penalty range of $110 to $1,100); $1,290 per violation for the majority of

violations occurring after November 2, 2015 (out of a penalty range of $224 to

$2,236); and $1,525 for the violations in Count IIIA (also out of a penalty range of

$224 to $2,236). Id. at 237.

5 Visiontron nonetheless asserts that the ALJ’s penalty calculation was

arbitrary and capricious. 1 First, Visiontron contends that it was “improper” for

the ALJ to use “ICE’s proposed fines as a starting point” when assessing the fine

against Visiontron. Visiontron Br. at 10. But the ALJ properly acknowledged

that the government’s “penalty calculations are not binding in OCAHO

proceedings,” J. App’x at 239 (internal quotation marks omitted), and specifically

stated in the order that, “for the majority of violations,” she would “us[e] a

mid-range penalty as a base penalty,” id. at 237.

Visiontron next argues that it was wrong for the ALJ to use “the mid-range

penalty as a base penalty” for the majority of the violations, because doing so

“improperly replaced the minimum fine base with the mid-range . . . as the

[presumed] base” for OCAHO penalties. Visiontron Br. at 11. But the

regulations nowhere suggest that the ALJ must treat the minimum allowable fine

as the starting point for all penalties in all cases. The regulations merely require

that the ALJ consider the five statutory factors when setting a fine. See 8 U.S.C.

§ 1324a(e)(5); 8 C.F.R. § 274a.10(b)(2). This the ALJ clearly did, finding that, after

1Visiontron does not contest any of the ALJ’s factual findings and only challenges the ALJ’s assessment of the appropriate fine as arbitrary and capricious.

6 considering the totality of the circumstances as set forth in the record and

pleadings, a mid-range base penalty was appropriate as a starting point of the

analysis for the majority of the violations, before she applied adjustments based

on each of the statutory factors to determine the ultimate fine. J. App’x at 237.

In short, the ALJ’s method of calculating the fine was neither arbitrary nor

capricious, nor outside her considerable discretion when it comes to the

determination of penalties. Accordingly, because the ALJ’s choice of calculation

methods was clearly “allowable,” we will not disturb it. Buffalo Transp.,

(internal quotation marks omitted). 2

Finally, Visiontron insists that the ALJ’s fine is disproportionate to the

company’s violations and that the ALJ “did not give proper weight to the

[statutory] factors.” Visiontron Br. at 13. As noted above, when we review an

administrative fine, our inquiry is limited to asking whether the administrative

body made “an allowable judgment in its choice of the remedy” that was neither

2 Indeed, there is no single method for calculating penalties, and OCAHO ALJs have used a variety of methods to calculate fines. See, e.g., United States v. Davis Nursery, Inc., No. 93A00193,

, at *11 (O.C.A.H.O. Sept. 30, 1994) (applying a “mathematical[-]formula” approach to calculate fines that gives equal weight to each of the five statutory factors); United States v. Williams Produce, Inc., No. 93A00220,

, at *4 (O.C.A.H.O. Feb. 3, 1995) (applying a “judgmental . . . approach” that sets “each [statutory] factor’s significance . . . based on the facts of [the] specific case”).

7 arbitrary nor capricious. Buffalo Transp.,

(internal quotation marks

and alteration omitted). Again, the ALJ here clearly based the fine on her

assessment of the statutory factors, including, for example, the size of Visiontron’s

business and the six unauthorized workers on its payroll. The ALJ then relied on

these factors when assessing the fine. We therefore cannot say that the ALJ failed

to provide “well-reasoned bases for the fine amounts based on [Visiontron’s]

specific circumstances.”

.

The fact that OCAHO has imposed lesser fines in other cases is of no

moment. A fine is not “rendered invalid in a particular case because it is more

severe than sanctions imposed in other cases,” as each case turns on the unique

facts at hand. Butz v. Glover Livestock Comm’n Co.,

(1973); see also

Hershberg v. SEC,

(2d Cir. 2006) (holding sanctions are

imposed on a case-by-case basis). Because the ALJ set a fine within the

permissible penalty range after carefully considering the statutory factors, the fine

was an “allowable judgment” that this Court will not disturb. United States v.

Int’l Bhd. of Teamsters,

(2d Cir. 1999) (internal quotation marks

omitted).

8 We have considered Visiontron’s remaining arguments and find them to be

meritless. 3 Accordingly, we DENY the petition for review.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

3Visiontron also raises a fleeting constitutional challenge to the fine, conclusorily asserting that the fine is “grossly disproportional to the gravity of the offense” in violation of the Eighth Amendment’s excessive fines clause. Visiontron Br. at 19. Visiontron, however, fails to sufficiently develop this argument and has thus forfeited it. See United States v. Botti,

(2d Cir. 2013) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” (internal quotation marks omitted)).

9