Taking The Fight to Court: How to Contest a Fined Penalty?
Once an employer received a Notice of Intent to Fine from ICE, the employer has the option to either pay the fine or contest the fine. The Notice of Intent to Fine is the charging document. A charging document lists all the violations allegedly committed by the employer and the corresponding penalties recommended by ICE.
Request for Hearing
Contesting the fine means that the employer must file a request for a hearing with the Office of the Chief Administrative Hearing Officer (OCAHO). Once a request for a hearing is filed, the OCAHO will assign the request to an administrative law judge.
The Department of Homeland Security and the Immigration and Customs Enforcement will file a complaint before the OCAHO which will incorporate the contents of the Notice of Intent to Fine. The DHS and ICE will be the complainants on behalf of the people of the United States.
DHS and ICE will also file a Motion for Summary Decision, asking the administrative law judge to rule on the motion and order the employer to pay the fine they recommended. They will try to show that they followed the procedure. They will attempt to prove that they followed the schedules in arriving at the recommended fines.
If there are factors that can serve to increase or decrease the penalty sought to be imposed, then DHS and ICE will discuss which factors they found and how these factors served to increase or reduce the amount of fine they recommended. In short, they will try to prove that there is no genuine issue of material fact that still needs to be heard by the administrative law judge.
The Administrative Law Judge will require the employer to respond to the complaint and the Motion for Summary Decision. Note that while the judge will require the DHS and ICE to demonstrate that there are no material facts in issue and that they are entitled to a judgment as a matter of law, the employer must produce evidence that contravenes the claims of the DHS and ICE.
The employer must prove specific facts showing that there is still a genuine issue of fact that needs to be heard.