United States v. Cabello Recovery & Auction Services, Inc.

18 OCAHO no. 1514 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER January 4, 2024 UNITED STATES OF AMERICA, Complainant, v. CABELLO RECOVERY AND AUCTION SERVICES, INC., Respondent. Appearances: Nain Martinez, Jr., Esq., for Complainant Cristina Alva, Esq., for Respondent 8 U.S.C. § 1324a Proceeding OCAHO Case No. 2024A00004 ORDER TO SHOW CAUSE I. BACKGROUND This case arises under the Immigration and Nationality Act (INA), as amended, 8 U.S.C. § 1324a. Complainant, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), filed a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO) on October 3, 2023. Complainant alleges that Respondent, Cabello Recovery and Auctions Services, Inc., failed to prepare and/or present the Employment Eligibility Verification Form (Form I-9) for twenty-two individuals, and failed to ensure the employees properly completed Section 1 and/or failed to properly complete Section 2 or 3 of Form I-9 for three individuals, in violation of 8 U.S.C. § 1324a(a)(1)(B).

This office sent Respondent and Respondent’s counsel a Notice of Case Assignment for Complaint Alleging Unlawful Employment (NOCA), a copy of the complaint, the Notice of Intent to Fine, and Respondent’s request for a hearing (collectively the complaint package) on October 10, 2023, via U.S. certified mail. The NOCA directed that an answer was to be filed within thirty days of receipt of the complaint, that failure to answer could lead to default, and that proceedings would be governed by Department of Justice regulations.1 1 OCAHO Rules of Practice and Procedure, 28 C.F.R. pt. 68 (2022). 18 OCAHO no. 1514 On October 31, 2023, the complaint package addressed to Respondent was received at this office with a stamp indicating the package was undeliverable, and a label indicating the address was vacant and the package could not be forwarded. Also on October 31, 2023, this office received the complaint package addressed to Respondent’s counsel, with a label that there was no such address number.

On November 8, 2023, this office sent Respondent’s counsel the complaint package again to a corrected address. OCAHO received a signed certified mail card indicating the re-sent complaint package was delivered on November 13, 2023, making an answer due no later than December 13, 2023. See 28 C.F.R. §§ 68.3(a), 68.9(a). To date, Respondent has not filed an answer.

II.

ORDER TO SHOW CAUSE

Under the OCAHO Rules of Practice and Procedure, to contest a material fact alleged in the complaint or a penalty assessment, a respondent must file an answer. 28 C.F.R. § 68.9(c). Failure to file an answer “within the time provided may be deemed to constitute a waiver of his or her right to appear and contest the allegations of the complaint. The Administrative Law Judge may enter a judgment by default.” 28 C.F.R. § 68.9(b).

“If a default judgment is entered, the request for hearing is dismissed, AND judgment is entered for the complainant without a hearing.” Nickman v. Mesa Air Grp., 9 OCAHO no. 1106, 1 (2004).2 Additionally, “a request for hearing may be dismissed upon its abandonment by the party . . .who filed it” if a “party or its representative fails to respond to orders issued by the Administrative Law Judge.” 28 C.F.R. § 68.37. The Court therefore ORDERS Respondent, Cabello Recovery and Auction Services, Inc., to file an answer that comports with 28 C.F.R. § 68.9(c), within twenty-one days of the date of this Order. An answer includes “[a] statement that the respondent admits, denies, or does not have and is unable to obtain sufficient information to admit or deny each allegation” and “[a] statement of fact supporting each affirmative defense.” § 68.9(c)(1)–(2). The Court further ORDERS Respondent Cabello Recovery and Auction Services, Inc., to file a submission that demonstrates good cause for its failure to timely file an answer, within twenty- one days of the day of this Order.

2 Citations to OCAHO precedents reprinted in bound Volumes 1 through 8 reflect the volume number and the case number of the particular decision, followed by the specific page in that volume where the decision begins; the pinpoint citations which follow are thus to the pages, seriatim, of the specific entire volume. Pinpoint citations to OCAHO precedents subsequent to Volume 8, where the decision has not yet reprinted in a bound volume, are to pages within the original issuances; the beginning page number of an unbound case will always be 1, and is accordingly omitted from the citation. Published decisions may be accessed in the Westlaw database “FIM-OCAHO,” or in the LexisNexis database “OCAHO,” or on the website at http://www.justice.gov/eoir/OcahoMain/ocahosibpage.htm#PubDecOrders. 2 Should Respondent fail to respond as ordered or cannot show good case, the Court may enter a default judgment against Respondent or dismiss the request for hearing pursuant to 28 C.F.R. §§ 68.9(b) and 68.37.

18 OCAHO no. 1514 SO ORDERED. Dated and entered on January 4, 2024. __________________________________ Honorable Jean C. King Chief Administrative Law Judge 3