United States v. Morales-Guzman

5 OCAHO 787 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER August 3, 1995 UNITED STATES OF AMERICA, Complainant, v. 8 U.S.C. 1324c Proceeding ) OCAHO Case No. 95C00010 AMBROCIO MORALES-GUZMAN, ) Respondent. ORDER GRANTING COMPLAINANT'S MOTION FOR DEFAULT JUDGMENT On April 6, 1994, complainant, acting by and through the Immigra- tion and Naturalization Service (INS), issued and served upon Ambrocio Morales-Guzman (respondent) Notice of Intent to Fine (NIF) SND 274(c)94-0009. That single-count citation alleged 996 violations of the document fraud provisions of the Immigration and Nationality Act (INA), 8 U.S.C. Section 1324c(a)(2), for which civil penalties totaling $498,000 were proposed. In Count I, complainant alleged that respondent knowingly possessed the counterfeited documents described therein, namely 996 Form 151 Alien Registration Cards, and did so after November 29, 1990, for the purpose of satisfying a requirement of the INA, 8 U.S.C. § 1324c(a)(2).

The aggregate proposed civil penalty assessment sum results from INS having levied civil money penalties of $500 for each of those 996 violations. Respondent was advised in the NIF of his right to file a written re- quest for a hearing before an administrative law judge assigned to this office if he filed his request within 60 days of his receipt of the NIF. Respondent timely filed such a written request. On January 23, 1995, complainant filed the one-count Complaint at issue, reasserting the 996 violations set forth in the NIF, and request- 547 ing civil money penalties totaling $249,000, or $250 for each of the 996 alleged violations.

On January 25, 1995, a Notice of Hearing on Complaint Regarding Civil Document Fraud, as well as a copy of the Complaint at issue were served on respondent by certified mail, return receipt requested. In that Notice, respondent was advised that should he fail to file an answer within the 30-day time period provided, he may be deemed to have waived his right to appeal and contest the allegations set forth in the Complaint, and also that an administrative law judge may enter a judgment by default along with any other appropriate relief. On March 2, 1995, the U.S. Postal Service Domestic Return Receipt, PS Form 3811, which had been attached to respondent's copy of that Notice of Hearing, was returned to this Office displaying an "UNCLAIMED" stamp. On March 14, 1995, a second copy of the Notice of Hearing and Complaint was served upon respondent by regular, first class mail, and to date, that copy has not been returned to this Office.

On March 23, 1995, complainant supplied this Office with a more current address for respondent, and on that date a third copy of that Notice of Hearing and Complaint was served upon respondent by both regular, first class mail and by certified mail. On April 24, 1995, the Domestic Return Receipt that had been attached to that third copy of the Notice of Hearing and Complaint was returned to this Office displaying another "UNCLAIMED" stamp. However, the copy that was served via first class mail has not been returned to this Office by the United States Postal Service, as it routinely would have been in the event that the Notice of Hearing and Complaint copy had not been delivered to the current address furnished by complainant. The pertinent procedural rule governing service of complaints, notices of hearings, written orders and decisions, provides that service of those documents shall be made by the Office of the Chief Administrative Hearing Officer or the Administrative Law Judge to whom the case is assigned either: (1) By delivering a copy to the individual party, partner of a party, officer of a corporate party, registered agent for service of process of a corporate party, or attorney of record of a party; or 548 (2) By leaving a copy at the principal office, place of business, or residence of a party; or (3) By mailing to the last known address of such individual, partner, officer, or attorney.

28 C.F.R. § 68.3(a). Accordingly, the Notice of Hearing and copy of the Complaint were received by respondent at respondent's last known address, since "[s]er- vice of complaint and notice of hearing is complete upon receipt by addressee." 28 C.F.R. § 68.3(b). Therefore, proper service was affected in accordance with the provisions of 28 C.F.R. Section 68.3. On June 19, 1995, complainant filed a Motion for Default Judgment, asserting in support thereof that respondent had failed to file his Answer within 30 days of service of the Complaint.

The procedural regulation governing answers, 28 C.F.R. Section 68.9, provides that each respondent shall file an answer within 30 days after the service of a complaint. 28 C.F.R. § 68.9(a). That regulation further provides: Failure of the respondent to file an answer within the time provided shall be deemed to constitute a waiver of his/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). On June 26, 1995, the undersigned issued an Order To Show Cause Why Complainant's Motion For Default Judgment Should Not Be Granted. In that Order, respondent was ordered to show cause, within 15 days of its acknowledged receipt of that Order, why complainant's Motion For Default Judgment should not be granted, or, in the alter- native, to have filed an answer which comports with the requirements set forth at 28 C.F.R. § 68.9(c). Respondent was also advised in that Order that should he fail to comply with the terms of that Order, com- plainant's Motion for Default Judgment would be granted and respon- dent's request for administrative relief would be dismissed with prejudice to refiling.

On or around July 15, 1995, the U.S. Postal Service Domestic Return Receipt, PS Form 3811, that had been attached to respondent's copy of that Order to Show Cause was returned to this Office indicating that respondent had received his copy of that Order on July 15, 1995. 549 Accordingly, respondent had 15 days from that date in which to respond, or until July 31, 1995, but has failed to do so. Therefore, because respondent has failed to file his required Answer in a timely manner after service of the Complaint, and also has not shown good cause for having failed to comply with the provisions of the June 26, 1995 Order to Show Cause, complainant's Motion for Default Judgment is granted. Respondent is found to have violated the provisions of 8 U.S.C. § 1324c(a)(2), in the manners alleged in Count I of the Complaint, by having knowingly possessed the counterfeited documents described therein, namely 996 Form 151 Alien Registration Cards, and did so after November 29, 1990, for the purpose of satisfying a requirement of the INA.

Accordingly, respondent is ordered to pay civil money penalties totaling $249,000, or $250 for each violation alleged in Count I. Respondent is also ordered to cease and desist from further violations of IRCA, 8 U.S.C. Section 1324c(a)(2).

JOSEPH E. MCGUIRE

Administrative Law Judge Appeal Information This Order shall become the final order of the Attorney General unless, within 30 days from the date of this Order, the Chief Administrative Hearing Officer shall have modified or vacated it. Both administrative and judicial review are available to respondent, in accordance with the provisions of 8 U.S.C. §§ 1324c(d)(4); 1324c(d)(5), and 28 C.F.R. § 68.53. 550