OCAHO
“OCAHO” is the acronym for Office of the Chief Administrative Hearing Officer, a subdivision of the Executive Office For Immigration Review (“EOIR”).
Acronyms can sometimes be misleading. A Houston immigration court interpreter once told me that he had found it necessary to correct a confused individual in immigration proceedings who was laboring under the misconception that the acronym, “BIA,” meant Bureau of Indian Affairs. For those readers unfamiliar with immigration jargon, “BIA” is the acronym for the Board of Immigration Appeals. The confused individual in this scenario did not know why he was being instructed to file an appeal from the Immigration Judge's decision with the Bureau of Indian Affairs.
The OCAHO is essentially an administrative court system that has jurisdiction over controversies arising from 1) enforcement of employer sanctions provisions under section 274A of the Immigration and Nationality Act, as amended (“the Act”); 2) unfair employment practices relating discrimination based on national origin or citizenship status under section 274B of the Act; and 3) document fraud penalized under section 274C of the Act to satisfy requirements or to obtain benefits under the Act (i.e. immigration related requirements and benefits).
Complaints can be filed by the Department of Homeland Security (“DHS”), the Immigrant and Employee Rights Section in the Civil Rights Division of the Department of Justice (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices), or private individuals or entities.
Hearings are conducted by administrative law judges under governing statutes and regulations, including the Administrative Procedure Act. See sections 274A(e), 274B(d) and 274C(d) of the Act; 5 U.S.C. § 554; and 8 C.F.R. Parts 1270 and 1274a.
So if you are an immigration law practitioner, you might renew your relationship with your favorite or most loathsome DHS trial attorney in the context of proceedings conducted by an OCAHO administrative judge, especially in an employer sanctions matter.
All OCAHO decisions are subject to review by the appropriate circuit court of appeal.
The decision in United States v. Zuniga Torentino, 15 OCAHO no. 1397 (2021) is a default judgement resulting in a minimum civil money penalty of $962 and an order requiring the Respondent to cease and desist from violating section 274C of the Act. United States v. Zuniga Torentino, at pp. 7, 8.
Any attorney will tell you that default judgements are never good. However trite this observation might seem, it is most likely true for aliens inside or outside the United States who are subject to a monetary penalty or cease and desist order issued under the provisions of section 274C of the Act.
An alien who is the subject of a final order for violation of section 274C of the Act is inadmissible to the United States under section 212(a)(6)(F) of the Act.
Also, any alien in the United States who is the subject of a final order for violation of 274C of the Act is deportable under section 237(a)(3)(C)(i) of the Act.
In short, aliens subject to a final order for violation of section 274C of the Act are removable before or after admission to the United States.
However, there is still hope.
Congress provided for a discretionary waiver of section 212(a)(6)(F)(i) of the Act. See sections 212(a)(6)(F)(ii) and 212(d)(12) of the Act.
To qualify for a waiver under section 212(d)(12) of the Act, an applicant must establish that:
1) the applicant is a lawful permanent resident of the United States;
2) the applicant temporarily proceeded abroad (not under an order of deportation or removal); and
3) the applicant is otherwise admissible; or
4) the applicant is seeking admission or adjustment of status as an immediate relative under section 201(b)(2)(A) of the Act (i.e. child, spouse or parent of a United States citizen) or as a family sponsored immigrant under section 203(a) of the Act.
This waiver is not available if more than one civil money penalty had been imposed against the applicant under section 274C of the Act and if the offense was committed to benefit an individual other than the applicant’s spouse or child.
Finally, Congress provided that: “No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this paragraph."
Except for temporary travel abroad, being otherwise admissible to the United States or seeking admission or adjustment of status (items "2," "3" and "4" listed above), the same criteria must be met to waive section 274C document fraud penalties for aliens who are deportable for such penalties under section 237(a)(3)(C)(i) of the Act (i.e. lawful permanent resident status; no previous 274C civil money penalty; and, the offense was incurred solely to assist, aid, or support the applicant's spouse or child). See section 237(a)(3)(C)(ii) of the Act.