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Overview of Procedural Rules for Contested IRCA Cases Before the DOJ Office Of Special Counsel

Contested cases that prosecute a Immigration Reform and Control Act, or IRCA, claim, have their own unique set of rules.  Lawyers will recognize some rules which are consistent with the rules of civil procedure.  The rules are set forth in a code of federal regulations.

A claim begins when an individual, or government, files a complaint with the Department of Justice Office of Special Counsel.  The Office of Special Counsel has 120 days to act on a complaint.  The Office of Special Counsel should determine whether there is reasonable cause for a charge and bring a complaint with the Chief Administrative Hearing Officer.  The Office of Special Counsel may choose to notify the complaining party that no complaint will be filed.  In that event, the individual may file a complaint directly with the Chief Administrative Hearing Officer within 90 days of notice from the Office of Special Counsel.

If a complaint is filed, a formal answer from the business or employer who is the defendant is due within 30 days of service.  The complaint may be served by leaving a copy at the principal office, place of business or residence of a person.  The Chief Administrative Hearing Officer or the Administrative Law Judge (“ALJ”) assigned to the case serves the complaint.  The ALJ will be the judge and “jury” who decides the merits of the case.

If an answer is filed, within 30 days the ALJ will assign a date for a pre-hearing conference.  These conferences are often held via telephone.  A hearing on the merits will also be scheduled, and the ALJ will decide the location.  Defendants may file a motion to dismiss along with an answer.

Any party that files a motion triggers a deadline for the other party to serve a response within 10 days.  Oral argument only happens with the permission of the ALJ.  Discovery is allowed, including depositions, interrogatories, document requests and requests for admissions.  The frequency and volume of this discovery is decided by the ALJ.  All subjects of relevance to the case are discoverable, a standard that appears to be more limited than normal civil litigation that allows discovery of any information that may lead to admissible evidence.  Parties may insist upon protective orders to keep sensitive information confidential.

The party filing the complaint may move for summary judgment.  This motion is similar to why a party might find in civil litigation.  A party receiving a motion from the other side must respond within 10 days.  If a “trail”, or hearing on all the alleged facts is held, the rules of evidence used in federal court are the ALG’s guide for determining admissibility of evidence.

After a decision by the ALJ, if there is a finding of a violation under Sections 274A and 274C of the IRCA, the decision is reviewable by the Chief Administrative Hearing Officer at the Department of Justice.  After any final decision, the Chief Administrative Hearing Officer may refer the matter to the attorney general.  The business/employer subject to a penalty may appeal to the Court of Appeals within 45 days of the final order from Chief Administrative Hearing Officer.

For 274B cases, an appeal may be filed directly with a U.S. Court of Appeals.  There is a 60 day deadline for filing in the U.S. Court of Appeals.