PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SPLIT RAIL FENCE COMPANY, INC., a Colorado corporation, Petitioner,

v. UNITED STATES OF AMERICA, United States Department of Justice Executive Office for Immigration Review Office of the Chief Administrative Hearing Officer, Respondent. No. 15-9561 (DOJ No. 12A00059) (Department of Justice)

________________ _________________ ORDER

________________ _________________ Before HARTZ , HOLMES , and MATHESON , Circuit Judges.

________________ _________________ This matter is before the court on the petitioner’s Petition for Rehearing En Banc

. Any implicit request for panel rehearing contained in the Petition is denied. We have however, sua sponte , decided to revise the original opinion on pages 36 and 41 for clarification. A copy of th e amended opinion and its appe ndix are attached hereto. The Petition for Rehearing En Banc was transmitted to all of the judges of the court who are in regular active se rvice and who are not disqualified. * As no member of

* The Honorable Neil M. Gorsuch is recused in this matter. He did not participate in consideration of the petition. FILED United States Court of Appeals Tenth Circuit 

### March 17, 2017
Elisabeth A. Shumaker Clerk of Court2 the panel and no judge in regular active serv ice on the court requested that the court be polled, the request for en banc review is denied. The Clerk is directed to file the ame nded opinion and its appendix effective the date of this order.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkUNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SPLIT RAIL FENCE COMPANY, INC., a Colorado corporation, Petitioner,

v. UNITED STATES OF AMERICA, United States Department of Justice Executive Office for Immigration Review Office of the Chief Administrative Hearing Officer, Respondent. No. 15-9561

________________ _________________ APPEAL FROM THE DEPA RTMENT OF JUSTICE (DOJ No. 12A00059)

________________ _________________ Christopher J. Forrest, Miller & Steiert, P.C ., Littleton, Colorado (M ichael P. Miller and Benjamin L. Broder, Miller & Steiert, P.C ., Littleton, Colorado; and Ann Allott, Allott Immigration Law Firm, Centennial, Colorado, with him on the briefs), appearing for Petitioner. Dana M. Camilleri, Trial A ttorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Anth ony P. Nicastro, Acting Assistant Director, with her on the brief), Office of Immigrati on Litigation, Civil Di vision, United States Department of Justice, Washingt on, DC, appearing for Respondent.

________________ _________________ Before HARTZ , HOLMES , and MATHESON , Circuit Judges.

________________ _________________ MATHESON , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### March 17, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - Split Rail Fence Company, Inc ., a Colorado business that sells and installs fencing materials, petitions for review of an ad ministrative law judge’s (“ALJ”) summary decision. The decision imposed civil pena lties on Split Rail for violating the Immigration Reform and Control Act (“IRCA”) by (1) “hi r[ing] for employment in the United States an individual without complyi ng with the requirements of s ubsection (b)” of 8 U.S.C. § 1324a in violation of § 1324a(a)(1)(B) (C ount One); and (2) “continu[ing] to employ [an] alien in the United States knowing the alien is (or has beco me) an unauthorized alien” in violation of § 1324a(a)(2) (C ount Two). Exercising jurisdiction under § 1324a(e)(8), we deny Split Rail’s petition.
I. BACKGROUND We begin by explaining the relevant legal background, the administrative enforcement and adjudication process, and the fa ctual and procedural hi story of this case.
A. Legal Background Congress amended the Immigration and Nationality Act (“INA”) in 1986 by enacting the IRCA. IRCA Section 274A establishes “an extensive ‘employment verification system,’ § 1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the Unite d States, or (b) are not lawfully authorized to work in the United States, § 1324a(h)(3).” Hoffman Plastic Compou nds, Inc. v. NLRB , 535 U.S. 137, 147 (2002). Known as the I-9 system, the IRCA require s employers (1) “to verify the identity of their employees and ensure they are eligib le to work in the United States by examining certain . . . documents” specified in § 1324a( b), and (2) to complete and retain an- 3 - Employment Eligibility Verification Fo rm (I-9 form) for each employee. Chamber of Commerce of U.S. v. Edmondson , 594 F.3d 742, 751 (10th Cir. 2010) (citing 8 C.F.R. § 274a.2(b)). A copy of the I-9 form and instru ctions relevant to this appeal is attached as an appendix to aid in und erstanding this opinion. Section 1324a(b) specifies that an employer must “attest . . . that it has verified that the individual is not an unauthorized alien by examining . . . (i) a document described in subparagraph (B), or (ii) a document desc ribed in subparagraph (C) and a document described in subparagraph (D).” 8 U.S.C. § 1324a(b)(1)(A). The acceptable verification documents for each category are listed in § 1324a(b)(1)(B)-(D), 8 C.F.R. § 274a.2(b)(1)(v), and in the “Lists of Ac ceptable Documents” instructions page accompanying the I-9 form (“List A, B, or C documents”). On ce the employer has examined the appropriate docum ents, it must record the title , number, and expiration date (if any) of those documents in Section 2 of the I-9 form. IRCA Section 274A makes it unlawful for an employer (1) “to hire . . . an alien knowing the alien is an unauthorized alien,” 8 U.S.C. § 1324a(a)(1); (2) “to hire . . . an individual without comply ing with” the I-9 system, id. § 1324a(a)(1)(B); or (3) “to continue to employ [an] alien . . . knowing the alien is (or has become) an unauthorized alien,” id. § 1324a(a)(2). An “unauthorized alien” is an alien who is neither “(A) an alien lawfully admitted for permanent residence, [ nor] (B) authorized to be so employed by [the IRCA] or by the Attorney General.” Id. § 1324a(h)(3). Within the agency, the first type of violation is called a “knowing hire” violation. See, e.g. , United States v. Jalisco’s Bar and Grill, Inc. , 11 OCAHO 1224, 2014 WL 40569 21, *3 (June 27, 2014). Of- 4 - relevance to this case, the second is called a “paperwork violation,” id. , and the third is a “knowing continue to employ violation,” United States v. Muniz Concrete & Contracting,
Inc. , 12 OCAHO 1278, 2016 WL 2851340, at *8 (Apr. 29, 2016). The IRCA also includes an anti-discrimination pr ovision under which an employer’s “request, for purposes of satisfyi ng the requirements of section 1324a(b) of this title, for more or different documents than are required u nder such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related em ployment practice if made for the purpose or with the intent of discriminating against an individual.” 8 U. S.C. § 1324b(a)(6); see also Edmondson , 594 F.3d at 767.
B. Administrative Enforcem ent and Adjudication The regulations implementing the IRCA authorize Immigration and Customs Enforcement (“ICE”), an agency within the Department of Homeland Security (“DHS”), to “conduct investigations for vi olations on its own initiative.” 1 8 C.F.R. § 274a.9(b). ICE’s investigation process typically begins by serving a Notice of Inspection (“NOI”) to the employer. U.S. Im migration and Customs Enforcement, Form I-9 Inspection Overview (June 26, 2013), https://www.ice. gov/factsheets/i9-inspection. The NOI compels production of the employer’s I-9 forms and may request other supporting

1 The regulations originally granted Immigration and Naturalization Service (“INS”) with enforcement powe r. The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, which went into effect in 200 3, abolished the INS, 6 U.S.C. § 291, and created ICE, id. § 271, which now enforces viola tions of Section 274 of the IRCA, see id. § 271(b).- 5 - documentation. Id. Once the forms are produced, ICE agents inspect them for compliance. Id. When the inspection is complete, ICE no tifies the employer of the results in writing. Id. If ICE determines that the employe r has violated IRCA Section 274A, it may issue a “Warning Notice,” such as a “Notice of Suspect Documents” (“NSD”), containing “a statement of the ba sis for the violations and the statutory provisions alleged to have been violated.” 8 C. F.R. § 274a.9(c). In addition to or in place of a Warning Notice, ICE may serve a Notice of Intent to Fine (“NIF”), which commences proceedings to assess administrative penalties. Id. § 274a.9(d); see also 8 U.S.C. § 1324a(e)(4), (5) (allowing the assessment of civil penalties ). An employer serv ed with an NIF may negotiate a settlement with ICE or request a hearing before an AL J. 8 C.F.R. § 274a.9(e). The United States Department of Justi ce’s Office of the Chief Administrative Hearing Officer (“OCAHO”) has jurisdiction to hear alleged violations under the INA. Hearings are conducted before ALJs who issu e orders stating their findings of law and fact. 8 U.S.C. § 1324a(e)(3)(B)-(C). An ALJ’ s order becomes the final agency decision unless appealed to the Chief Administrativ e Hearing Officer (“CAHO”). 28 C.F.R. § 68.52(g). A party adversely affected by a fina l order may then petition a circuit court for review. 28 C.F.R. § 68.56.- 6 - C. Factual and Procedural History ICE’s 2009 Investigation, Notice of Suspect Documents, and Settlement 1. On June 20, 2009, ICE special agents co nducted an inspection at Split Rail to determine its compliance with the IRCA. During the inspecti on, it examined Split Rail’s I-9 forms. On Septemb er 11, 2009, ICE sent Sp lit Rail an NSD stating: This letter is to inform you that, acco rding to the records checked by ICE, the following individuals a ppear, at the present time, not to be authorized to work in the United States . The documents submitte d to you were found to pertain to other individuals, or there was no record of the alien registration numbers being issued, or the document s pertain to the individuals but the individuals are not employment au thorized or their employment authorization has expired. Accordi ngly, the documentation previously provided to you for these employees does not satisfy the Form I-9 employment eligibility verification re quirements of the Immigration and Nationality Act. App. at 145. The NSD listed 32 current empl oyees and 51 terminated employees. It further stated, “Unless th e above employee(s) present valid identification and employment eligibility documenta tion acceptable for completing the Form I-9, other than the documentation previously submitted to you, they are considered by ICE to be unauthorized to work in the United States.” App. at 147. It noted that continued employment of these employees without vali d documentation could subject Split Rail to civil monetary penalties. Split Rail’s president and ow ner, Tom Barenberg, stated in his affidavit that “shortly after” Split Rail received the NSD, it served the NSD on the 32 current- 7 - employees named in it, videotaping the service. 2 Id. at 723. He further stated, “Twentythree (23) of the employees would not affirm that they were author ized to work in the United States and their employment was immediately terminated.” Id. The nine remaining employees continued to work at Split Rail. On October 14, 2009, Split Rail emailed the Office of Special Counsel (“OSC”) for Immigration Related Unfair Employmen t Practices, seeking guidance on how it should respond to the NSD consistent with the IRCA’s anti-discrimination provision. OSC replied: [OSC] cannot provide an advisory opini on on any particular instance of alleged discrimination or on any se t of facts involving a particular individual or entity. However, we can provide some general guidelines regarding employer compliance with the INA’s anti-discrimination provision.

. . . . The anti-discrimination provision of the INA prohibits the request for specific documents or the rejection of documents during the employment eligibility verification proce ss with the intent to disc riminate on the basis of national origin or citizenship status. However, it has been long recognized that action by an employer taken for reasons other than an intent to discriminate does not constitute an un fair employment practice within the meaning of the antidiscrimination pr ovision of the INA. While an ICE Notice of Suspect Documents may pr ovide a non-discriminatory reason behind the decision to re-verify an employee’s employment eligibility, the standard for accepting documents presen ted by the employee to re-establish his or her employment eligibility remains the sa me—whether the document(s) presented reasona bly appear on their face to be genuine and to relate to the person who pr esents the document(s). App. at 696-97 (citations omitted).

2 Split Rail has not offered th e recording as evidence.- 8 - On February 1, 2010 , ICE served Split Rail with an NIF, and in June 2010, ICE and Split Rail entered a settlement agreement. Jaime Lopez Ramirez’s I-9 Form 2. On October 5, 2009—aft er the issuance of the 2 009 NSD and before the settlement—Split Rail hired Jaime Lopez Ramirez. It verified his employment eligibility using his Mexican passport, which included a temporary I-551 stamp. The I-551 stamp authorized employment in the United Stat es until September 13, 2010. Mr. Lopez Ramirez continued working at Split Rail after his I-551 authorization expired. Split Rail did not update or re-verify his employment authorization on or after that date. ICE’s 2011 Investigation and NSD 3. On June 15, 2011, ICE mailed Split Rail a No tice of Inspection and five days later began a review of Split Rail’s I-9 forms “for po ssible violations of Section 274A” of the IRCA. App. at 161. ICE completed its investigation on August 29, 2011, and mailed Split Rail an NSD the ne xt day, which read: This letter is to inform you that, acco rding to the records checked by ICE, the following individuals appear, at the present time not to be authorized to work in the United States . The documents submitte d to you were found to pertain to other individuals, or there was no record of the alien registration numbers being issued, or the document s pertain to the individuals but the individuals are not employment au thorized or their employment authorization has expired. Accordi ngly, the documentation previously provided to you for these employees does not satisfy the Form l-9 employment eligibility verification re quirements of the Immigration and Nationality Act. The NSD listed nine current employees an d one terminated em ployee, stating, Unless the [named] employee(s) p resent valid identification and employment eligibility documentation acceptable for completing the Form- 9 - I-9 other than the documentation pr eviously submitted to you, they are considered by ICE to be unauthorized to work in the Un ited Sates. If you continue to employ these individuals without valid documentation, you may be subject to a civil money penalty. . . . If you or the employees feel that this determination is in error and the employees are authorized to work, immediately call [the] Forensic Auditor . . . . ICE will re-verify the info rmation provided about the employees, including any new information pr ovided by you or the employees. Id. at 152-53. All but one of the individuals named in th e 2011 NSD had also been named in the 2009 NSD. Split Rail had not updated or ch anged the I-9 forms of the nine employees named in both NSDs since the 2009 inspection. According to Mr. Barenberg’s affidavit, these nine employees were among the 32 employees Split Rail had videotaped after receiving the 2009 NSD. He stated that, du ring the videotaping, the nine employees had all orally “verified that they were author ized to work in the U.S.” App. at 723. On September 26, 2011, ICE served Sp lit Rail with an NIF, commencing this administrative proceeding against Split Rail. Split Rail requested a hearing before an ALJ three days later. On February 17, 2012, Mr. Barenberg mailed ICE a letter, stating he “had absolutely no reason to believe e ither now or at any time in the past that any of [the nine individuals identified as ‘current employees ’ in the 2011 NSD] are anything but law abiding residents of the United States of America.” Id. at 586. He noted many of them were long-term employees who, along with th eir families, had been involved in company activities, parties, and picnics. He further st ated they each appeared authorized to work in the United States because they had bank accounts, cars , homes, and mortgages. He- 10 - also noted many had valid driver’s license s and some had filed successful workers’ compensation claims. He did not, however, state that Split Rail had taken any action regarding the employees’ I-9 forms. ICE’s Complaint and Summary Decision 4. On April 6, 2012, ICE file d a complaint against Split Ra il. On July 20, 2012, it filed an amended complaint—the comp laint relevant to this appeal. Count One of the amende d complaint alleged a pa perwork violation under § 1324a(b) as to Mr. Lopez Ramirez. It alle ged that (1) when Sp lit Rail hired Mr. Lopez Ramirez, it verified his employment elig ibility using his Mexican passport, which included a temporary I-551 stamp authoriz ing employment in the United States until September 13, 2010; (2) § 1324 a(b) required Split Rail to re-veri fy his work authorization and update his I-9 form with the new ba sis for employment eligibility when his authorization expired; and (3) Split Rail failed to do so and therefore committed a paperwork violation u nder § 1324a(a)(1)(B). Count Two alleged Split Rail continued to employ nine of the employees listed on the 2011 NSD knowing they were or had become unaut horized in violation of § 1324a(a)(2). ICE moved for summary deci sion under 28 C.F.R. § 68.38, the administrative analog to summary judgment under Federal Rule of Civil Procedure 56. The ALJ granted ICE summary decision on both counts. Split Rail timely filed its petition for review with this court.- 11 - II. DISCUSSION A. Standard of Review We have yet to determine the standard of review that applies to a summary decision under 28 C.F.R. § 68 .38(c). Split Rail argues de novo review applies. ICE asserts we may only reverse if the ALJ’s deci sion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” arguing that we should review questions of law de novo and factual determina tions for a basis in “s ubstantial evidence.”
See 5 U.S.C. § 706(2)(A), (E). Other circuits reviewing ALJ decisions in this context have used varying standards. 3 Because we conclude under de novo review—the standard most favorable to Split Rail—there is no genuin e issue of material fact and ICE is entitled to summary decision, we need not decide which standard applies.
B. Summary Decision Standard The requirements for a summary decision u nder 28 C.F.R. § 68.38(c) are the same as under Federal Rule of Civil Procedure 56. See Getahun v. OCAHO , 124 F.3d 591, 594 (3d Cir. 1997) (“The standards governing the entry of summary judgment under Fed. R. Civ. P. 56(c) in federal court cases are a pplied in determining whether summary decision under 28 C.F.R. § 68.38(c) is appropriate in OCAHO cases.”); United States v. Foothill

3 See, e.g. , Getahun v. OCAHO , 124 F.3d 591, 594 (3d Cir. 1997) (exercising “plenary review” while giving “some defe rence . . . to an agency’s reasonable construction of a statute it is charged with administering”); Villegas-Valenzuela v. INS , 103 F.3d 805, 809, 812 (9th Cir. 1996) (same); Odongo v. OCAHO , 610 F. App’x 440, 441 (5th Cir. 2015) (unpublished) (reviewing fact findings for substantial evidence and conclusions of law de novo); Martinez v. Linen , 579 F. App’x 573, 573 (9th Cir. 2014) (unpublished) (same); Rompalli v. Tykhe Capital, LLC , 452 F. App’x 69, 69-70 (2d Cir. 2012) (unpublished) (applying the arbitrary or capricious standard).- 12 - Packing, Inc. , 11 OCAHO 1240, 2015 WL 329579, *5-6 (20 15) (citing the Rule 56 standard in Celotex Corp. v. Catrett , 477 U.S. 317 (1986), and Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986), to explain the summary decision standard under 28 C.F.R. § 68.38(c)). Under 28 C.F.R. § 68.38(c), an ALJ “sha ll enter a summary decision for either party if the pleadings, affidavits, material obt ained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.” An issue is genuine “if there is sufficient evidence on each side so that a rational trier of fact c ould resolve the issue either way.” Becker v. Bateman , 709 F.3d 1019, 1022 (10th Ci r. 2013) (quotations omitted); see also Anderson , 477 U.S. at 248. An issue of fact is material if under the substantive law it is essential to the proper di sposition of the claim. Anderson , 477 U.S. at 248; Foothill Packing, Inc. , 11 OCAHO 1240, 2015 WL 329579, at *5. The movant bears the initial burden of de monstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Celotex , 477 U.S. at 323; Foothill Packing, Inc. , 11 OCAHO 1240, 2015 WL 329579, at *6. If the movant satisfies this initial bur den, the burden shifts to the non-movant to show specific facts from which a rational trier of f act could find for the non-movant. See Celotex , 477 U.S. at 324; Foothill Packing, Inc. , 11 OCAHO 1240, 2015 WL 329579, at *6.
C. Count One We deny Split Rail’s petition for review of Count One because Split Rail failed to update Section 3 of Mr. Lopez-Ramirez’s I-9 form when his work au thorization expired,- 13 - leaving no issue of material fact to be res olved and entitling ICE to judgment as a matter of law. Further Legal Background 1. As explained above, the regulations promulgated under § 1324a require an employer to complete an I-9 fo rm. 8 C.F.R. § 274a.2(a)(2),(b)(1 ). Relevant here is the August 2009 version of the I-9 form, excerpted below and a ttached at the end of this opinion, which Mr. Lopez Ramirez and Split Rail filled out when Mr. Lopez Ramirez was hired. That version consisted of three sections.

a. Section 1 The employee must complete Section 1, titled “Employee Information and Verification,” and attest under penalty of perj ury his or her legal status in the United
States. See id. § 274a.2(b)(1)(i) (stating that when an employer hires an individual, the

employer “must ensure that the individual pr operly . . . [c]omple tes [S]ection 1”).

b. Section 2- 14 - The employer must complete Sect ion 2, titled “Employer Review and Verification,” to confirm the identity and em ployment authorization of the employee by listing the document numbers and expira tion dates of examined documents. See id. § 274a.2(b)(1)(ii) (explaining an employer “must within three business days of hire . . . [c]omplete [S]ection 2”).

Documents satisfying the “List A” categor y are listed on the “Lists of Acceptable Documents” instructions page accompanying the I-9 form , and in subparagraph B of § 1324a(b)(1). Satisfactory documents include a “[f]oreign passport that contains a temporary I-551 stamp.” App. at 749. Fina lly, the instructions to the I-9 form state, “Employers may, but are not required to , photocopy the document(s) presented.” Id. If an employer chooses to make photocopies, th ey “must be retained with Form I-9.” Id.

c. Section 3- 15 - The employer also must comp lete Section 3, titled “Upd ating and Reverification.” The employer must note the employee’s current employment authorization document title, number, and expiration date if his previ ous grant of work auth orization has expired.

The instructions to the I-9 form state, “Employers must reverify employment authorization of their employ ees on or before the work au thorization expiration date recorded in Section 1 (if any).” Id. at 746.; see also 8 C.F.R. § 274a.2 (b)(1)(vii) (“If an individual’s employment authorization expires , the employer . . . mu st reverify on the Form I-9 to reflect that the i ndividual is still authorized to work in the United States; otherwise the individual may no longer be employed, recruited, or referred.”). The regulations explain in further detail, In order to reverify on the Form I-9, the employe e . . . must present a document that either shows continuing employment eligibility or is a new grant of work authorization. The employer or the recruiter or referrer for a fee must review this document, and if it appears to be genuine and relate to the individual, re-verify by noting the do cument’s identification number and expiration date, if any, on the Form I-9 and si gning the attestation by a handwritten signature or electronic si gnature in accorda nce with paragraph (i) of this section. 8 C.F.R. § 274a.2(b)(1)(vii). Additional Factual Background 2. When Split Rail hired Mr. Lopez Ramirez, he presented a Mexican passport with a temporary I-551 stamp showing an expiration date of Septem ber 13, 2010. In Section 1- 16 - of his I-9 form, Mr. Lopez Ramirez wrote hi s alien number and in correctly checked off that he was a lawful perman ent resident. In Section 2, Split Rail listed that it had examined one List A document—Mr. Lop ez Ramirez’s Mexican passport. Split Rail noted his passport number and that his passpor t would expire on September 14, 2012, but did not note the expirati on date of his temporary I-551 work authorization. Split Rail also retained a photocopy of Mr. Lopez Ramirez’ s Mexican passport and temporary I-551 stamp with his I-9 form. De spite the September 13, 2010 expiration date of Mr. Lopez Ramirez’s temporary I-551 stamp, Split Rail nev er completed Section 3. It continued to employ him after his work authorization had expired. Analysis 3. The ALJ found no issue of material fact that Split Rail did not properly complete Sections 2 and 3. We agree as to Section 3 and conclude th at ICE is entitled to summary decision. Because the failure to complete Section 3 is su fficient to deny Split Rail’s petition for review, we decline to a ddress the ALJ’s Section 2 analysis. Split Rail left Section 3 blank after Mr . Lopez Ramirez’s work authorization expired on September 13, 2010. As explai ned above, Section 3 itself, the Form I-9 instructions, and 8 C.F.R. § 274a.2(b)(i)(vii) required Split Rail to re-verify Mr. Lopez Ramirez’s authorization on or before its expiration date and provide information regarding his new document esta blishing current employment auth orization in Section 3. Split Rail failed to do so. Split Rail argues it was not required to upd ate and re-verify Section 3 because Mr. Lopez Ramirez did not check off “alien authori zed to work” in Section 1. He instead- 17 - checked off “lawful perm anent resident” and provided an alien number. We agree that, although Mr. Lopez Ramirez provided Sp lit Rail with a Mexican passport and a temporary I-551 stamp, he incorrectly stated in Section 1 he was a lawful permanent resident. But Split Rail should have caught this mistake. See Form I-9 Instructions (stating in bold, “The employer is responsible for ensuring that Section 1 is timely and properly completed.” (emphasis added)). Mr. Lopez Ramirez’s mistake did not relieve Split Rail of its duty to complete Section 3. In Section 2, Split Rail had itself identified his Mexican passport, not permanent residence, as the basis for Mr. Lopez Ramirez’s eligibility to work in the United States. It used information on the passport to complete Section 2 (“Employer Review an d Verification”) of the I-9 fo rm. Split Rail also retained a copy of the passport and temporary I-551 stamp with Mr. Lopez Ramirez’s I-9 form. When his temporary I-551 expired, Split Rail wa s required to complete Section 3 with the information about his current employment authorization. We therefore deny Split Rail’s pet ition for review as to Count One.
D. Count Two The ALJ found Split Rail liable under Coun t Two for knowingly continuing to employ nine unauthorized aliens . As explained further belo w, this violation requires proof that (1) the employees were unauthorize d and that (2) the employer knew they were unauthorized. Split Rail’s brief on Count Two is confus ing. On the one hand, its “Issues Presented” section lists—in relevant part— only a challenge to the ALJ’s finding that- 18 - Split Rail had constructive knowledge of its empl oyees’ unauthorized status, Pet. Br. at 3, and Split Rail’s brief concludes by seeking only a determina tion “that ICE has failed to establish its burden of pr oof regarding Split Rail’s constructive knowledge,” id . at 58. On the other hand, in discussing constructive knowledge, Split Rail a ppears to contest the ALJ’s finding that the employ ees were unauthorized. For ex ample, it repeatedly argues an NSD is insufficient to esta blish unauthorized status, and challenges the reliability of ICE’s database searches to esta blish unauthori zed status. Id . at 36, 42. Although Split Rail’s brief could be read to challenge only the ALJ’s constructive knowledge finding on Count Tw o, it is sufficiently ambig uous that we address both elements below. Our analysis leads us to deny the petition for review because Split Rail has failed to raise a genuine issue of material fact as to either element and ICE is entitled to summary decision. Further Legal and Admini strative Background 1. The IRCA makes it “unlawful for a person or other entity” that has lawfully hired an alien under the statute “to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with resp ect to such employment.” 8 U.S.C. § 1324a(a)(2). Thus, as relevant to this petition, a knowing-continue-to-employ violation encompasses two essential elements : the employee’s unauthorized status and the employer’s knowledge of the employee’s unauthorized status. 4

4 Because Split Rail’s petition for review men tions only unauthor ized status and constructive knowledge, our review of the knowing-continue-to-employ violation is Continued . . .- 19 - The sparse federal case law on § 1324a( a)(2) violations comes from the Ninth Circuit. We find those cases and the app lication of their reasoning by the OCAHO decisions cited herein to be persuasive in interpreting both essential elements. 5 Based on the case law and the IRCA statute, this background section addresses three points pertaining to our review of Count Two. First, ICE can establish a prima facie s howing of an employee’s unauthorized status with evidence that a computer search of its records had indicated the employee was suspected to be unaut horized due to false I-9 documentation. See Mester Mfg. Co. v. INS , 879 F.2d 561, 566 (9th Cir. 1989). Second, evidence of notice to an employer that ICE’s i nvestigation had revealed an employee was suspected to be unauthori zed, coupled with the employer’s failure to take adequate steps to re-verify the indivi dual’s employment eligibility, can establish a prima facie showing of the employer’s c onstructive knowledge that the employee is unauthorized. See New El Rey Sausage Co., Inc. v. INS , 925 F.2d 1153, 1158 (9th Cir. 1991). Third, the IRCA contemplates that an employer’s examini ng and proffering the documents outlined in § 1324a (b)(1)(B)-(D), other than those originally presented when the employee was hired, to prove the employee is authorized for employment can rebut a

limited to these two elements. We declin e to address elements of a § 1324a(a)(2) violation not briefed by the parties.

5 We may consider non-binding ca ses for their persuasive value. See, e.g. , Anderson v. Spirit Aerosystems Holdings, Inc. , 827 F.3d 1229, 1240 n.7 (10th Cir. 2016).- 20 - prima facie showing of both unauthorized st atus and constructive knowledge. Without these documents, or specific challenges to th e sufficiency of the government’s search results or the notice to the employer, ICE’s pr ima facie showings of unauthorized status and constructive knowledge can establish a kn owing-continue-to-empl oy violation under § 1324a(a)(2) in this case, wa rranting a summary decision. See, e.g. , Mester , 879 F.2d at 566; New El Rey , 925 F.2d at 1158 (describing Mester ); United States v. Occupational Res. Mgmt., Inc. , 10 OCAHO 1166, 2013 WL 1918850, at *8 (2013) (citing Mester ).

a. Prima facie showing of unauthorized status The government may make a prima facie showing of an employee’s unauthorized status in an administrative proceeding und er § 1324a(a)(2) by producing proof from its computer records that the em ployee’s documentation is fals e, thereby demonstrating the employee is suspected to be unauthorized. Section 1360 mandates the creation of a “central index, which shall contain the names of all aliens heretofore admitted or de nied admission to the United States . . . and the names of all aliens hereafter admitted or denied admission to the United States.” 8 U.S.C. § 1360(a). The Department of Homeland Security (“ DHS”) maintains the Central Index System (“CIS”) database, whic h contains a record of immigrant and nonimmigrant status information. 6 DHS also maintains other relevant databases, including:

6 See U.S. Department of Homeland Security, Privacy Impact A ssessment for the Central Index System , at 2 (June 22, 2007), available at https://www.dhs.gov/xlibrary/assets/p rivacy/privacy_pia_uscis_cis.pdf; see also United States v. Mendez , 514 F.3d 1035, 1040 (10th Cir. 2008 ) (describing the CIS database as Continued . . .- 21 - (1) the Computer Linked Ap plication Information Management System (“CLAIMS”), which tracks and processes naturali zation and benefits applications; 7 and (2) the Enforcement Integrated Database—accessed, in part, through the ENFORCE Alien Removal Module (“EARM”)—which maintains information related to investigations, arrests, bookings, detentions, and removals of persons enc ountered during investigations by law enforcement and DHS agencies. 8 Once the employer produces its I-9 form s and any other requested documentation in response to the NOI, IC E agents “conduct an inspec tion of the Forms I-9 for compliance,” which may includ e comparison with ICE’s electronic databases. U.S. Immigration and Customs Enforcement, Form I-9 Inspection Overview (June 26, 2013), https://www.ice.gov/factsheets/i9-inspection.

including records “such as permanent re sidence cards, border crossing cards, and certificates of naturalization”).

7 See U.S. Department of Homeland Security, Privacy Impact A ssessment Update for the Computer Linked Application Info rmation Management System 4 (CLAIMS 4) , at 2 (Nov. 5, 2013), available at https://www.dhs.gov/sites/default/files/public ations/privacy-pia-update-uscis-claims4- november2013.pdf; see also Abdelfattah v. U. S. Dep’t of Homeland Sec. , 488 F.3d 178, 182 (3d Cir. 2007) (stating CLAIMS “is used to track applications or petitions for benefits filed under the Immigration a nd Nationality Act” (quotations omitted)).

8 U.S. Department of Homeland Security, Privacy Impact Assessment Update for the Enforcement Integr ated Database (EID) , at 2 (May 20, 2011), available at https://www.dhs.gov/xlibrary /assets/privacy/privacy_pia _ice_eidupdate(15b).pdf; see also Long v. Dep’ t of Homeland Sec. , 113 F. Supp. 3d 100, 101 (D.D.C. June 29, 2015) (describing EID as “a shared, operational da tabase within ICE containing information on the detention and removal of undocumente d immigrants, including their biographical data, criminal history, and encounte rs with law enforc ement agents”).- 22 - If ICE issues an NSD and the employer re quests an administrative hearing, the results of ICE’s database searches are ad missible evidence. Specifically, a written certification from an ICE officer that a diligent search of CIS was made and no record or entry can be found is “admissibl e as evidence . . . that the records of [ICE] contain no such record or entry, and shall have the same effect as the testimony of a witness given in open court.” 8. U.S.C. § 1360(d). Ninth Circuit and OCAHO case law agree that when a computer search of DHS’s records system demonstrates an empl oyee’s documentation is false—making the employee’s authorization suspect—the governm ent establishes a prim a facie showing of unauthorized status. See Mester , 879 F.2d at 566; Occupational Res. Mgmt., Inc. , 10 OCAHO 1166, 2013 WL 1918850, at *8; cf. United States v. New El Rey Sausage Co.,
Inc. , 1 OCAHO 66, 1989 WL 433853, at *19 n. 16 (1989), aff’d , 925 F.2d 1153, 1154 (9th Cir. 1991); United States v. Horno MSJ, Ltd. , 11 OCAHO 1247, 2015 WL 1746681, at *9-11 (2015). For example, in Mester , the Ninth Circuit found th at the INS’s reliance on a computer search of its records system re vealing that an employee’s documentation was false was sufficient to establish a pr ima facie showing before the ALJ. Mester , 879 F.2d at 566. Similarly, in Occupational Resource Management , the ALJ explained that although “ICE is not required to presen t conclusive evidence of the employee’s unauthorized status,” “[w]hen the governme nt makes a prima facie showing that a document is false based on a computer sear ch of its records system, and the employer- 23 - fails to provide any evidence to the contrary , substantial evidence supports a finding of lack of [employee work] authorization” to support a summary decision. 10 OCAHO 1166, 2013 WL 1 918850, at *8 (quotations omitted) (citing Mester , 879 F.2d at 566). 9 The government’s search of its records must establish th at the employee’s status is reasonably suspect, and the results cannot cont ain fatal “discrepancies and ambiguities,” which would make the results “inconclusive.” See Horno MSJ , 11 OCAHO 1247, 2015 WL 1746681, at *9-11; New El Rey , 1 OCAHO 66, 1989 WL 433853, at *25. b. Prima facie showing of constructive knowledge For a § 1324a(a)(2) knowing-continue-to-em ploy violation, “[t]he term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstan ces which would lead a person, through the exercise of reasonable care, to know about a certain condition,” including when an employer “[h]as information available to it th at would indicate that the alien is not authorized to work.” 8 C.F.R. § 274a.1(l)(1); see also Mester , 879 F.2d at 567 (“The knowledge element was satisfied; [the employer] had construc tive knowledge, even if no . . . employee had actual specific knowledge of the employee’s unauthorized status.”). Accordingly, when the government proves at an administrative hearing that an employer failed to respond to a warning notice, such as an NSD, it has established a prima facie

9 Although the Ninth Circuit in Mester and New El Rey reviewed the ALJ’s factual findings on appeal for “substan tial evidence” under 5 U.S.C. § 706(2), as stated above, we apply de novo review here.- 24 - showing of constructive knowledge to satisfy the knowledge requirement of § 1324a(a)(2).
In Mester , the Ninth Circuit interpreted the kn owledge element of § 1324a(a)(2) to include constructive knowledge, analogizing to the treatment of knowledge in criminal law, where a “deliberate failure to inve stigate suspicious circumstances imputes knowledge.” 879 F.2d at 567 (citing United States v. Jewell , 532 F.2d 697 (9th Cir. 1976) (en banc)); see also New El Rey , 925 F.2d at 1157-58. Soon thereafter, the definition of “knowing” that includes cons tructive knowledge was codified in the employment verification regulations. 8 C.F.R. § 274a.1(l)(1); Safe-Harbor Procedures for Employers Who Receive a No-Match Lette r, 72 Fed. Reg. 45611-01, 45612 (Aug. 15, 2007) (stating that the definition of construc tive knowledge is “consistent with the Ninth Circuit’s holding[s]” in Mester and New El Rey ). The “basic principle underlying the doctrine of constructive knowle dge . . . is that the employ er is not entitled to cultivate deliberate ignorance or avoi d acquiring knowledge.” Foothill Packing, Inc. , 11 OCAHO 1240, 2015 WL 3295 79 at *7. Thus, “when an employer receives specif ic information that casts doubt on the employment authorization of an employee, and the employer continues to employ the individual without taking adequate steps to re-verify the individual’s employment eligibility, a finding of construc tive knowledge may result.” Id. at *8 (citing New El Rey , 1 OCAHO 66, 1989 WL 433853, at *17, aff’d 925 F.2d 1153 (9 th Cir. 1991) and Noel Plastering, Stucco, Inc. v. OCAHO , 3 OCAHO 427, 1992 WL 533132, at *2 (1992), aff’d 15 F.3d 1088 (9th Cir. 1993) (unpublished)); United States v. Asso ciated Painters, Inc. ,- 25 - 10 OCAHO 1151, 2012 WL 8018166, at *3 (2012) (citing same and United States v. Mester Mfg. , 1 OCAHO 18, 1988 WL 507634, at *18 (1988), aff’d 879 F.2d 561 (9th Cir. 1989)). The statute “does not require that the k nowledge come to the employer in any specific way.” Mester , 879 F.2d at 566. Ninth Circu it and OCAHO case law, however, have consistently held that receipt of a Warning Notice, such as an NSD, can be sufficient to impart notice. See, e.g. , New El Rey , 925 F.2d at 1158-59; Aramark Facility Servs. v. Serv. Emps. Int’l Union, Local 1877 , 530 F.3d 817, 828 (9th Cir. 2008) (explaining notice “that the government suspects the workers of using fraudulent documents” is “positive information . . . [that] provide[s] constructive notice” of unauthorized status (quotations omitted)); Noel Plastering , 15 F.3d 1088, at *1 (holding “written notice from the [INS] that the employee s were likely unlawfu lly employed aliens . . . [was] sufficient to give an employer constructive kn owledge of a violation”); United States v. Aid Maint. Co. , 7 OCAHO 951, 1997 WL 1051451 , at *4 (1997) (“Constructive knowledge is most readily pr oven when it is shown that the employer had positive information supplied by the INS, [as show n through a Warning Notice or NSD], that some of its employees are unauthorized for employment in the United States, and subsequently fails to take reasonable steps to re-verify the employment eligibility of those employees.” (collecting cases)).
* * * *- 26 - The evidence used to establish the employee’ s unauthorized status is related to but distinct from the evidence used to establish the employer’s constructive knowledge. That is, the computer searches and inspections IC E performs to demonstrate the employee is suspected to be unauthorized and trigger an NSD are sufficient to establish the government’s prima facie show ing of unauthorized status. Service of the NSD informs the employer that the employee is suspected to be unauthorized, an d that notice, along with the employer’s failure to re-verify th e employee’s lawful status, establishes the government’s prima facie showing of constructive knowledge.

c. Challenging a prima facie showing of unauthorized status and constructive knowledge i. Challenging unauthorized status The government’s prima faci e showing of unauthorized status based on a CIS computer search must stand unless the employe r (1) successfully challenges the computer records search and its results, or (2) presen ts sufficient evidence to show the employee was authorized. First, the employer may attack ICE’s search results with specific evidence that the search was flawed. However, an employer’s “general allegations” that the search was unreliable or generally prone to error are insufficient to overco me the prima facie evidence of unauthorized status. Mester , 879 F.2d at 566 (noting the employer’s general allegations of unreliability lacked any specific contention, supported by facts, to rebut the government’s finding that the specific employee had false documentation); see also New El Rey , 1 OCAHO 66, 1989 WL 433853, at *19 n. 16 (rejecting that vague allegations of- 27 - unreliability or inaccuracy of th e computer-generated data c ould negate the unauthorized status results of a properly-conducted CIS computer search). 10 Rather, the employer must challenge, for example, specific “discrepancies [or] ambigu ities” which make the results of the search inconclusive as to particular employees. Horno MSJ , 11 OCAHO 1247, 2015 WL 17466 81, at *9-10. Second, presenting the docum ents listed in § 1324a(b)(1)(B)-(D) can rebut the government’s prima facie show ing of unauthorized status. 11 As noted above, § 1324a(b)(1)(C) lists documents evid encing employment authorization ( e.g. , a social security card), § 1324a(b)(1)(D) lists documents establishing identity ( e.g. , a driver’s license), and § 1324a(b)(1)(B) lists docum ents establishing both employment authorization and identity ( e.g. , a U.S. passport or appropriate resident alien card). Section 1324a(h)(3) defines “unauthorized alie n” as an alien who is not either (a) “lawfully admitted for permanen t residence,” or (b) “authori zed to be so employed by this chapter or by the Atto rney General.” Thus, when an employer presents valid

10 The OCAHO opinion in New El Rey concerned not whet her the employees “were actually authorized to work or not, but whether [the employer] had” constructive knowledge they were unauthorized. 1 OCAH O 66, 1989 WL 433853, at *18. The ALJ explained that it was not addressing the unaut horized status of the employees because the employer had not claimed the employees were in fact authorized to work in the United States. Id. Nonetheless, in analyzing whether the employer committed a knowingcontinue-to-employ violation, the ALJ discusse d the unauthorized status element of the violation.

11 DHS has identified docume nts satisfying § 1324a(b )(1)(B)-(D) in 8 C.F.R. § 274a.2(b)(1)(v) and in the “Lists of Acce ptable Documents” instructions page accompanying the I-9 form.- 28 - documents to the ALJ establishing the empl oyee’s identity under § 1324a(b)(1)(D) and documents evidencing employment authoriza tion under § 1324a(b)(1)(C), or both under § 1324a(b)(1)(B), it has—by definition—rebutte d the government’s evidence that the employee is unauthorized. 12
ii. Challenging constructive knowledge The government’s prima facie showi ng that an employer had constructive knowledge that its employee was unauthoriz ed based on the employer’s inadequate response to an NSD can be rebutted by the em ployer’s (1) successfully challenging the NSD (or other notice) as providing inadequate notice, or (2) evidence that it responded to the NSD as the statute required. First, the employer may attack the sufficien cy of the NSD, or other warning, as insufficient to put the employer on notice that its employee was unauthorized. Ninth Circuit and OCAHO case law have stated that , to impart construc tive knowledge, the employer must receive “specific and detaile d information regardin g that individual’s possible unauthorized status.” United States v. Noel Plastering & Stucco, Inc. , 2

12 The Ninth Circuit made a similar observation in New El Rey when it explained that these documents would negate a s howing that the employee was unauthorized

. 925 F.2d at 1158 n.7. The court likened th e situation where an employee’s documentation was shown to be invalid—ref lecting unauthorized status —to the expiration of an employee’s documentation. Id . It explained that if th e employee’s authorization had expired, 8 C.F.R. § 274a.2(b )(vii) requires that “the employer . . . update the employee’s I-9 form. To do this, the employee must present furthe r documentation, which the employer must review. This regulation is an alogous to the situati on here, where rather than the verification expiring, it was found to be invalid.” Id. The documentation the employer must review to update the expired I-9 form is listed in § 1324a(b)(1)(B)-(D). Thus, the same documents are al so sufficient to negate the invalidity of documentation, and rebut the government’s evidence of unauthorized status.- 29 - OCAHO 377, 1991 WL 717532, at *3 (1991); United States v. 4431 Inc., T/A Candlelight Inn , 4 OCAHO 611, 1994 WL 269390, at *9 (1994); see also New El Rey , 925 F.2d at 1159 (finding the notice to be sufficiently specific to create a “reason to believe that [the employer’s] em ployees were unauthorized”). Second, the employer may prove it respon ded to the NSD (or other notice) by presenting evidence the employee was authorized in the manner required by the statute. As stated in New El Rey , “[n]otice that [an employee’s ] documents are incorrect places the employer in the position it would have been if the alie n had failed to produce the documents in the first place: it has failed to adequately ensure that the alien is authorized.” 925 F.2d at 1158. Thus, receipt of a sufficiently sp ecific NSD requires the employer to re-verify the employ ee is legally authorized fo r employment by examining new documents listed in § 1324a(b)(1)(B)-(D), 8 C.F.R. § 274a.2(b)(1)(v), and the “Lists of Acceptable Documents” instructions page accompanying the I-9 form. If the employer does not show that it re-verified the empl oyee in this manner, it cannot rebut the government’s showing that the NSD (or other notice), co upled with the employer’s failure to re-verify, im parted constructive knowledge on the employer of the employee’s unauthorized status. ALJ Proceedings 2. During the proceedings before the ALJ, the parties disc ussed both (1) whether the employees listed in Count Tw o were in fact unauthorized an d (2) whether Split Rail had constructive knowledge they were unauthorized.- 30 - a. The parties’ evidence i. ICE’s evidence In support of Count Two, ICE argued its 2009 and 2011 NSDs provided notice to Split Rail that the nine employees were not authorized, and emphasized Split Rail’s failure “to request other documents fro m any of them.” App. at 798; id. at 561. ICE also offered nine Certificates of Nonexistence of Records (“Certificates”) dated January 17, 2013, regarding each of the employees listed in Count Two, and attached investigation reports as to two of the employees. In each Certificate, a DHS Records Manager certified she either conducted or oversaw a search for records relating to each employee, using three separate databases—EARM, CLAIMS, and CIS—but found no records indicating the employee was authorized for employment. The investigation reports showed that both employees used U.S. citiz ens’ social security number s without permission and that one of them used a U.S. citizen’s name without permission. ii. Split Rail’s evidence In response, Split Rail argued it took adequate steps in response to ICE’s NSDs to confirm the employees were authorized. Firs t, it submitted Mr. Barenberg’s affidavit, which explained that Split Rail had asked its employees named in the 2009 NSD to reaffirm their work authoriza tion on video. Second, it offe red Mr. Barenberg’s February 17, 2012 letter, which stated Split Rail confir med its employees’ st atus by determining they had bank accounts, homes, mortgages, cars, driver’s licenses, and workers’ compensation claims. Third, it argued its email request for guidance from the OSC showed a good faith effort to comply with the 2009 NSD, and characterized the OSC’s- 31 - response letter as advising Split Rail it “was under no obligation to re-verify employee documents which appear to be facially genuin e, even in reaction to an ICE NSD.” App. at 684 (emphasis in original). Split Rail also challenged the ICE’s Certific ates with an affidavit from Todd L. Johnson, a retired Senior Speci al Agent and Forensic Docume nt Examiner for ICE. The Johnson affidavit explained that errors may result from USCIS or DH S records searches. As a result, the “fact that a record was not found does not necessarily mean an individual is not work authorized or does not have legal status.” A pp. at 732. Based on this affidavit, Split Rail argued that ICE’s Certif icates were not reliable evidence of the employees’ unauthorized status. Split Rail also noted it had sent requests for production to ICE, asking for evidence relating to any search for records performed on the nine individuals, but ICE declined to produce an y evidence, claiming it was protected under a “law enforcement privilege.” Id. at 526. Split Rail did not present evidence to contest the two investigation reports. b. ALJ’s summary decision The ALJ granted summary decision for ICE. Although the ALJ’s opinion did not separately analyze the employees’ unautho rized status and Split Rail’s constructive knowledge, it concluded Split Rail failed to rais e an issue of material fact and that ICE was entitled to summary decision. First, the ALJ acknowledged that “it is po ssible for errors to occur in government database searches” for the reasons reflected in the Johnson affidavit, but noted “[t]his is precisely the reason why the [NSD] itself extends the opportunity to the employer and the- 32 - employee to challenge the government’s prel iminary findings and to present alternative documentation sufficient to establish the individual’s eligibility for employment.” Id. at 802-03. Despite this opportun ity, Split Rail failed to require its employees to present I-9 documentation (other than the documentation they originally presented when hired) and failed to offer such document ation to challenge ICE’s evid ence of unauthorized status before the ALJ. The ALJ fu rther noted ICE did not rely solely on the NSD’s summary that the numbers on the documents presented by the nine employees either did not exist or belonged to other individuals; it offere d the Certificates and the two investigation reports. Second, the ALJ also concluded Split Ra il had constructive knowledge of the employees’ unauthorized status . The ALJ reasoned the tw o NSDs provided Split Rail with notice that the named employees were su spected to be unauthorized and created a duty to examine additional I-9 documentati on from each employee. He held the reverification efforts described by Mr. Barenber g in his letter were inadequate. The letter indicated that, rather than further examinin g List A, B, or C do cuments from the Count Two employees to confirm th eir I-9 authorization, Split Rail gathered indicia of authorization unrecognized by the I-9 system to contest unauthorized status. The ALJ concluded those re-verification efforts were inadequate and that Split Rail accordingly had constructive knowledge. Fi nally, the ALJ rejected Split Ra il’s characterization of the OSC letter, concluding it consisted only of “a generic recital of nondiscrimination principles” and “patently [did] not tell [S plit Rail] that the co mpany [wa]s free to disregard the government’s NSD.” Id. at 802.- 33 - Analysis 3. Because Split Rail failed to rebut the gove rnment’s prima facie showing that its employees were unauthorized an d also failed to negate th e government’s prima facie showing of constructive know ledge, we agree with the ALJ’s conclusion that ICE was entitled to a summary decision.

a. Unauthorized status As noted above, it is not clear wheth er Split Rail has raised a separate argument challenging the unauthorized status element of its Count Two violation. It argues the ALJ erred in holding that it had construc tive knowledge based on the NSDs when “OCAHO’s own precedents hold that [NSDs] alone do not establish unauthorized status.”
Pet. Br. at 44. 13 The latter part of this disjointed argument appears to challenge the ALJ’s determination of the employees ’ unauthorized status. The AL J, however, did not rely on the NSDs to find unauthorized status. It relied on the computer s earch Certificates and uncontested investigation reports. i. Challenge to computer searches

13 Notably, each of the cases cited by Split Rail addresses civil penalty assessments under § 1324a(e)(5), not liab ility for a knowing- continue-to-employ violation under § 1324a(a)(2). See United States v. Romans Racing Stables, Inc. , 11 OCAHO 1230, 2014 WL 5478 350, at *3 (2014); United States v. Platinum Builders of Cent. Fla. , 10 OCAHO 1199, 2013 WL 4631839, at *8 (2013); United States v. Nat’l Envtl. Inc. , 10 OCAHO 1197, 2013 WL 45 02692, at *4-5 (2013).- 34 - ICE’s presentation of the Certificates to th e ALJ showed that co mputer searches of three centralized records sy stems revealed the employees were unauthorized. 14 The Certificates stated that the government maintains “centralized records relating to immigrant aliens who entered the United States on or after June 30, 1924, to nonimmigrant aliens who entered on or after J une 30, 1948, and a centralized index of all persons naturalized on or af ter September 27, 1906.” See, e.g. , App. at 231. The Certificates then stated as to each employee, “[N]o record was found to exist indicating that the [employee] obtained permission at a ny time . . . for legal immigrant status or admission in the United States.” Id. ICE therefore made a prima facie showing that the employees were unauthorized. 15 Split Rail attempted to challenge the gove rnment’s computer records search and results. But, like the employers’ arguments in Mester and New El Rey , the Johnson affidavit Split Rail proffered presented only general allegations that the government’s

14 Because the Ninth Circuit and OCA HO have relied on una uthorized status established by a search of one computer sy stem, we find that ICE’s search of three databases supports the reasonability of its results. See, e.g. , New El Rey, 925 F.2d at 1154-55 (describing “computer checks on the Central Index System”); Mester , 879 F.2d at 566 (“The INS relied on a computer search of its records system th at revealed the false green card.”); Horno MSJ , 11 OCAHO 1247, 2015 WL 1746681, at *9 (2015) (discussing unauthorized status based on the government’s proffered CIS printouts).

15 This is particularly true because IC E’s burden in a civil adjudication is a preponderance of the evidence. 8 U.S.C. § 1324a(e)(3)(C).- 35 - records system was unreliable. 16 Split Rail alleged no specific facts sufficient to prove the government’s findings regarding its nine employees were incorrect. 17
ii. Rebuttal evidence Split Rail also did not provide any docu ments listed in § 1324a(b)(1)(B)-(D) to rebut the government’s showing that the empl oyees were unauthorized. Specifically, it did not examine or produce any alternative List A, B, and/or C documents for any of the nine employees. Instead, it orally asked its employees to confirm th ey were authorized and inquired whether they had bank accounts, cars, homes, mortgages, driver’s licenses, or worker’s compensation clai ms. These efforts did not re but the government’s prima

16 Split Rail complains it was precluded from obtaining specific ev idence about the accuracy of the database s earches because ICE asserted that the law enforcement privilege protected its data and methodology. Split Rail has forfeited this issue. The record does not show that Split Rail soug ht to compel this discovery, 28 C.F.R. § 68.28(a)(3), or to obtain a ruling regardin g applicability of the privilege. Nor has it presented arguments the privilege should not apply. See e.g. , In re Basic Research, LLC , FTC No. 9318, 2004 WL 2682822, at *6 (Nov. 3, 2004) (e xplaining the law enforcement privilege may be outweighed by showing ne cessity sufficient to outweigh the adverse effects of revealing law enforcement techniques or sources); see also United States v. Winner , 641 F.2d 825, 831 (10th Cir. 1981).

17 Split Rail argues that some Certificates list names different from those listed in the NSDs or the Amended Complaint. Th is is a red herring. Although Split Rail provides no examples of any discrepancy, our review shows that three of the nine employees’ names on the NSDs or Ame nded Complaint vary only slightly ( e.g. , omission of a maternal surname) from the names listed on the Certific ates. Any such difference, however, is immaterial because the names and dates of birth on each Certificate exactly match the names and dates of birth listed on the respective employees’ I-9 forms or the copies of the employees’ government-issued perm anent resident cards attached to the I-9 forms. Split Rail does not contest that IC E relied on the employee information from the I-9 forms to perform the database search es. Split Rail’s mismatched names argument therefore lacks merit.- 36 - facie showing of unauthorized status under th e statute and are otherwise unpersuasive to establish that the employees were legally authorized for employment. Because the evidence Split Rail proffered is unpersuasive, we need not decide whether unauthorized status may be rebutted in a manner other than proffering th e appropriate IRCA documentation or challenging the computer records search and its results. The results of the government’s database searches established a prima facie showing of unauthorized status. Split Rail did not adequately challenge those results or produce sufficient eviden ce to rebut the prima facie showin g. Thus, we agree with the ALJ that there is no genuine issue of material fact that the employees are unauthorized as a matter of law. The ALJ properly granted summary decision for ICE on this issue. b. Constructive knowledge The government established a prima facie showing that Split Rail had constructive knowledge of its employees’ un authorized status by showing that Split Rail failed to respond to the NSDs with the docume ntation required by the statute. The 2009 NSD first put Split Rail on no tice that the listed employees were suspected to be unauthorized. The 2011 NSD then gave add itional, detailed notice that nine of the same employees were suspected to be unauthorized. Before the ALJ, Split Rail di d not successfully challeng e the sufficiency of the NSDs or demonstrate that it had responded to the NSDs in the manner required by the statute, and thus failed to rebut the gove rnment’s prima facie showing that it had constructive knowledge its employees were unauthorized. The ALJ properly concluded the government had proved constructive knowledge.- 37 - i. Challenges to the NSDs Split Rail’s challenges to the sufficiency of the NSDs are unpersuasive. Split Rail specifically argues that the 2009 and 2011 NSDs lacked suffi cient specificity to impart constructive notice. We disagree. First, Split Rail attempts to distinguish its case from the constructive knowledge imputed to the employer in New El Rey by arguing “the employer [there] was actually informed which documents were suspect.” Pet. Br. at 48. But both the 2009 and 2011 NSD stated, “the documentation previously pr ovided to you for these employees does not satisfy the Form I-9 employment elig ibility verification requirements.” Id. at 152. The 2011 NSD then provided even more specificity than the 2009 NSD, indicating whether an I-551 stamp and/or a social s ecurity card was susp ect as to each name d employee. App. at 152-53. Moreover, the information in the notice sent to the employer in New El Rey was almost identical to th e 2009 and 2011 NSDs sent to Split Rail. See New El Rey , 925 F.2d at 1155. Based on this information, the Ninth Circuit determined the employer was “provided with specific, detailed information.” Id. at 1158. “The INS told it whom it considered unauthorized and why. Under th ese circumstances the ALJ properly found that a constructive notice standard” applied. Id. We reach the same conclusion here. Split Rail also argues its NSDs were different from the NSD in New El Rey because they failed to specify “wha t Split Rail must do.” Pet. Br. at 49. But both of Split Rail’s NSDs clearly stated:- 38 - Unless the above employee(s) present valid identification and employment eligibility documentation acceptable for completing the Form I-9 other than the documentation previous ly submitted to you, they are considered by ICE to be unauthorized to work in the United States. App. at 147, 153. Although “specific direc tions from [ICE] would have been helpful, we do not believe they were necessary” to place Split Rail on constructive notice. New El Rey , 925 F.2d at 1159. As in New El Rey , “the letter [here] clearl y told [Split Rail] that since the documents the employees had provid ed were invalid, the listed employees had to provide other documentation.” Id. Second, Split Rail argues the NSDs failed to specify “which databases had been searched, and by whom.” Pet. Br. at 49. But the regulations only require a Warning Notice, or NSD, to “contain a statement of th e basis for the violations and the statutory provisions alleged to have been violated”—not how ICE co nducted its investigation. 8 C.F.R. § 274a.9(c). Thus, the 2009 and 2011 NSDs constituted the exact type of “facts and circumstances” to impute knowledge that is re ferenced in the relevant regulation: both made “information available to [the employer] that would indicate that the alien is not authorized to work.” 8 C.F.R. § 274a.1( l )(1)(ii). ii. Rebuttal evidence Split Rail also failed to negate the go vernment’s prima facie showing of constructive knowledge by demons trating its response to the NSDs was to re-verify its employees consistent with § 1324a(b)(1)(B)-(D). Because th e NSDs were sufficient to impart constructive knowledge, Split Rail’s r eceipt of the NSDs shifted the burden to- 39 - Split Rail to rebut that it knowingly continued to employ unauthorized employees. To do so, and successfully avoid imputation of cons tructive knowledge by deliberately failing to investigate suspicious circumstances, Mester , 879 F.2d at 567 (citing Jewell , 532 F.2d 697), it was required to respond to the NSD in the manner contem plated by the statute. As outlined above, the statute contemplates that Split Rail must examine List A, B, and/or C documents other than those origina lly provided by the employees to re-establish their identity and work authorization. Both the 2009 and 2011 NSDs accordingly stated: “Unless the above employee(s) present valid identification and employment eligibility documentation acceptable for comp leting the Form I-9 , other than the documentation previously submitted to you, they are considered by ICE to be unauthorized to work in the United States.” App. at 147, 153 (empha sis added). Split Rail’s attempts to verify the status of these employees by other m eans were insufficient to satisfy its burden. 18

18 Split Rail argues the ALJ overstated its re -verification obligations to negate a finding of constructive knowledge, citing Collins Foods Internat ional, Inc. v. INS , 948 F.2d 549 (9th Cir. 1991). In Collins , the Ninth Circuit reversed the ALJ’s finding that an employer committed a knowing-hi re violation with construc tive knowledge its employee was unauthorized because the employer satisfi ed its verification obligation by examining documents, which reasonably appeared on their face to be genuine, a nd had no obligation to ascertain the legitimacy of those documents. Id. at 554. But Collins involved a knowing-hire violatio n, not, as here, a knowing-continueto-employ violation. The Collins opinion highlighted this ke y difference and specifically distinguished Mester and New El Rey , which were knowing-continue-to-employ violations. The court explained that the employers in Mester and New El Rey had inadequately responded to “positive information”—that is , Warning Notices—from the INS that certain employees were unauthorized , which equated to “willful blindness,” or constructive knowledge. Id. at 555. Split Rail’s citation to Collins is unpersuasive for the same reason. Like Mester and New El Rey , Count Two involves a knowing-continueto-employ violation, and Split Rail received “positive informa tion” in the form of two NSDs.- 40 - Split Rail’s response to the 2009 NSD was to orally ask its employees to affirm they were authorized. The same inad equate employer response occurred in New El Rey

. In that case, the INS charged an employer wi th two counts of knowingly continuing to employ unauthorized aliens in violation of § 1324a(a)(2), a nd the ALJ imposed fines. 925 F.2d at 1155. The Ninth Circuit empha sized that, “[i]n response to the INS letter insisting that the employees ‘provide valid employment authorization,’ [the employer] merely asked its employees whether their cards were valid.” Id. at 1159. When the employees said yes, the employer “relied on their self-serving statements without requiring anything further from the employees , apparently assuming that the INS must have made a mistake.” Id. The Ninth Circuit affirmed the ALJ’s summary decision, concluding the employer had constructive knowledge that the two employees were unauthorized. Id. Split Rail’s response to the 2011 NSD also was inadequate. Its inquiries into whether the listed employees had bank accounts, cars, hom es, mortgages, driver’s licenses, or worker’s compen sation claims are beside th e point. The IRCA does not recognize these indicia as establishing iden tity or employment eligibility. Sections 1324a(b)(1)(B)-(D), the “Lists of Acceptable Document s” instructions page accompanying the I-9 form, and 8 C.F.R. § 2 74a.2(b)(1)(v) list th e only documents the employer may examine to establish the em ployee’s identity and eligibility under the statute. We agree with the ALJ that “employers are not at liberty to create their own alternative employment eligibility verification sy stems; they are obligated to conform to the one that Congress enacted.” App. at 807.- 41 - In sum, the government demonstrated a prima facie showing of constructive knowledge with evid ence that Split Rail, after bei ng put on notice by the NSDs, had failed to re-verify the named employees’ st atus in the manner the law requires. See New El Rey , 925 F.2d at 1158-59; Aramark , 530 F.3d at 828; Noel Plastering , 15 F.3d 1088, at *1; Aid Maint. Co. , 7 OCAHO 951, 1997 WL 1051451, at *4-5 (collecting cases). Before the ALJ, Split Rail did no t dispute that it failed to re-verify the employees’ status by examining and presen ting new documents c onsistent with the IRCA. Because Split Rail’s response did not follow the statut e, and did not otherwise evidence “ any steps sufficient to demonstrate a good faith a ttempt to comply with the statute,” New El Rey , 925 F.2d at 1159 (emphasis in original), 19 Split Rail has demonstrated the type of “deliberate failure to investigate suspicious circumstances” the Ninth Circuit envisioned to impute constructive knowledge. Mester , 879 F.2d at 567 (citing Jewell , 532 F.2d 697). We agree with the ALJ that there is no ge nuine issue of material fact that Split Rail had constructive knowledge of its employ ees’ unauthorized status and that summary decision was proper.

19 Split Rail argues its re-verification effort s were made in good faith because it lacked the “willful blindness,” “conscious disregar d,” or “reckless or purposeful abdication” of verification responsibilities that are typically associated with the definition of constructive knowledge. It also argues th at employers in past OCAHO decisions acted more egregiously. Pet. Br. at 25, 41. But Split Rail overstates the scope of good faith as it applies to constructive knowledge. New El Rey stated an employer may rely on good faith only in terms of efforts made to comply with the statute . 925 F.2d at 1159. Because the indicia Split Rail collected to show its employees’ status in response to the NSDs had no basis in the statute, its good faith arguments are unpersuasive.- 42 - iii. Split Rail’s other arguments Split Rail’s other arguments disputing the government’s showi ng of constructive knowledge are not persuasive. 1) OSC letter Split Rail characterizes the OSC letter as advising Split Rail it could “continue to rely on facially valid [I-9] documents ev en in response to a Notice of Suspect Documents” because examinin g such facially valid docu ments would violate the antidiscrimination provision of th e IRCA. Pet. Br. at 14; 35-36. We disagree. The OSC letter did not negate constructive knowledge. It did not advise Split Rail that it could continue to rely on the I-9 documents originally su bmitted by the employees at the time of hiring and effectively ignore the 2009 NSD. Rather, it explained that the IRCA’s anti-discrimination provision “prohibits the request for specific documents or the rejection of documents dur ing the employment eligib ility verification process with the intent to discriminate .” App. at 696 (emphasis added). It then specified, “it has been long recognized that action by an employer taken for reasons other than an intent to discriminate does not constitute an unfair em ployment practice” and that an NSD “may provide a non-discriminatory reason behind the decision to re-verify an employee’s employment eligibility.” Id. If anything, that language complemented the NSD. Moreover, the OSC letter stated it “cannot provide an advisory opinion on any particular instance of alleged discrimination or on any se t of facts involving a particular individual or entity.” Id.- 43 - 2) Certificates and in vestigation reports Split Rail argues ICE failed to respond to its requests for production about the nature of the searches underlying the Certificates 20 and that the Certificates and investigation reports were produced only af ter the NSDs and compla int were served. The problem with this argumen t is that the ALJ did not re ly on the Certificates or investigation reports in concluding Split Rail had constructive knowle dge. As explained above, the ALJ relied on this evidence to find the employees ’ unauthorized status. The ALJ’s finding of constructive knowledge turn ed on the notice imparted by the NSDs and Split Rail’s failure to produce evidence to the contrary. Id. at 805 (stating the main issue regarding constructive knowledge was “whe ther an employer that receives a second NSD identifying the same individuals whose docume nts were put in issue almost two years earlier may continue to rely . . . on the ve rbal assurances of the employees and the company’s own self-designated ‘evidence’ rath er than requiring the employees to present documents other than those they had prev iously produced, as directed by the government” (emphasis added)).

20 As noted above, any challenge to IC E’s assertion of the law enforcement privilege has been forfeited because Split Rail di d not seek to compel this discovery from the ALJ or otherwise seek to obtain a ruling regarding ap plicability of the privilege. See supra note 16.- 44 - III. CONCLUSION For the foregoing reasons, we de ny Split Rail’s petition for review. 21

21 In light of this dispos ition, we deny as moot Sp lit Rail’s motion to strike Exhibits G-10 and G-17 from the record. Our analysis does not rely on either document. Split Rail’s motion to supplement the record with a more le gible copy of Exhibit R-6 is also denied because a legible copy can be found in the Appendix at 586.