Immigration Proceedings Against Worker Barred After ICE Factory Raid

 

By Jeffrey Rhodes August 27, 2019
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​An employee's statements that he lacked lawful immigration status to Immigration and Customs Enforcement (ICE) during its execution of a search warrant for employment-related documents at a factory were suppressed by the 9th U.S. Circuit Court of Appeals at his removal hearing. ICE could not conduct interrogations without individualized, reasonable suspicion, the appeals court reasoned.

The petitioner worked for Micro Solutions Enterprises (MSE), a Los Angeles-area manufacturer of printer cartridges, in March 2006. At that time, ICE received an anonymous tip that MSE employed 200 to 300 undocumented immigrants. In response, nearly two years later in February 2008, ICE agents sought and received a search warrant for employment-related documents located at the MSE factory in Van Nuys, Calif., and criminal complaints and arrest warrants for eight MSE employees.

Documents later obtained by the American Civil Liberties Union revealed that ICE intended from the outset to turn the execution of these warrants into an operation to administratively arrest undocumented workers rather than search for employment records. An internal memorandum issued before the operation stated that ICE would be conducting a search warrant and expected to make 150 to 200 arrests. The memorandum also noted that ICE would have two buses and five vans ready to transport potential detainees from the factory and 200 detention beds available to support the operation.

Two days after the warrants were issued, approximately 100 armed and uniformed ICE agents streamed into the MSE factory. Blocking all visible exits, the agents ordered all workers to stop working and announced that no one was permitted to leave. The agents prohibited the workers from contacting anyone using their cellphones and allowed them to use the restroom only with an ICE escort. The petitioner, a native and citizen of Mexico who entered the United States without inspection in 1994, was among the detained workers.

The petitioner was detained with about 130 other workers, and an ICE agent took his wallet. The detainees were then handcuffed and questioned. While the petitioner was handcuffed, the agents asked for his name, nationality and date of birth and the length of time he had worked at the factory. The agents then escorted the petitioner and the other detained male workers into another hallway, where they were questioned again. At some point during his detention, the petitioner provided statements to the agents indicating that he lacked lawful immigration status.

He was subsequently placed in removal proceeding and charged with entry without inspection. Based on statements he provided during his detention, ICE prepared a Form I-213, alleging that the employee had admitted that he was brought illegally into the United States as a child.

The government also produced the petitioner's birth certificate based on statements he provided in connection with the factory raid. The petitioner moved to terminate the proceedings or, alternatively, suppress evidence, but the Board of Immigration Appeals (BIA) concluded that his detention and interrogation violated neither the agency's regulation nor the Fourth Amendment.

The petitioner filed a petition with the 9th Circuit for review of the BIA decision. On appeal, the government argued that the ICE agents merely obtained identification information from the petitioner that justified its subsequent removal proceedings, and thus no individualized, reasonable suspicion was needed. The 9th Circuit disagreed and reasoned that the information obtained by ICE during the raid went beyond merely identifying the petitioner to ascertaining his immigration status and other specific personal details.

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The 9th Circuit thus held that ICE agents were not permitted to carry out preplanned mass detentions, interrogations and arrests at a factory without individualized, reasonable suspicion, and it reversed the BIA decision.

Perez-Cruz v. Barr, 9th Cir., No. 15-70530 (June 13, 2019).

Professional Pointer: To date, ICE has often monitored whether employers obtain valid immigration-status verification documents from employees as a means of locating undocumented immigrants for deportation. The 9th Circuit's decision would end ICE's ability to use poor documentation verification by employers as a reason to deport undocumented employees.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on workplace immigration.]

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