the ICE Guide to Worksite Enforcement Investigations

Transcription

u.s. Immigration
and Customs
Enforcement
Guide to Worksite
Enforcement Investigations
LAW ENFORCEMENT SENSITIVE
Courtesy of LawLogix (http://www.lawlogix.com)
Revised March 26, 2008
Posted on 2/28/11 (http://www.electronici9.com)
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
Guide to Worksite Enforcement Investigations
8.3
8.4
8.5
8.6
8.7
8.8
8.9
9
Undercover Activity
Surveillance
Administrative Arrest of Unauthorized Workers
Other Agency Information and Assistance
Inspection of Forms 1-9 and Other Employment Records
Financial and Asset Removal Aspects ofWSE Investigations
Use of Warrants in WSE Investigations
Worksite Enforcement Operations
9.1
9.2
9.3
9.4
9.5
9.6
9.7
10
10.1
10.2
10.3
10.4
10.5
10.6
11
21
22
22
24
27
31
33
37
Headquarters Coordinated WSE Operations
Planning and Execution ofWSE Operations
Internal Coordination ofWSE Operations
External Coordination ofWSE Operations
Use of Consent in WSE Operations
EmployeelEmployer Interviews During WSE Operations
Use of Jump Teams in WSE Investigations
WSE Case Reporting Requirements
Coordination with the HQ WSE Unit.
Reporting of Planned WSE Operations/Activities
Use ofENFORCEIEABMlIDENT During WSE Operations
Use of SEACATS During WSE Operations
Use of Arrest Tracking Sheets During WSE Operations
Reporting Results ofWSE Operations/Activities
Conclusion
37
38
41
43
44
45
45
46
46
46
46
47
47
48
49
3
RELEASE/DISCLOSE
1
Introduction
1.1
Importance of Worksite Enforcement Investigations
U.S. Immigration and Customs Enforcement (ICE) plays a central role in implementing
the interior enforcement strategy of the Department of Homeland Security (DHS). A
core part of this strategy is to eliminate the magnet of illegal employment by targeting
egregious employers, identity thieves, and aliens working at critical infrastructure sites.
Within the Office of Investigations, Worksite Enforcement (WSE) investigations
continue to be a priority ofDHS and ICE. Strict enforcement ofthe law is necessary to
protect the security of the U.S. and to ensure the integrity of our nation's workforce.
1.2
Purpose of Guide to Worksite Enforcement Investigations
The purpose of this guide is to serve as a starting point and to provide direction to ICE
Special Agents and Forensic Auditors conducting Worksite Enforcement (WSE)
investigations. The guide will focus primarily on criminal investigations of egregious
employers and other conspirators involved in illicit activities that encourage, enable or
induce unauthorized aliens to enter or remain and work in the United States, as well as
employers with a nexus to the nation's critical infrastructure who may be employing
unauthorized aliens.
This guide will provide insight into the initiation of WSE cases, prioritizing
investigations, and the proper documentation ofWSE investigations (and investigations
from other programmatic areas with a nexus to worksite enforcement) in the Treasury
Enforcement Communications System (TECS-II). In addition, this guide will outline
common investigative techniques and tools that have been successfully used by ICE
Special Agents in the conduct of WSE investigations, and will outline common criminal
and civil statutes associated with WSE investigations. This guide instructs ICE Special
Agents to aggressively identify and seize assets of egregious employers, when
appropriate, and provides direction to ICE Special Agents regarding WSE reporting
requirements and the presentation of these cases for criminal and civil prosecution.
1.3
Focus of Worksite Enforcement Investigations
WSE cases are defined as the investigation of business entities suspected of violating the
Immigration and Nationality Act (INA) and other statutes relating to the employment of
illegal aliens, as well as a host of other crimes that facilitate or result from the unlawful
employment of aliens (i.e. human trafficking, alien smuggling, document fraud, identity
theft, money laundering, abuse/exploitation). The focus of criminal WSE investigations
is to identify criminal violations committed by the owner(s) and principal manager(s) of a
business, gather evidence, and present these findings to the appropriate Office of the U.S.
Attorney for criminal prosecution. In addition, ICE Special Agents must aggressively
pursue the seizure and forfeiture of assets amassed by employers who profit from using
4
RELEASE/DISCLOSE
unauthorized alien workers. Finally, WSE should aggressively pursue criminal
prosecution of known identity thieves and aliens who are present at critical infrastructure
sites in order to have the greatest impact on national security, protecting the public, and
eliminating the illegal employment magnet.
ICE believes criminal prosecutions, the seizure of assets, and meaningful civil penalties,
upon employers and businesses that utilize and profit from the labor of undocumented
aliens, is the most effective approach and has the greatest impact on WSE.
1.3.1 Associated Criminal Violations - Culpable employers and/or principal
manager(s) of the business are the primary targets of criminal WSE investigations.
However, it should be noted that other criminal targets might be identified during the
course of a WSE investigation (i.e., vendors of fraudulent documents, criminal aliens, or
cases of aggravated identity theft). ICE Special Agents have the responsibility to pursue
criminal prosecution for these violations, as well as violations pertaining to the business
entity.
1.3.2 Associated Administrative Violations - ICE Special Agents have a
responsibility to address through enforcement actions the unauthorized alien population
at suspect business entities in WSE cases, both when criminal prosecution of the
employer is warranted and when violations are purely administrative in nature. ICE
Special Agents can rely on criminal search warrants, civil search warrants (i.e. Blackie's
Warrants), and WSE operations to identify and apprehend these unauthorized
employees. l
I
These tools will be defined further in other sections of this guide.
5
RELEASE/DISCLOSE
2
Brief History of Worksite Enforcement
Pre-1986
Prior to 1986, there were no laws related to the hiring of undocumented aliens. The
Immigration and Naturalization Service (INS) thus did not have the authority to
criminally prosecute or administratively fine employers who knowingly hired or
continued to employ illegal aliens. As a result, unscrupulous employers used illegal
aliens as a source of cheap labor, often subjecting these aliens to substandard wages or
working conditions, and displacing United States citizens and lawful permanent resident
aliens from the workplace.
2.1
Enactment of the Immigration Reform and Control Act
Congress took steps to address the rapid influx of undocumented aliens into the U.S.
workforce by enacting the Immigration Reform and Control Act (lRCA) on November 6,
1986. IRCA was enacted to remove the "magnet" of employment attracting
undocumented aliens by changing the hiring practices of employers to ensure that only
those individuals authorized to reside and work in the United States were hired by these
employers. Key provisions ofIRCA called for the creation of the Employment Eligibility
Verification Form (Form 1_9)2, and provided for criminal and civil penalties for
employers who employ unauthorized aliens and/or fail to properly verify employment
eligibility of workers. At the time IRCA was enacted, the INS set out to educate
employers as to their responsibilities under the Act, and began to issue administrative
warnings and fines for violations committed by employers.
Throughout the late-1980s and 1990s, the INS primarily relied on administrative
authorities to identify, investigate and fine egregious employment violations. Today,
ICE's current worksite enforcement strategy which incorporates both administrative and
criminal authorities, in conjunction with a focus on the financial gain of egregious
employers has proven to be a far more effective approach than administrative efforts
alone and serves as an effective deterrent for employers who may be in violation of the
employment eligibility verification statutes?
ICE continues to seek and create a culture of compliance among U.S. employers, by
focusing WSE investigations on critical infrastructure protection (CIP) sites, the
identification and prosecution of egregious employers, and offering robust outreach
efforts to employers through programs such as the ICE Mutual Agreement between
Government and Employers (IMAGE) program.
2 Infonnation on an employer's responsibility to verify employment eligibility through the use of the Fonn
1-9 is contained in 8 C.F.R. § 274a.2.
3 In March 2003, the investigative branches of the U. S. Customs Service and the U.S. Immigration and
Naturalization Service were combined to fonn U.S. Immigration and Customs Enforcement under the
Department of Homeland Security.
6
RELEASE/DISCLOSE
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
In addition, ICE Special Agents must be able to clearly articulate an employer's
responsibility to verify employment eligibility of all employees to an AUSA who may
lack experience or familiarity with WSE related prosecutions.
7.3
Identification of Similar Successful Prosecutions
ICE Special Agents may find it useful to identify similar ICE WSE investigations that
were successfully prosecuted in the past, in order to aid an AUSA in identifying effective
investigative strategies and evidentiary requirements to support all applicable criminal
charges. ICE Special Agents should obtain information on similar successful cases from
the ICE Headquarters (HQ) WSE Program Manager assigned to their area of
responsibility, or by reviewing the attached electronic media for examples.
7.4 Coordination with ICE Office of the Principal Legal Advisor
(OPLA) and Office of Chief Counsel (OCC)
ICE Special Agents should coordinate with representatives from their local ICE Office of
Chief Counsel (OCe) to ensure that criminal WSE cases are presented and litigated as
effectively as possible. ICE Special Agents are encouraged to have OCC representatives
with them when presenting a case to an AUSA for prosecution, and some ICE offices
may have a Special Assistant U.S. Attorney (SAUSA) assigned from their OCC office to
the Office of the U.S. Attorney in their area.
7.6
Use of Visual Aids
In order to aid an ICE Special Agent in presenting a criminal WSE case to an AUSA for
prosecution, it may be beneficial to create a link analysis chart or Microsoft PowerPoint
presentation identifying all suspect employers and principal targets of the investigation,
along with a listing and explanation of all applicable criminal statutes and supporting
evidence. The use of these visual aids will assist prosecutors in identifying the role of all
suspected violators, especially in cases involving multiple employer locations, multiple
criminal suspects and/or multiple layers of management within a target company.
20
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
Inspection of Forms 1-9 and Other Employment Records
8.7
When use of a criminal search warrant is not feasible or appropriate, ICE may conduct an
inspection of Forms 1-9 and other employment records to further WSE investigations.
ICE Forensic Auditors assigned to Worksite Enforcement Groups in the field should be
utilized to conduct Employment Eligibility Verification Form 1-9 inspections of selected
employers. The purpose of a Form 1-9 inspection is to identify evidence of any violations
that may lead to prosecution or administrative action. The particular circumstances of the
case should be carefully considered in determining the optimal time and method to
conduct the inspection. For example, it has been advantageous to conduct a Form 1-9
inspection to uncover patterns of identity theft or use of fraudulent documents. ICE
inspections have also successfully identified key Human Resource officials engaged in a
criminal scheme to provide fraudulent documents to unauthorized alien employees.
8.7.1
Notice ofInspection
A Notice ofInspection (NOI) must be served in person or by certified U.S. mail, return
receipt requested, upon the owner, designee, senior management official, or registered
agent of the business entity. ICE is required to provide the employer a minimum of three
days to produce the requested Forms 1-9. The inspection of Forms 1-9 may consist of
either a review of all forms or a random sampling of forms, at the discretion ofICE. In
the case of a large employer, ICE may elect only to examine the Forms 1-9 for current
employees. Employers are not required to copy documents presented as evidence of
identity and employment eligibility; however, if they elect to do so they should
implement a consistent policy for all employees. 14 ICE Special Agents and Forensic
Auditors will also provide the M-274 (Handbook for Employers) which contains detailed
instructions for completing the Form 1-9 to an employer at the time of service of the NOI.
ICE may also request that the employer provide the following information in addition to
the Forms 1-9:
•
•
•
Copy of the Certificate of Incorporation, if incorporated;
Information about the business (i.e., Employer Identification Number,
owner address information, Social Security number, phone numbers, email
addresses);
Whether the company is a current or previous participant in E-Verify;
14 Further information on an employer's responsibility to complete and maintain Forms 1-9 can be found in
8 C.F.R. 274a.2.
27
•
•
•
•
•
•
Whether the company utilizes the Social Security Number Verification
Service (SSNVS) to ensure earnings information is accurately reported;
SSA Employer Correction Request or Requests for Employee Information
letters;
Company payroll records for current and year ending summaries (to
include employee Social Security numbers, address information, hire and
termination dates);
If no electronic or third party payroll service is utilized, require a written
and signed list or summary of all of the above-mentioned information;
Quarterly Tax Statements (IRS 941 Forms);
Any other pertinent documents that may be related to the hiring and
employment practices of the company.
If an employer or business entity declines to provide Forms 1-9 pursuant to a properly
issued NOI or declines to provide additional documentation requested in the NOI, an
administrative subpoena or other legal process such as a Grand Jury subpoena or criminal
civil warrant may be used to compel the production of that information.
8.7.2
Administrative Subpoena
The issuance of an administrative subpoena is not required to compel an employer to
produce Forms 1-9 as part of the administrative inspection process but this does not
preclude ICE from using a subpoena in this manner. ICE is not legally required to give
three days notice prior to serving a subpoena upon an entity requiring testimony and/or
production of Forms 1-9 and other relevant documents.
ICE Special Agents and Forensic Auditors must note that serving a subpoena that
provides an employer with less than three days for compliance is only justified by
unusual circumstances. Such subpoenas may not be overly broad, unreasonable, or
seriously disrupt the normal business operations of the business entity. Agents must also
note that a subpoena is not a substitute for a warrant. If, at any time during the
investigation there is an indication that evidence may be altered or destroyed, the agent
should seek to obtain and execute a search warrant without delay.
8.7.3
Inspection of Forms 1-9
ICE Special Agents and Forensic Auditors should follow these steps when conducting an
inspection of Forms 1-9:
1. Make copies of all presented original Forms 1-9 and attachments (for
review and marking, if errors are present)
o Secure original Forms 1-9 presented for inspection.
2. Check for Substantive Failures
o Failure to prepare or present Forms 1-9;
• Ensure presentation of a Form 1-9 for each employee;
28
Conduct comparison of payroll records, (IRS statements
and SSA letters) to the Forms 1-9 presented;
Determine whether to conduct paperwork inspection of all Forms
1-9 or a sampling based on the total number of forms presented and
the availability of resources;
Check for substantive paperwork errors.
•
o
o
3. Check for Technical or Procedural Failures.
4. Check for Authenticity of Presented Documents
o Conduct DHS indices checks for all DHS documentation presented
for hire;
o Cross-check DHS indices results against SSA No-Match letter
information, if secured;
o Generate a Suspect Document list and prepare letter for employer.
5. Determine further investigative actions, to include the development of a
criminal case and/or administrative sanctions
o Serve Notice of Suspect Documents letter, or other appropriate
notice, to the employer;
o Plan for an enforcement operation.
8.7.4
Disposition of Administrative Case
The following outcomes may occur as the result of a Form 1-9 inspection in an
administrative WSE investigation:
8.7.4.1
"Notification of Inspection Results" Letter - This letter is issued to an
employer when no administrative violations are found as a result of the
Form 1-9 inspection and the employer is found to be in compliance with
all employment eligibility verification requirements. This letter is also
commonly referred to as a "Compliance" Letter. See Appendix for a
sample "Notification ofInspection Results" letter.
8.7.4.2
"Notice of Technical or Procedural Failures" Letter - This letter is
used in instances where a Form 1-9 inspection reveals minor technical or
procedural failures on behalf of an employer to meet employment
verification requirements. This letter contains a series of checkboxes
listing a variety of technical or procedural failures committed by an
employer and gives the employer ten business days to correct the listed
failures. Lastly, the form advises employers that they are subject to reinspection by ICE to verify that the corrections have been made. Once
these violations are corrected, an "Adjusted Compliance" Letter may be
issued to the employer. See Appendix for a sample "Notice of Technical
or Procedural Failures" letter.
29
If an employer fails to correct the technical failures in the allotted time or
provide an explanation why the failures cannot reasonably be corrected,
ICE should seek an administrative fine against the employer.
8.7.4.3
Warning Notice - A Warning Notice (Form 1-846) may be issued in
circumstances where substantive verification violations were identified but
there is the expectation of employer compliance in the future. When a
Warning Notice is issued, ICE Special Agents and/or Forensic Auditors
must re-inspect the employer's Forms 1-9 within six months to ensure
compliance in the future. See Appendix for a sample Warning Notice.
8.7.4.4
Application for Notice of Intent to Fine - An Application for a Notice of
Intent to Fine (Form 1-761) is issued in instances where the Form 1-9
inspection has identified substantive hiring or verification violations
committed by the employer. In all instances where an employer has
knowingly hired, continued to employ, failed to prepare and present Forms
1-9, committed substantive paperwork violations that resulted in the hire of
unauthorized aliens, failed to timely correct technical paperwork
violations, has engaged in fraud in completion of the Forms 1-9, or has
previously been the subject of an educational visit, Warning Notice, or
Notice ofIntent to Fine (NIF), ICE shall seek an administrative fine. The
ICE Special Agent is required to complete the Form 1-761 prior to review
by 01 supervisory personnel and submission to the local Office of Chief
Counsel (OCC) for concurrence.
8.7.4.5
Notice oflntent to Fine (NIF) - A Notice ofIntent to Fine (Form 1-763)
assesses administrative fines in the form of civil monetary penalties for
significant violations of the employment eligibility verification
requirements. The NIF must contain the basis for the charges against the
employer, the statutory provisions alleged to have been violated, and the
monetary penalty that will be imposed. The NIF advises the employer that
any statements they make may be used against them, that they have the
right to a hearing before an Administrative Law Judge pursuant to 5
U.S.C. § 554-557, and that such request must be made within thirty (30)
days of receipt of the NIF. Hearings in administrative fine cases are held
before the Office of the Chief Administrative Hearing Officer (OCAHO),
part ofthe Executive Office for Immigration Review (EOIR).
ICE will issue a Final Order (Form 1-764) forty-five (45) days following
the service of the NIF if a written request for a hearing is not timely
received. There is no appeal from this Final Order. The OCC is
responsible for preparing the NIF and Final Order which is then reviewed
and issued by an 01 supervisor. An 01 Special Agent or Forensic Auditor
is responsible for serving the NIF or Final Order on the employer. See
Appendix for a sample NIF and Final Order.
30
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
It is critical for Special Agents to be aware of the unique challenges attendant to
executing a criminal search warrant in worksite case. In the U.S. Supreme Court's
decision INS v. Delgado, 466 U.S. 210 (1984),the Court held that the questioning of
employees during the execution of a criminal search warrant must be consensual.
Accordingly, care must be taken to ensure that Special Agents engage in consensual
encounters of the workforce where probable cause has not yet been developed.
8.9.2
Criminal Arrest Warrant
Criminal arrest warrants are used to make arrests for criminal WSE violations, or other
criminal violations commonly uncovered during WSE investigations (e.g., Aggravated
Identity Theft). When applicable, ICE Special Agents should obtain a warrant prior to
making an arrest. The benefit of using a criminal arrest warrant is that a U.S. Magistrate
has determined that probable cause exists to believe that an offense has been committed
and that probably cause exists that the defendant committed it. A person arrested on
probable cause but without a criminal arrest warrant must be taken without unnecessary
delay before a U.S. Magistrate. The judicial determination of probable cause should be
held within 48 hours of the arrest, absent an emergency or extraordinary circumstances.
During a worksite enforcement operation, criminal search and arrest warrants are
commonly executed at the same time. Simultaneous execution of the warrants allows for
a decreased risk of destruction of evidence and fleeing of suspects.
8.9.3
Administrative Search Warrant
Administrative search warrants (also known as Blackie's warrants) are used to search for
unauthorized aliens and are particularly useful in WSE investigations. Stemming from a
34
court decision in Blackie 's House ofBeefv. Castillo, 659 F.2d 1211, 1222 (D.C. Cir.
1981) it was ruled that (ICE) has the right to enter commercial premises, pursuant to a
proper warrant, for the purpose of searching out a suspected violation of the immigration
laws. This right derives from the agency's general statutory power to seek out and
question suspected illegal aliens. In assessing whether the terms of the administrative
search warrant complied with the Fourth Amendment, the court recognized the necessity
of balancing the Fourth Amendment rights of the restaurant and the significant public
interest in enforcing the immigration laws of the United States, specifically, Section 287
of the INA and Title 8 U.S.c. § 1357, which authorizes the interrogation of any alien or
person believed to be an alien as to his or her right to be or remain in the United States.
The advantage ofthe Blackie's warrant is that there is no need to specifically name the
individuals being sought. Rather, the Blackie's warrant and accompanying affidavit need
only set forth a plausible basis for believing that there are unnamed illegal aliens present
at the location to be searched. However, even though there is a relaxed requirement to
provide a "particularized description" or a need to specifically name the individuals being
sought (other than unnamed individuals believed to be illegally present in the United
States), the Blackie's warrant must describe with specificity the places to be searched and
the time and scope of the search. A Blackie's searcb warrant cannot be used as a
substitute for a criminal searcb warrant.
To obtain a Blackie's search warrant, ICE Special Agents must:
•
•
•
•
8.9.4
Establish probable cause to believe that a violation has occurred;
Prepare an affidavit in support of the application for the search warrant;
Present the application for the warrant to the appropriate Office of the
United States Attorney for legal sufficiency and concurrence;
Present the application and warrant before a Federal Magistrate in the
judicial district in which the warrant will be served.
Administrative Arrest Warrant
An ICE Administrative Arrest Warrant (Form 1-200) should be used by ICE Special
Agents when an agent has "reason to believe" 16 that an alien is in the United States in
violation of any immigration law and is likely to escape before a warrant can be obtained
for his/her arrest. However, an ICE Special Agent has the right to interrogate (with or
without a warrant) any alien or person believed to be an alien regarding his or her
immigration status and issues surrounding his or her right to be present in the United
States. During a worksite enforcement operation, an ICE Special Agent may affect a
warrantless arrest if probable cause is developed to believe that an employee is in the
U.S. unlawfully. It is also critical to note that administrative arrest warrants do not
16 Courts have consistently held that in this circumstance this phrase is equivalent to probable cause. See
U. S. v. Cantu, 1975,519 F.2d 494 (7th Cir. 1975), cert. denied, 423 U.S. 1035 (1975); see also Babula v.
INS, 665 F.3d 293 (3d Cir. 1981)
35
permit ICE agents and officers to enter a private place where a reasonable expectation of
privacy exists, e.g. a workplace or dwelling.
36
9
Worksite Enforcement Operations
A WSE operation is officially defined as "an action by agents to arrest one or more
unauthorized aliens at a worksite in furtherance of an active worksite investigation of the
employer." 17 It must be noted, however, that enforcement actions within other
programmatic areas, wherein a large number of criminal and/or administrative
arrests are contemplated at a worksite, must also be treated as WSE operations for
reporting purposes. For example, a Document and Benefit Fraud Task Force
investigation may identify a vendor of fraudulent documents and a large number of
unauthorized alien "customers" employed at a particular worksite or by a particular
employer. Any enforcement operation aimed at apprehending these unauthorized aliens
at the worksite must be treated as a WSE operation, given the planned location ofthe
administrative or criminal arrests (even though there is no evidence to suggest that the
employer was complicit in the scheme).
These WSE operations are aimed at safeguarding the nation's communities, protecting
workers from unscrupulous employers and hazardous working conditions, and obtaining
valuable evidence in WSE investigations. Each WSE operation must also be reviewed
based on its scope and objectives, and may require coordination at the ICE Headquarters
level, as well as coordination with the affected Office of the U.s. Attorney.
9.1
Headquarters Coordinated WSE Operations
SAC offices are required to assess all planned WSE operations to determine if the
operation requires coordination at the ICE Headquarters level through the HQ WSE Unit.
Some factors requiring HQ coordination include the following:
1) WSE operations involving more than one SAC region - There
may be cases involving suspect employers who have multiple worksite
locations throughout the United States. HQ coordination of WSE
operations is necessary in these cases where more than one SAC office
is involved in the execution of the WSE operation.
2) WSE operations involving employers involved in critical
infrastructure, or who may produce items that affect national
security or military readiness - All WSE operations involving
employers engaged in industries related to the nation's critical
infrastructure, national security, or military readiness (regardless of
scope) must be coordinated at the ICE HQ level.
3) WSE operations involving worksites with significant economic
impact to a geographical area. - All WSE operations targeting
17 For further details, see 01 memorandum trom John P. Clark, Interim Director to all Special Agents in
Charge, dated August 1,2003, titled "Expansion on the Definition ofa Worksite Enforcement Operation".
37
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
ICE Special Agents must consult with the appropriate AUSA, their local Office of the
Chief Counsel, and the HQ WSE Unit regarding the following considerations prior to the
execution of a WSE operation:
•
•
•
Will criminal search warrants be used to identify and apprehend suspect
employees and obtain business records of the employer?
Will civil search warrants (i.e. Blackie's Warrants) be used to identify and
apprehend suspect employees?
Will a combination of criminal and civil search warrants, and/or Grand
Jury subpoenas, be used to uncover documentary evidence and apprehend
illegal alien workers?
39
9.2.2
Alien Processing Considerations
ICE Special Agents must take into account the following factors when planning for the
processing of all undocumented alien employees encountered during a WSE operation:
•
•
•
•
•
•
•
9.2.3
Expected number of criminal and administrative arrests;
Estimated amount oftime needed to process the number of expected arrestees;
Expected nationalities of arrested aliens;
MalelFemale ratio of arrested aliens;
Availability of space for arrested aliens to consult with legal advisors and/or
consular representatives;
Availability of telephone access for arrestees;
Need/availability of a toll-free information line to provide information to family
members of detained aliens;
Humanitarian Concerns
All operations, including WSE operations, must be conducted in a manner that is safe to
the general public and members of the community. In this regard, state and local
agencies must be informed as soon as practicable when ICE Special Agents determine
that such an operation may have an adverse impact on a community. Notifying state and
local agencies in such circumstances must not sacrifice the integrity of the operation.
Additionally, all persons arrested by ICE Special Agents must be treated with respect and
dignity. Our policies and guidelines concerning prosecutorial discretion have
consistently stated that our commitment to maintaining an end to the "catch and release"
of illegal aliens does not abrogate the responsibility ofICE Agents or Officers to use
prosecutorial discretion prudently. ICE Special Agents should anticipate, to the best
extent possible, any possible need for encountering undocumented aliens with
humanitarian concerns. Aliens with humanitarian concerns may not be the best
candidates for detention. Aliens that may have humanitarian concerns include, but are
not limited to: employees with serious illnesses/disabilities, juvenile employees,
employees with unaccompanied minor children or school age children at home,
employees who are nursing mothers, or employees that are pregnant with complications
from that pregnancy. While each employee may present a unique set of facts, ICE
Special Agents, working in conjunction with DRO, must make the most prudent
decisions based on the facts presented to them at the time of the WSE Operation. These
decisions may include placing the alien in an alternative to detention program, releasing
the alien on a minimal bond, releasing the alien on an order of release on recognizance, or
any other appropriate action based on the circumstances. ICE Special Agents should
address these humanitarian concerns with their local Office of Detention and Removal
Operations, their HQ WSE National Program Manager, and their local Office of the
Chief Counsel at the earliest possible time when planning such enforcement actions.
40
(b)(2)High, (b)(7)e
immediately upon identification of a proposed WSE operation. ORO can also
assist in the transportation of arrested aliens from the point of arrest to the point of
processing, and from the point of processing to the ICE-designated detention
facility (or to the custody of the U.S. Marshals Service if criminal prosecution of
the arrested aliens is applicable). In addition, ORO can provide alternatives to
detention (i.e. electronic monitoring) for individuals released from ICE custody
due to humanitarian concerns. ICE Special Agents must coordinate with ORO
regarding detained aliens who are also criminal targets of a WSE investigation to
ensure that they are not transported outside of the affected judicial district.
9.3.2
Office of the Principal Legal Advisor (OPLA) - OPLA has proven crucial in
providing ICE Special Agents with guidance in case development and presenting
the case to the United States Attorney's Office. Coordination with OPLA is
necessary to ensure that OPLA representatives are at the arrest and/or alien
processing location to provide legal guidance and to review NTAs for legal
sufficiency prior to the alien file being turned over to ORO.
9.3.3
Public Affairs Office (PAO) - Representatives from PAO will develop a media
communications plan for WSE operations and can be on-site at arrest and/or
processing locations to address media concerns. ICE Special Agents should
involve their local Public Affairs representative as early as possible when
planning a WSE operation.
9.3.4
Office of Congressional Relations (OCR) - Representatives from OCR will
develop a plan to make advance notification to Congressional Committees,
elected officials and state delegations affected by a WSE operation. These
notifications will contain information on the scope of the planned WSE operation
and are designed to provide Congressional members and staffers with the
information necessary to address constituent concerns that may arise after the
conduct of the operation. OCR's notification strategy will vary on a case-by-case
basis, and is dependant on the geographical area of the WSE operation and the
Congressional jurisdictions affected. In addition, OCR will develop a plan to
make notifications to affected Committee members on the day of the operation,
and can help plan for post-operational briefings with Congressional members.
9.3.5
Office of International Affairs (OIA) - OIA will develop a notification plan for
affected foreign embassies and consulates and can make arrangements for
consular access at alien processing sites.
9.3.6
Office of the Chief Information Officer (OCIO) - OCIO can coordinate the
efforts of information technology staff, including deployment to the field at
processing sites, in order to ensure the continuity of IT capabilities. OCIO
personnel will conduct site surveys of potential processing sites to determine
technological needs. OCIO can also assist in the development of operationspecific alien processing guides for the ENFORCE/EABM/IOENT module.
42
9.3.7
Office of Procurement and Budget/Office of Acquisition ManagementThese offices can assist with the following aspects of a large-scale WSE
operation:
•
•
•
•
•
•
•
•
•
Operational funding;
Logistics;
Acquisition of processing facilities/office space;
Food, supplies, safety equipment;
Ordering blank A-files from USCIS;
Travel funding, to include hotels and rental vehicles;
Purchase orders;
Purchase card assistance;
Contract vehicles.
9.3.8
Law Enforcement Support Center (LESC) - The LESC can provide resources
to facilitate queries of ICE indices during the conduct of WSE operations. The
LESC is available to staff a toll free hotline during large WSE operations to
respond to questions from friends and family members of detained aliens.
9.3.9
National Records Center (NRC) - The NRC can arrange for additional
resources to provide immediate after-hours access to alien files stored at the NRC.
The NRC has a staff for responding to field requests.
9.4
External Coordination of WSE Operations
In addition to coordinating WSE operations with internal ICE entities, ICE Special
Agents must be sure to coordinate these operations with affected external entities and
other law enforcement partners within the SAC area of responsibility. After consultation
with HQ WSE, ICE Special Agents should consider coordination with the following
external entities at tbe earliest possible time during the planning phase of a WSE
operation, when warranted:
•
•
•
•
State and local law enforcement agencies with jurisdiction over the arrest
and alien processing sites;
State and local social service agencies regarding child welfare issues
(required on large or significant WSE operations during the initial
planning phase);
Entities that may be able to provide processing sites for large numbers of
arrestees (i.e. National Guard facilities) when local ICE facilities cannot
accommodate anticipated arrests;
Department of Immigration and Health Services must be contacted in
large worksite enforcement operations or when there is evidence to
suggest that a large number of arrested aliens may have medical or
humanitarian concerns that may be best addressed by trained medical
43
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
9.6
Employee/Employer Interviews During WSE Operations
When conducting WSE operations, it is not uncommon for ICE Special Agents
(b)(2)High, (b)(7)e
(b)(2)High, (b)(7)e
Provisions for this situation should be addressed during any pre-operational briefings.
The ICE case agent should assign a team of ICE Special Agents to conduct these
interviews during the WSE operation if this opportunity arises, and should designate a
place for such interviews to occur at the suspect company.
As always, ICE Special Agents should consult with their AUSA and/or OPLA
representatives regarding issues such as Miranda warnings and legal representation when
these interviews involve a potential criminal target ofthe investigation.
9.7
Use of Jump Teams in WSE Investigations
At times, the scope, complexity and expertise required when conducting a WSE
investigation may warrant the use of an investigative Jump Team to supplement the
resources of an ICE field office. These teams are typically comprised of WSE subject
matter experts (or subject matter experts in other programmatic disciplines) and can
include ICE Special Agents and Group Supervisors, Criminal Research Specialists,
Forensic Auditors and OPLA attorneys. These individuals can be deployed on a case-bycase basis to assist ICE field offices in conducting a WSE investigation or in the
logistical planning and execution of a WSE operation.
For example, several recent successful WSE investigations used investigative Jump
Teams to augment local SAC office resources when conducting surveillance of criminal
targets and worksites, reviewing large quantities of Forms 1-9, and identifying assets of
suspect criminal employers or other targets. These Jump Teams also assisted in planning
large-scale WSE operations by identifying suitable processing locations and logistical
requirements, and by providing valuable input in the development of operational plans.
The HQ WSE Unit has developed a list ofWSE subject matter experts, to include ICE
Special Agents and Group Supervisors, for inclusion on future investigative Jump Teams.
SAC offices requiring this type of assistance in WSE investigations or in the planning
phase ofWSE operations should contact their designated HQ WSE National Program
Manager.
45
10
WSE Case Reporting Requirements
10.1 Coordination with the HQ WSE Unit
ICE Special Agents, through their SAC Office designated personnel, are required to
communicate with their HQ WSE National Program Manager regarding all ongoing WSE
investigations at the earliest opportunity through required WSE status reports and case
updates. These communications are especially essential in the early stages of WSE
investigations involving significant anticipated arrests, media interest, and other
sensitive circumstances.
This requirement also pertains to investigations in other programmatic areas with a
significant nexus to WSE.
10.2 Reporting of Planned WSE Operations/Activities
ICE policy requires that each SAC office report any planned WSE operation to the HQ
WSE Unit no less than five (5) business days prior to the planned activity using the
Significant Prospective Enforcement Activity Reports (SPEAR) module within the
Significant Event Notification (SEN) system. This guidance pertains to all incidents,
regardless of case category, in which a worksite or worksite-related element exists (i.e.,
alien smuggling, money service businesses, document and benefit fraud). The narrative
portion of the SPEAR must include the following information:
•
•
•
•
•
•
The number of anticipated criminal and/or administrative arrests;
The nationality/citizenship of all suspect alien employees or other criminal
targets, if known or suspected;
The number of criminal and/or administrative search warrants;
The names of all offenders, and their position within the company (i.e. owner,
manager, etc.) if known;
The names of other participating law enforcement agencies;
Information on coordination efforts with the local Office of Detention and
Removal Operations regarding detention issues.
10.3 Use of ENFORCEIEABMIIDENT During WSE Operations
All ICE Special Agents are required to use the Enforcement Case Tracking System
(ENFORCE) Enforcement Apprehension Booking Module (EABM) to document the
identification, apprehension, and detention of illegal aliens encountered during WSE
operations. These systems interoperate with the Automated Biometric Identification
System (IDENT) to capture all information related to both administrative and criminal
alien case processing and arrest booking. Together, these systems capture biographical
46
information, arrest information, and biometric data (fingerprints and photographs) of all
persons apprehended by ICE.
The EABM is the primary means used by ICE of inputting and extracting enforcement
data for the ICE Office of Investigations and other DHS components. Use of these
systems is essential when conducting WSE operations to accurately capture and report
critical statistics related to WSE investigations and those cases with a significant nexus to
WSE.
SAC offices must ensure that all ICE Special Agents are trained and verse in the use of
these systems, and all ICE Special Agents are responsible for maintaining access by
updating user profiles and system passwords as required.
10.4 Use of SEACATS During WSE Operations
All ICE Special Agents are required to use the Search/Seizure/Arrest Report within the
SEACATS module ofTECS-II to document all criminal and administrative arrests,
search warrants and seizures made in conjunction with WSE operations. Agents are
reminded to use the interoperability features of ENFORCEIEABM and SEACATS to
populate most required fields when entering a Search/Arrest/Seizure Report in
SEACATS.
ICE Special Agents must ensure that the proper 01 TECS-II Case Number and Primary
Program Codes are entered into the appropriate fields in SEACATS when preparing these
reports (See the Case Documentation section of this guide for further details on pertinent
WSE program codes).
10.5 Use of Arrest Tracking Sheets During WSE Operations
SAC offices may be required to identify and track the arrest, disposition and immediate
detention status (i.e. release on Order of Recognizance for humanitarian reasons,
detention with or without bond, etc.) of all aliens arrested, either administratively or
criminally, during significant or sensitive WSE operations. In these instances, SAC
offices may be asked to submit specially designed tracking sheets to their designated HQ
WSE National Program Manager containing all pertinent arrest, detention and disposition
status of the arrested aliens at regular intervals during the administrative processing
portion of a WSE operation. These tracking sheets should be closely coordinated with
the DRO point of contact to ensure that both DRO and 01 are reporting the same numbers
and disposition of cases. This will allow the HQ WSE Unit to receive up-to-date
47
information regarding arrest and detention data for dissemination to other affected ICE
programs. 18
10.6 Reporting Results of WSE Operations/Activities
SAC offices are required to report the results of all WSE activities to the ICE HQ WSE
Unit via submission of a Significant Incident Report (SIR) in the SEN system no later
than 24 hours after the occurrence ofthe reported incident. The SIR should refer to the
related SPEAR tracking number submitted prior to the enforcement operation, and should
contain, at a minimum, the following information in the report narrative l9 :
•
•
•
•
•
•
•
•
•
The number of criminal and/or administrative arrests;
The nationality/citizenship of all arrested aliens or other criminal targets;
The number and location of all civil and criminal search warrants
executed, if applicable;
The names of all criminal offenders, and their position within the company
(i.e. owner, manager, etc.) ifknown;
The disposition and detention information regarding all apprehended
aliens;
Significant seizure information;
The names of other participating law enforcement agencies;
Media interest;
Information regarding any other significant incident(s) that may have
occurred during the conduct of the enforcement operation.
18 See OJ memorandum from Marcy M. Forman, Director to all Special Agents in Charge, dated June 29,
2006, titled "Worksite Enforcement Reporting Requirements" for further details on WSE reporting
requirements.
19 See OJ memorandum from Michael J. Garcia, Acting Assistant Secretary to all ICE employees, dated
March 11,2003, titled "Reporting Requirements for Significant Events" for further details on the reporting
of high-interest incidents and other sensitive matters.
48
11
Conclusion
This guide was designed to be used as a tool by ICE Special Agents and Forensic
Auditors when conducting all WSE investigations - whether criminal or administrative in
nature. However, the methodology used to conduct these investigations is always
evolving, and the importance of close coordination with the ICE Headquarters WSE Unit
cannot be stressed enough when planning and conducting significant or sensitive WSE
activities.
The illegal employment of undocumented aliens continues to have a significant impact on
our nation's economy, often displacing U.S. citizens and lawful permanent resident aliens
from our nation's workforce. These unscrupulous business practices represent a
significant vulnerability in the security of our nation when these unlawful hiring practices
occur in industries connected to the critical infrastructure of the United States. In
addition, some egregious employers use undocumented aliens as a source of cheap labor,
often subjecting these aliens to substandard wages or dangerous working conditions. The
employment of undocumented aliens also has a direct impact on the occurrence of other
criminal violations, such as the sale and manufacture of fraudulent identity documents
and incidents of identity theft, wherein unauthorized aliens assume the identity of a U.S.
citizen in order to obtain employment. For these reasons, Worksite Enforcement
investigations continue to be a priority ofthe Department of Homeland Security and U.S.
Immigration and Customs Enforcement.
The ICE Headquarters WSE Unit is developing training aids, including material
presented at the Advanced Worksite Enforcement Training classes at the Federal Law
Enforcement Training Center, to assist ICE Special Agents and Forensic Auditors in
planning for and conducting WSE investigations. Information on these training aids is
forthcoming and will be released in the near future.
49

the ICE Guide to Worksite Enforcement Investigations

Transcription

Similar documents

JagerBomb flyer-web - Smoothiecompany.com

COOLVIEW - PyroGraphics

Go ice skating at the Palouse Ice RInk

Words from Joy Schwinger

The Day after Tomorrow?

Ice Vault Arena SkateFest 12-10-13

October 2014

MIS33-Skylight Ice Arena.qxp - The Ives Architecture Studio

At this meeting we helped and supported Mrs. Jeacock in collecting

5776 Kadima Ice Skating Final