ins guidance memo - worksite enforcement operations (5/22/98)

8/14/2019 INS Guidance Memo - Worksite Enforcement Operations (5/22/98)

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U.S. DepartmeDt of Justice

lmmigrntion and Natur.lli:cation Service

425 I Strut NW

Wamfngtc:ltl, DC ]O$J6

May 22, 1998

HQOPS 50/19-P

MEMORANDUM FOR REGIONAL DIRECTORS

FROM:

SUBIECT:

MICHAEL A PEARSON IIsigned//

EXECUTIVE ASSOCIATE COMMISSIONEROFFICE OF FIELD OPERATIONS

Immediate Action Directjve for Worksjte Enforcement Operations

Worksite enforcement is an important part of our interior enforcement actions. However,

worksite enforcement operations are sometimes misunderstood by the general public, often when

public p ~ t i o n f o ~ o!lly p ~ t 2fthe rather than the overall goal of

inurtigration law enforcement This can easily leid to a lack of support by the public we serve.

As officers enforcing the immigration laws of he United States, we must conduct ourselves

professionally, within the scope of our authority, and in a manner which garners py!llic support for

2.!:!,r c o ~ c t ami responsibilities. ; -- -

We must recognize that the purpose ofworksite enforcement is to deter the unlawful

employment of aliens in the United States and that any contemplated worksite enforcement

actions should be measured against this goal. To that end, worksite e n f ~ n t investisationsthat involve alien smuggling, human rights a b u s ~ and other criminal violations must take

precedence.

The Immigration and Naturalization Service (INS) is working on a comprehensive Interior

Enforcement Strategy that will pr.ovide direction, guidance, and priorities for n Q n ~ b Q r d e r - ? p e r ~ t i ~ . ! ! s , to i?Clude worksite enforcement.. Until that strategy IS ~ n a l i z e d , I want to implement

mtenm msu:uctlons for the conduct of workslte enforcement operabons. This memorandum

Regional Directors I "

Subject: [mmcdiaIC Action for

Wodtsitc Bntorcement Operations

provides d i r ~ o n in five areas which must become Standard Operating Procedure (SOP) for theconduct ofwork site enforcement operations:

Refresher training on our authority to question and detain persons;

• Use ofmodels for worksite enforcement investigations;

An on-site INS community liaison officer present during all worksite enforcementoperations;

A standardized written operation plan prepared for each worksite enforcement

operation; and

Community outreach and support building efforts.

A worksite enforcement operation is defined as: Any action by an INS officer(s) to arrest

one o r more unauthorized a l i ~ at a worksite. A case must be opened and assigned for G-6oo

purposes by a supervisor, and the case recorded on fonn CENF 45.1.

The changes outlined in this memorandum are effi:ctive as of he date of his

memorandum. These instruction!': are not intended to be all inclusive; operational judgment is

necessary in planning and executing operations since each operation is different. As in all

operations, care for the safety of he public and all participating persons is paramount.

A. Refresher training on our authority to qoesfion .and detain persons

On December 31, 1996, Commissioner Meissner issued specific guidance to the field

relating to the apprehension of aliens during worksite enforcement operations (Attachment" An)

fEach field office conducting worksi te enforcement operations will provide a refresher training

r ~ u r s e based on the guidance in that memorandum to aU officers who participate in such

, operations. The training must be conducted within 45 days of his memorandum and periodically

thereafter so individuals newly assigned to worksite enforcement dut ies will have the same base

knowledge about this policy. The training should outline the law ofarrest . search, and seizure, as

detailed in "The Law of Arrest, Search and Seizure for Immigration Officers" (M-69 Handbook).

It must also include a comprehensive review of he Commissioner's policy as found in her

December 3 I, 1996, memorandum (Attachment "Aj . I have requested the General Counsel to

assign the District or Secto r Counselor hislher designee to identify appropriate course materials3J1d initiate training about Fourth Amendment issues.

Additionally. pre-operational briefings for worksite enforcement operations must include:

(I) specific attention to the Commissioner's December 31. 1996, policy, and (2) the importanceof reating all people with dignity and respect. Pre-operational briefings must include all personsparticipating in the operation. including persons from otner agencies.

B. Use ofmQdels fer werksi te enfol"t.ement investigations

To standardize worksite enforcement operations, Headquarters Office ofField Operations

( H Q O ~ S ) has developed protocols for conducting worksite enforcement operations. These

worksue enforcement protocols dated May 22, 1998, and found in Attachment "B" , Ilre to be



U.S. i)epartmeDt of JusticeImmjpon and Natur.ili:tation Service

425 ISIred NWW,w,/ngtoI!. DC 1OSJ6

May 22, 1998

HQOPS 50/19-p

MEMORANDUM FOR REGIONAL DIRECTORS

FROM:

SUBJECT:

MICHAEL A. PEARSON IIsignedJ/

EXECUTIVE ASSOCIATE COMMISSIONER

OFFICE OF FlEW OPERATIONS

Immediate Action Directjve for WOrksjte Enforcement Operations

Worksite enforcement is an important part of our interior enforcement actions. However,

worksite enforcement operations are sometimes misunderstood by the general public, often when

p ~ l i c p ~ t i o n f o ~ o.!lly p!!s!tt 2fthe rather than the overall goal of

immigration law enforcement This can easily lead to a lack of support by the p1,lblic we serve.As officers enforcing the immigration laws of he United States, we must conduct ourselves

professionally. within the scope of our authority, and in a manner which garners pyQlic support for

c o ~ c t aa.d responsibilities. = - - -

We must recognize that the purpose ofworksite enforcement is to deter the unlawful

employment of aliens in tke United States and that any contemplated worksite enforcement

actions should be measured against this goal. To that end, e n f ~ n t investisationsthat involve alien smuggling, human rights abuses. and other criminal violations must take

precedence.

The Inunigration and Naturalization Service (IN"S) is working on a comprehensive Interior

Enforcement Strategy that will pr.ovide direction, guidance, and priorities f o ~ e r ~ e r ~ t i ~ . . e s , to i?C1ude worksite enforcement.. Until that strategy IS ~ n a l i z e d , I want to implement

mtenm. UlSu:uctlons for the conduct ofworkslte enforcement operations. This memorandum

- - - . - ~ ~ - - - - -

Regional Directors I .'

Subjccr.: [mmcdiatcActioo. forWol"ksitc Euforcemeat. 0pcraU0ns

provides d i r ~ o n in five areas which must become Standard Operating Procedure (SOP) for theconduct ofwork site enforcement operations;

• Refresher training on our authority to question and detain persons;

• Use ofmodels fur worksite enforcement investigations;

An on--site INS community lialson officer present during all worksite enforcementoperations;

• A standardized written operation plan prepared for each worksite enforcement

operation; and

Community outreach and support building efforts.

A worksite enforcement operation is defined as: Any actioJ1 by an INS ofticer(s) to arrest

one or more unauthorized a l i ~ at a worksite. A case must be opened and assigned for 0-600

purposes by a supervisor, and the case recorded on form CENF 45.1.

The changes outlined in this memorandum are effective as of he date oCthis

memorandum. These i n s t r u c t i o n ~ are not intended to be all incbsive; operational judgment is

necessary in planning and executing operations since each operation is different. As in all

operations, care for the safetyof he public and all participating persons is paramount.

A. Refresher training on our authority to question .and detain persons

On December 31, 1996, Corrunissioner Meissner issued specific guidance to the field

relating to the apprehension of aliens during worksite enforcement operations (Attachment "A")

field office conducting worksi te enforcement operations will provide a refresher training

course based on the guidance in that memorandum to all officers who participate in such

operations. The training must be conducted. within 45 days of his memorandum and periodically

thereafter so individuals newly assigned to wor\c;;ite enforcement dut.ies will have the same base

knowledge about this policy. The training should outline the law of arrest, search, and seizure, as

detailed in "The Law of Arrest, Search and Seizure for Immigration Officers" (M-69 Handbook).

It must also include a comprehensive review of he Commissioner's policy as found in her

December 31, 1996, memorandum (Auachment "A). I have requested the General Counsel to

assign the District or Secto r Counselor hislher designee to identify appropriate course materials3J1d initiate training about Fourth Amendment issues.

Additionally. pre-operational briefings for worksite enforcement operations must include:

(1) specific attention to the Commissioner's December 31, 1996, policy. and (2) the importanceof reating all people with dignity and respect. Pre-operational briefings must include all persons

participating in the operation. including persons from other agencies.

B. Use of models for worksite enfon:ement investigations

To standardize worksite enforcement operations. Headquarters Office ofField Operations

(HQOPS) has developed protocols for COnducting wor\c;;ite enforcement operations. These

worksite enforcement protocols dated May 22, 1998. and found in Attachment "B", nre to be



Regional DirectorsSubject: Immediate Action Directive,forWorksite Enforcement Opernti.oos

followed by field managers and case agents. The protocols outline three investigative approaches

whose deployment is dependent on the type oflead s received.

All worksite enforcement operations must be conducted safely and professionally.Operations must be conducted in a manner which minimizes the impact to a business during the

worksite enfor cement operation (e.g., avoid restaurants during peak meal periods, allow the legal

workforce to return to work as soon as possible), and with the. goal of minimizing the amount of

time spent at a businessor employment site. Operations must be conducted by teams comprisedof at least tw o ms officers.

c. An on-site INS community li:'lison officer presSot during:'lll worksite enron::ement

oner.Jtions

Worksite enforcement operations conducted by five or more officers at places of business

must include the participation of an INS employee whose sole duty will be to serve as an on-site

community liaison officer to deal with issues which may arise from concerned individuals. The

on-site community liaison officer must not be a direct participant in the "hands on" aspect of he

enforcement operation (e.g., questioning and detaining aliens, searching the premises) so that heor she can devote full attention to this task,· Those worksite enforcement operations consisting of

fewer than five officers will not necessarily require a separate community liaison officer; however,an officer on the operation must assume'the collateral responsibility as community liaison officer.All members of he operational team must know how to contact the on-site community liaisonofficer during the operation.

The role of he on-site community liaison officer will be to address problems that arisewith the operation itself. such as complaintsby business managers, the public, or other concerned.

persons, and to answer questions and respond to complaints or perceptions of unprofessionalconduct, abuse., Of civil rights violations by INS. The community liaison officer must be wellversed in the overall operation plan as wei! as INS' policies regarding arrest, detention, andremoval of aliens from the United States.

At a minimum, the on-site community liaison officer should'

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Be skilled in responding to complaints or mediating disputes which may arise;

Address the questions and concerns of interested parties in a professional maMer;

Provide information regarding where apprehended aliens will be detained, and howthey can be contacted;

Provide general infonnation regarding INS' removal proceedings;

Answer questions which may be posed by family members of detained aliens;

Provide assistance to apprehended aliens with responsibility for family members (e.g.provide access to telephones or assist in communicating with children or otherrelatives requiring care):

!ake co,?piaints and refer them to the appropriate entity for follow-up, or providetnformatlon a bout how and with whom individuals may file complaints; andProvide a local point of contact for media inquiries.

o

Regional DirectorsSubJCCl: Immediate Action D i ~ forWodcsite Enforcement Opcr.niOfLS

Page 4

You have discretion as to who the on-site community liaison officer should be (wherepossible, use District. or Sector community relations officers or staff with good Outreach andcommunications skills). I encourage additional training in appropriate areas for the community

liaison officers.

D_ A S U l n d a r d i z ~ written operation plan preparsd for ea.r.h work$ite enforcement

operation

A written operation plan must be prepared prior to execution of all worksite enforcement

operations. We are developing a fonnat for use by field offices, but until it is distnbuted to thefield, a worksite enforcement operations checklist (Attachment "C'') is included with thismemorandum to assist in developing an operation plan. This checklist should be used to addresskey elements in planning a worksite enforcement oper.ltion. The checklist identifies many

troublesome or problematic circumstances and will serve as a structure to plan for handlingunforeseen circumstances that may arise during a worksite enforcement operation. The written

operation plan may require additional factors to address particular issues of concern that are not

included on the checldist. Pre-operat ional briefings must be conducted to ensure that allpersonnel involved in worksite enforcement operations., including other agency personnel, know

the details of he operation.

Worksite enforcement operations require a level of approval commensurate with thesensitivity of he proposed operation. Requests for approval ofw orksi te enforcement operations

should be initiated with a briefmcmorandum, acCompanied by the operation plan, The operationplan must include a statement ofimpact: how the worksite enforcement operation will deter the

unlawful employment of aliens in the United States. The memorandum and attached oper ationplan should be sent through official channels to the approving official, or hislher designee.

Worksite enforcement operations must be approved as outlined below:

Worksite enforcement operations whi¢l must be authorized by the Executive AssociateCommissioner for Field Operations or his or her designee (prior concurrence by the

Regional Director, or his or her designee. is necessary):

1. Worksite enforcement operations which may involve persons, subject matters, or j.

places of national prominence, notoriety, or newsworthiness;2. Worksite enforcement operations which for other reasons may, in the judgment of

the Regional Director. be of sufficient interest to generate inquiries directed toHeadquarters.

All other worksit e enforcement operations must be authorized by the Regional Director,or his or her designee:

An after-action report for each operation I1Kist be submitted, through channels, to theapproving official within 24 hours of he arrest phase. The after-action report. must include

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Regional D i r c a o ~ Subjo:t: I mmediate Action Dircx:l:ivc for

Wotksite EmOTO:ment OperationsPageS

pertinent faC:U ~ 1 r r o u n d i n g the operation sucil as a description and number of any arrests and anyunusual or SJgruficant events that occurred during the operation. A memorandum, G-166, or

G-166C will suffice for this requirement. For operations lasting more than one day, a dailysummary should be submitted at the end of each day.

. If worksite enforcement operation.causes a significant or unusual event, a report mustbe Irnmechately made to the INS Command Center (202 616-5000). This notification should be

immediately followed up with a written report and copy of he operation plan if one was notinitially submitted for approval to region or HQOPS. The circumstances listed below will beconsidered signifICant, a l t h o u g ~ this list is ~ t all encompassing:

1. A serious injury of an individual during or as a result of ile worksite enforcement

operation. This would include the emergent removal of' an individual by ambulance orother emergency response vehicle;

2. Arrest of an employer or principal business representative of an employer;

3. Allegations of civil rights violations or other abuses made against the INS or any other -

law enforcement agency present on the worlcsite enforcement operation; or

4. A significant media presence during the worksite enforcement operation. This wouldbe characterizedby mUltiple media entities requesting interviews or information, or thepresence oftel evision news crews.

E. Community oldre:u:h and support building

An important part of he INS mission is to work with interested segments of hecommunity: employers., advocacy and civil rights groups, service agencies, civil and churchgroups, public officials, employment services, consular officers andgroups representing

immigrants and aliens to develop an atmosphere of communication and understanding. Districtsor Sectors are to conduct outreach meetings and seminars with these groups on worksiteenforcement issues on at least a quarterly basis to improve the INS' dialogue with the public.

These meetings and seminars may be combined with existing outreach efforts that may already be

underway in the Districts or Sectors. The purpose is to provide ways to educate the public aboutINS operations, establish dialogue and feedback with those affected. by INS' work, preventunJawful employment practices, cnhance communication regarding the INS mission and to

understand complaints and improve operations in order to minimize or eliminate complaints.

The topics for these outreach meetings should include, but are not limited to:

The lNS' National Targeting Plan (NTP) and why the INS targets particularindustries;

How the INS generally conducts worksite enforcement operations, and whatemployers should expect during these operations;

In general t ~ , the INS arrest, detention, and removal procedures; andHow and WIth whom employers or others may file complaints.

- - - - ~ ~ - ~ - = . < . - - - - - - - - - - - - - - - - - - - - -

Regional DirectorsSubject; Immediat e Action Directive for

Worksite Enforcement Operations

Pagc6

Consider notifYing consulates of oreign countries prior to ll"lS worksite enforcement

operations so they can prepare to interview nationals of heir countries who might be affected by

the operation. A general advisory that an operation will be conducted and that nationals of heir

countries may be arrested is rec.ommended, including information on time and location where INS

processing will take place; the location of he operation should not be disclosed. Also, within

existing guidelines, consider inviting members of he media (contact the INS Regional PublicAffairs Officc for further guidance prior to inviting the media and see DOJ policy dated Januaryl4, 1993, entitled "Media Guidelines") and community-based to observe INS worksite

enforcement operations or the INS post-operational procedures at the local field offices.

Please ensure that this memorandum (including attachments "A", "S", and "C") is

disseminated to all INS personnel conducting worksite enforcement operations and that there is

immediate adherence to this policy.

Regions must submit, within 60 days or his memorandum, a report to HQOPS outlining

the following actions taken by all Districts and Sectors responsible for conducting worksiteenforcement activities. The report must show that:

• This memorandum has been distn"buted to, and training about this policy has been

conducted for, appropriate INS personnel in Districts and Sectors;Refresher training for personnel conducting worksite enforcement operations has beenprovided about our authority to qUeshon and detain persons;

The worksite enforcenlcnt O1odels included in Attachment "BO> are in use for all

workSite enforcement operations;,ms on-site community liaison officers participate in worksite enforcement operations;

Written operation plans, using the checklist included as Attachment "C", are prepared

for all worksite enforcement operations and that after-action reports are prepared andsubmitted to the approving officials, as required; and .

• Districts or Sectors have developed and instituted a broad community outreach andsupport ooilding effort. In clude details about meeting schedules, groups or

representativeswho are or will be attendees, and topics. Include a description of plansto institutionalize this community outreach in the Districts or Sectors.

Conclusion

This memorandum is intended to give structure to and to ensure consistency for ourapproach to worksite enforcement. I know that these instructions may change the way someoperations are planned and conducted. However, carrying out our statutory mission to deter theunlawful employment ofunauthori7.ed aliens in the United States requires policies that will resultin safe, efficient worksite enforcement operations.

Questions and comments regarding this policy may be directed to Robert H. Reed,Director, Worksite Enforcement Sranch , HQOPS, (202) 307-1282.

Attachments:Attachment ..A" Policy memorandum from Conunissioner Meissner, CO 274A-P datedDecember 31, 1996, entitled, "Apprehension of Aliens in Worksite Enforcement

Operations"

Attachment "B" - Worksite Enforcement Standard Investigation ProceduresAttachment "C" -: Worksite Enforcement Operation Plan Checklist

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Memorandum

Apprehension of Aliens

in Worksite Enforcernelit Operations

To

Regional Directors

District DirectorsChief Patrol Agents

Officers in Charge (Except Foreign)

co 274A-PD."

DEC 311996

Office of he Commissioner

The laws, regulations. and policies that govern enforcement actions by the I m m i g r a t j o ~ , and Naturalization Service (rNS) require us to maintain the highest standards for our ~ r e a t : : ' ! ' l e n t of all persons, including those suspected of violations of he Immigration and Nationality Act.

These standards govern t he Ser vice's responsibilities toward suspected unauthorized aliens

encountered during the course ofworksite operations. Just as we recognize the need to

distinguish willful violators from employers who have made good faith efforts to comply withthe law, we must exercise care and caution in our efforts to identifY and apprehend

unauthorized aliens. To the greatest eXEcnt possible. officers should make determinations

of shtus at the worlcsite.

As we implement the INS priority for worksite enforcement, instances h::.vc: ..nsen ~ , f apprehending and detaining persons lawfully in this country who are authorized to work. ;: h i ~ : guidance is intended to assist in preventing such instances from occurring and to establish clear

standards and principles for handling worksite operations. Our officers must make difficult

judgments under a variety of pressing circumstances. We need to sustain high standards

concerning probable cause for a r r e ~ t s and plan operations in a manner that enhances officers'

ability to make detcnninations of aliel'\age and lawful status in the field. This memorandum

provides guidelines to be followeed when planning operations and reinforces standards for

questioning aliens, b r i e f i n v e s t i ~ tive detention, and making arrests. Finally. it reinforces

standards that ensure t hat works:te enforcement operations are carried out in a non

discriminatory manner.

Planning of Operations

When organizing worksite operations, supervisors should ensure all participating agents ar e

fully prepared, to the maximum extent !:. ~ $ i b l e , to execute their assigned responsibilities

during the enforcement activities. Eni:.< .• :to the worksite should be conducted in a manner

Attachment "A"

p..."

Regional DirectorsDistrict Dired:orsChiefP:droJ Apt !

Officers in Charge (Exc:cpt Foreign)

that minimizes disruption of he legitimate activities of he workplace. Preparation shouldinclude the following steps: '

Fully briefall participating agents and supporting persoMeI, in order to ensure that

potential problems are discussed and resolved;

Arrange for a point-or-contact at the field office to assist timely with record checkscalled in from the worksite, particularly in the case of asylum or adjustment claimants

who may not appear in the Central Index;

Assign a sufficient number of agents to the operation to ensure the ability to conduct

interviews at the worksitc and allow for such actions as escorting an employee to

another area of he business or to his or her vehicle to retrieve documents;

Schedule operations in a manner that permits officers to spend sufficient time at the

worksite to complete checks to the extent possible. while ensuring prompt processingof any persons arrested.

Additional steps may include special arrangements for immediate record check assistance in

large-scale operations and establishing a point-of-contact for community groups during th e

operation to minimize the potential for miscommunication.

If a person removed from the worksite is found to be authorized to work, an officershould inquire whether the employee wants the Service to contact the employer with this

information, and follow up promptly on such requests. Where feasible and reasonable, the

Service should assist with the authorized employee's return to the worksite. Authorized aliensshould be reminded of heir duty to carry their registration documents.

Standards for Questioning Aliens

The first encounter between Tmmigration and Naturnlization Service officers

conducting a workplace enforcement action and employees is likely to be a consensual

encounter. fNS officers have the statutory authority to "interrogate any alien or personbelieved to be an alien as to his right to be or to remain in the United States.'" 8 U.S.c.

I Service regulations define -iaterrogation"as -quc:stiQning designed to elicit specific infonnation. - 8 C.F.R.

§ 287:8(b). The regulations add thai "(aln immigration ofrlCCr, like any Olbcr permn. has the rigbt to askquestions ofanyo ne as long as the immigration offiCCldocs not rcstJlIin the frcalom ofan individual not underarrest, to walk i1Way."lsi. '

Attachment "A"

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,.,,,.,Regional Dira:tonDlstrict Dim:tarsChic! Patrol AgentSOfficers in Charge (&cept Foreigra)

§ I3 57(a)(I). This authority to ask questions" does not give INS officers the right to detain any

person for questioning.

As noted in the Arrest Manuafz "INS officers should address questions to individuals in

a way that promotes cooperation. To this end, they should identify themselves as INS officersand perfonn their duties in a professional manner." As long as a reasonable person in theposition of he person questioned would believe that he or she is'free to leave. based on thetotality of he circumstances, a Fourth Amendment seizure has not occurred and no probablecause or reasonable suspicion need be established.

Judicial determinations as to when a consensual encounter becomes a FourthAmendment seiZlJTe have been very fact-specific. Relevant factors have included the content,

lime. and manner of he questioning; the number of officers involved; whether there is anyphysical contact or restraint; whether there is any display of weapons whether the person'sdocuments or other property arc held by the officer; and whether the person is moved.

St:and:ard$ for Brief Investigative Detention

A briefinvesligative detention (knownas a "Teny sto p'') does not amount to an arrest,and requires a lesser showing that the person committed Ihe offense than does an arrest. The

INS regulations st ate that an immigration officer may briefly detain a person for questioning if

the officer has a reasonable suspicion, based on specific articulable facts, that the person "is, oris attempting to be, engaged in an offense against the United States or is an alien illegally in theUnited States." 8 CPR 287.8(b)(2). A brief investigative detention should be limited in

duration and nature to that which is necessary to confinn or dispel the reasonable suspicionthat led the officer to make the stop.

Standards for Making An-ests

An arrest occurs when a reasonable person in the suspect's position would understandthe situation to restrain his or her freedom of movement to a degree that the Jaw associateswith formal arrest. All Service officers ace expected to maintain familiarity with the taws,regulations, and policies governing arrests, including applicable policy and regulationgoverning advisals of rights (e.g., Lnw procedures). Section 287(a)(2) of he Immigration

and Nationality Act ,Act"), 8 U.S.C. § 1357(a)(2), allows any authorized INS officCl" toarrest any alien in the United States without a warrant "ifhe has reason to believe that the

Attachment"An

,.,,,,RcgioDal DircaoJSDistrict Dim:mS

ChicfPalrolAgcntsOlIicm in Charge (Except Foreign)

alien so arrested is in the United States [in violation of any law or regulation ... regula ting the

admission. exclusion, or expulsion of aliens] and is likely to escape before a warrant can beobtained for his arrest.,,3

The Fourth Amendment to the U.S. Constitution requires that all arrests be supportedby probable cause. The references in section 287 of he Act and accompanying regulations toofficers having ''reason to believe," or "reasonable grounds to believe," that persons havecommitted offenses do not lessen the probable cause requirement.

The Arrest Manual gives the following advice regarding probable cause:

Ptobab1e Q\I5Ie is IatowIcdgc Of trustwortby infonn.8.tionof 'acu and cin:umsr::mccs wbicll wouldk:ad II ~ l y prodcnt person to believe 1h1114Dotrenx has b=ll'OIMlili<:d Of is being

eommittcd by the to be ~ l T e s t c d . Probablo: taUlO: is more Lhan men:: suspicion or lhcobservation ofbehaYior Ihat is = I y ~ c i o u s , but then: does not have 10 be absolute certaintyof guill In dctemIinm, wbc:111Cl" probabIc C&UIIO: was prcscnI at the time oran arrest. eoIIrtI ceosidcrtna totalily o(th e eircumstanccs <S viewed by II n:asouable p.,Ldcnt oll"lClCZ"COItplcd wilh the

otf=',1raininiend cxperi<:ncc:. Pcrtiucat (ac:\or.I include: per$OMl knowledge Of obRervatiOlI by

!he officer. iQ(ormation coataincd in official CO!IIlIIWlication to !be officer, fnfC!llIation fromrcliablc infonnaats, victims, 01" witn=.ections IIld lppe4ranceof!he s ! L ~ p . : < : « ( S ) ; criminal

repIIllItion o ( \ b c ~ , - ; inconsistenl ~ m ! lUIpem,asjVl: IlIS\\erl to romillc q u ~ ~ ( i o l l s ; and

J)OSSCS:Iion. disposal. Of coace:.llIlaltof evidence.

Officers must, therefore, take ail necessary steps to establish probabJe cause prior to makingarrests of aliens at the workplace. The circumstances of ail arrests should be documented onFonn 1·213. Report of Investigation, or memorandum. as appropriate.

Oa ms to Lawful Status

A situation that is likely to arise is an INS officer's encounter with persons who claimin the course of a consensual conversation to be U.S. citizens, LaWful Pennanent Residents., orwithin some other category ofaulhorized alien. Of course. a mere statement that a person islawfully in the United States is not conclusive. An officer may pursue consensual questioningof a person suspected to be an alien and may ask to s ee the person's documents.

To move from a consensual encounter to a brief investigative detention, an officer must

have reasonable suspicion that the person is an alien illegally in the United Slates or hascommitted an offense otherwise within the enforcement aulhority of he Service. To arrest

, Regulations at sc::ction 287.8(c)(7.)(ii) stale thaI, "A wamttli offllTC3t;-shall be oblailled wllcnever possibleprior 10 tbe arrest. .

Attachment "A"

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Po,,,,Regional Directors

District DiRdars

ChiefPattol AgentsOfficers in Charge (E:ccept Fon:ign)

the pernon, the officer must have probable cause that the person is an alien illegally in theUnited States or has committed an offense otherwise within the enforcement authority afthe

Service, and must believe that the person is likely to escape before the officer could obtain awarrant for the arrest. The failure of an alien to produce documentation of status may,

depending on the circumstances. be a rclevant fact in an officer's detennination that reasonablesuspicionor probable cause exists as to the alien's illegal status. Such failure must be

considered with other factors., as discussed below under "Avoiding Discrimination."

Adult work-authorized aliens are required by Section 264(e) of he Act to carry theirregistration documents. A claim of authorized alien status, combined with a failure to produceconfirmatory documentation, establishes probable cause that the alien has violated section264(e), absent unusual circumstances, such as that the alien appears to be a minor. 4

Nevertheless, officers are reminded that enforcement of his provision of law is not a priority of

the Service.' Our enforcement focus must be on aliens who are in this country illegally or who

have violated their terms of admission.

As mentioned, every effort should be made to detenrune the person's status at the

workplace.

Avoiding Di.serimiR:OItion

To ensure that operations are not carried out in a discriminatory fashion, officers arereminded oftke guidance provided in the Immigration Officer's Field Manual for Employer~ ( M - 2 7 8 ) (1987) concerning rea."onable suspicion of llegal alienage in the workplace:

TIle courts have held Ih4t in pursuing in""=3tigaLiollS ofiUcg3l aliens, INS off..:en r n u . ~ t be able toarticulate specific !'acts which, when ttl\r:cn IOgctl>er, fonn the: basis for reuonableSIlSpicions ofalienage and unlawful ~ l I I t u s in the United Sillies. In otdc:r to be reasonable, ~ u s p i c i o n s may be

b a . ~ e d on a var1cty ofditren:nt " ~ L i o n s . Those that lhe cotIIU have accepted include:

Offlc:cn' knowledge ofhigh concetlltl.tions ofali_ n \he l i ra;

11,e industJy or type: of Cffiploymcnt s i ~ inwlved:, I1Iformers'

lips;

Different post-am:st mluirementll apply to persons anested Core-riminal offenses, such as 264(e-), than tc;J

pC"rsons arrested for iIIeg&1 immigration status. For example, officers must give Miranda warnings beforeinterrogating any person anested for a crimin.11 offense.

, Officers should be aware ofany policies the local U.S. Attorney's office may have CSlablisbcd wilh respect

to applicationof his chatCC.

Attachment "A"

p" "Regional DitcctorsDistrict Dira:tor$aliefPatrol Apt s

Officers in Charge (Except Fordgn)

Excessive IIefVOII:IIII:S or studiednoacIl3laocc of employees in Ilic

of ederal. oITlCa"S at Ult workplace; Foreign m:tnJIalI ofdrc= or grooming; Applll"a1t inability to speak EnaJ.ish; Employee

stalemc:nb or a d m i ~ i O l l S ; and InIaenc:es 4l1d deductions of !heofficer a3 a. traina:I

$mice orom n!7!id to be 1WlI[S 1M! hy il:g;lf mm foreillllllP!'5"rance hlgd on ¢'njc

c!wactqjilje or [anEW; dnes not consti!ut; 2 mS!!D!bL; ! ! ! I_on gfolisnDps It may, however,

be considered. in. combilllltioa with other ~ i f i e erticub.ble facti _ particul3f chsrocteriSlicl or

circumstancc:3 which the officer can, if called UPOI1. describe in wonIs _ stich u tboSl: listed. above.

In particular, INS officers engaged in worksite enforcement operations must continueto ensure that the constitutional rights of persons with whom they come into contact arerespected. The consequences offailing to do so can include _ depending on the circumstances-- the exclusion of evidence, criminal or civil liability of he officer, civil liability of he UnitedStates, or agency disciplinary action.

This policy does not affect the scope of authority of Service officers under the Act., butis directed to the operational implementation or hat authority, Enforcement personnel areexpected to exercise sound judgment and discretion while performing their duties. Pleaseensure that all enforcement officers within your offIce are reminded of heir responsibilities andstatutory authority when making arrests and conducting field operations,

cc: Regional Counsels

Isigned!Doris MeissnerCommissioner

Attachment " A"

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INS

OFFICE OF FIELD OPERATIONS

WORKSITE ENFORCEMENT STANDARD INVESTIGATION

PROCEDURES

May 22,1998

Professionalizing Investigative Protoc=ols

There are three protocols for initiating and conducting worksite enforcement

investigations. The first: is based upon a straight-forward investigative approach. The

investigations typically start as administrative violation-type cases where there is no reason

at the outset to suspect that the employer is knowingly employing unauthorized aliens or

engaging in criminal conduct. The review of he employer's records would typically

precede the arrest phase of he investigation.

The second protocol is an alternative to the first. It also targets predominately

administrative violations. Typically, investigations start as administrative violation-type

cases but there is a reason to suspect that the employer is knowingly employing

unauthorized aliens. Rather than condlK:t the investigation in the "public view" initially,

the office will conduct a worksite enforcement operation where arrests are made during an

unannounced visit to the business. Oftentimes, in preparation for the operation, a warrant

to search for aliens and records warrant) will be obtained. The arrest phase ofthis operation would typically precede the review of he employer's records. This

approach calls for a detailed operations plan addressing concerns such as community

relations, hostile situations., or other extraordinary circumstances. The investigation mayevolve to a criminal case.

The third approach is the criminal investigation. This investigation will employ the

traditional techniques generallY'used in criminal casework, for example, seelcing approval

from the U.S. Attorney for criminal search warrants and from higher levellNS

management for the use of consensual monitoring and undercover operations. These

investigations may also incorporate the elements of he first and second protocols

described above. The case may eventually include administrative charges, as well.

Before empioying any of he three protocols, the supervisory special agent mustevaluate leads to determine: whether the employer is knowingly hiring unauthorized aliens

or is merely the victim of poor judgment or may have been fooled by counterfeit

documents. At times, in addition to the initial leads. additional preliminary investigativework may need to be perfonned. Evaluation of he lead is the key to selecting the type of

investigative approach. To select employer cases for investigation, acceptance criteria

should be developed to priori*e the initial lead information. The criteria should include a

minimum threshold for the number of unauthorized aliens, the presence of egregious

employment-related actions and other factors such as criminal activities (e.g., smuggling,

fraud), and the employer's history ofimmigration-reIated violations. Additionally.

Attaclunent UB"

HQOPS SO!19-P memorandum

dated May 22, 1998

supervisors should consider how old the lead is and whether the reliabilityof he

infonnation can be determined.

The three investigative approaches described below are listed in increasing order of

employer culpability based upon the lead received. Further investigation of any case may

result in a case being elevated from an Approach I scenario to an Approach n f evidence

of employer knowledge of unauthorized aliens is uncovered, or to Approach il l if

evidence of criminal activity is uncovered. Investigative efforts should always target the

most egregious violators.

ApPROACH I: INVESnGAnoN OF WORKSITES WHERE EMPLOYERS ARE BEUeveD TO BE

UNKNOWINGLYEMPLOYING UNAU1lIORIZED ALIENS - REVIEWEMPLOYMENT RECORDS

FIRST, ARREST UNAtJrnORlZED ALIENS LATER - ADMINlSTRAnVE VIOLATION PREDICATES

• Supervisory prioritization and assignment of eads - attempting to conduct asignificant number of cases at one time.

Select leads with:

• Evidence or a1legation of unauthorized aliens

• No evidence or allegation of employer knowledge

• Leads in the same industry and/or geographical area if possible

• Prepare and deliver Notices of nspection to employer

Obtain 1-9s and other employment records

• Review records, employeenames

- determine potential violatic.os andnames/numbers of unauthorized aliens

Host seminar (invite employers, public employment agencies, community based

organizations)

Forum for open dialogue. fosters cooperation from employers

• Train employers, covering the foUowing topics

• The law• Preparation of he 1-9

• Detection of counterfeit documents

• How to maintain an employment authorized work force

At completion of seminar, provide lists of unauthorized aliens to

individual employers (privately), using the Headquarters approved

notification (cners and inform the employers that the INS will vi:;.it their

businesses to arrest unauthorized aliens in the near future (date

unspecified)

• Conduct worksite enforcement operation to arrest unauthorized aliens

• Prepare an operations plan using the Headquartel"S checklist as

guidance and obtain approval of he operations plan by necessary level

of management

Avoid contenlious circumstances (e.g. restaurants at peak service time,

operations near a school at a.rriva.I or dismiss3.J. time)

2 Attachment "8"

HQOPS 'O!19-P memorandumdated May 22, 1998

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• Develop plan to handle unusual arrest and detention situations

involving:aliens not in possession of evidence of awful status

• false claims to United States citizenship• Document names/circumstances of persons

detained/arrested but who tum out to have lawful statusarrcsted aliens ";"ho are owed wages

• aliens who have dependent relatives at another site

• Detennine whether there is employer compliance or violations, prepare reportsserve NIFs and Warning Notices ifviolations are present

• Revisit employers who were served NlFs or Warning Notices if deemed

appropriate

ApPROACH 11: INVESTIGATION OF WORKSfTES WHERE EMPLOYERS ARE BEUEVED TO

BE KNOWINGLY EMPLOYING UNAUTHORIZED AUENS - ARREsTUNAUJ1{ORlZED ALIENS

FrRST, REVtEW"EMPLOY:MENI" RECORDS LATER AOMlNlSTRATIVE VIOLATION PREDICATES

Supervisory prioritization and assignment ofleads

Determine the reliability of he lead

Select leads with:

• allegation or evidence of employer knowledge ofunauthori2:edaliens and/or

• egregious employment acts, e.g. substandard workingconditions; large percentage of unauthorized aliens

• previous violator• Prepare an operations plan using the Headquarters checklist as

guidance and obtain approval of he operations plan by necessary level

of managementPrepare Notices of Inspection. subpoenas. as necessary

Prepare. apply for and obtain search warrants, as necessaryConduct operation, arrest aliens, serve Notices ofInspectionlsubpoenas

Obtain 1-9s and other employment records

• Review records, employee names· determine potential violations

• Determine whether there is compliance or violations serve NIFs and warnings

if n violation

Revisit employers who were served NIFs or Warning Notices if deemedappropriate

ApPROACH 10: CRIMINAL IweSTlGATlONS - ALiERNATE INVESTIGATION PROTOCOL

CRlMD'lAL VlOLATIONPREDlCAn:..<:;

Supervisory prioritization and assignment ofleads

3 Attachment "S"HQOPS 5 0 / 1 9 ~ P memorandum

dated May 22, 1998

• Detennine the reliability of he lead

• Select leads with:• allegation or evidence of pattern or practice of employer

knowledge ofunauthorized aliens and/or

• allegations or evidence of other criminal violations (i.e. alien

smuggling, peonage, knowingly accepting fraudulentdocuments., houSing unauthorized aliens, concealing records of

unauthorized aliens

Conduct preliminary information/intelligence gathering to ascertain criminalviolations

Seek concurrence of U.S. Attorney for prosec;ution support, consensual

monitoring use

• Prepare an operations plan consisting of he standaid requests for undercover

operations and consensual monitoring approval

• Submit plan through District, Region, and HQ for approval

• Conduct investigation

• Undercover operation• Interview witnesses (check with the U.S. Attorney's office to ascertain policy

on sworn statements)Determine whether any techniques from the administrative investigation

protocols (above) apply .Prepare and present case to U.S. Attorney for prosec;ution

• Coordinate case between U.S. Attorney and IN"S District Counsel if

criminal and administrative cases are pursued concurrently

• Prepare an operations plan using the Headquarters checklist asguidance and obtain approval of he operations plan by necessary level

of management

Execute arrest phase of operation

Obtain warrants

Conduct searches

Arrest and arraign principals and material witnesses

4 Attachment "B"HQOPS SO/19-P memorandum

dated May 22, 1998

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INS

OFFICE OF FIELD OPERATIONS

WORKSITE ENFORCEMENT OPERATIONS PLAN

CHECKLIST

May22,1998

This checklist should be used when preparing an operations plan to address key

elements in planning a worlcsite enforcement operation. The checklist identifies manytroublesome or problematic circumstances and win serve as a'structure to plan for

handling unfOreseen circumstances that may arise during a worksite enforcementoperation. The written operation plan may require additional metors to address particular

issues of concern that are not included. on this checklist

Using the checklist will facilitate planning and'will help prevent problems that may

arise during the execution of he plan or that will jeopardize the safety of NS personnel,aliens in custody, or others involved in the INS operation.

The operation plan must include a statement of mpact: now the worksite

enforcement operation will deter the unlawful employment: of aliens in the United Stalesby investigating employers engaged in alien smuggling, human rights abuses, othercriminal violations, or significant administrative violations.

An operational briefing must be conducted prior to commencement of anyworksite enforcement operation.

A. Case

,... Date of operation

k: Case numberEmployer name

).;:. Case agent

)I;:: Supervisory special. agent

B. Situation

Type QfWorksjte Operation,... Employer consent

k: ~ w u r a n t k: Rule 41 warn.nt

,... Other W3IT3Jlts

.)< Covert operation

,... Briefing

'" Stagu,g,... Targets

' " Processing:k: Hospitalk: Police Department

Special COncerns

'" Ol!i"" safety

'" Public safety,... Media coverage

k: Community issuesk: Special interest cases'" Handling: aliens not in possession of alien

registration documents)<.: Processing (females, juveniles))<.: Detention space

" Removal transportation (buses, JPATS,

etc.)

Attachment"C '

HQOPS SO/l9-P memorandum

dated May 22, 1998

:k Plan for emergency CgR:Sl!J from the

operalion'" Treatingpoople with " ' I"d and dignity)I;. Discussion ofpolicy memorandum of

12131196, "Apprehension of Aliens in

Worksite Enforcement Operations"

c. PenODDeJ

INS (names and number gfoarticipants\

:k: Supervisors>=. Agents':)<.; Detention officers)<:. Deportationofficersk Support personnel:k: ConulUmity relatiol15 officer or public

affilirs officer)<:. INS on-site community liaison person

'"" Field office point of contact for

conducting record checks

Other Agencies

" Agency name(s));;:. Name(s} of other agency officers

Specific roles and duties of other agencypersonnel

D. Target Location

,... Business name

::k: Address

'" M a p ~ diagrams, photographs

E. Teams an d Assiguments

PerwnneI Apignmentfleam D e s i g n ~ ,... Interviews)l;::Perimet.er

'" Search)..: Transportation

k Evidencek: Processing

F. Important Telephone Numbers

2

k: LoeaI. supervisors and managers,.,. Emcrgenc:ymedical care

,.,. Police department.

).;:. Fire department

}<;: INS command center}<;: ProceWng location

G. Equipment

Communication)I;:: Primary INS radio chaMel

)I;:: Secondary INS radio channel

)I;:: Cellular phones)<-. Other agency frequency, ifused

Y<bi<IoIk: Sedans

,.,. Vans

)<.:: Buses)<.:: Surveillance

Appropriate Attire for Specific Opm.ti on

>.::. Business/professional or rough duty

clothing>.::. Identification/raid jackets

Weapons

'" Body Annor)0.;. Hand cuffs

'" Flashlights}<;: Gloves

" Other

Othg equipment

)I;:: 3Smm camera

>.::. Video camera)<-. Fingerprinting equipment

ADP equipmentk: Special tools (e.g., bolt cutt ers, rams,

etc.)

a. Background Inrormation an d

Intelligence

>.::. Number of employees

Attachment "C"

HQOPS SO/19-P memorandumdated May 22, 1998

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II

)r;: Number, names and nationalities(i£'availabJe) ofunauthorized

workers identifiedk Case predicationX Type ofiruiUSby

)<; Weapons (e.g., tools, utensils))r.:;, Hazardous situations (e.g., chemicals.

machinery))r;: Other

Emplqyer Hi!ftjory

)0,; Previous INS contacts and violations

k Other violations

L Operational Plan Approvals

)r.:;, Headquarters)r.:;,

Region

J. Distribution

X ADDl

)r;: Conunand Centerk All team personnel

)r.:;, District Director)0,;. Regionk Headquarters

3 Attachment "C"

HQOPS SOI19-P memonlndumdated May 22, 1998

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ins guidance memo - worksite enforcement operations (5/22/98)

Documents