On August 7, 2019, seven food processing plants in Mississippi were the subject of "raids" conducted by Immigration and Customs Enforcement (ICE). The Secretary of the U.S. Department of Homeland Security said the raids had been planned for approximately a year.
How were these facilities selected? Affidavits submitted by ICE in support of the warrant applications stated that, for years, temporarily detained undocumented workers - from as far as El Paso, Texas, and Yuma, Arizona -had employment cards from plants in Mississippi. The presence of former detainees was supported by electronic ankle monitor readings, surveillance, and confidential informants.
The affidavits also revealed new approaches used by ICE on one or two of the companies that were particularly interesting in addition to the above. At one of the plants, ICE checked the license plates in the parking lot and determined the owners of the vehicles. ICE then compared the owners of the vehicles to the employees' names at the plant as determined by tax forms filed with the state. They found very few employees at the plant that corresponded to the names of the owners of the vehicles, a factor ICE considers to indicate a lot of illegals. Apparently, illegals tend to register their cars in their true names, but use fictitious names to seek employment. In another approach, at one of the two plants ICE found that the company had selectively utilized E-Verify, apparently E-Verifying only those that were expected to pass the E-Verify system. A further technique was not only to use audio, but also video recordings on informants, sometimes coming in and admitting to an HR hiring person that they would not pass the verification system, only to return a week or so later and talk to the same HR person utilizing a different fictitious name. ICE agents analyzed employee rolls at a poultry company in Carthage, Mississippi, and found that numerous workers were using stolen identities, Social Security cards that didn't match their names, or numbers that reportedly belonged to dead people.
The critical question will be whether the employers knew that the individuals they were hiring were not authorized to work in the U.S. Most large employers use the Federal government's E-Verify system, which is supposed to identify a worker's status. But E-Verify is not 100% accurate. The I-9 form that all employers must use to verify worker eligibility requires an employer to accept documentation offered by the employee and prohibits most further inquiry. Poultry processors have been sued by the Federal government for seeking to verify documentation in some situations. Good forgeries and false identities also can subvert the system.
Many employers erroneously believe that using the government's E-Verify system protects them from fines. That's not necessarily so, but it does raise the bar considerably for the prosecutor to show that the employer knowingly hired an unauthorized worker. Another shortcoming of E-Verify is that it only works on new hires: you can't go back and check the credentials of existing workers.
Why poultry processors, and why now? There seems to be multiple factors at work within ICE. First, ICE seems intent on tough enforcement and increasing deportation of illegal immigrants. So far, the number of deportations during the Trump Administration lags far behind the numbers racked up during the Obama Administration. On the other hand, many ICE officials across the country have been reassigned to duties along the Mexican border, making it more difficult for ICE to gather the personnel to conduct raids. The demands on their workforce notwithstanding, ICE plainly made these unprecedented raids a priority. Given the resources and preparation brought to bear on these raids, ICE may lack the resources to conduct many large raids in the near future. Although he declined to speculate as to future plans, an ICE spokesperson did say they had no current plans to conduct similar raids in Georgia, which is the largest chicken processing state in the U.S. However, the raids also indicate that ICE is ready to take on large scale operations and target specific industries and geographic areas.
How does ICE select its targets? An enforcement action usually begins with an ICE desk audit. Sometimes an informant complains to ICE, or ICE may send in undercover agents to check out accusations. At other times an illegal "ring" of fraudulent document providers is discovered primarily directing their activities toward a given facility or area. Affidavits submitted in support of the Mississippi search warrants cited complaints, but also ankle monitor evidence showing that individuals previously detained and released, and lacking work authorization, had spent long hours at the plants.
Recommendations: There is no way to guarantee that your business will be beyond the reach of ICE, but there are steps you can take to minimize the risk:
- Use E-Verify. It's not a guarantee, but it is certainly a step in the right direction.
- Audit yourself. A periodic review of I-9s may bring anomalies to your attention before they come to ICE's attention. You can conduct an audit yourself or use outside help. If you have legal counsel conduct your internal audit, the results are subject to the attorney-client privilege and you cannot be forced to disclose them.
- Use what you learn. If the audit reveals a potential problem, contact the affected employee and give them an opportunity to make a correction.
- Develop protocols to follow if an audit or raid occurs.
- Issue a memo to all supervisors and managers informing them of the requirements of the immigration laws, directing them to report any knowledge of illegal status on the part of any worker to a designated management official.
- When you receive evidence or reports of illegal status on the part of any worker, promptly conduct an internal investigation and keep an "immigration investigations log" of each incident and the conclusions.
- Set up and follow a protocol upon receipt of a "Social Security mismatch" communication.
- Confer with an attorney knowledgeable about the immigration laws upon receipt of an ICE I-9 audit letter, including how to respond to the audit, and how to respond to the results of the audit communicated by ICE.
If you are the subject of a raid:
- Be polite to law enforcement officials but know your rights.
- Cooperate, but do not volunteer information. You will be awarded no points for being "nice."
- Carefully review any warrant to understand its scope. The warrant should have a detailed description of when and where agents are going to search and what they may seize. You may need to limit your consent to their search depending on the terms of the warrant. You do not have to let them search beyond the scope of the warrant.
- You do not have to answer ICE questions during a raid. Make a note of the questions and submit the answers later.
Seek advice of counsel as to whether you should consent to ICE agents speaking to your employees on the premises. ICE can interview hourly employees privately, but a management representative (or counsel) may be present if they want to interview a manager.