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I-9 E-Verify Immigration Compliance

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  1. ICE Workplace Raids Continue in Nebraska and Minnesota

    By: Bruce Buchanan, Sebelist Buchanan Law



    On August 8, 2018, in a multi-state operation, covering Nebraska and Minnesota, Immigration and Customs Enforcement痴 (ICE) Homeland Security Investigations (HSI), raided numerous workplaces serving a series of criminal search warrants and criminal arrest warrants. The raids were the result of a 15-month investigation into companies allegedly knowingly hiring undocumented workers, who were using fraudulent identification belonging to U.S. citizens.

    As a result of these raids, 17 individuals were arrested for an alleged criminal conspiracy to exploit illegal alien laborers for profit, fraud, wire fraud and money laundering in Nebraska and Minnesota. HSI believes the alleged conspirators colluded to create an illegal alien workforce in their respective businesses. In addition to these arrest warrants, authorities also identified 133 employees who were subject to arrest for immigration violations and were unlawfully working at these businesses. These individuals had been illegally residing and working in the United States and may also have been exploited as part of this alleged criminal conspiracy.

    By colluding to create an illegal alien workforce in their respective businesses, the 17 individuals defrauded the U.S. government and created an unfair advantage over their competition businesses. Additionally, authorities suspect the illegal aliens who were knowingly hired as part of this alleged conspiracy were exploited by the conspirators through force, coercion, or threat of arrest and/or deportation. Specifically, these illegal aliens were allegedly required to cash their paychecks at an illegal remittance business for a fee, have tax money deducted from their pay even though this money was never paid to the government, and were coerced to remain quiet about this criminal activity.

    Search warrants were served at the following businesses and locations:

    Christensen Farms in Appleton, Minnesota; Sleepy Eye, Minnesota; and Atkinson, Nebraska;

    Elkhorn River Farms in O誰eill, Nebraska;

    O誰eill Ventures in O誰eill, Nebraska;

    La Herradura Restaurant in O誰eill, Nebraska;

    El Mercadito in O誰eill, Nebraska;

    La Herradura Restaurant in Stromsburg, Nebraska;

    GJW LLC with three locations in Ainsworth, Nebraska;

    J.E. Meurets Grain Company in Ainsworth, Nebraska; and

    Herd Co. Cattle Company in Bartlett, Nebraska.

    典he job magnet in the United States is primarily what draws illegal aliens across our borders, said Special Agent in Charge Tracy J. Cormier, HSI St. Paul, which oversees Nebraska and Minnesota. 典his HSI-led criminal investigation has shown that these targeted businesses were knowingly hiring illegal workers to unlawfully line their own pockets by cheating the workers, cheating the taxpayers, and cheating their business competitors.

    The illegal aliens who remain in ICE custody after being administratively arrested on immigration violations will be transported to a nearby processing facility and placed in removal proceedings. Detained aliens will be held in facilities in Nebraska and Minnesota while awaiting removal proceedings.

    These workplace raids are a continuation of the new policy in the Trump administration of a return to workplace raids. Earlier this year, ICE conducted raids in Tennessee and Ohio. It is expected these ICE raids will continue throughout the Trump administration.

    If you want to know more information on methods to defend yourself from workplace raids and other issues involving employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. Sheriff Arpaio痴 Unlawful Actions Lead Court to Find Frimmel Has No Liability

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC




    Just when you thought Sheriff Joe Arpaio could not cause further trouble because he痴 out of office, he strikes again in an immigration case.

    This case centers on a Notice of Inspection (NOI) that was delivered to Frimmel Management after Sheriff Arpaio痴 police force, Maricopa County Sheriff痴 Office (MCSO), conducted raids of two Uncle Sam痴 restaurants and the owner痴 home. MCSO seized employment records based on suspicion that the restaurants workers committed identity theft and forgery. During the State of Arizona痴 prosecution of Frimmel, the state court found the affidavits supporting the search warrant for the raids were 砥nreasonable and reckless. Therefore, the Court dismissed the charges against Frimmel.

    One day after MCSO痴 raids, MCSO sent a memorandum to ICE summarizing the results of the unlawful raid. Thereafter, MCSO issued press releases publicizing their raids and stated some of the workers had been put on ICE holds.

    About two and one-half weeks after the raids, ICE served a NOI/subpoena on Frimmel. After Frimmel timely produced the restaurants I-9 forms, ICE issued a Notice of Intent to fine (NIF) and a complaint for the case to be heard by an OCAHO Administrative Law Judge.

    In response to Frimmel痴 objections, this ALJ found that how Frimmel had come to the attention of ICE was 妬rrelevant to the OCAHO case. Frimmel also argued the I-9 forms must be suppressed under the fruit of the poisonous tree doctrine. The ALJ disagreed and found ICE had not relied on any 兎vidence directly obtained from MCSO痴 unlawful conduct. Since the primary goal of suppressing evidence based on illegal conduct is to deter future unlawful police conduct, this was not a factor in question in the ICE痴 NOI of Frimmel. Thus, the ALJ upheld the $347,000 penalty.

    On appeal to the 9th Circuit Court of Appeals, the Court initially reviewed MCSO痴 conduct. It found that MCSO痴 omissions and distortions in the affidavits for the search warrant were 途eckless and immaterial. Thus, this finding led the 9th Circuit to find the raids violated the 4th Amendment to the Constitution.
    Furthermore, the Count found MCSO痴 conduct to be egregious.

    Despite those findings, DHS argued the 的CE investigation was too attenuated from MCSO痴 illegal conduct Under the attenuation doctrine, evidence is admissible when 鍍he connection between the illegality and challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.

    The Court rejected that argument and found there was a causal connection between MCSO痴 unlawful search and the ICE audit. The identity evidence Frimmell and his restaurants resulted from MCSO痴 raid, which 都ignificantly directed the subsequent ICE investigation. Thus, the I-9 forms which ICE seized were fruit of MCSO痴 illegal search.

    In conclusion, the 9th Circuit found for Frimmel because ICE used the fruit of the poisonous tree the I-9 forms. Thus, Frimmell did not owe the $347,000 that OCAHO had found as penalties.

    Although very few cases get litigated to the Court of Appeals, companies continue to have some success in appeals to the Courts of Appeal. Several years ago, the 5th Circuit Court of Appeals reversed OCAHO痴 $227,000 penalty against Employer Solutions Staffing Group II, LLC.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  3. Federal Judge Rules For and Against DOJ in Lawsuit Against California

    By: Bruce Buchanan, Sebelist Buchanan Law



    On July 5, 2018, Federal District Court Judge John Mendez of the Eastern District of California, struck down provisions of AB 450, the Immigrant Worker Protection Act (IWPA), that restricted employers from allowing Immigration and Customs Enforcement (ICE) agents to access nonpublic parts of a workplace without a warrant and re-verifying employee work authorization. However, the Judge upheld AB 450's requirement that employers notify employees within 72 hours of I-9 inspections that have been conducted.

    As you may recall from prior blog entries, AB 450 (IWPA) states California-based employers:


    • Are prohibited from voluntarily granting immigration enforcement agents access to any non-public areas of a worksite unless the agents present a judicial warrant;
    • Are prohibited from voluntarily allowing ICE agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection (NOI) of Forms I-9, an administrative or judicial subpoena, or a judicial warrant requiring compliance;
    • Are prohibited from reverifying the employment eligibility of any current employee unless required by federal law;
    • Are required, if served with an I-9 NOI, to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun; and
    • Must notify any affected employee or authorized union representative within 72 hours of receiving any subsequent I-9 related federal notices, such as Notice of Suspect Documents.


    In March 2018, the Department of Justice (DOJ) sued California alleging AB 450 and two other new state laws designed to protect certain undocumented immigrants are unconstitutional. "The provisions of state law at issue have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California," Justice Department lawyers argue in the suit, further calling the laws an "obstacle to the United States' enforcement of the immigration laws and discriminating against federal immigration enforcement."

    Judge Mendez ruled against a preliminary injunction on the AB 450 Notice requirements because they are not preempted by federal authority over immigration. However, the Judge preliminarily enjoined California authorities from:


    • fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees;
    • voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite; or
    • allowing them to access, review, or obtain employee records.


    In doing so, Judge Mendez requested the President and Congress to act and stated:
    This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

    Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

    I will keep you informed of further developments in this litigation.
  4. ICE delivers more than 5,200 audit notices in 2018

    By: Bruce Buchanan, Sebelist Buchanan Law



    As discussed last week in my blog, Immigration and Customs Enforcement痴 (ICE) Homeland Security Investigations (HSI) were out in force during the week of July 16 delivering Notice of Inspection (NOI)/audit notices. Well now we know the numbers - HSI served 2,738 NOIs and made 32 arrests in a one-week period. This is a massive operation and over 10 times as big as ICE痴 operation in California earlier this year.

    ICE announced I-9 audit notices were served to more than 5,200 businesses around the United States since January 2018. During the first phase of the operation, January 29 to March 30, 2018, HSI served 2,540 NOIs and made 61 arrests. Thus, at the present rate, ICE-HSI will reach over 8,500 NOIs for the 2018 calendar year. This is over 5,000 audits more than the highest previous amount of about 3,100 in 2013.

    HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. HSI痴 worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law. HSI痴 worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices.

    Failure to follow the law can result in criminal and civil penalties. In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.

    In FY 2018, to date, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017, HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

    Will your company be the next target? My advice is to be prepared through an internal I-9 Audit. An immigration attorney familiar with I-9 forms and worksite enforcement is the perfect person to assist you in an internal I-9 audit.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  5. ICE Sweeps Through South

    By: Bruce Buchanan, Sebelist Buchanan Law

    During the week of July 16, 2018, Immigration and Customs Enforcement (ICE) through Homeland Security Investigations (HSI), swept across at least three states, Tennessee, Georgia and Arkansas, delivering Notices of Inspection (NOI). According to an ICE official, HSI delivered 43 NOIs/subpoenas in Arkansas, 40 in West Tennessee, and an unknown number in Georgia.

    Earlier in the year, ICE had concentrated on California in worksite enforcement. It was anticipated that ICE would go east with NOIs although it was unknown which states would be hit in these waves of NOIs.

    Best advice for anyone who receives an NOI retain an immigration attorney familiar with I-9 forms and worksite enforcement. Failure to obtain experienced legal counsel could be of great detriment to that employer.

    Will your company be next? My advice is be prepared through an internal I-9 Audit. An immigration attorney familiar with I-9 forms and worksite enforcement is the perfect person to assist you in an internal I-9 audit.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
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