Order of Suppression - In re Herrera-Priego (N.Y. Imm. Ct, July 10, 2003) (IJ Lamb)

8/14/2019 Order of Suppression - In re Herrera-Priego (N.Y. Imm. Ct, July 10, 2003) (IJ Lamb)

1/25

UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEWIMMIGRATION COURTNEW YORK, NEW YORK

IN THE MATTER OF

Pedro HERRERA-PRIEGO,Alfredo HERRERA-PRIEGO,Respondents

CHARGE:APPLICATIONS:

INA 212(a)(6)(A)(i)8 C.F.R. 239.2(f)

ON BEHALF OF THE RESPONDENTMichael Wishnie, Esq.Washington Square Legal Services, Inc.161 Avenue ofthe Americans, 4th FloorNew York, NY 10013

IN REMOVALPROCEEDINGS

Present without pennission or paroleMotion to Tenninate ProceedingsMotion to Suppress Evidence

ON BEHALF OF THE SERVICEAda Guillod, Esq.Assistant District Counsel26 Federal PlazaNew York, NY 10278

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Procedural Histon'

The Respondents are brothers whose cases have been consolidated. On April 16, 1998,the Immigration and Naturalization Service (the "Service") conducted a consent surveyor "raid"ofR.C. Contracting and arrested the Respondents while they were working there. On that date,the Service personally served each Respondent a Notice to Appear ("NTA") [Exhibits 1 and 2].These documents allege that the Respondents are natives and citizens of Mexico who entered theUnited States at an unknown date and place not designated by the Attorney General. The NTAscharge the Respondents with removability pursuant to section 212(a)(6)(A)(i) of the Immigration

1


2/25

and Nationality Act ("the Act"), alleging that they were present in the United States withoutpennission or parole [Exhibits 1 and 2]. Also on that date, the Service obtained affidavits fromthe Respondents [Exhibits 3 and 3a] and completed a form 1-213 (Record ofDeportablellnadmissible Alien) regarding each of them.

On November 4, 1999, the Respondents, through counsel, admitted service of the NTAs.The Respondents denied the allegations numbered 4-7 on the NTAs as well as the charge ofremovability [Exhibits 1 and 2].

On May 18, 2000, the Respondents appeared, and through counsel, submitted a motion tosuppress evidence and tenninate proceedings. The Respondents moved to suppress and excludeall evidence, (including but not limited to Exhibits 1,2,3, and 3a), which they alleged theService had unlawfully obtained "as a result of improper governmental conduct, consisting of anunconstitutional search, seizure, detention and coercive interrogation on April 16, 1998." TheRespondents supported their motion on three grounds. First, they asserted that because theService obtained the Respondents' statements in violation of INS regulations and its own internaloperating procedures, the Service was banned from using these statements. Second, they claimedthat the Fifth Amendment guarantee of due process and protection against compelled self-incrimination barred the Service from using the Respondents' coerced and involuntary statementsas evidence. Third, the Respondents argued that the government's evidence must be suppressedbecause it resulted from such egregious conduct that violated the Respondents' basicconstitutional right to fundamental fairness.

In a letter dated July 25, 2000, the Respondents requested that the Service provide themwith the names that the Service had redacted from the INS complaint fonn (or ''tip sheet") G-123A [Exhibit 10]. The Service refused to comply with this request. In a letter dated September21, 2000, the Respondents requested that the Court issue a subpoena to the Service for anunredacted copy of INS fonn G-123A and for the testimony of the INS agent in charge of theworkplace raid that led to the arrest of the Respondents. In a letter dated September 26, 2000, theService submitted a letter-brief in opposition to the Respondents' request for a subpoena andtheir motion to suppress evidence. The Service argued that the Respondents had not met theirburden of establishing a prima facie case that the Service had obtained its evidence illegally,which is required before the Service can be called upon to justify the manner in which it obtainedits evidence. In a letter dated September 28,2000, the Respondents responded to the Service'sopposition to their subpoena request, arguing that the Service had mistakenly applied thestandard for ruling on a motion to suppress and tenninate to the request for a subpoena, which ismerely that a party seeking a subpoena must set forth "what he or she expects to prove by suchwitnesses or documentary evidence, and to show affinnatively that he or she has made diligenteffort, without success, to produce the same." 8 CFR 3.35(b)(2). Furthennore, in a letter datedOctober 13, 2000, the Respondents requested that the Court issue a subpoena to Professor T.Alexander Aleinikoff of Georgetown University Law Center, fonner INS Executive AssociateCommissioner for Programs and INS General Counsel, directing that he provide written answersto the four questions they posed. Also on this date, the Respondents submitted a brief in support

2


3/25

of their motion to suppress and tenninate, exhibits and affidavits they intended to offer intoevidence, and a list of the witnesses they intended to call at subsequent hearings.On October 26, 2000, the Respondents appeared, with counsel, for their individualhearing. They sought to enter four affidavits into evidence. The Court noted the Service'sobjection for lack of foundation and marked for identification the affidavit of Alfredo Herrera-Priego (dated October 10,2000) as ID 4A, the affidavit of Pedro Herrera-Priego (dated October

10,2000) as ID 4, the affidavit ofRogelio Ramon Sanchez-Guillen (dated October 11, 2000) asID 5, and the affidavit of Andres Mendez (dated October 11, 2000) as ID 6 [later entered asExhibit 6]. The Service objected to part of Group Exhibit 7, a portion of the affidavit of HayneYoon, one of the law students representing the Respondents, as she could not simultaneouslyserve as witness and counsel for the Respondents. The Court sustained the Service's objection tothe portion of the affidavit which reflected Ms. Yoon's conversation with Barbara Huie, ActingDirector of Community and Intergovernmental Programs of the Service.The Court then heard testimony from Rogelio Ramon Sanchez-Guillen and Andres

Mendez. These witnesses testified on behalf of the Respondents as to the ongoing labor disputeat their workplace, H.C. Contracting, as well as the Service's consent survey on April 16, 1998.In a letter dated February 15, 2001, the Respondents requested an adjournment of theMarch 1,2001 continued hearing, pending the DOL investigation into a retaliation claim againstH.C.Contracting on behalfoffonner employees at the finn's factory. On February 20,2001, theRespondents submitted affidavits and exhibits they intended to offer into evidence and a list ofthe witnesses they intended to call at the continued individual hearing. The Court granted theRespondents' requested adjournment.

The Respondents appeared, with counsel, for another master calendar hearing on June 21,2001. In a letter dated October l3 , 2001, the Respondents requested that the Court issue asubpoena to Charles Horwitz. On October 16,2001, the Respondents submitted appearancefonns and a witness list for the November 15, 2001 continued individual hearing and reiteratedtheir request to subpoena Mr. Horwitz. On October 22,2001, the Respondents submittedaffidavits and exhibits they intended to introduce into evidence at the continued November 15,2001 individual hearing as well as a letter-brief summarizing the Respondents' claims andupdating the Court on recent developments in the case. In a letter dated November 5, 2001, theRespondents submitted a revised witness and exhibit list, as well as additional exhibits, for theNovember 15,2001 hearing. On November 7, 2001, the Respondents submitted the additionalaffidavit of Dominga Espinoza, a fonner employee ofH.C. Contracting who was present duringthe raid [ID 26].

The Respondents appeared, with counsel, at their November 15, 2001 individual hearing.Professor Al einikoff testified as an expert witness for the Respondents by conference call. TheCourt noted the Service's comment that Professor Aleinikoff did not testify with respect to anyparticular case that he personally observed. The Respondents then called Charles Horwitz to

3


4/25

testify as an expert witness, based upon his position as Senior Attorney at the DOL. He testifiedas to the DOL's investigation into the dispute over overtime wages at H.C. Contracting as well asto the DOL's investigation into the employer's retaliation.On April 29, 2002, the Respondents appeared, with counsel. The Court marked

numerous exhibits into evidence. The Court then heard testimony from Christopher Dyckman,the Special Agent of the Service who served as the case agent in charge of the consent surveythat led to the Respondents' arrests.On October 11, 2002, the Respondents submitted a letter-brief in support of their motionto terminate removal proceedings and suppress evidence based on the Service's violation ofOperations Instruction 287.3a (''the 0.1.") [Group Exhibit 14]. The Respondents noted theService's undisputed failure to follow the 0.1., which requires that ''whenever informationreceived from any source creates suspicion that an INS enforcement action might involve theService in a labor dispute, a reasonable attempt should be made by Service enforcement officersto determine whether there is a labor dispute in progress" [Group Exhibit 14]. The Respondents

argued, therefore, that the proceedings must be terminated because the Service's disregard of the0.1. violated their fundamental labor rights under federa11aw and also prejudiced the overallfairness of their case.

On November 12, 2002, the Service submitted a letter-brief in opposition to theRespondents' motion to terminate or suppress evidence. The Service argued that the 0.1. states,"there is no prohibition for enforcing the Immigration and Nationality Act, even where there maybe a labor dispute in progress" [Group Exhibit 14]. The Service further argued that because the0.1. is merely an instruction without the same force oflaw as an officially promulgated rule orregulation, failure to follow it should not result in termination ofproceedings. On November 14,2002, the Respondents submitted a response to the Service's letter-brief, citing case law statingthat an agency must follow its own rules where they affect the rights of individuals.On February 13,2003, the Respondents appeared, with counsel, and made an openingstatement. The Respondents then testified. Both parties concluded with closing statements.

IThe Court marked for identification only the Freedom of Information Law ("FOIL") response by the NYDOL, (dated March 27,2002) [ID 16A], the internal memorandum of the NY DOL, (dated March 1,2001) [ID16B], the Stipulation between H.C. Contracting and the NY DOL (May 17, 2001) [Group ID 17], a letter fromJoseph Ferrara to the DOL (dated May 30,2001) [ID 18], and a copy of the five-thousand dollar check from H.C.Contracting to the DOL as a settlement payment [ID 19]. The Court sustained the Service's objection for relevancebecause these documents represented events occurring after the Respondents' arrest. The Court marked foridentification only a diagram of the factory floor and the affidavit of Irene Cheng, who prepared the diagram[Group ID 24], the affidavit of Eugenio Salazar [ID 25], and the affidavit of Dominga Espinoza [ID 26]. The Courtnoted the Service's objections to the affidavits of anyone not testifying in court.

4


5/25

II. EvidenceExhibit 1:Exhibit 2:Exhibit 3:Exhibit 3A:ID4:ID4A:ID 5:Exhibit 5G:Exhibit 6:Exhibit 6A:Group Exhibit 7:

Exhibit 8:Exhibit 9:Exhibit 10:Exhibit lOA:Exhibit lOB:

Notice to Appear-Pedro Herrera-Priego (April 16, 1998)Notice to Appear-Alfredo Herrera-Priego (April 16, 1998)INS Affidavit-Pedro Herrera-Priego (April 16, 1998)INS Affidavit-Alfredo Herrera-Priego (April 16, 1998)Affidavit of Pedro Herrera-Priego (October 10,2000)Affidavit of Alfredo Herrera-Priego (October 10,2000)Affidavit ofRogelio Ramon Sanchez-Guillen (October 11,2000)NY DOL Revised Recapitulation Sheet (redacted) (April 3, 1998)Affidavit of Andres Mendez (October 11,2000)Complaint by Andres Mendez to NY DOL (July 1997) and 1997 Opinionand Award by the NLRBAffidavit of Hayne Yoon (October 13,2000) (paragraphs 4-7 for ID only),INS Employer Sanction Operation Form (February 2, 1998),Notice of Arbitration Hearing (October 6, 1997),Unfair Labor Charge Against Employer filed with the NLRB (October 29,1997),NY DOL Revised Recapitulation Sheet (October 2, 1997),Arbitration Opinion and Award (March 20, 1998),Letter from Daniel Silverman, Regional Director of the NLRB, to UNITE(February 4, 1999),INS Employer Sanctions Surveillance Request on H.C. Contracting(January 27, 1998), .INS Form G-176, Investigative Workplan,INS Form G-166C Investigation Memorandum (February 4, 1998),INS Request for Authorization to conduct Investigative Inspection(February 12, 1998),INS Post-Operation Report (April 17, 1998),INS List of Arrestees (1/97-6/99) with attached letter from U.S. Attorney'sOffice dated June 6,2000,New York Times article, "Greeted at Nation's Door, Many Visitors Staylllegally" (January 3, 1995),New York Times article, "Study Sees Illegal Aliens in New Light"(September 2, 1993),ColIection of INS Investigation Reports for 7 Worksites,Letter regarding NLRB Arbitration date (September 29, 1997)Affidavit ofKam Chan, NY DOL Investigator (October 13, 2000)NY DOL Revised Recapitulation Sheet (April 3, 1998) (duplicate ofthatsubmitted as part of Group Exhibit 7),INS Form G':'123A (October 7, 1997)Letter from DOL to INS (January 3,2001)Letter from Charles Horwitz regarding FOIA request (April 14, 2002)

5


6/25

Group Exhibit 11:Group Exhibit 12:Exhibit 13:Group Exhibit 14:Group Exhibit 15:ID 16A:ID 16B:Group ID 17:ID 18:ID 19:Exhibit 20:Group Exhibit 21 :

Exhibit 22:Exhibit 23:Group ID 24:ID25:ID26:Exhibit 27:Exhibit 28:Exhibit 29:Exhibit 30:

Phone records for H.C. Contracting (September/October 1997) andAffidavit ofBeatriz Gonzalez (January 3,2001)Urban Institute Study (1998)INS Investigations File for H.C. ContractingStatement ofT. Alexander Aleinikoff(October 20, 2001) and 0.1. 287.3aFOIL Response from Charles Horwitz of the NY DOL and Affidavit ofCharles Horwitz (October 18, 2001)FOIL Response by the NY DOL (March 27, 2002)Internal Memorandum of the NY DOL (March 1,2001)Stipulation between H.C. Contracting and the NY DOL (May 17,2001)Letter from Joseph Ferrara to the NY DOL (May 30,2001)Copy of $5000 check from H.C. Contracting to the DOL as settlementpayment with attached certification by DOLINS Form G-166C, Investigation Memorandum (February 4, 1998)New York Times article, "Files Suggest Profiling of Latinos Led toImmigration Raids" (May 1, 2001),Affidavit of Jonathan Trutt (October 17, 2001),Findings of study conducted by Jonathan Trutt,Freedom of Information Act Settlement Documents (May 26, 2000),INS List of Arrestees (1/97-6/99) with attached letter from U.S. Attorney'sOffice dated June 6, 2000 (duplicate of that submitted as part of GroupExhibit 7),Demographics of New York's Garment Industry, 1998,Affidavit ofHirokazu Yoshikawa (October 16, 2001)Study of J.F.K. Airport (September 21,2001)Comments by former INS Commissioner James Ziglar (July 18, 2001)Affidavit of Irene Cheng (October 11,2001) and Diagram ofH.C.ContractingAffidavit of Eugenio Salazar (November 2,2001)Affidavit ofDominga Espinoza (November 6, 2001)Affidavit of Mina Park (April 15, 2002)INS Form G-123a (sample)Affidavit ofKam P. Chan (April 11, 2002)Letter from INS to Make the Road by Walking and affidavit ofBenjaminSachs (April 23, 2002)

6


7/25

III. Testimony1. The Respondents

a. The Respondent. Pedro Herrera-PriegoThe Respondent, Pedro Herrera-Priego, testified to the following:The Respondent, Pedro Herrera-Priego, was employed by H.C. Contracting, a garmentfactory, from the end of 1995 until April 16, 1998. He testified that H.C. Contracting employedapproximately sixty to seventy people while he was working there. The employees, including theRespondent, pressed and sewed. The Respondent estimated that, in 1998, approximately half ofthe employees were Latino.The Respondent identified a diagram ofthe factory floor ofH.C. Contracting [Group ID24]. He identified various locations on the diagram and described their uses. He testified that he,

along with all the other workers, arrived at the factory at eight o'clock in the morning on April16, 1998. When the Service agents arrived one hour later, he was standing and pressing. TheRespondent recognized the agents because some of them were wearing green Service uniformsand Service badges. He saw some ofthe agents enter through the front door and others throughthe back door. The Respondent saw the Service agents begin questioning the workers in his area.He could tell which workers were questioned because the INS officers asked them to stand andshow their documents. Latino, Asian, and some Polish employees were working in his area atthe time. Although he saw Latino workers in his area being questioned, he did not see any Asianworkers being questioned.An agent then brought the Respondent to the front of the factory, where he was

questioned and h a n d ~ c u f f e d . The Respondent testified that approximately twenty-five or twenty-six workers were likewise arrested, and they were all Latino. The Respondent remained standingin the front of the factory for the remainder of the raid, from which point he could see almost theentire factory floor. Although both Asian and Latino employees were working in areas labeled"1,4, and 5" on the diagram, the Respondent saw the Service agents questioning only the Latinoworkers in these areas. The Respondent saw the Service agents question only two of the Latinoworkers in area "4." Two Asian workers and several Americans were working in area "6." TheRespondent sawall of them standing but could not tell which ones the agents were questioning.He testified that almost all of the workers questioned during the raid were Latino. He did not seethe INS agents question any Asian workers throughout the entire raid, but he did see the Serviceagents question and hand-cuff one Polish woman. The Respondent testified that his boss was notpresent at the factory the day ofthe raid.

The Respondent testified that although machines were running during the raid, the noiselevel was not very high. The light in the factory was strong and clear. The employees keptworking during the raid. The Respondent testified that approximately twenty-five workers were

7


8/25

in his area "3." Three of the four males in that area were Latino. There were approximately tento fifteen Polish women, and the rest of the workers were Latino or Asian women.Approximately three Latino and six or eight Asian workers were in area "1." Most of the Latinosin area "1" were men, while most of the Asians were women. In area "4," there wereapproximately three or four Latinos (all men) and approximately six to nine Asians (all womenexcept one). Out of the approximately ten to twelve workers in area "5," two or three wereLatino (all men) and the rest were Asian (mostly women) [Group ID 24]. Two Asian men andapproximately six Latino men were in area "6." Questioning of a worker lasted approximatelyone minute. The entire raid lasted approximately fifteen to twenty minutes. Shortly afterward,the Service agents escorted the Respondent and the other arrestees away from the factory.b. The Respondent. Alfredo Herrera-PriegoThe Respondent, Alfredo Herrera-Priego, testified to the following:The Respondent, Alfredo Herrera-Priego, was employed to iron for H.C. Contracting

from 1997 until April of 1998. He testified that approximately sixty or seventy people worked atthe factory in 1998. Approximately half of them were Latino, and the others were Asian orPolish.On April 16, 1998, the Respondent arrived at the factory at eight o'clock and went towork in the front of the building. He was standing when the Service agents arrived. Heidentified them by their badges and by their blocking of the doors and their questioning ofemployees. Still standing, the Respondent saw Service agents questioning two Latinos. He didnot see them question any Asian or Polish workers.The Respondent testified that other than the noise of the machines, there was no noise inthe factory during the raid. He stated that workers were only permitted to talk about their work.Although he could not remember exactly, he believed that the employees were allowed to listento the radio while they worked. The Respondent testified that the air conditioning was on thatday. He could not remember how he was dressed. He saw the Service agents question and arrestseveral Latino workers whom he knew personally. Other than his brother, he did not have anyrelatives working at the factory on April 16, 1998.

2. Rogelio Ramon Sanchez-GuillenOn October 26, 2000, Mr. Rogelio Ramon Sanchez-Guillen appeared before the

hnmigration Court as a witness for the Respondents and testified to the following:From October of 1996 until April 16, 1998, Mr. Sanchez was employed to iron at H.C.Contracting, owned by Mr. Ferrara. Mr. Sanchez testified that after working at the factory forsome unspecified time, he joined the union, UNITE. He became a union representative, in whichcapacity he assisted his co-workers by answering questions about the union dues or addressing

8


9/25

problems with the owner. As a union representative, he had the occasion to speak with themajority of the employees at H.C. Contracting. Mr. Sanchez testified that approximately seventyor eighty people worked at H.C. Contracting in April of 1998. He spoke in Spanish with themajority who were Latinos and communicated as best as he could in English with the fewAsians. He testified that he discussed their countries of origin with them. Approximatelyseventy to seventy-five percent ofthem were Latino, twenty percent were Asian, and five percentwere European. Mr. Sanchez testified that he spoke about immigration status with some ofthenon-Latino workers and knew that some of them were undocumented, though he could notestimate how many.Mr. Sanchez stated that he knows both of the Respondents. When Mr. Sanchez began hisemployment, the Respondent, Pedro Herrera-Priego, was already working at H.C. Contracting.The Respondent, Alfredo Herrera-Priego, subsequently started working there.Mr. Sanchez stated that he arrived at work at eight o'clock in the morning on April 16,1998 and noticed that Mr. Ferrara was not at the factory. He was ironing when the Service

agents arrived between eight-thirty and nine o'clock. The Respondent, Alfredo Herrera-Priego,was in front of him, a Mexican named Sofio was near him, and two other Mexicans were behindhim. No managers were in his area. Mr. Sanchez heard the door buzzer ring about two timesuntil one of the managers opened the service door in the front of the factory. After he opened it,Mr. Sanchez saw the agents spread around the factory, close the doors, and begin questioning theworkers. Mr. Sanchez saw an agent question the Respondent, Alfredo Herrera-Priego, who wasstanding approximately five feet from Mr. Sanchez. Mr. Sanchez overheard the Service officerask the Respondent ifhe had any documents, and the Respondent replied that he did not. AService officer likewise asked Mr. Sanchez for his documents. The officer initially asked inEnglish but then asked again in Spanish when he realized that Mr. Sanchez could not understandmuch English. The agent then hand-cuffed Mr. Sanchez and led him to the line of arrestees nearthe side of the main door, where the Respondent, Alfredo Herrera-Priego, and other Latino co-workers were already standing. Mr. Sanchez stood in that line for approximately ten minutes.He could almost see the entire factory, except that columns obscured part ofhis view. Mr.Sanchez saw the Service agents question other co-workers, most of whom were Latinos. Mr.Sanchez testified that "several times" the Service agents skipped over Asian workers to questionLatinos. For example, they questioned an Ecuadorian, then they skipped over a Korean andstarted questioning another Latino.Next, Mr. Sanchez testified that he had worked over forty hours per week before but hadnot been paid overtime wages. He spoke with other workers who had likewise worked overtime

but had not received overtime wages. After he had been working at H.C. Contracting forapproximately one and one-half months, he joined his co-workers in their request for overtimepayment from their employer, Mr. Ferrara: Subsequently, a Department of Labor ("DOL")representative came to the factory and asked Mr. Sanchez if the workers were being paidovertime. Mr. Sanchez informed him that they were not. He and his co-workers requested thatMr. Ferrara pay them overtime. Mr. Ferrara refused and told them that if they did not want to

9


10/25

work, they could stop working. The workers then began to pressure Mr. Ferrara, with the help oftheir union. In response to this pressure, Mr. Ferrara began to pay overtime the following year inthe month of January. However, he deducted a dollar from each of their hourly wages in order topay the overtime.

The employees who had been working at H.C. Contracting the longest met three timeswith the union and requested that Mr. Ferrara pay them their full salary plus overtime. Mr.Sanchez testified that he remembered seeing the Respondent, Pedro Herrera-Priego, at thesemeetings. Mr. Ferrara only attended one of the meetings. Mr. Sanchez testified that initially, hedid not accompany his co-workers to the DOL to file a complaint for overtime wages. He laterdecided to file a complaint on his own. At the time ofthe raid, his complaint had not yet beenresolved. The DOL had informed him that it was processing his complaint, and he did notreceive the money until after he left H.C. Contracting.Mr. Sanchez testified that he has known the Respondent, Pedro Herrera-Priego, forapproximately two years and the Respondent, Alfredo Herrera-Priego, for approximately one

year. Mr. Sanchez testified that he spoke to the Respondents about their country of origin. Hestated that except for one Polish woman, he only observed the Service questioning Latinos duringthe April 16, 1998 raid. They were Dominican, Ecuadorian, Mexican, and Honduran. Mr.Sanchez testified that the Service agents took him away before he could witness their questioningthe Polish woman. Upon returning to H.C. Contracting to pick up his check, he spoke with themajority of his co-workers, who informed him that the Service did not question any otherworkers after he left. They reiterated that the Service had questioned only Latino workers and noAsian workers. Counsel for the Service asked why Mr. Sanchez did not discuss going back toH.C. Contracting and speaking with the employees in his signed statement. Mr. Sanchez repliedthat he only recently remembered this incident as he was testifying. He stated that he neverdiscussed this with anyone before testifying about it.Mr. Sanchez testified that he did not have documents when he started working at H.C.Contracting, nor did he have fake documents. He stated that he did not know that the socialsecurity card he had was fraudulent or false. Mr. Sanchez paid someone who told him he wouldprocure a social security card for him. Mr. Sanchez testified that he never asked any of theemployees if they had similar documents. Counsel for the Service asked why Mr. Sancheztestified in court that Mr. Ferrara was not at the factory on April 16, 1998, but did not includethis information in his statement. Mr. Sanchez replied that he did not know why, but that he hadmentioned it before and that it was unusual because Mr. Ferrera had always arrived early. Whenasked whether he knew that an owner can be sanctioned for any undocumented worker who is

working in his factory, Mr. Sanchez replied that he did not know this. He testified that thefactory is big. Counsel for the Service pressed him as to whether he saw the Service questionevery person whom had been arrested, and Mr. Sanchez replied that he saw the majority of thosequestioned.

10


11/25

3. Andres MendezOn October 26,2000, Mr. Andres Mendez appeared before the Immigration Court as awitness for the Respondents and testified to the following:Mr. Mendez is a legal permanent resident. Beginning in December of 1993 andcontinuing for about three or four years, he was employed to iron at H.C. Contracting, owned byJoseph Ferrara. Although no union existed when Mr. Mendez began work, he joined the oneorganized soon thereafter. While Mr. Mendez was employed at H.C. Contracting, approximatelysixty to eighty employees worked there.Mr. Mendez testified that when he first started working at H.C. Contracting, he workedovertime without receiving overtime pay. He spoke to five or six other workers who also workedovertime without adequate compensation. Mr. Mendez attended approximately three or four

unionmeetings about overtime pay. The first one occurred in 1997, and approximately five orsix workers attended. The second meeting also occurred in 1997, and approximately fifty of theworkers attended. At this meeting, the union representative requested overtime, benefits, and ahigher salary. All of the workers attended the third meeting, also in 1997, and the unionrepresentative made the same requests. Mr. Ferrara only attended one meeting, where he did notspeak about overtime. When they eventually received overtime pay, their salaries wereconsequently lowered. Mr. Mendez attended a union meeting with Mr. Ferrara to protest thedecrease in salary. Mr. Mendez testified that when he asked Mr. Ferrara why he had loweredtheir salaries, Mr. Ferrara responded that "it was fine because he was paying everyone overtime."

When asked ifhe knew how Mr. Ferrara discovered that he and his co-workers had goneto the DOL, Mr. Mendez replied that he did not know. He stated that he may have been firedbecause he went to the DOL. Mr. Mendez spoke with co-workers who told him they were alsofired after they returned to work after having gone to the DOL. After being fired, Mr. Mendez,his wife, and several co-workers met with a union representative, who told them the union woulddo something to reinstate them, some kind of arbitration. Near the end of 1997, Mr. Mendezattended a hearing about being dismissed from his employment. As a result of the hearing, hewas reinstated in January of 1998 at a different location. Although he usually works weekdays,he stated that he obtained permission from his supervisor in order to testify in court.Mr. Mendez testified that he earned $8.75 per hour while working at H.C. Contracting.He did not know how much the other employees were earning. When pressed why he did not

know about other employees' salaries despite the fact that salaries were discussed at the unionmeetings, Mr. Mendez replied that he was not aware of how much others were paid.Mr. Mendez testified that he was not present at H.C. Contracting when the Service arrived onApril 16, 1998. He stated that while he was working there, about half of the employees wereLatino, and the rest were Chinese, Korean, and Polish.

11


12/25

4. Professor Thomas Alexander AleinikoffOn November 15, 2001, Professor Thomas Alexander Aleinikoff, as a witness for theRespondents, testified telephonically to the following:Professor Ale inikoff stated that he is a professor at the Georgetown University Law

Center and a Senior Associate at the hnmigration Policy Institute. He has been a professor atGeorgetown since 1997. From 1981 until 1994, he taught at the University of Michigan LawSchool. He specializes in Immigration Law, Refugee Law, Citizenship Law, Constitutional Law,and Legislation and has published scholarly works in the area of Immigration Law. From 1994to mid-1995, he served as General Counsel for the hnmigration and Naturalization Service.From mid-1995 until January of 1997, he served as Executive Associate Commissioner forPrograms of the Service and reported to both the Deputy Commissioner and the Commissioner.In this capacity, he supervised ten different programs, both on the enforcement and the servicesides. His duties included policy fonnulation and review ofpolicy memorandum.

Professor Aleinikoff stated that he is familiar with Operations Instructions ["O.l.s"]. Heexplained that an Operation Instruction is a policy promulgated by an agency, usually for fieldpersonnel, as an instruction by the agency to its own people. He was responsible for thepromulgation of Operations Instruction 287.3a, dated December 20, 1996 [Group Exhibit 14].He explained that 0.1. 287.3a encompasses situations involving labor disputes. When theService has reason to suspect that a source might be providing infonnation about potentialundocumented aliens in order to interfere with the rights of the employees in the middle of alabor dispute or for retaliatory purposes, the 0.1. instructs the Service to take certain steps beforeinitiating enforcement action in that situation.Professor Aleinikoff testified that Service agents generally are expected to follow

Operations Instructions, and that when the Service promulgated 0.1. 287.3a, it expected fieldagents to follow it. He described the reason for the promUlgation of the 0.1. as "a combinedpurpose." He explained that the 0.1. prevents the Service from being manipulated by employeesor employers in the context of a labor dispute. It also prevents the Service from getting involvedin labor issues, which are already regulated by federal labor laws.

When asked to characterize these labor rights, Professor Aleinikoff testified:We view these as important rights or we would not have issued theOperations Instruction. Clearly, we thought that if the Service wasgetting involved in an area regulated elsewhere by federal law, onewhere investigators could be used by employers to help deny peoplerights, we thought that was not an appropriate role for the Service tobe taking, and we worked closely with the Wage and Hour Divisionofthe Labor Department and elsewhere, and contacted with the LaborDepartment on a regular basis on the overlap between labor l a w ~ and

12


13/25

immigration laws, and how sometimes they work together andsometimes how they work in conflict, and we tried to sort out a waythat the labor laws could be accomplished and fulfilled withoutunduly getting involved in the immigration process. They wereobviously important enough rights for us to go through the process ofissuing the Instruction and to sort these problems out.Professor Aleinikofftestified that the OJ. does not expressly prohibit enforcing theImmigration and Nationality Act in every situation that involves a labor dispute, but that there arecertain procedures to be followed. He explained that upon receiving information about potentialundocumented aliens, Service agents should ask certain questions to determine if a labor disputeis in progress. I f an ongoing labor dispute exists, the OJ. requires that the Service agents deferthe decision to take enforcement action to the District Counsel and the Assistant District Directorfor Investigations.Professor Aleinikoff described a "labor dispute" as:

Anything within the National Labor Relations Act, so it would be anelection for a union, collective bargaining, an attempt to begin theelection for collective bargaining or creating a syndicate for a lockoutor strike or anything like that. But from the first paragraph of the0.1., as well, it was broader than that. It was also intended to operateacross a wide array of labor laws, so wage and hour disputes,occupational safety, health, discrimination laws, Title Seven, otherkinds of objections against discrimination. And, as I said, thepurpose was to tr y to make sure the INS wasn't used by employers totake away the rights of employees under these very important areasof federal law.

In response to a question about when the Service would ever have any role in labordisputes, Professor Aleinikoffreplied:I would think very rarely. There are lots of enforcement actions theINS could take. There are lots ofways it can serve its priorities. Andit seems that this should be a very low priority, if ever a priority, toundertake an enforcement action when there is an ongoing labordispute. As I said, the Instruction didn't prohibit it, and I supposethere could be situations irrespective of information, if there weresome serious set of facts. There's not even a situation that springsimmediately to my mind where if the Service got a tip and followedit up and found that the employer was attempting to have peopleremoved from the worksite in order to get them to defeat a unionelection or to take strength out of the collective bargaining action or

13


14/25

to retaliate against people for filing a complaint for wage and hourdisputes. It's hard for me to imagine a situation under the OperationsInstruction where the INS should undertake that kind ofenforcementaction.Professor Aleinikoff further explained that when a Service agent suspects that a tip aboutundocumented workers involves a labor dispute, "the good investigator" would ask probingquestions about how the source came to possess that information. He stated that "a conscientiousinvestigator" would ask detailed questions about the situation to prevent the Service fromwasting valuable resources and inappropriately getting involved in a labor dispute. AlthoughProfessor Aleinikoff testified that he was unfamiliar with the day-to-day practice of investigatorsand the particular questions they ask, he added that any law enforcement officer would askenough questions to have a sense of the entire situation. Professor Aleinikoff then read the thirdparagraph of the Operations Instruction, ''Persons who provide information to the Service aboutthe employer or employees involved in the dispute should be asked the following. . . " and notedthe list of questions which the Service should ask [Group Exhibit 14].Finally, when asked whether the Operations Instruction or any other instructions toService personnel address the situation where Service personnel encounter a situation and do notrealize until later that they are in the middle of a labor dispute, Professor Aleinikoff read andparaphrased the second to last paragraph of 0.1. 287.3a [Group Exhibit 14]:

When Service enforcement action is taken and it is then determinedthat there was a labor dispute or that the information was provided tothe Service to retaliate, the lead immigration officer at the worksiteshould check with other law enforcement agents to see whether it'sappropriate to keep arrested or detained aliens in the country to helpwith the prosecution of whatever labor case might be made.

5. Charles HorwitzOn November 15,2001, Charles Horwitz appeared before the Immigration Court as awitness for the Respondents and testified to the following:Charles Horwitz is a Senior Attorney with the New York State Department ofLabor

(''NY DOL',) and reports to the Counsel's Office to Enforce Labor Laws. He has been workingat the NY DOL for sixteen years. Mr. Horwitz stated that he is familiar with the garmentindustry in New York State because he represents the Commissioner ofLabor in New York inninety-nine percent of the cases against garment manufacturers and contractors in the New YorkCity and downstate area.

Mr. Horwitz testified that approximately one-third of the garment workers in New YorkState are Latino, and that approximately ninety-five percent of garment workers in the State work

14


15/25

in New York City. Further, he stated that approximately one-third of the gannent workers inNew York City are also Latino. Mr. Horwitz testified that he knows the gannentmanufacturer/contractor H.C. Contracting. He stated that he met Joseph Ferrara, the president ofH.C. Contracting, while investigating a complaint lodged with the NY DOL on July 1, 1997,concerning discrimination against a female employee there. Further, Mr. Horwitz testified thatafter the DOL investigated that complaint, it found that H.C. Contracting routinely underpaidworkers overtime wages. The investigation into the overtime payments began in July of 1997and continued for several months. After the investigation started, about nine or ten employeesfrom H.C. Contracting filed complaints with the DOL. The DOL sent H.C. Contracting a noticeoflabor law violation, investigated the factory several times, and sent Mr. Ferrara a''recapitulation sheet," which is an audit of the payments for each worker. Mr. Horwitz describedthe NY DOL Recapitulation Sheet as the standard form that the DOL submits to employers whenit determines that there was underpayment, along with a demand for payment of a stipulatedamount. Mr. Horwitz explained that the form contains the names of other workers at H.C.Contracting, not including the Respondents, who were involved in that DOL investigation[Exhibit 9]. After months of investigation, discovery, and negotiations, Mr. Ferrara finallyagreed to pay the sum of $16,500 in overtime underpayments that he owed to his employees.

After the DOL resolved the investigation about overtime, it learned about acommunication from Mr. Ferrara to the Service to have some workers deported as a result of thecomplaints placed with the DOL for overtime. The DOL believed that H.C. Contracting hadviolated section 215 ofNew York State labor law, which is the anti-retaliation provision. In2001, Mr. Horwitz discovered that H.C. Contracting, in an attempt to avoid paying wages, firedworkers and also complained to the Service to attempt to have them deported. Mr. Horwitzinitiated an investigation by the Division of Labor Standards to determine if there was a violationof section 215. He explained, "Section 215 of the labor law has been on the books for manyyears, and it says, in effect, that if an employee complains to the DOL, his employer should notretaliate against him, and ifhe does so, he should be punished under the law."

The DOL subpoenaed the records ofH.C. Contracting for the time period of 1997 inquestion. It found that H.C. Contracting had made several phone calls to the Service inSeptember of 1997 [Group Exhibit 11]. Mr. Horwitz stated that he then wrote a letter to the INSDistrict Director, requesting a copy of the tip sheet and referring to the Operating Instructions,which call for cooperation among the Service, the NY DOL, and the U.S. DOL when labordisputes exist [Exhibit lOA). Mr. Horwitz stated that the District Director graciously providedhim with an unredacted copy ofthe tip sheet. Mr. Horwitz then identified INS Form G-123A andstated that the INS District Director had told him it was a tip sheet, andthat the Service hadcompleted it, based on information provided by a source [Exhibit 10]. Mr. Horwitz testified thatthe source listed on the tip sheet was Joseph Ferrara. He further testified that Mr. Ferrara waslisted as the employer/owner as well. Mr. Horwitz testified that the tip sheet indicated that Mr.Ferrara said that there were twenty-five to seventy-five undocumented workers at his shop[Exhibit 10]. Based on this information, the DOL inferred that there was a prima facie case ofviolation of section 215 of the labor law.

15


16/25

Mr. Horwitz stated that the DOL then contacted H.C. Contracting, and DOL investigatorsmet with Mr. Ferrara. They determined that there was in fact retaliation on Mr. Ferrara's partbecause of the workers' complaints. He called the Service and wanted to have them deported.Consequently, the DOL sent H.C. Contracting a notice of violation of a labor law regulation. Mr.Horwitz explained that at that point, the employer can either pay the civil penalty involved undersection 215 of the labor law or attend a hearing. Before the DOL holds a hearing, it conducts acompliance conference, where a hearing officer and both parties appear. H.C. Contractingprotested the violation and attended a compliance conference with a hearing officer. Mr. Ferraraappeared with counsel, and at the conclusion of that compliance conference, he agreed to pay thecivil penalty.

Mr. Horwitz further testified that if the Service were to call the DOL to inquire into alabor dispute, it would be directed downstate to Thomas Glubiak, who is the Chiefof theApparel Task Force, a staf fof twenty-nine people who do nothing but investigate apparel lawviolations in New York City and throughout the State. In non-apparel cases, the Service wouldcontact Manny Fruchter, who is the Chiefof Labor Standards for the downstate area ofNewYork. I f he Service had a public works problem, it would contact Christopher Alun, who isbased in Albany. Mr. Horwitz testified that the Service neither contacted him personally nor anyof these men about H.C. Contracting. He learned this after speaking with Mr. Glubiak, who isthe head ofthe office, as well as with his second-in-command, and also with other investigators.Mr. Horwitz explained that if somebody from the Service were to call the DOL at theinvestigatory level, protocol requires notification through the chain of command, all the way upto Mr. Glubiak. Mr. Glubiak was never notified in this instance. Moreover, since Mr. Glubiakassumed office in 1990, the Service has never contacted him about a raid when there was anongoing labor dispute or about any raid at all. Mr. Horwitz further testified that if the Servicehad contacted the DOL, that information would be in the DOL's file on H.C. Contracting. Mr.Horwitz stated that he recently reviewed the file and did not see any notations indicating that theService contacted the DOL regarding H.C. Contracting.

Mr. Horwitz confirmed that he received the G-123A form [Exhibit 10] in his capacity asSenior Attorney with the DOL, to be used in reference to any type oflabor relation action that hisdepartment was taking. He stated that someone at the District Director's office prepared it andprovided it to him. He declared that he had never seen a G-123A form before receiving the oneat issue. Mr. Horwitz conceded that he did not know the substance of the conversation at thetime that the informant called the Service. He stated, however, that at the complianceconference, Mr. Ferrara admitted that, in fact, he had called Service on more than one occasion.Mr. Horwitz clarified that the first investigation began on July 1, 1997, and that the retaliationclaim covered the time period involved in this whole matter. He stated that the essence of thesection 215 complaint was that workers complained to the DOL about being cheated on wages.The DOL then investigated. Right after the investigation, Mr. Ferrara fired the workers andcalled Service to have them deported. The DOL felt it was a classic case of retaliation. Mr.Horwitz stated that he did not think the Service tended to do that sort ofthing to deport workers.

16


17/25

In response to the Service's question whether the Service has a practice of contacting theDOL in situations like the one at hand, Mr. Horwitz stated that he had never dealt with this kindof case before, but that he had heard about "problems." He clarified that he asked the contactpeople in the DOL whom he mentioned earlier if the Service had ever contacted them to inquirewhether a labor dispute was in progress before conducting a raid, in order to comply with theOperations Instruction. Mr. HOIwitz repeated that these individuals declared that the Service hadnever contacted them about raids. Mr. Horwitz reiterated that he asked Mr. Glubiak and Mr.Fruchter specifically about H.C. Contracting. He did not ask Mr. Alun because he is in charge ofpublic works, which is unrelated to H.C. Contracting.6. Special Agent Christopher Dyckman

On April 29, 2002, Special Agent Christopher Dyckman appeared before the ImmigrationCourt as a witness for the Service and testified to the following:Special Agent Christopher Dyckman testified that he has worked as a special agent of

the Service since June of 1997. Prior to that time, he served as an Immigration Agent for theService since October of 1996. Agent Dyckman was the case agent in charge of the Service'sinvestigation into H.C. Contracting. He explained that a case agent conducts an investigationonce a supervisor assigns it. AgentDyckman was in charge of investigating allegations theService received that H.C. Contracting was employing undocumented workers. He testified thatthe office received the G-123A complaint [Exhibit 10] in October of 1997, and he received hisassignment in or around January of 1998. Agent Dyckman reiterated that he himself did not takedown the information on the complaint form.Agent Dyckman testified that he personally did not contact the DOL in reference to thecomplaint the Service received on October 7, 1997. Initially, the investigation was assigned to

another agent, and Agent Dyckman did not know whether that agent contacted the DOL. Hestated that he was not aware whether his supervisors ever contacted the DOL.After receiving the complaint, Agent Dyckman verified the existence ofH.C. Contractingand submitted a request to the Service's surveillance unit to attempt to confirm or corroborateany of the information on that complaint [Group Exhibit 7]. He testified that the agents whoconducted the surveillance concluded that their observations appeared to corroborate theinformation on the complaint. Once he received the surveillance report results, he added that tothe case file, in addition to the other information that he had. His supervisor then reviewed thefile, and he submitted a request to conduct an investigative inspection and a consent survey onthe location [Group Exhibit 7]. Agent Dyckman described a "consent survey" as "the operationat the location whereupon there is no warrant to enter the premises. It's consensual. The personin charge of the premises grants us permission to enter the premises and speak to the employees."He described an "inspection" as "an administrative paperwork inspection of the 1-9 forms thatemployers are required to fill out."

17


18/25

Before he could conduct a consent survey, Agent Dyckman needed to obtain pennission.He submitted a request to his immediate supervisor, Ken Kennedy, who then submitted it to hissupervisor, who granted pennission to attempt the consent survey [Group Exhibit 7]. AgentDyckman explained that once the authorization has been granted from his office, the actual"consent" must come from the person in charge of the premises to allow the Service agents toenter the premises and speak to the employees. Agent Dyckman stated, "In other words, it'swarrantless. It's called 'consensual' because they are allowing us to come in and speak to theemployees." In conducting the consent survey on April 16, 1998, Agent Dyckman arrived atH.C. Contracting with approximately twenty-five or thirty other agents and two or threesupervisors. Tbey identified themselves as Service agents and obtained pennission from H.C.Contracting's manager on the premises to enter the factory and speak with the employees.

Agent Dyckman testified that at that point, he separated from the other agents and went tothe manager's office to answer any questions about what was going on in the factory at that timeand to explain the requirements of the 1-9 inspection that the Service planned to conduct. Hestated that the law requires three days notice before conducting an inspection, so he served thatnotice at that time. Agent Dyckman testified that the Service arrested twenty-six individuals,brought them to their office at 26 Federal Plaza, processed them, and initiated removalproceedings against them. Agent Dyckman explained that "processing" is a paperworkprocedure involving taking statements, asking identity questions, and issuing a Notice to Appear.He stated that on April 16, 1998, several different agents took statements from the individualsarrested. The Service uses the biographical infonnation to corroborate the alien's removability,which was detennined before making any arrests. Agent Dyckman testified that the Serviceenters the biographical data of every individual arrested into the central index system, which is aService database that contains records of aliens and alien numbers.

Agent Dyckman testified that prior to April 16, 1998, he personally had not visited H.C.Contracting. However, he stated that in 1996, his office had conducted a previous 1-9 inspectionof the company. This investigation revealed that twenty-two fraudulent documents had beenpresented to the employer as evidence of employment authorization. The Service notified theemployer, in writing, of the names of the individuals and the document numbers which the recordchecks had detennined were fraudulent.

The Service conducted the 1-9 inspection on May 4, 1998. Agent Dyckman explainedthat employers are required to fill out an 1-9 fonn for each employee, verifying that the employeeis eligible to work in the United States. After the inspection, the Service compiled the results ofthe inspection and notified Mr. Ferrara of the findings.On cross-examination, Mr. Dyckman reiterated his familiarity with the investigation intoH.C. Contracting, including the preliminary actions the Service took before the consent survey onApril 16, 1998. He stated that he has never seen any documentation in the Service's file on H.C.Contracting indicating that anyone from the Service contacted the DOL, the National LaborRelations Board (''NLRB''), or any other State or federal labor agency during the course of the

18


19/25

investigation. Further, he stated that he personally never contacted the NLRB or any federal orState labor agency in regard to H.C. Contracting during the course of the investigation. AgentDyckman testified that he was not aware whether INS District Counsel ever reviewed the H.C.Contracting file. He stated that he did not see anything in the Service's file indicating that theService had ever submitted the file of the 1997-98 investigation ofH.C. Contracting to the INSDistrict Counsel for review [Exhibit 13]. He testified that the the Assistant District Director forInvestigations did not approve the surveillance request because such requests are not submitted tohim. Instead, they are submitted to the surveillance unit. Agent Dyckman was not aware of anyapproval of the consent survey by the Assistant District Director for Investigations. He was notaware of any approval beyond that of the Section Chief, his supervisor's supervisor.

Agent Dyckman stated that he did not recall whether he or any other Service officialdirected the agents participating in the raid to question every worker present at H.C. Contracting.Although he did not believe any instructions were given to question specific people by name, hecould not recall for certain. When asked generally whether the Special Agent or any otherService officer directs the agents participating in a consent survey not'to pick out workers toquestion based on race or ethnicity, Agent Dyckman stated that he could not testify as to ageneral rule because every situation is different. In response to the Court's question whetherdirectives are generally given before any raid or during training, Agent Dyckman responded thatthe case agent generally provides a briefing to the agents. He stated that a briefing did occur inthis particular case. Agent Dyckman explained that the case officer is the agent who has themajority of the information because he is the individual working on the case. During a briefing,the case officer provides the other agents with a general background of the case for their safetyand to inform them of the consent survey's purpose. The case agent imparts to the other agentsinformation such as an estimated number of employees, any knowledge about the company, andany other information relevant to the investigation. Agent Dyckman testified that he personallyhas never instructed agents to question a certain number of people, and he was not aware of anytime where such an instruction had been given.

Agent Dyckman stated:In this particular case, I don't recall specifically what was said, butbased on my experience in similar situations, I would say, "Ok, thisis the name of the company. This is where they're located, on whatfloor of the building they're located on. There are approximately xamount ofworkers." That would be the instruction in this particularcase that might've been given. There would have been noinstructions, "Only talk to certain ethnicities ofpeople." Nothing likethat would 've been given in this case.

Agent Dyckman testified that to his knowledge, not every tip results in a raid. Hereiterated that the purpose of a surveillance is to verify information received in a tip. AgentDyckman identified INS Form G-166C, the form used to report the results of the surveillance at

19


20/25

H.C. Contracting, dated February 4, 1998 [Exhibit 20]. Agent Dyckman stated that he was notthe author of this form. He confirmed that the surveillance form says that forty to fifty workersmay support claims made by the complaint about illegal aliens working for H.C. Contracting[Exhibit 20]. He stated that because he did not conduct the surveillance himself, he was notaware of what led the surveillance agent to conclude that about forty to fifty workers supportedthe claim that there were undocumented workers at H.C. Contracting. From reading lines eightthrough eleven of the surveillance report, he discerned that the surveillance agents' observationsseemed to corroborate the information received in the complaint [Exhibit 20]. Agent Dyckmanreiterated that he then submitted the case file with the information from this report to hissupervisor for approval of the consent survey and the investigative inspection.

Agent Dyckman stated that the surveillance report's conclusions were straightforward andled him to request the consent survey and inspection. He stated further, "There is no reason 1would not believe the agents who conducted the surveillance. I f hey saw that the allegationscould be corroborated, 1 would have no reason to think that they were wrong." Agent Dyckmanstated that in particular, the statement that the surveillance agent believed the claim ofundocumented workers may be supported prompted him to forward the complaint to hissupervisor.

Agent Dyckman testified that Service agents are made aware of Operations Instructionsand that there are several of them. Although the O.l.s are sometimes distributed, the agents donot specifically receive copies ofthem on the day of a consent survey. He further stated that hebelieved agents are supposed to receive copies of O.l.s as they are issued. As far as he wasaware, no 0.1. prohibits pursuing a G-123A complaint. The Court asked Agent Dyckman ifheever read a surveillance report and found that it was not sufficient to support a complaint. Hereplied that he could not recall, but that it was ''very possible." Finally, in response to aclarification question by counsel for the Service about what happens to a file after a consentsurveyor inspection, Agent Dyckman stated that a consent survey is completed once anyindividuals who may have been arrested are processed and "whatever is going to happen happensto them." After the completion of an 1-9 inspection, the Service notifies the employer of theresults. I f he employer is fined, the Service then forwards the case file to its litigation section.IV. Leeal Standards

The sole issue in this case is whether documents submitted by the government, includingbut not limited to the NTAs issued to the Respondents [Exhibits 1 and 2], the INS Affidavits ofthe Respondents [Exhibits 3 and 3A], and the INS Forms 1-213 should be suppressed because ofthe manner in which the information was obtained.2 If this information is suppressed,proceedings must be terminated because there is no independent evidence supporting the

2Tbe Court recognizes that this case also involves constitutional questions over which it has no jurisdiction.However, the Court permitted the Respondents' counsel to fill the record on the constitutional issues in case ofappellate review.20


21/25

allegations or removability.A motion to suppress evidence as illegally obtained must be supported by specific anddetailed statements based on personal knowledge and must set forth a prima facie case ofillegality. Matter of Wong, 13 I&N Dec. 820,822 (BIA 1971). An alien who raises a claimquestioning the legality of the evidence ''must come forward with proof establishing a prima

facie case before the Service will be called upon to assume the burden of ustifying the manner inwhich it obtained the evidence." Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971).Evidence obtained in apparent violation of the Fourth Amendment is excludable incertain instances in deportation proceedings. Matter ofVelasguez, 19 I&N Dec. 377, 380 (BIA1986). To be admissible in deportation proceedings, evidence must be relevant and probativeand its use must be fundamentally fair. Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996);Matter of Toro, 17 I&N Dec. 340,343 (BIA 1980). "In the evidentiary context, fairness isclosely related to the reliability and trustworthiness of the evidence." Felzcerek, supra. Absentany evidence that a Form 1-213 "contains infonnation which is incorrect or which was obtained

by coercion or force," it is considered inherently trustworthy and admissible. Matter ofMei ia, 16I&N Dec. 6, 8 (BIA 1976). A prima facie showing that a statement was involuntarily obtainedwarrants the exclusion of that statement from evidence. Matter of Garcia, 17 I&N Dec. 319, 321(BIA 1980). Moreover, even if an alien voluntarily provides evidence, it still must be excluded ifthe manner of the acquisition of evidence is so egregious that it offends the Fifth Amendment'sfundamental fairness requirement. Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980). TheSupreme Court has even intimated, in dicta, that it may be appropriate to exclude evidence whenthere are "egregious violations ofFourth Amendment or other liberties that might transgressnotions of fundamental fairness and undermine the probative value of the evidence obtained."INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); see also Matter of Cervantes-Torres, 21I&N Dec. 351, 353-354 (BIA 1996) (noting the respondent's "egregious arrest," but refusing toapply the exclusionary rule because the Respondent made a tactical decision to provide theevidence voluntarily).

In what has been deemed "the Accardi doctrine," the Supreme Court held that a federalagency must follow its own regulations if failure to do so would violate due process of law.Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). The Court subsequently expounded on thisdoctrine, "Where the rights of individuals are affected, it is incumbent upon agencies to followtheir own procedures. This is so even where the internal procedures are possibly more rigorousthan otherwise would be required." Morton v. Ruiz, 415 U.S. 199,235 (1974). Moreover, theSecond Circuit Court of Appeals reiterated the Accardi doctrine and added, "Its ambit is notlimited to rules attaining the status of formal regulations." Montilla v. INS, 926 F.2d 162, 167(2d Cir. 1991). The Second Circuit also held:When a regulation is promulgated to protect a fundamental rightderived from the Constitution or a federal statute, and the INS fails toadhere to it, the challenged deportation proceeding is invalid and a

21


22/25

remand to the agency is required. . . On the other hand, where an INSregulation does not affect fundamental rights derived from theConstitution or a federal statute, we believe it is best to invalidate achallenged proceeding only upon a showingofprejudice to the rightssought to be protected by the subject regulation.Waldron v. INS, 17 F.3d 511,518 (2d Cir. 1994). The Board of Immigration Appeals ("theBoard") detennined, "Where an entire procedural framework, designed to insure the fairprocessing of an action affecting an individual is created but then not followed by an agency, itcan be deemed prejudicial." Matter of Garcia-Flores, 17 I&N Dec. 325, 329 (BIA 1980).However, the Second Circuit has refused "to fashion an exclusionary rule for evidence obtainedin violation of an individual's First Amendment rights." Montero v. INS. 124 F.3d 381,386 (2dCir. 1997).v. Legal Analysis

In the instant case, the Court fmds that the Respondents have demonstrated that theService's evidence of removability was acquired in an illegal and egregious manner. It isundisputed that the Service violated its Operations Instruction 287.3a, which states, "Wheneverinformation received from any source creates a suspicion that an INS enforcement action mightinvolve the Service in a labor dispute, a reasonable attempt should be made by Serviceenforcement officers to determine whether a labor dispute is in progress" [Group ExhibIt 14].The 0.1. goes on to list three sources which the Service can contact in order to ascertain whethera labor dispute exists: the NLRB, the U.S. DOL, and the State DOL. Special Agent ChristopherDyckman, the case agent in charge of the H.C. Contracting investigation, testified that hepersonally never contacted the DOL, the NLRB, or any other State or federal labor agency duringthe course of the investigation, nor did he see any documentation in the Service's file on H.C.Contracting, indicating that anyone else from the Service contacted these organizations [Exhibit13]. Likewise, Mr. Charles Horwitz, Senior Attorney with the NY DOL, testified that he recentlyreviewed the DOL's H.C. Contracting file and did not see any notations indicating that theService contacted the DOL regarding H.C. Contracting. He also spoke with Thomas Glubiak,Chief of the Apparel Task Force, and Manny Fruchter, Chief ofLabor Standards for thedownstate area ofNew York. Both of those individuals confirmed that the Service nevercontacted them to inquire whether a labor dispute existed at H.C. Contracting [Group Exhibit15].

Moreover, 0.1. 287.3a stipulates that the Service must ask a source certain questions,including "if the subjects of the information have raised complaints or grievances about hours orworking conditions, discriminatory practices or about union representation or actions, or whetherthey have filed workers' compensation claims" [Group Exhibit 14]. The Service knew that thesource, Joseph Ferrara, was the employer and owner ofH.C. Contracting because he is listed assuch on the unredacted tip sheet [Exhibit 10]. This Form G-123A reads, ''Previous INS visitsuspect doc list. Recently hired 45 to 55. Suspects that some might be illegals. Owner is willing

22


23/25

to cooperate with INS in an inspection and consent survey" [Exhibit 10]. Despite the suspiciouscircumstance of an employer turning in his own employees, the Service proceeded with itsinvestigation without further inquiry.In addition to the testimony of Rogelio Ramon Sanchez-Guillen, Andres Mendez, andCharles Horwitz, an overwhelming amount of evidence attests to the fact that a labor dispute was

in progress at H.C. Contracting during the course of the Service's investigation and raid of thecompany [Exhibits 5G-9, Group Exhibit 15, Exhibits 29-30]. Further, Mr. Horwitz' testimonycorroborates his affidavit that Mr. Ferrara called the Service in order to retaliate against hisemployees for their labor organization efforts [Group Exhibit 15]. Mr. Horwitz testified that atthe compliance conference, Mr. Ferrara admitted to having called the Service on more than oneoccasion, and the phone records confirm this [Group Exhibit 11].0.1. 287.3a states, "Generally, there is no prohibition for enforcing the hnmigration andNationality Act, even when there may be a labor dispute in progress. However, where it appearsthat information may have been provided in order to interfere with or to retaliate againstemployees for exercising their rights, no action should be taken on this information without thereview of the District Counsel and approval of the Assistant District Director or an Assistant

ChiefPatrol Agent" [Group Exhibit 14]. Agent Dyckman testified that he was not awarewhether the INS District Counsel ever reviewed the H.C. Contracting file. He further stated thathe did not see anything in the Service's file indicating that the Service had ever submitted the fileof the 1997-98 investigation ofH.C. Contracting to the INS District Counsel for review [Exhibit13]. The Service violated 0.1. 287.3a both by failing to contact the specified organizations toinquire about a possible labor dispute and by failing to seek review and approval by theappropriate authorities.

The Court rejects the Service's argument that because the 0.1. is merely an instructionwithout the same force of law as an officially promulgated rule or regulation, failure to follow itshould not result in termination ofproceedings. Instead, this Court finds that the Service'sfailure to follow 0.1. 287.3a affected the Respondents' individual rights under federal labor law.Professor Thomas Alexander Aleinikoff, who was responsible for the promulgation of 0.1.287.3a, testified that one of the O.l.'s principle objectives was "to ensure that the INS notintrude into areas governed by federal labor law that protected important rights of both labor andemployers" [Group Exhibit 14]. Professor Aleinikoff elaborated on the importance of the laborrights at issue here:

We view these as important rights or we would not have issued theOperations Instruction. Clearly, we thought that if the Service wasgetting involved in an area regulated elsewhere by federal law, onewhere investigators could be used by employers to help deny peoplerights, we thought that was not an appropriate role for the Service tobe taking, and we worked closely with the Wage and Hour Divisionof heLabor Department and elsewhere, and contacted with the Labor

23


24/25

Department on a regular basis on the overlap between labor laws andimmigration laws, and how sometimes they work together andsometimes how they work in conflict, and we tried to sort out a waythat the labor laws could be accomplished and fulfilled withoutunduly getting involved in the immigration process. They wereobviously important enough rights for us to go through the process ofissuing the Instruction and to sort these problems out.

Moreover, Professor Aleinikoff testified that Service agents generally are expected to followOperations Instructions, and that when the Service promulgated 0.1. 287.3a, it expected fieldagents to follow it. Furthermore, Mr. Horwitz described the importance of the labor law that theService violated by failing to follow 0.1. 287.3a, "Section 215 of the labor law has been on thebooks for many years, and it says, in effect, that if an employee complains to the DOL, hisemployer should not retaliate against him, and ifhe does so, he should be punished under thelaw."

Because 0.1. 287.3a was designed to protect fundamental labor rights, the Service'sfailure to adhere to 0.1. 287.3a invalidates these removal proceedings. Waldron, 17 F.3d at 518.The Court applies the Supreme Court 's proclamation, "Where the rights of individuals areaffected, it is incumbent upon agencies to follow their own procedures. This is so even where theinternal procedures are possibly more rigorous than otherwise would be required." Morton v.Ruiz, 415 U.S. 199,235 (1974). The Court further heeds the Second Circuit's recognition thatthe Accardi doctrine's "ambit is not l imited to rules attaining the status of formal regulations."Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991). The Court applies the Accardi doctrine to0.1. 287.3a because the Court finds that this Operations Instruction qualifies under Waldron ashaviilg been "promulgated to protect a fundamental right derived from the Constitution or afederal statute," specifically fundamental rights protected by federal labor laws. Waldron v. INS,17 F.3d 511, 518 (2d Cir. 1994). Finally, the Court cites the policy argument of Montilla forapplying the Accardi doctrine in this case, "Careless observance by an agency of its ownadministrative processes weakens its effectiveness in the eyes of the public because it exposesthe possibility of favoritism and of inconsistent application of the law" 926 F 2d at 169.

Accordingly, after a careful review of the record, the following order shall enter:

24


25/25

ORDER

IT IS ORDERED that the Respondents' Motion to Suppress and Tenninate theseproceedings be granted.

25