INS on Worksite Enforcement Operations

Immigration and Naturalization Service

MEMORANDUM FOR REGIONAL DIRECTORS

FROM: MICHAEL A. PEARSON
EXECUTIVE ASSOCIATE COMMISSIONER
OFFICE OF FIELD OPERATIONS

SUBJECT: Immediate Action Directive for Worksite Enforcement Operations

Worksite enforcement is an important part of our interior enforcement actions. However, worksite enforcement operations are sometimes misunderstood by the general public, often when public perception focuses only on the plight of the alien rather than the overall goal of immigration law enforcement. This can easily lead to a lack of support by the public we serve. As officers enforcing the immigration laws of the United States, we must conduct ourselves professionally, within the scope of our authority, and in a manner which garners public support for our conduct and responsibilities. Also, we must recognize that the purpose of worksite enforcement is to deter the unlawful employment of aliens in the United States and that any contemplated worksite enforcement actions should be measured against this goal.

The Immigration and Naturalization Service (INS) is working on a comprehensive Interior Enforcement Strategy that will provide direction, guidance, and priorities for non-border operations, to include worksite enforcement. Until that strategy is finalized, I want to implement interim instructions for the conduct of worksite enforcement operations. This memorandum provides direction in five areas which must become Standard Operating Procedure (SOP) for the conduct of worksite enforcement operations:

• Refresher training on our authority to question and detain persons;
• Use of models for worksite enforcement investigations;
• An on-site INS spokesperson present during all worksite enforcement operations;
• Standardized written operation plan for worksite enforcement operations; and
• Community outreach and support building efforts.

A worksite enforcement operation is defined as: Any action by an INS officer(s) to arrest one or more unauthorized aliens at a worksite; a case must be opened and assigned for G-600 purposes by a supervisor, and the case recorded on form CENF 45.1.

The changes outlined in this memorandum are effective as of the date of this memorandum. These instructions are not intended to be all inclusive; operational judgment is necessary in planning and executing operations since each operation is different. As in all operations, care for the safety of the public and law enforcement officers is paramount.

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

On December 31, 1996, Commissioner Meissner issued specific guidance to the field relating to the apprehension of aliens during worksite enforcement operations (Attachment "A"). Each field office conducting worksite enforcement operations will provide a refresher training course based on the guidance in that memorandum to all officers who participate in such operations. The training must be conducted within 45 days of this memorandum and periodically thereafter so individuals newly assigned to worksite enforcement duties will have the same base knowledge about this policy. The training should outline the law of arrest, search, and seizure, as detailed in "The Law of Arrest, Search and Seizure for Immigration Officers" (M-69 Handbook). It must also include a comprehensive review of the Commissioner's policy as found in her December 31, 1996, memorandum (Attachment "A"). I have requested the General Counsel to assign the District or Sector Counsel or his/her designee to identify appropriate course materials and initiate training about these Fourth Amendment issues.

Additionally, specific attention to the Commissioner's December 31, 1996, policy must be included as part of pre-operational briefings for worksite enforcement operations so that all persons participating in the operation, including persons from other agencies, understand the policy.

B. Use of models for worksite enforcement investigations

To standardize worksite enforcement operations, Headquarters Office of Field Operations (HQOPS) has developed protocols for conducting worksite enforcement operations. These worksite enforcement protocols dated May 22, 1998, and found in Attachment "B", are to be followed by field managers and case agents. The protocols outline three investigative approaches whose deployment is dependent on the type of leads received.

All worksite enforcement operations must be conducted safely and professionally. Operations must be conducted in a manner which minimizes the impact to a business during the worksite enforcement operation (e.g., avoid restaurants during peak meal periods, allow the legal workforce to return to work as soon as possible), and with the goal of minimizing the amount of time spent at a business or employment site. Operations must be conducted by teams comprised of at least two INS officers.

C. An on-site INS spokesperson present during all worksite enforcement operations

Worksite enforcement operations conducted by five or more officers at places of business must include the participation of an INS employee whose sole duty will be to serve as an on-site spokesperson to deal with issues which may arise from concerned individuals. The on-site spokesperson must not be a direct participant in the "hands on" aspect of the enforcement operation (e.g., questioning and detaining aliens, searching the premises) so that he or she can devote full attention to this task. Those worksite enforcement operations consisting of fewer than five officers will not necessarily require a separate spokesperson; however, an officer on the operation must assume the collateral responsibility as spokesperson. All members of the operational team must know how to contact the on-site spokesperson during the operation.

The role of the on-site spokesperson will be to address problems that arise with the operation itself, such as complaints by business managers, the public, or other concerned persons, and to answer questions and respond to complaints or perceptions of unprofessional conduct, abuse, or civil rights violations by INS. The spokesperson must be well versed in the overall operation plan as well as INS' policies regarding arrest, detention, and removal of aliens from the United States.

At a minimum, the on-site spokesperson should:

• Be skilled in responding to complaints or mediating disputes which may arise;
• Address the questions and concerns of interested parties in a professional manner;
• Provide information regarding where apprehended aliens will be detained, and how they can be contacted;
• Provide general information regarding INS' removal proceedings;
• Answer questions which may be posed by family members of detained aliens;
• Provide information about how and with whom individuals may file complaints; and
• Provide a local point of contact for media inquiries.

You have discretion as to who the on-site spokesperson should be (where possible, use District or Sector community relations officers or staff with good outreach and communications skills). I encourage additional training in appropriate areas for the spokespersons.

D. Standardized written operation plan for worksite enforcement operations

A written operation plan must be prepared prior to execution of all worksite enforcement operations. We are developing a format for use by field offices, but until it is distributed to the field, a worksite enforcement operations checklist (Attachment "C") is included with this memorandum to assist in developing an operation plan. This checklist should be used to address key elements in planning a worksite enforcement operation. The checklist identifies many troublesome or problematic circumstances and will serve as a structure to plan for handling unforeseen circumstances that may arise during a worksite enforcement operation. The written operation plan may require additional factors to address particular issues of concern that are not included on the checklist. Pre-operational briefings must be conducted to ensure that all personnel involved in worksite enforcement operations, including other agency personnel, know the details of the operation.

Worksite enforcement operations require a level of approval commensurate with the sensitivity of the proposed operation. Requests for approval of worksite enforcement operations should be initiated with a brief memorandum, accompanied by the operation plan. The memorandum and attached operation plan should be sent through official channels to the approving official or his/her designee.

Worksite enforcement operations must be approved as outlined below:

Worksite enforcement operations which must be authorized by the Executive Associate Commissioner for Field Operations or his or her designee (prior concurrence, by the Regional Director, or his or her designee, is necessary):

1. Worksite enforcement operations which may involve persons, subject matters, or places of national prominence, notoriety, or newsworthiness;
2. Worksite enforcement operations which for other reasons may, in the judgment of the Regional Director, generate sufficient interest to become inquiries directed to Headquarters.

Worksite enforcement operations which must be authorized by the Regional Director or his or her designee (prior concurrence by the District Director or Chief Patrol Agent, or his or her designee, is necessary):

1. Worksite enforcement operations conducted at or near places of sensitivity, such as: places of worship, schools, newspapers or other media business locations;
2. Worksite enforcement operations conducted upon leads provided by a Member of Congress
3. Worksite enforcement operations that cross regional and district boundaries
4. Worksite enforcement operations which may pose a greater risk than usual of physical harm or injury to INS or other law enforcement personnel, employers, employees, alien arrestees and detainees, or the general public
5. Worksite enforcement operations which for other reasons may, in the judgment of the District Director or Chief Patrol Agent, generate sufficient interest to become inquiries directed to Regions.

The appropriate District Director or Chief Patrol Agent, or his or her designee, may authorize a worksite enforcement operation that he or she has determined is not a Level 2.

An after-action report must be submitted within 24 hours of the arrest phase of the operation to the approving official for each operation. After-action reports for operations lasting one or more days should be submitted at the end of each day. The after-action report must include pertinent facts surrounding the operation such as a description and number of any arrests and any unusual or significant events that occurred during the operation. A memorandum, G-166 or G-166C, will suffice for this request.

If any worksite enforcement operation causes a significant or unusual event, a report must be immediately made to the INS Command Center (202/616-5000). This notification should be immediately followed up with a written report and copy of the operation plan if one was not initially submitted for approval to region or HQOPS. The circumstances listed below will be considered significant, although this list is not all encompassing:

1. A serious injury of an individual during or as a result of the worksite enforcement operation. This would include the emergent removal of an individual by ambulance or other emergency response vehicle
2. Arrest of an employer, or principal business representative of an employer, pursuant to a criminal warrant. 3. Allegations of civil rights violations or other abuses made against the INS or any other law enforcement agency present on the worksite enforcement operation
4. A significant media presence during the worksite enforcement operation. This would be characterized by multiple media entities requesting interviews or information, or the presence of television news crews

E. Community outreach and support building

An important part of the INS mission is to work with interested segments of the community: employers, advocacy and civil rights groups, service agencies, civil and church groups, public officials, employment services, consular officers and groups representing immigrants and aliens to develop an atmosphere of communication and understanding. Districts or Sectors are to conduct outreach meetings and seminars with these groups on worksite enforcement issues on at least a quarterly basis to improve the INS' dialogue with the public. These meetings and seminars may be combined with existing outreach efforts that may already be underway in the Districts or Sectors. The purpose is to provide ways to educate the public about INS operations, establish dialogue and feedback with those affected by INS' work, prevent unlawful employment practices, enhance communication regarding the INS mission and to understand complaints and improve operations in order to minimize or eliminate complaints.

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

• The INS' National Targeting Plan (NTP) and why the INS targets particular industries;
• How the INS generally conducts worksite enforcement operations, and what employers should expect during these operations;
• In general terms, the INS arrest, detention, and removal procedures; and
• How and with whom employers or others may file complaints.

Consider notifying consulates of foreign countries prior to INS worksite enforcement operations so they can prepare to interview nationals of their countries who might be affected by the operation. A general advisory that an operation will be conducted and that nationals of their countries may be arrested is recommended, including information on time and location where interviews could take place; the location of the operation should not be disclosed. Also, within existing guidelines, members of the media (contact the INS Regional Public Affairs Office for further guidance prior to inviting the media and see DOJ policy dated January 14, 1993, entitled "Media Guidelines") and community based organizations may be invited to observe INS worksite enforcement operations or the INS post-operational procedures at the local field offices.

Conclusion

This memorandum is intended to give structure to and to ensure consistency for our approach to worksite enforcement. I know that these instructions may change the way some operations are planned and conducted. However, carrying out our statutory mission to deter the unlawful employment of unauthorized aliens in the United States requires policies that will result in safe, efficient worksite enforcement operations.

Actions

Please ensure that this memorandum (including attachments "A", "B", and "C") is disseminated to all INS personnel conducting worksite enforcement operations and that there is immediate adherence to this policy.

Regions must submit, within 60 days of this memorandum, a memorandum to HQOPS outlining the following actions taken by all Districts and Sectors responsible for conducting worksite enforcement activities:

• That this memorandum has been distributed to, and training about this policy has been conducted for, appropriate INS personnel in Districts and Sectors;
• That refresher training for personnel conducting worksite enforcement operations has been provided about our authority to question and detain persons;
• That the worksite enforcement models included in Attachment "B" are in use for all worksite enforcement operations;
• That INS on-site spokespersons have received appropriate training and that they participate in worksite enforcement operations;
• That written operation plans, using the checklist included as Attachment "C", are prepared for all worksite enforcement operations and that after-action reports are prepared and submitted to the approving officials, as required;
• That the Regions have ensured that Districts or Sectors have developed and instituted a broad community outreach and support building effort. Include details about meeting schedules, groups or representatives who are or will be attendees, and topics. Include a description of plans to institutionalize this community outreach in the Districts or Sectors.

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

Attachments:

Attachment "A" - Policy memorandum from Commissioner Meissner, CO 274A-P dated December 31, 1996, entitled, "Apprehension of Aliens in Worksite Enforcement Operations"

Attachment "B" - Worksite Enforcement Standard Investigation Procedures

Attachment "C" - Worksite Enforcement Operation Plan Checklist

Attachment "A"

Memorandum

CO 274A-P

Date: DEC 31 1996 Subject: Apprehension of Aliens in Worksite Enforcement Operations To: Regional Directors
District Directors
Chief Patrol Agents
Officers in Charge (Except Foreign)

From: Office of the Commissioner

The laws, regulations, and policies that govern enforcement actions by the Immigration and Naturalization Service (INS) require us to maintain the highest standards for our treatment of all persons, including those suspected of violations of the Immigration and Nationality Act. These standards govern the Service's responsibilities toward suspected unauthorized aliens encountered during the course of worksite operations. Just as we recognize the need to distinguish willful violators from employers who have made good faith efforts to comply with the law, we must exercise care and caution in our efforts to identify and apprehend unauthorized aliens. To the greatest extent possible, officers should make determinations of status at the worksite.

As we implement the INS priority for worksite enforcement, instances have arisen of apprehending and detaining persons lawfully in this country who are authorized to work. This guidance is intended to assist in preventing such instances from occurring and to establish clear standards and principles for handling worksite operations. Our officers must make difficult judgments under a variety of pressing circumstances. We need to sustain high standards concerning probable cause for arrests and plan operations in a manner that enhances officers' ability to make determinations of alienage and lawful status in the field. This memorandum provides guidelines to be followed when planning operations and reinforces standards for questioning aliens, brief investigative detention, and making arrests. Finally, it reinforces standards that ensure that worksite enforcement operations are carried out in a non- discriminatory manner.

Planning of Operations

When organizing worksite operations, supervisors should ensure all participating agents are fully prepared, to the maximum extent possible, to execute their assigned responsibilities during the enforcement activities. Entry into the worksite should be conducted in a manner that minimizes disruption of the legitimate activities of the workplace. Preparation should include the following steps:

Fully brief all participating agents and supporting personnel, in order to ensure that potential problems are discussed and resolved;

Arrange for a point-of-contact at the field office to assist timely with record checks called in from the worksite, particularly in the case of asylum or adjustment claimants who may not appear in the Central Index;

Assign a sufficient number of agents to the operation to ensure the ability to conduct interviews at the worksite and allow for such actions as escorting an employee to another area of the business or to his or her vehicle to retrieve documents;

Schedule operations in a manner that permits officers to spend sufficient time at the worksite to complete checks to the extent possible, while ensuring prompt processing of any persons arrested.

Additional steps may include special arrangements for immediate record check assistance in large-scale operations and establishing a point-of-contact for community groups during the operation to minimize the potential for miscommunication.

If a person removed from the worksite is found to be authorized to work, an officer should inquire whether the employee wants the Service to contact the employer with this information, and follow up promptly on such requests. Where feasible and reasonable, the Service should assist with the authorized employee's return to the worksite. Authorized aliens should be reminded of their duty to carry their registration documents.

Standards for Questioning Aliens

The first encounter between Immigration and Naturalization Service Officers conducting a workplace enforcement action and employees is likely to be a consensual encounter. INS officers have the statutory authority to "interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States."[1] 8 U.S.C. §1 357(a)( 1). This authority to ask questions does not give INS officers the right to detain any person for questioning.

As noted in the Arrest Manual [2] "INS officers should address questions to individuals in a way that promotes cooperation. To this end, they should identify themselves as INS officers and perform their duties in a professional manner." As long as a reasonable person in the position of the person questioned would believe that he or she is free to leave, based on the totality of the circumstances, a Fourth Amendment seizure has not occurred and no probable cause or reasonable suspicion need be established.

Judicial determinations as to when a consensual encounter becomes a Fourth Amendment seizure have been very fact-specific. Relevant factors have included the content, time, and manner of the questioning; the number of officers involved; whether there is any physical contact or restraint; whether there is any display of weapons; whether the person's documents or other property are held by the officer; and whether the person is moved.

Standards for Brief Investigative Detention

A brief investigative detention (known as a "Terry stop") does not amount to an arrest, and requires a lesser showing that the person committed the offense than does an arrest. The INS regulations state that an immigration officer may briefly detain a person for questioning if the officer has a reasonable suspicion, based on specific articulable facts, that the person "is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States." 8 CFR 287.8(b)(2). A brief investigative detention should be limited in duration and nature to that which is necessary to confirm or dispel the reasonable suspicion that led the officer to make the stop.

Standards for Making Arrests

An arrest occurs when a reasonable person in the suspect's position would understand the situation to restrain his or her freedom of movement to a degree that the law associates with formal arrest. All Service officers are expected to maintain familiarity with the laws, regulations, and policies governing arrests, including applicable policy and regulation governing advisals of rights (e.g., Lopez procedures). Section 287(a)(2) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1 357(a)(2), allows any authorized INS officer to arrest any alien in the United States without a warrant "if he has reason to believe that the alien so arrested is in the United States [in violation of any law or regulation ... regulating the admission, exclusion, or expulsion of aliens] and is likely to escape before a warrant can be obtained for his arrest." [3]

The Fourth Amendment to the U.S. Constitution requires that all arrests be supported by probable cause. The references in section 287 of the Act and accompanying regulations to officers having "reason to believe," or "reasonable grounds to believe," that persons have committed offenses do not lessen the probable cause requirement.

The Arrest Manual gives the following advice regarding probable cause:

Probable cause is knowledge or trustworthy information of facts and circumstances which would lead a reasonably prudent person to believe that an offense has been committed or is being committed by the person to be arrested. Probable cause is more than mere suspicion or the observation of behavior that is merely suspicious, but there does not have to be absolute certainty of guilt. In determining whether probable cause was present at the time of an arrest, courts consider the totality of the circumstances as viewed by a reasonable prudent officer coupled with the officer's training and experience. Pertinent factors include: personal knowledge or observation by the officer; information contained in official communication to the officer; information from reliable informants, victims, or witnesses; actions and appearance of the suspect(s); criminal reputation of the suspects; inconsistent and unpersuasive answers to routine questions; and possession, disposal, or concealment of evidence.

Officers must, therefore, take all necessary steps to establish probable cause prior to making arrests of aliens at the workplace. The circumstances of all arrests should be documented on Form I-213, Report of Investigation, or memorandum, as appropriate.

Claims to Lawful Status

A situation that is likely to arise is an INS officer's encounter with persons who claim in the course of a consensual conversation to be U.S. citizens, Lawful Permanent Residents, or within some other category of authorized alien. Of course, a mere statement that a person is lawfully in the United States is not conclusive. An officer may pursue consensual questioning of a person suspected to be an alien and may ask to see the person's documents.

To move from a consensual encounter to a brief investigative detention, an officer must have reasonable suspicion that the person is an alien illegally in the United States or has committed an offense otherwise within the enforcement authority of the Service. To arrest the person, the officer must have probable cause that the person is an alien illegally in the United States or has committed an offense otherwise within the enforcement authority of the Service, and must believe that the person is likely to escape before the officer could obtain a warrant for the arrest. The failure of an alien to produce documentation of status may, depending on the circumstances, be a relevant fact in an officer's determination that reasonable suspicion or probable cause exists as to the alien's illegal status. Such failure must be considered with other factors, as discussed below under "Avoiding Discrimination."

Adult work-authorized aliens are required by Section 264(e) of the Act to carry their registration documents. A claim of authorized alien status, combined with a failure to produce confirmatory documentation, establishes probable cause that the alien has violated section 264(e), absent unusual circumstances, such as that the alien appears to be a minor. [4] Nevertheless, officers are reminded that enforcement of this provision of law is not a priority of the Service. [5] Our enforcement focus must be on aliens who are in this country illegally or who have violated their terms of admission.

As mentioned, every effort should be made to determine the person's status at the workplace.

Avoiding Discrimination

To ensure that operations are not carried out in a discriminatory fashion, officers are reminded of the guidance provided in the Immigration Officer's Field Manual for Employer Sanctions (M-278) (1987) concerning reasonable suspicion of illegal alienage in the workplace:

The courts have held that in pursuing investigations of illegal aliens, INS officers must be able to articulate specific facts which, when taken together, form the basis for reasonable suspicions of alienage and unlawful status in the United States. In order to be reasonable, suspicions may be based on a variety of different observations. Those that the courts have accepted include:

Officers' knowledge of high concentrations of aliens in the area; The industry or type of employment site involved; Informers' tips;

Excessive nervousness or studied nonchalance of employees in the presence of federal officers at the workplace; Foreign manners of dress or grooming; Apparent inability to speak English; Employee statements or admissions; and Inferences and deductions of the officer as a trained observer.

Service officers need to be aware that by itself, mere foreign appearance, based on ethnic characteristics or language, does not constitute a reasonable suspicion of alienage. It may, however, be considered in combination with other specific articulable facts -- particular characteristics or circumstances which the officer can, if called upon, describe in words -- such as those listed above.

In particular, INS officers engaged in worksite enforcement operations must continue to ensure that the constitutional rights of persons with whom they come into contact are respected. The consequences of failing to do so can include -- depending on the circumstances -- the exclusion of evidence, criminal or civil liability of the officer, civil liability of the United States, or agency disciplinary action.

This policy does not affect the scope of authority of Service officers under the Act, but is directed to the operational implementation of that authority. Enforcement personnel are expected to exercise sound judgment and discretion while performing their duties. Please ensure that all enforcement officers within your office are reminded of their responsibilities and statutory authority when making arrests and conducting field operations.

/signed/
Doris Meissner
Commissioner

cc: Regional Counsels

FOOTNOTES:

[1] Service regulations define "interrogation" as "questioning designed to elicit specific information." 8 C.F.R. § 287.8(b). The regulations add that "[a]n immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away." Id.

[2] The Law of Arrest, Search and Seizure for Immigration Officers 11-2 (M-69) (1993) ("Arrest Manual")

[3] Regulations at section 287.8(c)(2)(ii) state that, "A warrant of arrest shall be obtained whenever possible prior to the arrest."

[4] Different post-arrest requirements apply to persons arrested for criminal offenses, such as 264(e), than to persons arrested for illegal immigration status. For example, officers must give Miranda warnings before interrogating any person arrested for a criminal offense.

[5] Officers should be aware of any policies the local U.S. Attorney's office may have established with respect to application of this charge.

Attachment "B"

INS

OFFICE OF FIELD OPERATIONS

WORKSITE ENFORCEMENT STANDARD INVESTIGATION

PROCEDURES

May 22, 1998

Professionalizing Investigative Protocols

There are three protocols for initiating and conducting worksite enforcement investigations. The first is based upon a straight-forward investigative approach. The investigations typically start as administrative violation-type cases where there is no reason at the outset to suspect that the employer is knowingly employing unauthorized aliens or engaging in criminal conduct. The review of the employer's records would typically precede the arrest phase of the investigation.

The second protocol is an alternative to the first. It also targets predominately administrative violations. Typically, investigations start as administrative violation-type cases but there is a reason to suspect that the employer is knowingly employing unauthorized aliens. Rather than conduct the investigation in the "public view" initially, the office will conduct a worksite enforcement operation where arrests are made during an unannounced visit to the business. Oftentimes, in preparation for the operation, a warrant to search for aliens and records (Blackie's warrant) will be obtained. The arrest phase of this operation would typically precede the review of the employer's records. This approach calls for a detailed operations plan addressing concerns such as community relations, hostile situations, or other extraordinary circumstances. The investigation may evolve to a criminal case.

The third approach is the criminal investigation. This investigation will employ the traditional techniques generally used in criminal casework, for example, seeking approval from the U.S. Attorney for criminal search warrants and from higher level INS management for the use of consensual monitoring and undercover operations. These investigations may also incorporate the elements of the first and second protocols described above. The case may eventually include administrative charges, as well.

Before employing any of the three protocols, the supervisory special agent must evaluate leads to determine: whether the employer is knowingly hiring unauthorized aliens or is merely the victim of poor judgment or may have been fooled by counterfeit documents. At times, in addition to the initial leads, additional preliminary investigative work may need to be performed. Evaluation of the lead is the key to selecting the type of investigative approach. To select employer cases for investigation, acceptance criteria should be developed to prioritize the initial lead information. The criteria should include a minimum threshold for the number of unauthorized aliens, the presence of egregious employment-related actions and other factors such as criminal activities (e.g., smuggling, fraud), and the employer's history of immigration-related violations. Additionally, supervisors should consider how old the lead is and whether the reliability of the information can be determined.

The three investigative approaches described below are listed in increasing order of employer culpability based upon the lead received. Further investigation of any case may result in a case being elevated from an Approach I scenario to an Approach II if evidence of employer knowledge of unauthorized aliens is uncovered, or to Approach III if evidence of criminal activity is uncovered. Investigative efforts should always target the most egregious violators.

APPROACH I: INVESTIGATION OF WORKSITES WHERE EMPLOYERS ARE BELIEVED TO BE UNKNOWINGLY EMPLOYING UNAUTHORIZED ALIENS - REVIEW EMPLOYMENT RECORDS FIRST, ARREST UNAUTHORIZED ALIENS LATER - ADMINISTRATIVE VIOLATION PREDICATES

• Supervisory prioritization and assignment of leads - attempting to conduct a significant number of cases at one time.
• Select leads with:
  • Evidence or allegation of unauthorized aliens
  • No evidence or allegation of employer knowledge
  • Leads in the same industry and/or geographical area if possible
  • Prepare and deliver Notices of Inspection to employer
  • Obtain I-9s and other employment records
  • Review records, employee names - determine potential violations and names/numbers of unauthorized aliens
  • Host seminar (invite employers, public employment agencies, community based organizations)
  • Forum for open dialogue, fosters cooperation from employers
• Train employers, covering the following topics
  • The law
  • Preparation of the I-9
  • Detection of counterfeit documents
  • How to maintain an employment authorized work force
• At completion of seminar, provide lists of unauthorized aliens to individual employers (privately), using the Headquarters approved notification letters and inform the employers that the INS will visit their businesses to arrest unauthorized aliens in the near future (date unspecified)
• Conduct worksite enforcement operation to arrest unauthorized aliens
• Prepare an operations plan using the Headquarters checklist as guidance and obtain approval of the operations plan by necessary level of management
• Avoid contentious circumstances (e.g. restaurants at peak service time, operations near a school at arrival or dismissal time)
• Develop plan to handle unusual arrest and detention situations involving:
• aliens not in possession of evidence of lawful status
• false claims to United States citizenship
• Document names/circumstances of persons detained/arrested but who turn out to have lawful status
• arrested aliens who are owed wages
• aliens who have dependent relatives at another site
• Determine whether there is employer compliance or violations, prepare reports - serve NIFs and Warning Notices if violations are present
• Revisit employers who were served NIFs or Warning Notices if deemed appropriate

APPROACH II: INVESTIGATION OF WORKSITES WHERE EMPLOYERS ARE BELIEVED TO BE KNOWINGLY EMPLOYING UNAUTHORIZED ALIENS - ARREST UNAUTHORIZED ALIENS FIRST, REVIEW EMPLOYMENT RECORDS LATER - ADMINISTRATIVE VIOLATION PREDICATES

• Supervisory prioritization and assignment of leads
• Determine the reliability of the lead
• Select leads with:
• allegation or evidence of employer knowledge of unauthorized aliens and/or
• egregious employment acts, e.g. substandard working conditions, large percentage of unauthorized aliens
• previous violator
• Prepare an operations plan using the Headquarters checklist as guidance and obtain approval of the operations plan by necessary level of management
• Prepare Notices of Inspection, subpoenas, as necessary
• Prepare, apply for and obtain search warrants, as necessary
• Conduct operation, arrest aliens, serve Notices of Inspection/subpoenas
• Obtain I-9s and other employment records
• Review records, employee names - determine potential violations
• Determine whether there is compliance or violations - serve NIFs and warnings if in violation
• Revisit employers who were served NIFs or Warning Notices if deemed appropriate

APPROACH III: CRIMINAL INVESTIGATIONS - ALTERNATE INVESTIGATION PROTOCOL - CRIMINAL VIOLATION PREDICATES

• Supervisory prioritization and assignment of leads
• Determine the reliability of the lead
• Select leads with:
• allegation or evidence of pattern or practice of employer knowledge of unauthorized aliens and/or
• allegations or evidence of other criminal violations (i.e. alien smuggling, peonage, knowingly accepting fraudulent documents, housing unauthorized aliens, concealing records of unauthorized aliens
• Conduct preliminary information/intelligence gathering to ascertain criminal violations
• Seek concurrence of U.S. Attorney for prosecution support, consensual monitoring use
• Prepare an operations plan consisting of the standard requests for undercover operations and consensual monitoring approval
• Submit plan through District, Region, and HQ for approval
• Conduct investigation
• Undercover operation
• Interview witnesses (check with the U.S. Attorney's office to ascertain policy on sworn statements)
• Determine whether any techniques from the administrative investigation protocols (above) apply
• Prepare and present case to U.S. Attorney for prosecution
• Coordinate case between U.S. Attorney and INS District Counsel if criminal and administrative cases are pursued concurrently
• Prepare an operations plan using the Headquarters checklist as guidance and obtain approval of the operations plan by necessary level of management
• Execute arrest phase of operation
• Obtain warrants
• Conduct searches
• Arrest and arraign principals and material witnesses

Attachment "C"

INS

OFFICE OF FIELD OPERATIONS

WORKSITE ENFORCEMENT OPERATIONS PLAN CHECKLIST

May 22, 1998

This checklist should be used when preparing an operations plan to address key elements in planning a worksite enforcement operation. The checklist identifies many troublesome or problematic circumstances and will serve as a structure to plan for handling unforeseen circumstances that may arise during a worksite enforcement operation. The written operations plan may require additional factors to address particular issues of concern that are not included on this checklist.

Using the checklist will facilitate planning and will help prevent problems that may arise during the execution of the plan or that will jeopardize the safety of INS personnel, aliens in custody, or others involved in the INS operation.

A. Case

• Date of operation
• Case number
• Employer name
• Case agent
• Supervisory special agent

B. Situation

Type of Worksite Operation

• Employer consent
• Blackie's warrant
• Rule 41 warrant
• Other warrants
• Covert operation

Locations

• Briefing
• Staging
• Targets
• Processing
• Hospital
• Police Department

Special concerns

• Officer safety
• Public safety
• Media coverage
• Community issues
• Special interest cases
• Handling aliens not in possession of alien registration documents
• Processing (females, juveniles)
• Detention space
• Removal transportation (buses, JPATS, etc.)
• Plan for emergency egress from the operation

C. Personnel

INS (names and number of participants)

• Supervisors
• Agents
• Detention officers
• Deportation officers
• Support personnel
• Community relations officer or public affairs officer
• INS on-site spokesperson
• Field office point of contact for conducting record checks

Other Agencies

• Agency name(s)
• Name(s) of other agency officers
• Specific roles and duties of other agency personnel

D. Target Location

• Business name
• Address
• Maps, diagrams, photographs

E. Teams and Assignments

Personnel Assignments/Team Designations

• Interviews
• Perimeter
• Search
• Transportation
• Evidence
• Processing

F. Important Telephone Numbers

• Local supervisors and managers
• Emergency medical care
• Police department
• Fire department
• INS command center
• Processing location

G. Equipment

Communication