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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW


IMMIGRATION COURT
NEW YORK, NEW YORK

IN THE MATTER OF IN REMOVAL


PROCEEDINGS

Pedro HERRERA-PRIEGO,

Alfredo HERRERA-PRIEGO,
Respondents

CHARGE: INA § 212(a)(6)(A)(i) Present without pennission or parole

APPLICATIONS: 8 C.F.R. § 239.2(f) Motion to Tenninate Proceedings


Motion to Suppress Evidence

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE SERVICE


Michael Wishnie, Esq. Ada Guillod, Esq.
Washington Square Legal Services, Inc. Assistant District Counsel
161 Avenue ofthe Americans, 4th Floor 26 Federal Plaza
New York, NY 10013 New 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 the
United States at an unknown date and place not designated by the Attorney General. The NT As
charge the Respondents with removability pursuant to section 212(a)(6)(A)(i) of the Immigration

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and Nationality Act ("the Act"), alleging that they were present in the United States without
pennission or parole [Exhibits 1 and 2]. Also on that date, the Service obtained affidavits from
the Respondents [Exhibits 3 and 3a] and completed a form 1-213 (Record of
Deportablellnadmissible 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 NT As as well as the charge of
removability [Exhibits 1 and 2].

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

In a letter dated July 25, 2000, the Respondents requested that the Service provide them
with 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 September
21, 2000, the Respondents requested that the Court issue a subpoena to the Service for an
unredacted copy of INS fonn G-123A and for the testimony of the INS agent in charge of the
workplace raid that led to the arrest of the Respondents. In a letter dated September 26, 2000, the
Service submitted a letter-brief in opposition to the Respondents' request for a subpoena and
their motion to suppress evidence. The Service argued that the Respondents had not met their
burden 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 obtained
its evidence. In a letter dated September 28,2000, the Respondents responded to the Service's
opposition to their subpoena request, arguing that the Service had mistakenly applied the
standard for ruling on a motion to suppress and tenninate to the request for a subpoena, which is
merely that a party seeking a subpoena must set forth "what he or she expects to prove by such
witnesses or documentary evidence, and to show affinnatively that he or she has made diligent
effort, without success, to produce the same." 8 CFR § 3.35(b)(2). Furthennore, in a letter dated
October 13, 2000, the Respondents requested that the Court issue a subpoena to Professor T.
Alexander Aleinikoff of Georgetown University Law Center, fonner INS Executive Associate
Commissioner for Programs and INS General Counsel, directing that he provide written answers
to the four questions they posed. Also on this date, the Respondents submitted a brief in support

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of their motion to suppress and tenninate, exhibits and affidavits they intended to offer into
evidence, and a list of the witnesses they intended to call at subsequent hearings.

On October 26, 2000, the Respondents appeared, with counsel, for their individual
hearing. They sought to enter four affidavits into evidence. The Court noted the Service's
objection 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) as
ID 5, and the affidavit of Andres Mendez (dated October 11, 2000) as ID 6 [later entered as
Exhibit 6]. The Service objected to part of Group Exhibit 7, a portion of the affidavit of Hayne
Yoon, one of the law students representing the Respondents, as she could not simultaneously
serve as witness and counsel for the Respondents. The Court sustained the Service's objection to
the portion of the affidavit which reflected Ms. Yoon's conversation with Barbara Huie, Acting
Director 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 dispute
at 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 the
March 1,2001 continued hearing, pending the DOL investigation into a retaliation claim against
H.C.Contracting on behalfoffonner employees at the finn's factory. On February 20,2001, the
Respondents submitted affidavits and exhibits they intended to offer into evidence and a list of
the witnesses they intended to call at the continued individual hearing. The Court granted the
Respondents' 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 a
subpoena to Charles Horwitz. On October 16,2001, the Respondents submitted appearance
fonns and a witness list for the November 15, 2001 continued individual hearing and reiterated
their request to subpoena Mr. Horwitz. On October 22,2001, the Respondents submitted
affidavits 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 and
updating the Court on recent developments in the case. In a letter dated November 5, 2001, the
Respondents submitted a revised witness and exhibit list, as well as additional exhibits, for the
November 15,2001 hearing. On November 7, 2001, the Respondents submitted the additional
affidavit of Dominga Espinoza, a fonner employee ofH.C. Contracting who was present during
the 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. The
Court noted the Service's comment that Professor Aleinikoff did not testify with respect to any
particular case that he personally observed. The Respondents then called Charles Horwitz to

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testify as an expert witness, based upon his position as Senior Attorney at the DOL. He testified
as to the DOL's investigation into the dispute over overtime wages at H.C. Contracting as well as
to 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. I 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 survey
that led to the Respondents' arrests.

On October 11, 2002, the Respondents submitted a letter-brief in support of their motion
to terminate removal proceedings and suppress evidence based on the Service's violation of
Operations Instruction 287.3a (''the 0.1.") [Group Exhibit 14]. The Respondents noted the
Service's undisputed failure to follow the 0.1., which requires that ''whenever information
received from any source creates suspicion that an INS enforcement action might involve the
Service in a labor dispute, a reasonable attempt should be made by Service enforcement officers
to 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 the
0.1. violated their fundamental labor rights under federa11aw and also prejudiced the overall
fairness of their case.

On November 12, 2002, the Service submitted a letter-brief in opposition to the


Respondents' 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 may
be a labor dispute in progress" [Group Exhibit 14]. The Service further argued that because the
0.1. is merely an instruction without the same force oflaw as an officially promulgated rule or
regulation, failure to follow it should not result in termination of proceedings. On November 14,
2002, the Respondents submitted a response to the Service's letter-brief, citing case law stating
that 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 opening
statement. 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 NY
DOL, (dated March 27,2002) [ID 16A], the internal memorandum of the NY DOL, (dated March 1,2001) [ID
16B], the Stipulation between H.C. Contracting and the NY DOL (May 17, 2001) [Group ID 17], a letter from
Joseph 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 relevance
because these documents represented events occurring after the Respondents' arrest. The Court marked for
identification 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 Court
noted the Service's objections to the affidavits of anyone not testifying in court.

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II. Evidence

Exhibit 1: Notice to Appear-Pedro Herrera-Priego (April 16, 1998)


Exhibit 2: Notice to Appear-Alfredo Herrera-Priego (April 16, 1998)
Exhibit 3: INS Affidavit-Pedro Herrera-Priego (April 16, 1998)
Exhibit 3A: INS Affidavit-Alfredo Herrera-Priego (April 16, 1998)
ID4: Affidavit of Pedro Herrera-Priego (October 10,2000)
ID4A: Affidavit of Alfredo Herrera-Priego (October 10,2000)
ID 5: Affidavit ofRogelio Ramon Sanchez-Guillen (October 11,2000)
Exhibit 5G: NY DOL Revised Recapitulation Sheet (redacted) (April 3, 1998)
Exhibit 6: Affidavit of Andres Mendez (October 11,2000)
Exhibit 6A: Complaint by Andres Mendez to NY DOL (July 1997) and 1997 Opinion
and Award by the NLRB
Group Exhibit 7: Affidavit 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's
Office dated June 6,2000,
New York Times article, "Greeted at Nation's Door, Many Visitors Stay
lllegally" (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)
Exhibit 8: Affidavit ofKam Chan, NY DOL Investigator (October 13, 2000)
Exhibit 9: NY DOL Revised Recapitulation Sheet (April 3, 1998) (duplicate ofthat
submitted as part of Group Exhibit 7),
Exhibit 10: INS Form G':'123A (October 7, 1997)
Exhibit lOA: Letter from DOL to INS (January 3,2001)
Exhibit lOB: Letter from Charles Horwitz regarding FOIA request (April 14, 2002)

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Group Exhibit 11: Phone records for H.C. Contracting (September/October 1997) and
Affidavit ofBeatriz Gonzalez (January 3,2001)
Group Exhibit 12: Urban Institute Study (1998)
Exhibit 13: INS Investigations File for H.C. Contracting
Group Exhibit 14: Statement ofT. Alexander Aleinikoff(October 20, 2001) and 0.1. 287.3a
Group Exhibit 15: FOIL Response from Charles Horwitz of the NY DOL and Affidavit of
Charles Horwitz (October 18, 2001)
ID 16A: FOIL Response by the NY DOL (March 27, 2002)
ID 16B: Internal Memorandum of the NY DOL (March 1,2001)
Group ID 17: Stipulation between H.C. Contracting and the NY DOL (May 17,2001)
ID 18: Letter from Joseph Ferrara to the NY DOL (May 30,2001)
ID 19: Copy of $5000 check from H.C. Contracting to the DOL as settlement
payment with attached certification by DOL
Exhibit 20: INS Form G-166C, Investigation Memorandum (February 4, 1998)
Group Exhibit 21 : New York Times article, "Files Suggest Profiling of Latinos Led to
Immigration 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's
Office dated June 6, 2000 (duplicate of that submitted as part of Group
Exhibit 7),
Demographics of New York's Garment Industry, 1998,
Affidavit ofHirokazu Yoshikawa (October 16, 2001)
Exhibit 22: Study of J.F.K. Airport (September 21,2001)
Exhibit 23: Comments by former INS Commissioner James Ziglar (July 18, 2001)
Group ID 24: Affidavit of Irene Cheng (October 11,2001) and Diagram ofH.C.
Contracting
ID25: Affidavit of Eugenio Salazar (November 2,2001)
ID26: Affidavit of Dominga Espinoza (November 6, 2001)
Exhibit 27: Affidavit of Mina Park (April 15, 2002)
Exhibit 28: INS Form G-123a (sample)
Exhibit 29: Affidavit ofKam P. Chan (April 11, 2002)
Exhibit 30: Letter from INS to Make the Road by Walking and affidavit of Benjamin
Sachs (April 23, 2002)

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III. Testimony

1. The Respondents

a. The Respondent. Pedro Herrera-Priego

The Respondent, Pedro Herrera-Priego, testified to the following:

The Respondent, Pedro Herrera-Priego, was employed by H.C. Contracting, a garment


factory, from the end of 1995 until April 16, 1998. He testified that H.C. Contracting employed
approximately sixty to seventy people while he was working there. The employees, including the
Respondent, pressed and sewed. The Respondent estimated that, in 1998, approximately half of
the employees were Latino.

The Respondent identified a diagram ofthe factory floor ofH.C. Contracting [Group ID
24]. 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 April
16, 1998. When the Service agents arrived one hour later, he was standing and pressing. The
Respondent recognized the agents because some of them were wearing green Service uniforms
and Service badges. He saw some ofthe agents enter through the front door and others through
the 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 and
show their documents. Latino, Asian, and some Polish employees were working in his area at
the time. Although he saw Latino workers in his area being questioned, he did not see any Asian
workers being questioned.

An agent then brought the Respondent to the front of the factory, where he was
questioned and hand~cuffed. The Respondent testified that approximately twenty-five or twenty-
six workers were likewise arrested, and they were all Latino. The Respondent remained standing
in the front of the factory for the remainder of the raid, from which point he could see almost the
entire 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 Latino
workers in these areas. The Respondent saw the Service agents question only two of the Latino
workers in area "4." Two Asian workers and several Americans were working in area "6." The
Respondent 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 see
the INS agents question any Asian workers throughout the entire raid, but he did see the Service
agents question and hand-cuff one Polish woman. The Respondent testified that his boss was not
present at the factory the day ofthe raid.

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

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in his area "3." Three of the four males in that area were Latino. There were approximately ten
to 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 Latinos
in area "1" were men, while most of the Asians were women. In area "4," there were
approximately three or four Latinos (all men) and approximately six to nine Asians (all women
except one). Out of the approximately ten to twelve workers in area "5," two or three were
Latino (all men) and the rest were Asian (mostly women) [Group ID 24]. Two Asian men and
approximately six Latino men were in area "6." Questioning of a worker lasted approximately
one 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-Priego

The 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 at
the factory in 1998. Approximately half of them were Latino, and the others were Asian or
Polish.

On April 16, 1998, the Respondent arrived at the factory at eight o'clock and went to
work in the front of the building. He was standing when the Service agents arrived. He
identified them by their badges and by their blocking of the doors and their questioning of
employees. Still standing, the Respondent saw Service agents questioning two Latinos. He did
not see them question any Asian or Polish workers.

The Respondent testified that other than the noise of the machines, there was no noise in
the 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 listen
to the radio while they worked. The Respondent testified that the air conditioning was on that
day. He could not remember how he was dressed. He saw the Service agents question and arrest
several Latino workers whom he knew personally. Other than his brother, he did not have any
relatives working at the factory on April 16, 1998.

2. Rogelio Ramon Sanchez-Guillen

On 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 for
some unspecified time, he joined the union, UNITE. He became a union representative, in which
capacity he assisted his co-workers by answering questions about the union dues or addressing

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problems with the owner. As a union representative, he had the occasion to speak with the
majority of the employees at H.C. Contracting. Mr. Sanchez testified that approximately seventy
or eighty people worked at H.C. Contracting in April of 1998. He spoke in Spanish with the
majority who were Latinos and communicated as best as he could in English with the few
Asians. He testified that he discussed their countries of origin with them. Approximately
seventy to seventy-five percent ofthem were Latino, twenty percent were Asian, and five percent
were European. Mr. Sanchez testified that he spoke about immigration status with some ofthe
non-Latino workers and knew that some of them were undocumented, though he could not
estimate how many.

Mr. Sanchez stated that he knows both of the Respondents. When Mr. Sanchez began his
employment, 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 behind
him. No managers were in his area. Mr. Sanchez heard the door buzzer ring about two times
until 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 the
workers. Mr. Sanchez saw an agent question the Respondent, Alfredo Herrera-Priego, who was
standing approximately five feet from Mr. Sanchez. Mr. Sanchez overheard the Service officer
ask the Respondent ifhe had any documents, and the Respondent replied that he did not. A
Service officer likewise asked Mr. Sanchez for his documents. The officer initially asked in
English but then asked again in Spanish when he realized that Mr. Sanchez could not understand
much English. The agent then hand-cuffed Mr. Sanchez and led him to the line of arrestees near
the 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 of his 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 question
Latinos. For example, they questioned an Ecuadorian, then they skipped over a Korean and
started questioning another Latino.

Next, Mr. Sanchez testified that he had worked over forty hours per week before but had
not 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 for
approximately one and one-half months, he joined his co-workers in their request for overtime
payment 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 paid
overtime. Mr. Sanchez informed him that they were not. He and his co-workers requested that
Mr. Ferrara pay them overtime. Mr. Ferrara refused and told them that if they did not want to

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

The employees who had been working at H.C. Contracting the longest met three times
with 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 these
meetings. Mr. Ferrara only attended one of the meetings. Mr. Sanchez testified that initially, he
did not accompany his co-workers to the DOL to file a complaint for overtime wages. He later
decided to file a complaint on his own. At the time ofthe raid, his complaint had not yet been
resolved. The DOL had informed him that it was processing his complaint, and he did not
receive the money until after he left H.C. Contracting.

Mr. Sanchez testified that he has known the Respondent, Pedro Herrera-Priego, for
approximately 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. He
stated that except for one Polish woman, he only observed the Service questioning Latinos during
the 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 questioning
the Polish woman. Upon returning to H.C. Contracting to pick up his check, he spoke with the
majority of his co-workers, who informed him that the Service did not question any other
workers after he left. They reiterated that the Service had questioned only Latino workers and no
Asian workers. Counsel for the Service asked why Mr. Sanchez did not discuss going back to
H.C. Contracting and speaking with the employees in his signed statement. Mr. Sanchez replied
that he only recently remembered this incident as he was testifying. He stated that he never
discussed 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 social
security card he had was fraudulent or false. Mr. Sanchez paid someone who told him he would
procure a social security card for him. Mr. Sanchez testified that he never asked any of the
employees if they had similar documents. Counsel for the Service asked why Mr. Sanchez
testified in court that Mr. Ferrara was not at the factory on April 16, 1998, but did not include
this information in his statement. Mr. Sanchez replied that he did not know why, but that he had
mentioned it before and that it was unusual because Mr. Ferrera had always arrived early. When
asked 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 the
factory is big. Counsel for the Service pressed him as to whether he saw the Service question
every person whom had been arrested, and Mr. Sanchez replied that he saw the majority of those
questioned.

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3. Andres Mendez

On October 26,2000, Mr. Andres Mendez appeared before the Immigration Court as a
witness for the Respondents and testified to the following:

Mr. Mendez is a legal permanent resident. Beginning in December of 1993 and


continuing for about three or four years, he was employed to iron at H.C. Contracting, owned by
Joseph Ferrara. Although no union existed when Mr. Mendez began work, he joined the one
organized soon thereafter. While Mr. Mendez was employed at H.C. Contracting, approximately
sixty to eighty employees worked there.

Mr. Mendez testified that when he first started working at H.C. Contracting, he worked
overtime without receiving overtime pay. He spoke to five or six other workers who also worked
overtime without adequate compensation. Mr. Mendez attended approximately three or four
union meetings about overtime pay. The first one occurred in 1997, and approximately five or
six workers attended. The second meeting also occurred in 1997, and approximately fifty of the
workers attended. At this meeting, the union representative requested overtime, benefits, and a
higher salary. All of the workers attended the third meeting, also in 1997, and the union
representative made the same requests. Mr. Ferrara only attended one meeting, where he did not
speak about overtime. When they eventually received overtime pay, their salaries were
consequently lowered. Mr. Mendez attended a union meeting with Mr. Ferrara to protest the
decrease in salary. Mr. Mendez testified that when he asked Mr. Ferrara why he had lowered
their 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 gone
to the DOL, Mr. Mendez replied that he did not know. He stated that he may have been fired
because he went to the DOL. Mr. Mendez spoke with co-workers who told him they were also
fired 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 would
do something to reinstate them, some kind of arbitration. Near the end of 1997, Mr. Mendez
attended a hearing about being dismissed from his employment. As a result of the hearing, he
was 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 union
meetings, 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 on
April 16, 1998. He stated that while he was working there, about half of the employees were
Latino, and the rest were Chinese, Korean, and Polish.

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4. Professor Thomas Alexander Aleinikoff

On November 15, 2001, Professor Thomas Alexander Aleinikoff, as a witness for the
Respondents, testified telephonically to the following:

Professor Aleinikoff 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 at
Georgetown since 1997. From 1981 until 1994, he taught at the University of Michigan Law
School. 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 1994
to 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 for
Programs 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 service
sides. His duties included policy fonnulation and review of policy memorandum.

Professor Aleinikoff stated that he is familiar with Operations Instructions ["O.l.s"]. He


explained that an Operation Instruction is a policy promulgated by an agency, usually for field
personnel, as an instruction by the agency to its own people. He was responsible for the
promulgation 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 the
Service has reason to suspect that a source might be providing infonnation about potential
undocumented aliens in order to interfere with the rights of the employees in the middle of a
labor dispute or for retaliatory purposes, the 0.1. instructs the Service to take certain steps before
initiating 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 field
agents to follow it. He described the reason for the promUlgation of the 0.1. as "a combined
purpose." He explained that the 0.1. prevents the Service from being manipulated by employees
or employers in the context of a labor dispute. It also prevents the Service from getting involved
in 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 the


Operations Instruction. Clearly, we thought that if the Service was
getting involved in an area regulated elsewhere by federal law, one
where investigators could be used by employers to help deny people
rights, we thought that was not an appropriate role for the Service to
be taking, and we worked closely with the Wage and Hour Division
ofthe Labor Department and elsewhere, and contacted with the Labor
Department on a regular basis on the overlap between labor law~ and

12
immigration laws, and how sometimes they work together and
sometimes how they work in conflict, and we tried to sort out a way
that the labor laws could be accomplished and fulfilled without
unduly getting involved in the immigration process. They were
obviously important enough rights for us to go through the process of
issuing the Instruction and to sort these problems out.

Professor Aleinikofftestified that the OJ. does not expressly prohibit enforcing the
Immigration and Nationality Act in every situation that involves a labor dispute, but that there are
certain procedures to be followed. He explained that upon receiving information about potential
undocumented aliens, Service agents should ask certain questions to determine if a labor dispute
is in progress. If an ongoing labor dispute exists, the OJ. requires that the Service agents defer
the decision to take enforcement action to the District Counsel and the Assistant District Director
for Investigations.

Professor Aleinikoff described a "labor dispute" as:

Anything within the National Labor Relations Act, so it would be an


election for a union, collective bargaining, an attempt to begin the
election for collective bargaining or creating a syndicate for a lockout
or strike or anything like that. But from the first paragraph of the
0.1., as well, it was broader than that. It was also intended to operate
across a wide array of labor laws, so wage and hour disputes,
occupational safety, health, discrimination laws, Title Seven, other
kinds of objections against discrimination. And, as I said, the
purpose was to try to make sure the INS wasn't used by employers to
take away the rights of employees under these very important areas
of federal law.

In response to a question about when the Service would ever have any role in labor
disputes, Professor Aleinikoffreplied:

I would think very rarely. There are lots of enforcement actions the
INS could take. There are lots of ways it can serve its priorities. And
it seems that this should be a very low priority, if ever a priority, to
undertake an enforcement action when there is an ongoing labor
dispute. As I said, the Instruction didn't prohibit it, and I suppose
there could be situations irrespective of information, if there were
some serious set of facts. There's not even a situation that springs
immediately to my mind where if the Service got a tip and followed
it up and found that the employer was attempting to have people
removed from the worksite in order to get them to defeat a union
election or to take strength out of the collective bargaining action or

13
to retaliate against people for filing a complaint for wage and hour
disputes. It's hard for me to imagine a situation under the Operations
Instruction where the INS should undertake that kind of enforcement
action.

Professor Aleinikoff further explained that when a Service agent suspects that a tip about
undocumented workers involves a labor dispute, "the good investigator" would ask probing
questions about how the source came to possess that information. He stated that "a conscientious
investigator" would ask detailed questions about the situation to prevent the Service from
wasting valuable resources and inappropriately getting involved in a labor dispute. Although
Professor Aleinikoff testified that he was unfamiliar with the day-to-day practice of investigators
and the particular questions they ask, he added that any law enforcement officer would ask
enough questions to have a sense of the entire situation. Professor Aleinikoff then read the third
paragraph of the Operations Instruction, ''Persons who provide information to the Service about
the employer or employees involved in the dispute should be asked the following ... " and noted
the list of questions which the Service should ask [Group Exhibit 14].

Finally, when asked whether the Operations Instruction or any other instructions to
Service personnel address the situation where Service personnel encounter a situation and do not
realize until later that they are in the middle of a labor dispute, Professor Aleinikoff read and
paraphrased the second to last paragraph of 0.1. 287.3a [Group Exhibit 14]:

When Service enforcement action is taken and it is then determined


that there was a labor dispute or that the information was provided to
the Service to retaliate, the lead immigration officer at the worksite
should check with other law enforcement agents to see whether it's
appropriate to keep arrested or detained aliens in the country to help
with the prosecution of whatever labor case might be made.

5. Charles Horwitz

On November 15,2001, Charles Horwitz appeared before the Immigration Court as a


witness for the Respondents and testified to the following:

Charles Horwitz is a Senior Attorney with the New York State Department of Labor
(''NY DOL',) and reports to the Counsel's Office to Enforce Labor Laws. He has been working
at the NY DOL for sixteen years. Mr. Horwitz stated that he is familiar with the garment
industry in New York State because he represents the Commissioner of Labor in New York in
ninety-nine percent of the cases against garment manufacturers and contractors in the New York
City and downstate area.

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

14
in New York City. Further, he stated that approximately one-third of the gannent workers in
New York City are also Latino. Mr. Horwitz testified that he knows the gannent
manufacturer/contractor H.C. Contracting. He stated that he met Joseph Ferrara, the president of
H.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 that
after the DOL investigated that complaint, it found that H.C. Contracting routinely underpaid
workers overtime wages. The investigation into the overtime payments began in July of 1997
and continued for several months. After the investigation started, about nine or ten employees
from H.C. Contracting filed complaints with the DOL. The DOL sent H.C. Contracting a notice
oflabor 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 described
the NY DOL Recapitulation Sheet as the standard form that the DOL submits to employers when
it determines that there was underpayment, along with a demand for payment of a stipulated
amount. 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 finally
agreed 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 a
communication from Mr. Ferrara to the Service to have some workers deported as a result of the
complaints placed with the DOL for overtime. The DOL believed that H.C. Contracting had
violated section 215 of New York State labor law, which is the anti-retaliation provision. In
2001, Mr. Horwitz discovered that H.C. Contracting, in an attempt to avoid paying wages, fired
workers and also complained to the Service to attempt to have them deported. Mr. Horwitz
initiated an investigation by the Division of Labor Standards to determine if there was a violation
of section 215. He explained, "Section 215 of the labor law has been on the books for many
years, and it says, in effect, that if an employee complains to the DOL, his employer should not
retaliate 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 in
question. It found that H.C. Contracting had made several phone calls to the Service in
September of 1997 [Group Exhibit 11]. Mr. Horwitz stated that he then wrote a letter to the INS
District 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 labor
disputes exist [Exhibit lOA). Mr. Horwitz stated that the District Director graciously provided
him with an unredacted copy ofthe tip sheet. Mr. Horwitz then identified INS Form G-123A and
stated that the INS District Director had told him it was a tip sheet, and·that the Service had
completed it, based on information provided by a source [Exhibit 10]. Mr. Horwitz testified that
the source listed on the tip sheet was Joseph Ferrara. He further testified that Mr. Ferrara was
listed 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 of
violation of section 215 of the labor law.

15
Mr. Horwitz stated that the DOL then contacted H.C. Contracting, and DOL investigators
met with Mr. Ferrara. They determined that there was in fact retaliation on Mr. Ferrara's part
because 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 under
section 215 of the labor law or attend a hearing. Before the DOL holds a hearing, it conducts a
compliance conference, where a hearing officer and both parties appear. H.C. Contracting
protested the violation and attended a compliance conference with a hearing officer. Mr. Ferrara
appeared with counsel, and at the conclusion of that compliance conference, he agreed to pay the
civil penalty.

Mr. Horwitz further testified that if the Service were to call the DOL to inquire into a
labor dispute, it would be directed downstate to Thomas Glubiak, who is the Chief of the
Apparel Task Force, a staff of twenty-nine people who do nothing but investigate apparel law
violations in New York City and throughout the State. In non-apparel cases, the Service would
contact Manny Fruchter, who is the Chief of Labor Standards for the downstate area of New
York. If the Service had a public works problem, it would contact Christopher Alun, who is
based in Albany. Mr. Horwitz testified that the Service neither contacted him personally nor any
of these men about H.C. Contracting. He learned this after speaking with Mr. Glubiak, who is
the 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 the
investigatory level, protocol requires notification through the chain of command, all the way up
to Mr. Glubiak. Mr. Glubiak was never notified in this instance. Moreover, since Mr. Glubiak
assumed office in 1990, the Service has never contacted him about a raid when there was an
ongoing labor dispute or about any raid at all. Mr. Horwitz further testified that if the Service
had 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 the
Service contacted the DOL regarding H.C. Contracting.

Mr. Horwitz confirmed that he received the G-123A form [Exhibit 10] in his capacity as
Senior Attorney with the DOL, to be used in reference to any type oflabor relation action that his
department was taking. He stated that someone at the District Director's office prepared it and
provided it to him. He declared that he had never seen a G-123A form before receiving the one
at issue. Mr. Horwitz conceded that he did not know the substance of the conversation at the
time that the informant called the Service. He stated, however, that at the compliance
conference, 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 retaliation
claim covered the time period involved in this whole matter. He stated that the essence of the
section 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 and
called 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
In response to the Service's question whether the Service has a practice of contacting the
DOL in situations like the one at hand, Mr. Horwitz stated that he had never dealt with this kind
of case before, but that he had heard about "problems." He clarified that he asked the contact
people in the DOL whom he mentioned earlier if the Service had ever contacted them to inquire
whether a labor dispute was in progress before conducting a raid, in order to comply with the
Operations Instruction. Mr. HOIwitz repeated that these individuals declared that the Service had
never 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 of
public works, which is unrelated to H.C. Contracting.

6. Special Agent Christopher Dyckman

On April 29, 2002, Special Agent Christopher Dyckman appeared before the Immigration
Court 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 the
Service since October of 1996. Agent Dyckman was the case agent in charge of the Service's
investigation into H.C. Contracting. He explained that a case agent conducts an investigation
once a supervisor assigns it. AgentDyckman was in charge of investigating allegations the
Service received that H.C. Contracting was employing undocumented workers. He testified that
the office received the G-123A complaint [Exhibit 10] in October of 1997, and he received his
assignment in or around January of 1998. Agent Dyckman reiterated that he himself did not take
down the information on the complaint form.

Agent Dyckman testified that he personally did not contact the DOL in reference to the
complaint 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. He
stated that he was not aware whether his supervisors ever contacted the DOL.

After receiving the complaint, Agent Dyckman verified the existence ofH.C. Contracting
and submitted a request to the Service's surveillance unit to attempt to confirm or corroborate
any of the information on that complaint [Group Exhibit 7]. He testified that the agents who
conducted the surveillance concluded that their observations appeared to corroborate the
information on the complaint. Once he received the surveillance report results, he added that to
the case file, in addition to the other information that he had. His supervisor then reviewed the
file, and he submitted a request to conduct an investigative inspection and a consent survey on
the location [Group Exhibit 7]. Agent Dyckman described a "consent survey" as "the operation
at the location whereupon there is no warrant to enter the premises. It's consensual. The person
in 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 that
employers are required to fill out."

17
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 his
supervisor, who granted pennission to attempt the consent survey [Group Exhibit 7]. Agent
Dyckman 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 to
enter the premises and speak to the employees. Agent Dyckman stated, "In other words, it's
warrantless. It's called 'consensual' because they are allowing us to come in and speak to the
employees." In conducting the consent survey on April 16, 1998, Agent Dyckman arrived at
H.C. Contracting with approximately twenty-five or thirty other agents and two or three
supervisors. 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 to
the manager's office to answer any questions about what was going on in the factory at that time
and to explain the requirements of the 1-9 inspection that the Service planned to conduct. He
stated that the law requires three days notice before conducting an inspection, so he served that
notice 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 removal
proceedings against them. Agent Dyckman explained that "processing" is a paperwork
procedure 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 individuals
arrested. The Service uses the biographical infonnation to corroborate the alien's removability,
which was detennined before making any arrests. Agent Dyckman testified that the Service
enters the biographical data of every individual arrested into the central index system, which is a
Service 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 inspection
of the company. This investigation revealed that twenty-two fraudulent documents had been
presented to the employer as evidence of employment authorization. The Service notified the
employer, in writing, of the names of the individuals and the document numbers which the record
checks had detennined were fraudulent.

The Service conducted the 1-9 inspection on May 4, 1998. Agent Dyckman explained
that employers are required to fill out an 1-9 fonn for each employee, verifying that the employee
is eligible to work in the United States. After the inspection, the Service compiled the results of
the inspection and notified Mr. Ferrara of the findings.

On cross-examination, Mr. Dyckman reiterated his familiarity with the investigation into
H.C. Contracting, including the preliminary actions the Service took before the consent survey on
April 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 Labor
Relations Board (''NLRB''), or any other State or federal labor agency during the course of the

18

investigation. Further, he stated that he personally never contacted the NLRB or any federal or
State labor agency in regard to H.C. Contracting during the course of the investigation. Agent
Dyckman 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 the
Service had ever submitted the file of the 1997-98 investigation ofH.C. Contracting to the INS
District Counsel for review [Exhibit 13]. He testified that the the Assistant District Director for
Investigations did not approve the surveillance request because such requests are not submitted to
him. Instead, they are submitted to the surveillance unit. Agent Dyckman was not aware of any
approval of the consent survey by the Assistant District Director for Investigations. He was not
aware 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 official
directed 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, he
could not recall for certain. When asked generally whether the Special Agent or any other
Service officer directs the agents participating in a consent survey not'to pick out workers to
question based on race or ethnicity, Agent Dyckman stated that he could not testify as to a
general rule because every situation is different. In response to the Court's question whether
directives are generally given before any raid or during training, Agent Dyckman responded that
the case agent generally provides a briefing to the agents. He stated that a briefing did occur in
this particular case. Agent Dyckman explained that the case officer is the agent who has the
majority 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 safety
and to inform them of the consent survey's purpose. The case agent imparts to the other agents
information such as an estimated number of employees, any knowledge about the company, and
any other information relevant to the investigation. Agent Dyckman testified that he personally
has never instructed agents to question a certain number of people, and he was not aware of any
time where such an instruction had been given.

Agent Dyckman stated:

In this particular case, I don't recall specifically what was said, but
based on my experience in similar situations, I would say, "Ok, this
is the name of the company. This is where they're located, on what
floor of the building they're located on. There are approximately x
amount of workers." That would be the instruction in this particular
case that might've been given. There would have been no
instructions, "Only talk to certain ethnicities of people." Nothing like
that would've been given in this case.

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

19
H.C. Contracting, dated February 4, 1998 [Exhibit 20]. Agent Dyckman stated that he was not
the author of this form. He confirmed that the surveillance form says that forty to fifty workers
may 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 not
aware of what led the surveillance agent to conclude that about forty to fifty workers supported
the claim that there were undocumented workers at H.C. Contracting. From reading lines eight
through eleven of the surveillance report, he discerned that the surveillance agents' observations
seemed to corroborate the information received in the complaint [Exhibit 20]. Agent Dyckman
reiterated that he then submitted the case file with the information from this report to his
supervisor for approval of the consent survey and the investigative inspection.

Agent Dyckman stated that the surveillance report's conclusions were straightforward and
led him to request the consent survey and inspection. He stated further, "There is no reason 1
would not believe the agents who conducted the surveillance. If they saw that the allegations
could be corroborated, 1 would have no reason to think that they were wrong." Agent Dyckman
stated that in particular, the statement that the surveillance agent believed the claim of
undocumented workers may be supported prompted him to forward the complaint to his
supervisor.

Agent Dyckman testified that Service agents are made aware of Operations Instructions
and that there are several of them. Although the O.l.s are sometimes distributed, the agents do
not specifically receive copies ofthem on the day of a consent survey. He further stated that he
believed agents are supposed to receive copies of O.l.s as they are issued. As far as he was
aware, no 0.1. prohibits pursuing a G-123A complaint. The Court asked Agent Dyckman ifhe
ever read a surveillance report and found that it was not sufficient to support a complaint. He
replied that he could not recall, but that it was ''very possible." Finally, in response to a
clarification question by counsel for the Service about what happens to a file after a consent
surveyor inspection, Agent Dyckman stated that a consent survey is completed once any
individuals who may have been arrested are processed and "whatever is going to happen happens
to them." After the completion of an 1-9 inspection, the Service notifies the employer of the
results. If the 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, including
but not limited to the NTAs issued to the Respondents [Exhibits 1 and 2], the INS Affidavits of
the Respondents [Exhibits 3 and 3A], and the INS Forms 1-213 should be suppressed because of
the 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 of
appellate review.

20
allegations or removability.

A motion to suppress evidence as illegally obtained must be supported by specific and


detailed statements based on personal knowledge and must set forth a prima facie case of
illegality. Matter of Wong, 13 I&N Dec. 820,822 (BIA 1971). An alien who raises a claim
questioning 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 justifying the manner in
which 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 in


certain instances in deportation proceedings. Matter ofVelasguez, 19 I&N Dec. 377, 380 (BIA
1986). To be admissible in deportation proceedings, evidence must be relevant and probative
and 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 is
closely related to the reliability and trustworthiness of the evidence." Felzcerek, supra. Absent
any 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 ofMeiia, 16
I&N Dec. 6, 8 (BIA 1976). A prima facie showing that a statement was involuntarily obtained
warrants 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 if
the manner of the acquisition of evidence is so egregious that it offends the Fifth Amendment's
fundamental fairness requirement. Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980). The
Supreme Court has even intimated, in dicta, that it may be appropriate to exclude evidence when
there are "egregious violations of Fourth Amendment or other liberties that might transgress
notions 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, 21
I&N Dec. 351, 353-354 (BIA 1996) (noting the respondent's "egregious arrest," but refusing to
apply the exclusionary rule because the Respondent made a tactical decision to provide the
evidence voluntarily).

In what has been deemed "the Accardi doctrine," the Supreme Court held that a federal
agency 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 this
doctrine, "Where the rights of individuals are affected, it is incumbent upon agencies to follow
their own procedures. This is so even where the internal procedures are possibly more rigorous
than otherwise would be required." Morton v. Ruiz, 415 U.S. 199,235 (1974). Moreover, the
Second Circuit Court of Appeals reiterated the Accardi doctrine and added, "Its ambit is not
limited 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 right


derived from the Constitution or a federal statute, and the INS fails to
adhere to it, the challenged deportation proceeding is invalid and a

21
remand to the agency is required ... On the other hand, where an INS
regulation does not affect fundamental rights derived from the
Constitution or a federal statute, we believe it is best to invalidate a
challenged proceeding only upon a showing of prejudice to the rights
sought to be protected by the subject regulation.

Waldron v. INS, 17 F.3d 511,518 (2d Cir. 1994). The Board of Immigration Appeals ("the
Board") detennined, "Where an entire procedural framework, designed to insure the fair
processing of an action affecting an individual is created but then not followed by an agency, it
can 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 obtained
in violation of an individual's First Amendment rights." Montero v. INS. 124 F.3d 381,386 (2d
Cir. 1997).

v. Legal Analysis

In the instant case, the Court fmds that the Respondents have demonstrated that the
Service's evidence of removability was acquired in an illegal and egregious manner. It is
undisputed that the Service violated its Operations Instruction 287.3a, which states, "Whenever
information received from any source creates a suspicion that an INS enforcement action might
involve the Service in a labor dispute, a reasonable attempt should be made by Service
enforcement 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 whether
a labor dispute exists: the NLRB, the U.S. DOL, and the State DOL. Special Agent Christopher
Dyckman, the case agent in charge of the H.C. Contracting investigation, testified that he
personally never contacted the DOL, the NLRB, or any other State or federal labor agency during
the 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 [Exhibit
13]. Likewise, Mr. Charles Horwitz, Senior Attorney with the NY DOL, testified that he recently
reviewed the DOL's H.C. Contracting file and did not see any notations indicating that the
Service contacted the DOL regarding H.C. Contracting. He also spoke with Thomas Glubiak,
Chief of the Apparel Task Force, and Manny Fruchter, Chief of Labor Standards for the
downstate area of New York. Both of those individuals confirmed that the Service never
contacted them to inquire whether a labor dispute existed at H.C. Contracting [Group Exhibit
15].

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 or
working conditions, discriminatory practices or about union representation or actions, or whether
they have filed workers' compensation claims" [Group Exhibit 14]. The Service knew that the
source, Joseph Ferrara, was the employer and owner ofH.C. Contracting because he is listed as
such on the unredacted tip sheet [Exhibit 10]. This Form G-123A reads, ''Previous INS visit
suspect doc list. Recently hired 45 to 55. Suspects that some might be illegals. Owner is willing

22
to cooperate with INS in an inspection and consent survey" [Exhibit 10]. Despite the suspicious
circumstance of an employer turning in his own employees, the Service proceeded with its
investigation without further inquiry.

In addition to the testimony of Rogelio Ramon Sanchez-Guillen, Andres Mendez, and


Charles 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 the
company [Exhibits 5G-9, Group Exhibit 15, Exhibits 29-30]. Further, Mr. Horwitz' testimony
corroborates his affidavit that Mr. Ferrara called the Service in order to retaliate against his
employees for their labor organization efforts [Group Exhibit 15]. Mr. Horwitz testified that at
the compliance conference, Mr. Ferrara admitted to having called the Service on more than one
occasion, and the phone records confirm this [Group Exhibit 11].

0.1. 287.3a states, "Generally, there is no prohibition for enforcing the hnmigration and
Nationality Act, even when there may be a labor dispute in progress. However, where it appears
that information may have been provided in order to interfere with or to retaliate against
employees for exercising their rights, no action should be taken on this information without the
review of the District Counsel and approval of the Assistant District Director or an Assistant
Chief Patrol Agent" [Group Exhibit 14]. Agent Dyckman testified that he was not aware
whether the INS District Counsel ever reviewed the H.C. Contracting file. He further stated that
he did not see anything in the Service's file indicating that the Service had ever submitted the file
of the 1997-98 investigation ofH.C. Contracting to the INS District Counsel for review [Exhibit
13]. The Service violated 0.1. 287.3a both by failing to contact the specified organizations to
inquire about a possible labor dispute and by failing to seek review and approval by the
appropriate authorities.

The Court rejects the Service's argument that because the 0.1. is merely an instruction
without the same force of law as an officially promulgated rule or regulation, failure to follow it
should not result in termination of proceedings. Instead, this Court finds that the Service's
failure 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 not
intrude into areas governed by federal labor law that protected important rights of both labor and
employers" [Group Exhibit 14]. Professor Aleinikoff elaborated on the importance of the labor
rights at issue here:

We view these as important rights or we would not have issued the


Operations Instruction. Clearly, we thought that if the Service was
getting involved in an area regulated elsewhere by federal law, one
where investigators could be used by employers to help deny people
rights, we thought that was not an appropriate role for the Service to
be taking, and we worked closely with the Wage and Hour Division
oftheLabor Department and elsewhere, and contacted with the Labor

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Department on a regular basis on the overlap between labor laws and
immigration laws, and how sometimes· they work together and
sometimes how they work in conflict, and we tried to sort out a way
that the labor laws could be accomplished and fulfilled without
unduly getting involved in the immigration process. They were
obviously important enough rights for us to go through the process of
issuing the Instruction and to sort these problems out.

Moreover, 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 field
agents to follow it. Furthermore, Mr. Horwitz described the importance of the labor law that the
Service violated by failing to follow 0.1. 287.3a, "Section 215 of the labor law has been on the
books for many years, and it says, in effect, that if an employee complains to the DOL, his
employer should not retaliate against him, and ifhe does so, he should be punished under the
law."

Because 0.1. 287.3a was designed to protect fundamental labor rights, the Service's
failure 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 are
affected, it is incumbent upon agencies to follow their own procedures. This is so even where the
internal 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 that
the Accardi doctrine's "ambit is not limited 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 to
0.1. 287.3a because the Court finds that this Operations Instruction qualifies under Waldron as
haviilg been "promulgated to protect a fundamental right derived from the Constitution or a
federal 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 for
applying the Accardi doctrine in this case, "Careless observance by an agency of its own
administrative processes weakens its effectiveness in the eyes of the public because it exposes
the 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
ORDER

IT IS ORDERED that the Respondents' Motion to Suppress and Tenninate these


proceedings be granted.

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