IJ Rules INS Agents Are Bound By Former OI 287.3A Regarding Enforcement Actions During Labor Disputes

IMMIGRANTS & EMPLOYMENT

INS Workplace Enforcement

Immigration judge rules INS agents are bound by former OI 287.3a regarding enforcement actions during labor disputes
Immigrants' Rights Update, Vol. 17, Issue 5, September 4, 2003

In a recent decision, an immigration judge terminated removal proceedings against two garment workers on the grounds that the Immigration and Naturalization Service violated former Operations Instruction (OI) 287.3a, Questioning Persons During Labor Disputes (redesignated as 33.14(h) of the Special Agent Field Manual (SAFM) as of Apr. 28, 2000), when INS agents raided a factory in Manhattan, prompted by a call from an employer.

The employer called the INS in 1998 after a group of its employees who were involved in an organizing campaign with the Union of Needletrades, Industrial and Textile Employees (UNITE!), filed complaints with the U.S. Dept. of Labor (DOL) and the National Labor Relations Board (NLRB) concerning unpaid wages for overtime hours worked. The INS agents who raided the factory arrested the workers and put them in removal proceedings.

In immigration court, the workers filed a motion to suppress all evidence that the INS had obtained in the raid and to terminate proceedings on the ground that the INS had failed to follow OI 287.3a. They also alleged that the INS engaged in selective enforcement against the Latino workers when they did not question persons of other ethnicities who were working alongside the Latinos who were questioned and subsequently detained.

The OI 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." The OI lists three sources that the INS can contact to determine whether a labor dispute is in progress: the NLRB, the DOL, and the state department of labor. The INS argued that the OI is merely an instruction without the same force of law as an officially promulgated rule or regulation and that, therefore, failure to follow it was not grounds for terminating the removal proceedings.

Alexis Aleinikoff, who was the INS executive associate commissioner for programs between mid-1995 and Jan. 1997, served as an expert witness on behalf of the workers. He had been responsible for promulgating the OI, and he testified that INS agents are generally expected to follow OIs and were bound by this particular one. He explained that the OI was created for "a combined purpose": it "prevents the Service from being manipulated by employees or employers in the context of a labor dispute" and also "from getting involved in labor issues, which are already regulated by federal labor laws."

The IJ rejected the INS's arguments and granted the workers' motion, finding that the workers had demonstrated that the INS obtained the evidence of their removability or deportability in an "illegal and egregious manner." She concluded that the OI was binding on the INS agents because it affects individual rights under federal labor laws. The IJ also concluded that the INS agents who conducted the raid had not followed the agency's own procedures, including obtaining approval from senior INS officials and consulting with state and federal labor agencies before undertaking it, and that because the OI "was designed to protect fundamental labor rights, the Services' failure to adhere to OI 287.3a invalidates [the] removal proceedings."

In re: Herrera-Priego, USDOJ EOIR (July 10, 2003).