Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 1 of 10

IN THE UNITED STATES DISTRICT

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ENFORCEMENT DIVISION OF THE

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DEPARTMENT OF HOMELAND

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SECURITY and JULIE L. MYERS

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

For its complaint against the Immigration and Customs Enforcement division ("ICE") of the U.S. Department of Homeland Security ("DHS") and Julie L. Myers, Assistant Secretary of Homeland Security for ICE ("Myers"), Swift & Company ("Swift" or the "Company") alleges as follows:
NATURE OF THE ACTION 1. Plaintiff Swift is one of the oldest and largest meat producing companies in the United States. Swift is the third largest beef packer and the third largest pork packer in the country. The Company has production and distribution facilities throughout the United States, including a plant in Cactus, Texas. Swift employs approximately 15,000 people in the United States. 2. Swift uses strong hiring practices that attempt to ensure that Swift employs only those people legally authorized to work in the United States. These practices include voluntary membership in the federal government's Basic Employment Verification Pilot ("Basic Pilot")

Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 2 of 10
system since 1997. Basic Pilot, which is overseen and managed by the Department of Homeland Security and the Social Security Administration ("SSA"), is the program through which the federal government contractually provides employers with a mechanism to verify the employment eligibility of new employees. Basic Pilot was created under The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRlRA"), Pub. L. 104-208, 110 Stat. 3009.
3. Through Basic Pilot, using information provided by prospective employees on a federal government "1-9" form, Swift electronically screens all new hires through the government's Social Security Administration database and (if applicable) alien number database. The government's system confirms that the prospective employee is legally authorized to work or it identifies the prospective employee as an illegal worker. This information is then forwarded to Swift. Based on this information, all of Swift's current employees have been verified by the government as eligible to work in the United States.
4. In order to enroll in Basic Pilot, Swift signed a Memorandum of Understanding ("MOU"), which recites the responsibilities of the parties, Swift, DHS and SSA, as well as the procedures to be followed under the program for each of its facilities. The language of the MOU, including the respective rights, responsibilities, and liabilities of the parties, mirrors that of the IIRIRA, the federal statute under which the Basic Pilot program was created. The MOU for each facility was executed by the parties between 1996 and 1997, and each is in effect as of the date of this Complaint. The language of the MOU and the IIRIRA states "no person or entity participating in the Basic Pilot shall be civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system." P.L. 104-208,
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Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 3 of 10
Subdivision D, §403(b)(3)(d)(1996); MOU, Article II at C(6)(5). 5. In March 2006, agents from ICE issued administrative subpoenas for the 1-9
forms and supporting identity documents for all employees at in Swift's Marshalltown, Iowa facility. (The 1-9 form is the federal government's form that employers use to review and verify an employee's legal status.) The Company promptly complied. Of the approximately 1300 forms produced, ICE retained 665 of the forms for "further review."
6. ICE further informed Swift that ICE suspected that the 665 retained 1-9 forms related to unauthorized workers. ICE further informed Swift that several of the retained forms may contain indications of document fraud involving State identification cards and falsely obtained Social Security cards.
7. Following the Marshalltown request, ICE issued similar 1-9 subpoenas to the Company's other plants, including Cactus, Texas. Swift completed production of all requested 1-9 forms and supporting documents in the late summer of2006.
8. Concerned about ICE's investigation and in an attempt to evaluate its own hiring practices to determine what steps, if any, should be taken to ensure compliance with federal law, including the Immigration and Nationality Act ("INA") and anti-discrimination statutes, Swift retained outside immigration experts to review the Company's 1-9 files and its hiring practices.
9. In a further attempt to cooperate with ICE, Swift asked ICE if it could take measures to ensure Company compliance with the INA. Specifically, Swift requested that ICE permit the Company to more closely review the allegedly questionable 1-9 forms and determine whether signs of identity fraud did exist and whether any of these forms were tied to unauthorized workers. Swift told ICE that it would terminate any employees determined to be
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illegal aliens, as required by federal law. 10. Rather than permitting Swift to comply with federal law, ICE directed the
Company not to take any action against suspect employees without coordination with and approval from ICE. In September 2006, one of the ICE field agents responsible for the investigation expressed concerns that if Swift reviewed the suspect files, employees might leave, thereby making it difficult or impossible for ICE to locate the employees for possible enforcement actions. The agent even suggested that if Swift were to start any review of suspect files, the government might consider Swift's conduct to constitute the criminal offense of obstruction ofjustice.
11. In an October 19, 2006 meeting between Swift and ICE, ICE withdrew its previous prohibition on Swift closely reviewing its own 1-9 files. Swift immediately began such a review and has identified a number of workers who appear to have deliberately defeated the Basic Pilot verification program and who may have engaged in some form of identity theft.
12. In that meeting, Swift emphasized the substantial damage to its business that would result from simultaneous enforcement actions at its plants and offered to cooperate with ICE in a phased or managed process that would accomplish ICE's goals without placing an unnecessary financial and operational burden on the Company.
13. Although ICE has lifted its prohibition of Swift acting to comply with the law, ICE has still refused to work cooperatively with Swift to examine whether unauthorized workers have evaded the Basic Pilot verification process. Swift has made several proposals for review procedures which would allow for a focused review of suspect 1-9 files while also minimizing any disruption to Swift's operations and the employment of its legal work force.
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14. To date, ICE has refused to discuss or agree to Swift's review procedures. ICE has not made any suggestions or recommendations of its own.
15. On November 17, 2006 and again on November 20, ICE informed Swift that it plans to, with or without Swift's cooperation, shut down six of Swift's seven plants on December 4, 2006 so that ICE agents can interview every employee, regardless of suspected illegal status. If and when ICE determines which employees are suspected to be illegal aliens, it plans to segregate them for further questioning and possible deportation. These actions by ICE (the "December 4th Plan"), or a comparable mass removal action, would have a direct impact on many legal workers, as well as suspected illegal workers, and would irreparably harm Swift by interfering with its legal business operations and by damaging its reputation.
16. Swift seeks appropriate judicial review of ICE's actions and proposed actions prior to any action actually being taken. Swift asserts that the December 4th Plan, or a comparable mass removal action by ICE, would constitute a violation of the IIRIRA as that federal statute prohibits ICE from imposing penalties on Swift for actions taken based on information provided through the Basic Pilot confirmation system.
17. Swift further asserts that a mass removal action by ICE would be an unconstitutional deprivation of property without due process of law because Swift has a protected property interest in operating a legitimate business.
18. Swift would not have an adequate remedy at law after the execution of the December 4th Plan, or a comparable mass removal constituting a violation of the IIRIRA and a deprivation of property, and therefore Swift is entitled to declaratory judgment and injunctive relief before any mass removal action occurs.
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Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 6 of 10
PARTIES 19. Swift is a Delaware corporation with its principal place of business in Greeley, Colorado. Swift operates plants that process and pack meat, including beef, pork, and lamb. Its plants, distribution centers, and sales offices are located across the United States, including in Minnesota, Texas, Nebraska, Iowa, Utah, and Kentucky. 20. ICE, a division of the U.S. Department of Homeland Security, through ICE, is primarily responsible for interior immigration enforcement and investigations, and the detention and removal of illegal aliens. Along with the SSA, ICE is a signatory to the MOU with Swift. 21. Julie Myers, the Assistant Secretary of Homeland Security for ICE, is the individual charged with the responsibility of ensuring that ICE's actions abide by the relevant statutory authority.
JURISDICTION AND VENUE 22. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1491(a)(1). 23. This court has jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, as there is an actual case or controversy between the parties. 24. Venue is proper under 28 U.S.C. §1391(e), as Swift maintains a plant in this judicial district.
GOVERNING STATUTORY PROVISIONS 25. The Immigration and Nationality Act, 8 U.S.C. § 1324a(a)(2), prohibits continuing to employ an alien in the United States knowing that the alien is (or has become) an unauthorized alien with respect to such employment. 26. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the
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Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 7 of 10
"IIRlRA"), Pub. L. 104-208, 110 Stat. 3009, is the statute authorizing the creation of the Basic Pilot and the basis for the MOU.
CAUSES OF ACTION COUNT I
(Violation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-208, 110 Stat. 3009)
27. Swift incorporates herein the allegations in paragraphs 1 through 26 of this Complaint.
28. The MOU constitutes Swift's enrollment in the Basic Pilot Program. 29. Under the IIRlRA, a participant in the Basic Pilot Program cannot be held civilly or criminally liable under any law for any action taken in good faith reliance on information provided through the Basic Pilot confirmation system. 30. ICE's December 4th Plan, or any similar large scale mass removal action to interview and remove suspected unauthorized workers simultaneously at Swift's plants, would cause irreparable harm to Swift's business. Such irreparable, indirect harm would constitute a de facto penalty for Swift's reliance on information provided by the Basic Pilot confirmation system, and such a penalty or liability is a statutory violation of the IIRlRA.
COUNT II (Violation of Constitutional Due Process Rights Under the Fifth Amendment) 31. Swift incorporates herein the allegations in paragraphs 1 through 26 of this Complaint. 32. ICE's execution of its December 4th Plan, or any similar mass removal action, without notice to Swift and an opportunity to challenge ICE's foundation and procedures for the action before this Court deprives Swift of its property without due process of law in violation of
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Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 8 of 10
the Fifth Amendment of the United States Constitution. REQUEST FOR RELIEF
WHEREFORE, Swift respectfully requests this Court: a. for a declaratory judgment order stating that
1. ICE's December 4th Plan, or any comparable mass removal action by ICE at one or more of Swift's facilities, would constitute a violation of the IIRIRA, a federal statute;
2. in the event of such a statutory violation by ICE, Swift would not have an adequate or available remedy at law;
3. Swift has a constitutionally protected property right to operate its business; 4. Swift's property rights would be interfered with and Swift would be
deprived of its property right to operate its business in the event of a mass removal action by ICE; 5. under the Fifth Amendment of the United States Constitution, Swift is entitled to due process before it can be deprived of its property rights to operate its business. b. for an order 1. permanently enJommg ICE from executing its December 4th Plan, or conducting any comparable mass removal action at a Swift facility without prior notice to this Court and Swift; 2. requiring that no fewer than [7] business days prior to executing its December 4th Plan, or any similar mass removal action at a Swift facility, ICE must file with this court, with copy provided simultaneously to Swift,
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Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 9 of 10 a description of its plan, including a description of the anticipated impact on Swift's operations;
3. requiring an expedited hearing to be held, prior to any mass removal action by ICE, in which ICE must demonstrate to this Court that its December 4th Plan, or any comparable planned mass removal, will not unfairly and improperly deprive Swift of its property rights without affording Swift an opportunity to mitigate the serious adverse effects such an action would have on its business and its employees; this expedited hearing shall permit Swift to fully participate and offer arguments in opposition to ICE's mass removal plans;
c. for an award of attorney fees and costs, and d. for such other relief as the court may deem appropriate.
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Case 2:06-cv-00314 Document 2 Filed 11/28/2006 Page 10 of 10
Respectfully submitted, William E. Lawler, III - Lead Counsel C. Michael Buxton VINSON & ELKINS, L.L.P. The Willard Office Building 1455 Pennsylvania Ave. Suite 600 Washington, D.C. 20004 Telephone: (202) 639-6676 Facsimile: (202) 639-6604 Kevin A. Isem - Local Counsel LOVELL, LOVELL, NEWSOM & ISERN, L.L.P. 112 WEST 8TH AVENUE, SUITE 1000 Amarillo, TX 79101-2314
::CSimi~ _-_ Telephone: (806) 373-1515
Kevin A. Isem Texas State Bar No.1 0432900
DC 634043v.l
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 IN THE UNITED STATES DISTRICT C

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SWIFT & COMPANY,

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Plaintiff,

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IMMIGRATION AND CUSTOMS

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ENFORCEMENT DIVISION OF THE

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DEPARTMENT OF HOMELAND

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SECURITY and JULIE 1. MYERS,

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Defendants.

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2:06-CV -314-J

ORDER

Swift & Company filed an action on November 28, 2006, seeking declaratory and injunctive

reliefto prevent the Immigration and Customs Enforcement Division ("ICE") ofthe Department of

Homeland Security from proceeding with ICE's December 4,2006, plan or any comparable planned

mass removal of unauthorized workers at 6 of Swift's plants. Swift contends it participated in the

Government's Basic Pilot Program and that such a removal would violate the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. 1. 104-208, 110 Stat. 3009,

by subjecting Swift to civil and criminal liability for actions which it took on reliance on that

Program. Swift also contends that such ICE action would deprive Swift of a protected property

interest in its business without due process oflaw. The matter is before this Court on Swift's Motion

for Preliminary Injunction on which a closed hearing was heard on December 6, 2006.

Legal Standards

In considering Plaintiffs request for a preliminary injunction, this Court must weigh four

factors: (1) whether the plaintiff has a substantial likelihood of succeeding on the merits; (2)

whether the plaintiff would suffer irreparable injury were an injunction not granted; (3) whether an injunction would substantially injure interested parties; and (4) whether the grant of an injunction would further the public interest. University ofTexas v. Camenisch, 451 U.S. 390, 392 (1981). The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. State ofTexas v.. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975). Plaintiffs must carry the burden of proving all four factors. Black Fire Fighters Ass'n v. City ofDallas, Tex., 905 F.2d 63, 65 (5th Cir.1990).
DISCUSSION Jurisdiction
This Court has jurisdiction pursuant to 28 U.S.C. §1331 to adjudicate Plaintiffs statutory claim asserted under §403(d) ofIIRIRA and its Forth Amendment constitutional due process claim. Plaintiffhas standing to assert those claims in this action. Lujan v. Defenders ofWildlife, 504 U.S. 555,560-61,112 S.Ct. 2130,119 L.Ed.2d 351 (1992)(quoting Whitmore v; Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). One of the Swift plants is at Cactus, Texas, in the Amarillo Division of the Northern District of Texas.
The Basic Pilot Program Pursuant to §§401, 402(a) and 404 ofIIRIRA, PlaintiffSwift elected to enter into a series of Memorandum ofUnderstandings (MOU) allowing all of Swift's plants to access the Department of Homeland Security's web..based employment eligibility verification system known as the Basic Pilot Program. That program is designed to permit employers to determine whether newly hired employees are legally authorized to work in the United States.
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Both IIRIRA and the MOU state that "no person or entity participating in a pilot program shall be civilly or criminally liable under any law for any action taken in good faith reliance on information provided through the confirmation system." IIRIRA §403(d); MOU Art. II(C)(5).
However, pursuant to Article II(C)(6) of the MOU the government expressly reserves the right ''to conduct any other enforcement activity authorized by law." An employer who signs aMOU agrees to allow ICE to make periodic visits to review Basic Pilot-related employment records and conduct Form 1-9 compliance inspections.
Swift argues that its participation in The Basic Pilot Program and the language of 403(d) prevent ICE from causing disruption ofbusiness and economic damages which Swift refers to as a de facto penalty by conducting a mass removal enforcement action as proposed by ICE. The Court has found no authority that would support that contention and concludes that the language "which offers protection from civil or criminal liability" cannot be parlayed to include economic damages to an employer resulting from the removal of suspected unauthorized workers.
For years a known principal weakness of the Basic Pilot Program has been its inability to detect identity theft. The government has known since at least 2002 that "the prevalence ofidentity fraud seems to be increasing." GAO Report 02-363 (March 2002). The government has known since at least August, 2005, that the current Basic Pilot Program can not successfully detect identity theft and would likely permit an unauthorized worker to be improperly verified as work-authorized. GAO Report 05··813 (August 2005).
For example, the program does not check Social Security or IRS databases to determine if a particular social security number is already being used at another workplace. It is known to the government that some social security numbers are widely used at multiple employment locations,
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over two hundred workplaces for some numbers, but the Basic Pilot program has not been changed
to flag such suspicious numbers or to return non-authorizations for persons presenting identity
documents under such conditions.
It should be noted that, despite these known significant flaws, the law permits only limited
and insufficient additional verification options to an employer. The Basic Pilot Program provides
for a list of acceptable documents which may be furnished to prove identity and establish
employment eligibility. Section 1324b(a)(6), Title 8, United States Code, addresses unfair
immigration related employment practice as follows:
"A person's or other entity's request, for purposes of satisfying the requirements of section 1324a(b) of this title [setting up the employment verification system to prevent employment ofunauthorized workers], for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1 )[i.e., an alien applying for employment]. " An employer could reasonably consider that the limitation on the documents which it may require makes it difficult to protect itself from the adverse effects of employing unauthorized workers. 1
ICE believes that the enforcement action at issue here will allow ICE to identify and detain
persons who are engaged in such identity theft, approximately 170 of which are known by ICE to
currently be using false identities at Swift plants to the detriment of U.S. citizens. ICE further
expects to apprehend persons who are engaged in large-scale identity theft and document fraud by
providing illegal immigrants with documentation permitting them to successfully achieve Basic Pilot
1 On February 12, 2001, the OSC brought a complaint against Swift for an alleged "pattern and practice" of document-based discrimination, in which it sought civil damages of $2.5 million. After two years ofnegotiations, Swift settled the case with no admission of guilt for approximately $200,000.
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system work-authorized verification. The MOU and the law expressly permit such enforcement actions. At this stage Plaintiffhas
not shown that it has a substantial likelihood of succeeding on the merits of this statutory claim; Due Process Claim
Swift argues that by simultaneously conducting the enforcement action at 6 of its 8 work places, ICE will unreasonably cause substantial and irreparable injury to its business in violation of the due process clause of the Constitution. Swift estimates that as many as 40% of its employees might be removed in the enforcement action and estimates that the disruption ofits operations could result in as much as a one hundred million dollar loss to Swift. ICE does not dispute that the removal of an estimated 30 to 40% of Swift's 13,000 workers at one time will significantly impair Swift's ability to meet its contractual obligations, negatively impact its business operations, and cause Swift substantial economic damage. ICE argues, however, that Swift has no right to continue to utilize thousands of illegal workers in violation of the immigration laws.
"It is clear, ofcourse, that no Act of Congress can authorize a violation ofthe Constitution."
Almeida-Sanchez v. U. s., 413 U.S. 266,271,93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); "But
under familiar principles ofconstitutional adjudication, our duty is to construe the statute, ifpossible, in a manner consistent with the Fourth Amendment." Id. (citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466,483, 80 L.Ed. 688 (1936)).
The Supreme Court has "consistently has held that some form of hearing is required before an individual is finally deprived of a property interest." Mathews v, Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893,902, _ L.Ed. _ (1976)(citing Wolffv. McDonnell, 418 U.S. 539,557-558,94 S.Ct. 2963, 2975-2976, 41 L.Ed.2d 935 (1974); Phillips v. Commissioner of Internal Revenue,
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283 U.S. 589,596-597,51 S.Ct. 608,611-612, 75 L.Ed. 1289 (1931); Dent v. West Virginia, 129 U.S. 114, 124-125,9 S.Ct. 231, 234, 32 L.Ed. 623 (1889». The "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships ofa criminal conviction, is a principle basic to our society." Joint Anti-Fascist Comm., v. McGrath, 341 U.S. 123, 168,71 S.Ct. 624, 646, 95 L.Ed. 817 (1951)(Frankfurter, 1., concurring). The fundamental requirement ofdue process is the opportunity to be heard "at a meaningful time and in a meaningful maImer." Armstrongv. Manzo, 380 U.S. 545,552,85 S.Ct. 1187, 1191, 14L.Ed.2d 62 (1965). See Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914).
While in Goldberg v. Kelly, 397 U.S., at 266-271,90 S.Ct., at 1019-1022,25 L.Ed.2d 287 (1970), the Supreme Court held that a hearing closely approximating a judicial trial is necessary before governmental action that deprives a person of essentials needed for survival, that does not appear to be the case here. "In other cases requiring some type ofpretermination hearing as a matter of constitutional right the Court has spoken sparingly about the requisite procedures," such as an ex parte hearing, a probable-cause determination, or a post-action evidentiary hearing such as a trial on the merits. Mathews v. Eldridge, 424 U.S. at 333, 96 S.Ct. at 902. These decisions underscore the truism that" '(d)ue process,' unlike some legal rules, is not a technical conception with a fixed content urn'elated to time, place and circumstances." Cafeteria Workers v" McElroy, 367 U.S. 886,895,81 S.Ct. 1743, 1748,6 L.Ed.2d 1230 (1961). "(D)ue process is flexible and calls for such procedural protections as the particular situation demands." Morrisseyv. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Accordingly, resolution of the issue whether the procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected" Arnett v, Kennedy, 416 U.S. at 167-168,94 S"Ct, at 1650-1651; Goldberg v. Kelly, supra, 397 U.S., at 263-266,90 S.Ct., at 1018-1020; Cafeteria Workers v. McElroy, 367 U.S., at 895, 81 S.Ct., at 1748-1749. More precisely,
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identification ofthe specific dictates ofdue process generally requires consideration ofthree distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
See, e. g, Goldberg v,. Kelly, supra, 397 U.S., at 263-271,90 S.Ct., at 1018-1022. Instead of a one-day raid at six plants, Swift proposes that ICE conduct a phased workplace
enforcement action over a ten week to four-month period, targeting one plant at a time. Swift believes that such a plan, while still costing Swift significant damages, is the best way to minimize damages and argues that it would catch as many illegal workers as would be caught under ICE's plan of action.
ICE has rejected that proposal because, in part, it is impossible to proceed in such a manner without alerting other suspects who will then disappear into the homeland, each one possessing false documentation permitting them to receive employment verification through the Basic Pilot Program with another employer.
As a case in point, between October 19,2006, and November 17,2006, Swift voluntarily conducted approximately 450 interviews of suspect employees at several ofits plants. Swift found that between 90 to 95% of its suspect employees were either not who their identification documents said they were and/or they were not legally eligible to be employed in the United States. Over 400 illegal workers were terminated, self-teIminated (quit), or did not show up for scheduled interviews and were fired. Swift did not notify ICE. Neither Swift nor ICE knows where those 400 workers are now. Swift ended that self-review at ICE's insistence.
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It is clear, as ICE contends, that it is impossible to proceed in the manner advocated by Swift without alerting suspects who will then disappear into the homeland, each one possessing false documents permitting them to receive employment verification through the Basic Pilot Program with another employer.
Form 1-9 review is a "snapshot in time," a view which ICE believes may be months out of date by the date its enforcement action occurs at the workplace. Therefore, ICE believes that it must interview all Swift workers because it can not accurately determine on the basis ofForm 1-9 reviews alone which workers are illegal and which employees are legally entitled to work. ICE therefore believes that the most effective enforcement action is one in which it interviews all workers at all six plants and all in one day.P
ICE proposes to interview all workers in one day by gathering, with Swift's consent, the workers on each shift in a common place such as the cafeteria as th,ey report for work. It believes that this procedure will avoid problems such as contamination of product that might occur if it interviewed workers on the floor as they work.
The Court finds that Swift has not carried its burden of showing that grant of the requested injunction would further the public interest. Swift has not proposed, and this Court has not been able to devise, a procedure that would not be detrimental to impOItant public interest and at the same time protect Swift from economic loss. The testimony in this case and the General Accounting Office reports on identity theft which are filed ofrecord in this case evidence that U.S. citizens are being hrumed, continually and daily, by identity theft and document fraud of the types which this
ICE's review ofthe Form 1-9s at Swift's other two plants showed no significant numbers of suspected illegal workers, therefore ICE does not propose to raid those plants at this time.
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enforcement action specifically targets. The testimony that Federal Trade Commission reports show that 331 Swift employees have used false identities to the harm of other citizens, 170 ofwhich still work at Swift, is evidence that grant ofthe requested injunction would harm the public's interest in quickly catching such criminals, swiftly breaking up any rings which cause or contribute to such harm, and minimize continuing damages to innocent citizens. While Swift has offered to assist ICE in apprehending the 170 current workers and agreed to assist ICE in enforcement actions to catch and break up identity theft operations at Swift plants, beyond that general offer no showing was made that grant ofthe injunction specifically requested by Swift would accomplish those goals, or how.
Conclusion The Court concludes that: 1) Plaintiff has not established a substantial likelihood of succeeding on the merits; 2) the Plaintiff will suffer irreparable injury if the injunction is not granted; 3) an injunction would substantially injure legitimate ICE enforcement activities; and 4) the grant of an injunction would not further and. in fact, would be contrary to the
public interest. Accordingly, the Motion/or Preliminary Injunction is DENIED.
CAVEAT Swift did not bring this action on behalf of the employees to be interviewed. In argument, ICE argued that INS v" Delgado, 466 U.S. 210, 104 S.Ct.(1984), authorized it to conduct a factory survey ofthe work force in search ofillegal aliens by walking through the plant and interviewing the workers as they performed their duties. In Delgado, the INS conducted a
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survey ofthe work force at a garment factory (Southern California Davis Pleating Co.) in search of illegal aliens. INS agents moved systematically through the factory approaching employees and identifying themselves and asked the employees from one to three questions relating to their citizenship. During the survey, employees continued with their work and were free to walk around within the factory. Questioned employees who were United States citizens or permanent resident aliens alleged that the survey violated their Fourth Amendment rights. The Supreme Court held that their Fourth Amendment rights were not violated under the circumstances.
The facts in the case before this Court involving a meat packing plant are significantly
different from those in Delgado. Workers in a meat packing plant are working with exceedingly
sharp knives and with potentially dangerous equipment along a steadily moving line. The difficulty of safely interviewing employees under those circumstances is apparent.
ICE has stat~d that, if Swift consents, it will interview all of the employees at a central location as each shift reports for duty. There remain questions concerning the nature and length of detention.
This Order does not address the Fourth Amendment rights ofthe employees to be questioned under either of these scenarios and should not be so construed.
For the reasons set forth above, Plaintiffs Motion/or a Preliminary Injunction is DENIED.
It is SO ORDERED. Signed this the 7th day of December, 2006.
~~~~ MARY LO 0 INSO
United States District Judge
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 • Case 2:06-cv-00314

Document 14

Filed 12/04/2006 Page 1 of 26

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DEPARTMENT OF HOMELAND
SECURITY and JULiE L. MYERS,

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Defendants

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DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY . INJUNCTION

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UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C 10004-1703
Tel (l0l) 616-9752; Fax (l02) 233-0397

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1

TABLE OF CONTENTS

2 INTRODUCTION. '...........'........ '. . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. 1

3 STATEMENTOFFACTS ................. : .................................. 2 4 ARGUMENT ..............·.................................................. 4

5

I. SWIFT HAS FAILED TO MAKE THE HIGH SHOWING NECESSARY . FOR A PRELIMINARY INJUNCTION ................................. 4

6

A. SWIFT HAS NOT DEMONSTRATED A SUBSTANTIAL LIKELIHOOD

7

OF SUCCESS ON THE MERITS ...................................... 5

8

1. The Statutes On Which Swift Relies Do Not Create A Private Cause Of Action .... '......................................'........... '.... 5

9

2. Swift Cannot Demonstrate That ICE Is Violating The Basic Pilot Program

10

Statute And Agreement ...................... '. .. . . . . . . . . . . . . . . . . . . .. 7

11

3. Swift CannotDemonstrate A Likelihood OfSuccess On Its Due Process Claim ...................................•....................... ; .... 9

,12

4. INA § 242(f) DeQrives Courts OfJurisdiction To EJ.?,ter An Injunction Against c

13

The OperatIOn of INA § 236..'...................................... 12

14

5. The Court Ought Not Enjoin Judicial Officers In Other Judicial Districts .... 13

15

B. SWIFT HAS NOT ESTABLISHED THAT IT WILL SUFFER IRREPARABLE HARM ............................................................ 14

16

C. THE BALANCE OF HARMS TIPS AGAINST SWIFT ................. ~ .. 15

17

'D. THE PUBLIC INTEREST CLEARLYFAVORS THE GOVERNMENT'S ABILITY

18

TO ENFORCE IMMIGRATION LAW ..................... : ........... 17

19 CONCLUSION ................................................... ; ........ ;. 19

20 CERTIFICATE OF SERVICE

. 2f

22 23
24
25
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27 28

UNITED STATES DEPARTMENT OF JUSTICE

OFFICE OF IMMIGRATION LITIGATION

1331 PENNSYLVANIA AVE., N.W., NPB 1148-14

WASHINGTON, D.C. 10004-1703 '

1

Tel (102) 616-9752; Fax (l02) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 3 of 26

. 1

TABLE OF AUTHORITIES

2

CASES

., 3 Aetna Life Ins. Co. Of Hartford. Conn. v. Haworth, 300 U.S. 227 (1937) .................................................... 13

4 In Re Alameda Coun~ Assessor's Parcel Nos. 537-801- 2-4 & 537-850-9,

5

672 F. Supp. 12 8 (N.D. Cal.. 1987) ..............................,........... 9

6 Alexander v. Sandoval, 532 U.S. 275 (2001) .............. '............................ '; .......... 6

7 Babcock & Wilcox Co. v. Marshall,

I

8 , 610 F.2d 1128 (3d Cir. 1989) .................. '.........................'.. 12

9

Bergh v. State ofWashin~on,

'

535 F.2d 505 (9th Clr. 1976) .............................................. 14

10

,
Baldwin Metals Co.. Inc.. v. Donovan,

,

"

11

642 F.2d 768 (5th Cir. 1981) .............................................. 12

12

Blackie's House of Beef. Inc. v.Castillo" 569 F.2d 1211 (D.C. Cir. 1981), cert. denied,

' '

13

455' U.S. 940 (1982) ............'; ." ...................................... .10

14

Bunker Hill Co. Lead & ,,658F.2dJ280,(9th

Zinc Smelter v. EPA,

'

Cir., 1981) "........................................ '.....

.9

,

"
15

.

,

Canal Authori~ of State of Florida v. Callaway,

'
'

16

489 F.2d 67 (5th Cir.l974) ................................................ 4

17

Cannon v. Universi~ of Chicago,

' .

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, 441 U.S: 677 ( 979) ',............ " ........................................ 6

18 Carter v: Baltimore Coun~. Mruyland,

'

19

95 Fed. Appx. 471 ( ih Cir. 2004) ..............,............................ 9

i

20

Clark v. Prichard,

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812 F.2d 991 (5th Cir.l987) .. ; ............................................ 4

I I
I

21 Coalition for Economic Equi~ v. Wilson,

"

"

22

122 F.3d 718 (9th Cir. 1 97) .............................................. 19

23

Del Mar Avionics v. Quinton Instruments Co.,

'

645 F.2d 832 (9th Cir. 1981) ............. '................................. 14

24 Ente~rise Intern. v. Co~oracion Estatal Petrolera Ecuatoriana, . .

25

62 F.2d 464 (5thir. 1985) ............................................... 15

26

In re Establishment Incection of Keokuk Steel Castings,

638 F.2d 42

(8thir.

1981)

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27 FTC v. Standard Oil Co. of California,

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449 U.S. 232 (1980) .................................................... 11

, UNITED STATES DEPARTMENT OF JUSTICE ,

OFFICE OF IMMIGRATION LITIGATION

JJ31 PENNSYLVANIA AVE., N.W., NPB 1148-14

ii

WASHINGTON, D.C. 20004-1703 Tel (202) 616-9752; Fax (202) 233-0397

• Case 2:06-cv-00314

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1

Former Employees of Alcatel Telecommunications Cable v. Hennan, 134 F. Supp. 2d 445 (Ct. Int'l Trade 2001) ................................... 16

2 Guna1.din v. INS, .

.

3

42 F.2d776 (9th Cir. 1984) .. , .......... ; ................................ 15

4

Holland Am. Ins. Co. v. Succession of Roy,

.

777 F.2d 992 (5th Cir. 1985) .............................................. 14

5

6

Humana. Inc. v. Jacobson,

.

804 F.2d 1390 (5th Cir. 1986) ............................................... 14

7 INS v. Hibi,

8

414 U.S. 5 (1973) .................................... ~ .................. '18

9

INS v. Miranda, . . 459 U.S. 14 (1982) ...................... ~ .............................. 19

10 INS v. Phin12ath~a,

11

464 U.S. 1 4 (1984) ..................................................... 15

12

Johnson v. United States,

. .

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333 U.S. 10 (1948) ....................... ~ ....................... '...... 10

13 Jones v. A l e x a n d e r , .

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14

609 F.2d 778 (5th Cir. 1980) ........ '..................................... 12

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15

Lewis v. U.S.,

...

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70 F.3d 597 (Fed. Cir.1995) ... : .......................................... 16

16 Marshall v. Barlow's. Inc.,

.

17

436 U.S. 307 (1978) ......................... :: ....................... 9, 10

18

Mathews v. Eldri~e,

. ..

424 U.S. 31, 334 (1976) ................................................ 11

19 Midwest Growers CO-OR COffi' v. Kirkemo,

.

20

533 F.2d 455 (9th Cir. 176) ..................... .' ........................ 10

21

MississwIi Power & Li~t Co. v. United Gas Pipe Co., 76 .2d 618 (5th lr.l985) ...................

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22 Naegele Outdoor Advertisinf Co. of Louisville v. Moulton,

23

773 F.3d 692 (6th Cir.985) ................................................. 9

24

National-Standard Co. v. Adamkus,

. .

881 F.2d 352 (7th Cir. 1989) .......................... ~ .................... 9

25 New Motor Vehicle Bd. v. Orrin W. Fox Co.,

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26 . 434 U.S. 1345 (1977) ................................................... 19

~ .

27

In

re

R3e2~uBrc.Rha. s8e32C~ffDfo.ratIillo.n2.0D0e5b) to.r.,

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MEM. DFTS' OPP. TO P.I. - iii

(2-06CV -314-J)

iii

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (202) 23300397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 5 of 26

1

Saleh v. Titan Co~.,

'

353 F. Supp~d 1087 (S.D. Cal. 2004) ....................................... 13

2 Savo~ v. U.S. Attome:ffi: General,

"

3

49 F.3d 1307 (11 Cir.2006) ....................... '..................... 18

4 Schillin~ v. Ro~ers,

"

'

,

36 U.S. 66 (1960) ..........•.. ~ ................... ',' ...............'.... 6

5 Skelly Oil Co. v. Phill~s Petroleum Co.,

6

339 U.S. 667 (19 0) ..................................................... 6

7 ,Society ofSe~arationists, Inc. v. Herman,"

'

939 F.21207 (5th Cir.1991), rev'd en bane on other grounds,'

'

8

959 F.2d 1283 (5th Cir.1992) ............................................. 13 ,

r 9 In re Stanley Platin Co.. hie., '

,

, 637 F. Supp.l (D. Conn. 1986) ..................... : ............. '. ',' ...... 9

10 Stoddard Lumber Co. v. Marshall,

'

1 1 6 2 7 F.2d 984 (9th Cir. 1980) .. '.......................................... 9, 10

12 Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ....'................................................. 6

13 West Gulf Maritime Ass'n. v. Ila Deep Sea Loca124,

14 ,

751 F.2d 721 (5thCir. 1985) .......... ,.................................... 13

,

,

15

'STATUTES

16

rhe Immigration and Nationality Act of 1952, as amended:

17

Section 2 , 8 U.S.C.

3 § 12266 . ~ ..,..

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1 19 ~ecti8nJ~~b~)§ 1226(a)8 ........ '................

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20 Secti8nJ~~b~§ 1252(f) .................................................... '.. 12

Secti8nJ~:b~)~li357(~)(1) ::

..................................................... 10

23 OTHER STATUTES: 24 25 28 U.S.C. § 1491(a)(1) .................................................... • .. 12
26 28 U.S.C. § 2201 ........................................................... 12
27 28 U.S.C. § 2202 .................. :........................................ 12

28

MEM. DFTS' OPP. TO P.I. - iv

(2-06CV -314-J)

IV

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON. D.C. 20004-1703
Tel (202) 616-9752; Fax (202) 133-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 6 of 26

1

The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. .2153 (2002):

2 Section 441 ...................................................'... '. . . . . . . . .. 15

3

4

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MEM. DFTS' OPP. TO P.I. - v

(2-06CV -314-1)

v

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 10004-1703
Tel (101) 616-9751; Fax (l01) 133-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 7 of 26

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF TEXAS AT AMARILLO

3

4 SWIFT AND COMPANY,

5

Plaintiff,

No.2-06CV-314-J

6

·v.

7

IMMIGRATION AND CUSTOMS ENFORCEMENT DMSION OF THE

8

DEPARTMENT OF HOMELAND SECURITY and JULIE L. MYERS,

9

Defendants

10

DEFENDANTS' MEMORANDUM IN· OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

11

Respondents respectfully submit this Memorandum in Opposition to Plaintiff's Motion for

12 a Preliminary Injunction..

13

INTRODUCTION

14.

Plaintiff, Swift & Company ("Swift"), seeks to enj oin Defendants from conducting .a series

15 oflaw enforcement actions designed to enforce the nation's immigration laws by identifying and

,Ii I

16 detaining illegal immigrants who are working at several of Swift's worksites. Indeed, Swift's 17 institution of this action is tantamount to an admission that it is illegally employing a substantial

18 number of illegalaliens who are working illegally at those worksites and are also likely engaging

19 in identity theft and fraud. Swift nonetheless contends that the United States Constitution and the

20 1996 immigration reforms prevent U.S. Immigration and Customs Enforcement ("ICE") from

21. enforcing the immigration laws, and instead somehow require the government to cooperate with

22 law breakers and proceed "slow[ly]" before executing its enforcement activities. PI.

23 Memorandum, at 22.

24

Needless to say, the government is not so hamstrung. Put simply, there is no constitutional

25 or statutory right for anyone to continue violating the law, and the governinent need not work on

26 a potential law violator's time-table, especially where, as here, doing so would severeiy undermine

27 legitimate law enforcement operations. The immigration statute on which Swift relies provides

28 . no private cause of action that would permit this suit, and in any event Swift cannot establish that

MEM. DFTS' OPP. TO P.r. - 1
(2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C 20004-1703
. Tel (201) 616-9752; Fax (201) 233-0397

~~~~~~~~~~~~~~~------

--

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 8 of 26

1 ICE~s workplace enforcement actions wilrviolate that statute. As for Swift's due process claim,

2 all that Swift can legitimately d~mand here·is that ICE obtairi.warrants from neutral magistrates.

3 before ~ntering Swift~s premises, something that ICE has every intention of doing. This Court 4 should reject.Swift'.s unprecedented request to allow Swift - rather than ICE and the various 5 judicial officers all across the country who will consider ICE's· warrant applications - to set its

6 own schedule for when, if it ever does, it will comply with the law.

7

Defendants respectfully request a decision from the Court on Wednesday, December 6,

8 because ICE plans to execute the work enforcemen~ action in the near future. ICE will need a few

9 days for final preparation before the start of the action.

10

STATEMENT OF FACTS)

11

This case had its genesis on February 14,2006, when the ICE office in Des Moines, Iowa,

12 . opened an investigation into the Swift pork processing plant in Marshalltown, Iowa. Declaration.

13 ofMatthew C. Allen ("Allen Decl.") at, 4, submitted as Exhibit 1, Appendix 2. The investigation

14 was prompted when ICE conducted interviews of illegal aliens in local jails who were Swift

15 Marshalltown employees. Id..Thereafter, ICE s.erved an administrative subpoena on Swift

16 requiring that it provide the ICE Des Moines office with Employment Eligibility forms (Form 1-9)

17 concerning current e~ployees. lit (Appendix 2-3.) ICE's investigation and review of the forms

18 raised the suspicion that a substantial number of Swift employees were illegal aliens and who had

19 probably engaged in identity theft to secure employment with Swift, id. (Appendix 3), and thereby

20 were unauthorized to work and were mo~t likely illegally present in the United States.

21

ICE later served additional administrative subpoenas on Swift, which compelled Swift to

22 produce 1-9's from seven other plants located in the U~ited States. Id. at, 6. ICE agents then

23 examined several thousand 1-9 forms and noted similar suspect patterns to those discovered in the

24 Marshalltown investigation.· Id. As explaine·d by ICE's Acting Deputy Assistant Director Allen,

25 "These patterns suggested that, company-wide, a substantial number of Swift employees were

26

27 1 In Plaintiffs Certificate of Interested Parties, Swift incorrectly alleges (with. no support

whatsoever) that ICE Assistant Secretary Julie L. Myers has a financial mterest in the outcome

28 of this case. Ms. Myers is sued only in her official capacity, and she has no fmancial interest

of any kind in this lawsuit.

.

MEM. DFTS' OPP. TO P.I. - 2 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616·9752; Fax (202) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 9 of 26

1 illegal aliens who had engaged in.identity theft in order to obtain employment with the company."

2 Id. In fact, in a letter to ICE, Swift's Senior Vice President of Human Resources acknowledged

3. "some limitations in our hiring practices and policies, principally related to third-party document

4 fraud." Id. And in a meeting with ICE representatives on September 21, 2006, Swift

5 representatives further acknowledged that there "might be s.ome low level criminality within th~ir

6 plants (referring to possible [illegal] document vendors)." Id.

7

ICE had reason'to believe the illegal aciivity was far greater than Swift conceded and

8 therefore continued its investigation. See Allen Dec!. at, 7 (Appendix 3-4). In an extraordinary

9 gesture of cooperation, ICE agreed to meet with Swift again on October 19, 2006. Id. (Appendix

10 4). During that meeting, Swift asked ifICE was investigating all of its plants. ICE indicated that

11 the problem was large in scale and that Swift should begin to hire replacement workers. Id. After

12 these meetings., ICE sought Swift's consent to engage in contemporaneous, consensual interviews

,

,

13 of Swift employees in Marshalltown; Worthington, Minnesota; Grand Island, Nebraska; Cactus,

14 Texas; Hyrum, Utah; and Greeley, Colorado. Id. Swift coun,tered by requesting that ICE run a

15 small-scale operation, arresting only a few aliens at a time. Id. In addition, working with ICE, the

16 U.S. Attorney for the Southern District oflowa requested further documentation from Swift, as

17 well as Swift's consent to conduct contemporaneous interviews at Swift's plants. Id. Swift agreed

18 to provide the documents to the U.S. Attorney's Office, but it declined to consent to

19 contemporaneous consensual interviews. Id. Instead, Swift expressed its desire to have a phased

20 or "managed" interview approach. Id. When ICE asked Swift what this meant, the only

21 explanation Swift gave for such an approach was that it would involve addressing a single plant

22 at a time. Id. at , 8.

23

In ICE's judgment, proceeding in the manner proposed by Swift would enable a substantial

24 number of illegal employees and the perpetrators of identify theft to avoid detection. Id. at , 9

25 (Appendix 4.:.5). As ICE's Acting Deputy Ass~stant Director Allen states in his declaration, "based

26 upon experience and information available to ICE, the initiation of interviews by ICE agents at

27 one plant would only serve to alert illegal aliens and identity theft perpetrators employed at other

28 locations." Id. Indeed, in ICE's judgment, initiating futerviews at only one plant would lead to

MEM. DFTS' OPP. TO P.I. - 3 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. lOOO4-1703
Tel (l01) 616-975l; Fax (101) 233.0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 10 of 26

1 the disappearance ofboth illegal aliens and stolen identities. Id. (Appendix 5). Because Swift was

2 unwilling to cooperate, ICE plarined to seek administrative warrants in each of the districts in 3 which a targeted worksite is present. Id. at ~ 2 (Appendix 2). ICE developed a considered

4 operational plan to conduct the workplace enforcement actions in a way that minimized 5 disruptions nad ensured the safety of Swift employees and federal agents. Id. at ~ 10 (Appendix

6 5). To this end, it coordinated its planning with the U.S. Department of Agriculture to obtain

7 information about plant operations, schedules, and safety considerations. Id. ICE also coordinated

8 with the Food Safety Inspection Service within the Department of Agriculture to plan on

9 conducting the operation with the minimum risk of product contamination within the plants. Id.

10 "All ICE agents and managers participating in the operation have been, and will continue to be,

II thoroughly briefed and trained with respect to the planned operational concerns." Id. These

12 concerns informeq. ICE's decision to continue to engage in discussions to negotiate it coordinated 13 operation with Swiftmailagement, even after the instant action was initiated. Id. at ~ 8 (Appendix

14 4).

15

ARGUMENT

16 I. 17

SWIFT HAS FAILED TO MAKE THE HIGH SHOWING NECESSARY FOR A PRELIMINARY INJUNCTION.
In determining whether to grant a preliminary injunction; the Court considers: (1) a

18 substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury to, 19 plaintiff if an injunction is not granted; (3) the 'extent to which the balance of hardships favors 20 plaintiff; and (4) whether the public interest will be disserved by the injunction. Clark v. Prichard, 21 812 F.2d 991,993 (5th Cir.1987); Canal Authority of State ofFlorida v. Callaway, 489 F.2d 567, 22 572 (5th Cir.1974) (en banc). "In considering these four prerequisites, the court must remember 23 that a preliminary injunction is an extraordinary and drastic remedy which should not be granted 24 unless ,the movant clearly carries the burden of persuasion." Canal Authority, 489 F.2d at 573. 25'
These requirements are not balanced, but rather each Qne must be met before the court can grant 26 emergency injunctive relief. Mississippi Power & Light Co. v. United Gas Pipe Co., 760 F.2d 27 618,621 (5th Cir.1985). Because Swift cannot meet a single one ofthese factors, the Court should 28 deny the request for a preliminary injunction.

MEM. DFTS' OPP. TO PJ. - 4 (2-06CV-314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (102) 133-0397

,. Case 2:06-cv-00314 Document 14

• Filed 12/04/2006

Page 11 of 26

1

Most significantly, Swift cannot show any likelihood, let alone a significant likelihood, of

2 success on the merits for at least five reasons; First, the statutes upon which Swift relies do not

3 create a private cause ofaction. See Section A.I, infra. Second, Swift has failed to show that ICE

4 is violating the Basic Pilot Program Statute. See Section A.2, infra. Third, Swift has failed to

5 show that ICE is violating Swift's Due Process rights. See Section A.3, infra. Fourth, the Court

6 lacks jurisdiction to enter an injunction against the arrest and detention of illegal aliens. See
7 Section AA, infm. Fifth, the Court lacks authority to enjoin judicia!' officers in other judicial

8 districts. See Section A.5, infra.

9

In addition, Swift cannot satisfy any of the other requirements for obtaining a preliminary

10 injunction. Swift cannot demonstrate irreparable harm because the only harm it alleges is the loss

n ofbusiness - apparently generated in large measure by its employment ofillegal aliens - resulting

. 12 from legitimate law enforcement activities. When laws are enforced, law violators (here the

13 illegally employed workers and those employing them) suffer harm , but that does not permit a

14 court to enjoin legitimate law enforcement activities. See Section B, infra. Moreover, the

15 Government's law-enforcement activities and interest will suffer substantial harm from an

16 injunction. Those harms far outweigh the harms feared by Swift. ·See Section C, infra..For the

17 same reason, the public interest strongly disfavors granting the requested preliminary injunction..

18 Not only is the public interest served by allowing enforcement of the immigration laws, but

19 permitting ICE to proceed with the planned workforce actions benefits the public interest by

20 detaining - and eventually removing - a large number ofillegal aliens who, in addition t'o violating

21 our immigration laws, are likely engaging in identity fraud by unlawfully assuming the identity

1

I
I

22. ofUnited States citizens. See Section D, infra. Any contrary ruling would create a "safe harbor"

23 for illegal activity by crediting the claim that enforcing our nation's laws is too burdensome on

24 businesses with illegal employees.

25

A. SWIFT HAS NOT DEMONSTRATED A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. .

26

.

.

1. The Statutes On Which Swift Relies Do Not Create A Private Cause Of Action.

27

As an initial matter, Swift has failed even to state a cause of action. The Supreme Court

28 has reaffirmed that:

MEM. DFTS' OPP. TO P.I. - 5 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C 10004-1703
Tel (101) 616-9751; FIX (l01) 133-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 12 of 26

1

private rights of action to enforce federal law must be created by Congress. The Judicial task is to interpret the ,statute Congress has passed to determine whether it

2

displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action

3

does not exist and courts may not create one ....

4 Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (citations omitted). The starting point ~or'

5 such an analysis is the "t,ext and structure" ofthe statute at issue. Id. at 288; see aiso Touche Ross

6 & Co. v. Redington, 442 U.S. 560, 568 (1979).

7

Although Swift's Complaint is less than clear, the most generous reading of it is that Swift

8 is asserting a cause ofaction under both the Declaratory Judgment Act and the Illegal Immigration

9 Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). But like the ,statute at issue in

10 Touche Ross, neither statute "purport[s] to create a private cause of action in favor of anyone."

11 Id. at 569. Indeed, the Supreme Court has already ruled that the Declaratory Judgment Act does 12 not itself create an independent cause ofaction~ See Skelly Oil Co. v. Phillips Petroleum Co., 339 13, U.S. 667,671-72 (1950) (DeclaratoryJudgment Act provides discretionary procedural remedy bu~

14 does not confer or otherwise expandjurisdiction to hear a claim); see also Schilling v. Rogers, 363

15 U.S. 666 (1960) (same).

16

' Likewise, IIRIRA says nothing about any right to sue to enforce its provisions~ and this

17 silence is determinative. Even ifIIRIRA,s requirements concerning the Basic Pilot program were

18 somehow construed as bestowing rights upon an interested employer, and even if an immigration

19 enforcemem action against employees ,would burden those rights (a point the Government does'

20 not concede), such a construction would not automatically give rise' to a private right ofaction that

21 would allow an employer to enforce its provisions: The Supreme Court has emphasized that '''the

22 fact that a federal statute has been violated and some person harmed does not automatically give

23 rise to a private cause of action in favor ofthat person.'" Touche Rosse, 442 U.S. at 568, quoting

24 Cannon v. University of Chicago, 441 U.S. 677, 688 (1979). Congress still must express an intent

25 in the statutory scheme to provide for a private cause of action. See Alexander, 532 U.S. at 290

26 (even "statutes that admittedly create substantive private rights" dq' not provide private cause of

27 action absent Congressional intent). In this case, the statutes at Issue do not evince any such intent

28 to create substantive private rights, let alone a private cause of action.

MEM. DFTS' OPP. TO P.I. - 6 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE" N.W.,NPB 1148-14 WASHINGTON, D.C. 10004-1703
Tel (101) 616-9751; Fax (101) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

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1

2. Swift Cannot Demonstrate That ICE Is Violating The Basic Pilot Program Statute And

Agreement.

'

2

Even iflIRIRAauthorized Swift to bring'this action, Swift cannot establish a likelihood of

3 success on ints IIRIRA claims. First, Swift contends that ICE's planned enforcement action would

4 violate IIRIRA, Complaint at 27-30; PI. Memorandum at 7, 13-16, but nothing in IIRIRA prevents

5 workplace enforcement actions or precludes ICE from obtaining a warrant to enter plaintiffs

6 facilities and arrest (and detain) illegal aliens.

7

As relevant to this case, IIRIRA created the Basic Pilot Program Employment Eligibility

8 Verification system ("Basic Pilot"), a web-based system that helps employers determine whether

9 newly hired employees are authorized to work. Allen DecI. at, 3 (Appendix 2); Plaintiffs

10 Appendix at 218, Basic Pilot Memorandum ofUnderstanding, Art. 1. Contrary to Swift's claims,

11 Basic Pilot is not a blanket prohibition on workplace enforcement actions. To the contrary, an

12 employer who signs the Memorandum of Understanding ("MOU") to participafe in Basic Pilot

13 affirmatively agrees to allow DHS (or its authorized agents or designees) to make periodic visits

14 to the employer for the purpose of "reviewing Basic Pilot-related records, i.e., Forms 1-9, SSA

15 Transaction Records, and Department ofHomeland Security verification records, that were created

.

,

16 during the Employer's participation in the Basic Pilot Program." MOU, Art. II(C)14. Further,

17 .under the MOU, n[t]he Department of Homeland Security reserves the right to conduct Form 1-9

18 compliance inspections during the course of the Basic Pilot, as well as to conduct any other

19 enforcement activity authorized by law." MOU, Art. II(C)6 (emphasis added).

20

Despite the plain terms ofthe MOU, Swift contends that, as a participant in the program, it

21 is shielded from workplace enforcement actions. But Swift's only argument. is based on a

22 provision that is wholly irrelevant to this dispute. Specifically, Swift relies on a section that says 23 a participant cannot be "civilly or criminally liable under any law for any act~on taken in good faith

24 reliance on information provided through the confirmation system." See MOU Art. II(C)(6)(5)

25 (emphases added); see also 110 Stat. 663 (1996). For two reasons, this provision is inapposite.

26

First, ICE's workplace enforcement action does not impose "civil[] or criminal[] liab[ility]"

27 on Swift. "Civil liability" is the "amenability to civil action as distinguished from amenability to

'28
criminal prosecution. A sum ofmoney assessed either as general, special, or liquidated damages;

MEM. DFTS' OPP. TO P.I. - 7 (2-06CV -314-1)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 10004-1703
Tel (202) 616-9751; Fax (202) 233·0397

e· Case 2:06-cv-00314 Document 14

• Filed 12/04/2006

Page 14 of 26

may be either single, double or treble for violation such as overcharges." Black's Law Dictionary

2 (5th ed. 1979) at 223. Unquestionably, ICE's actions of entering Swift's premises, talking to the

3. workers, and rooting out illegal aliens is the inititation of a civil action, and does not make Swift

4 "civilly liable."

5

Indeed, if such actions constituted a "civil liability," then the MOU would be internally

6 inconsistent. As noted, the MOU expressly permits DRS "to conduct Form 1-9 compliance

7 inspections [of employer premises]. . . as well as to conduct any other enforcement activity

8 ~uthorized by law." MOU, Art. !I(C)6. Conveniently, Swift omits and ignores this langu~ge,

9 ' which immediately follows the MOU text that Swift as·serts is determinative, and which cannot

10 be reconciled with Swift's unnatural interpretation of "6ivilliability." Far from prohibiting the

11 workplace enforcement action, the MOU recognizes DRS's right to conduct it.

12

In an effort to avoid this language, Swift attempts to conflate thetenns "irreparable harm,"

13

"de facto pemilty" and "de facto taking," with the term "civil liabilitY." PI. Memorandum at 14-16.

.

.

14 with the. Urisurprisingiy, Swift cites no authority equating these terms. Nor does Swift attempt

15 to make an argument that the MOU or!IRIRA intended to displace the common·understanding 16 of i'civilliability.,,2. Thus, under the plain terms of the MOU and the statute, Swift's claim fails.

17

Second, ICE's wor~lace enforcement action is not predicated on "information provi~ed

~.

.

..

18 through the confirmation system." 110 Stat. 663. As explained by ICE' ~ Acting Deputy Assistant

19 Director Allen, "Basic Pilot data is not used as the basis for worksite enforcement activity.....

20 [I]nformation ICE obtained and used in analyzing Swift's workforce was neither derived from nor
21 based on Basic Pilot data." Allen Decl. at 13 (Appendix~) (emphasis added). Because ICE's
a 22· assessment that substantial number of Swift employees had likely lied about their identities to

23 secure employment and any resulting investigative or enforcement activity was "not based on any
24 Basic Pilot information," id. at 1 5 (Appendix 3), Swift cannot demonstrate as likelihood of

25 success· on this claim.
..
26

27

28 2Understandably, Swift does not contend that ICE's civil workplace enforcement action is

"criminal liability."

..

MEM. DFTS' OPP. TO P.I. - 8·
(2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 . WASHINGTON. D.C. 10004-1703 Tel (202) 616-9752;. Fax (202) 233-0397

• Case 2:06-cv-00314

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• Filed 12/04/2006

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1

3. Swift Cannot Demonstrate A Likelihood Of Success On Its Due Process Claim.

2

Swift's only other claim is that ICE's anticipated workplace enforcement action violates the

3 Due Process Clause of the Fifth Amendment. According to Swift, that action will deprive Swift

4 ofa property interest, and thus "th~re mustbe notice of [the action] and an exped~ted hearingpriof

5 to such action." PI. Memorandum at 19 (emphasis in original). This claim is wholly without

6 merit - and thus Swift cannot demonstrate a likelihood of success on this claim - for several

7 reasons.

8

First, and most fuJ;ldamentally, no Constitutional right requires the Government to provide

9 notice ofa planned law enforcement action to a person or company that may be violating the law.

10 See. e.g., Naegele Outdoor Advertising Co. ofLouisville v. Moulton, 773 F.3d 692, 694 (6th Cir.

11 1985) ("[T]here is no federally guaranteed constitutional right to a hearing or other process before

12 the issuance and executiOIi ofa search warrant beyond the demands ofthe Fourth Amendment.");

13 Carter v. Baltimore County. Maryland, 95 Fed. Appx. 471, 478 (4th Cir. 2004) (finding no due 14 process vio~ation in an arrest and detention on a properly-issued warrant). But Swift's argument,

15 if crediteq, would require such notice any time that a planned law enforcement action - such as

16 serving a search warrant on a company suspected ofprice-fixing, or on a sweatshop - might have

17 an B;dverse effect on a business. That is not and cannot be the law, and not surprisingly, Swift

18 points to no case requiring such notice.

19

Instead, the Constitution is satisfied when,. prior to such an enforcement action, the

20 Government procures a warrant authorizing that action.3 A warrant requires review by a neutral

21 and detached magistrate or judge and does not merely rely upon a determination of the existence

22 3 None of the many circuit or Supreme Court cases approving the use of ex parte . .
23 administrative warrants have even hmted that the very practice approved might actually violate the Constitution. See,~, Marshall v. Barlow's. Inc., 436 U.S. 307, 320-21 U978); Stoddard
24 Lumber Co. v. Marshall, 627 F.2d 984,989-90 (9th Cir. 1980); National-Standard Co. v. Adamkus, 881 F.2d 352,362-63 (7th Cir. 1989) ("{EJx parte proceedings are the normal
25 means by which warrants are obtained in both criminal and administrative actions ..."). Moreover, a number of cases uphold the government's authority to seek administrative
26 inspection warrants ex parte under various statutes. See, ~ Bunker Hill Co. Lead & Zinc Smelter v. EPA, 658 F.2d 1280, 1285 (9th Cir. 1981) (Clean Air Act); In re Establishment
27 Inspection of Keokuk Steel Castings, 638 F.2d 42,45 (8th Cir. 1981) (Occul'ational Safety and Health Act); In Re Alameda County Assessor's Parcel Nos. 537-801- 2-4 & 537-850-9, 672 F.
28 Supp. 1278, 1287 (N.D. Cal. 1987) (Clean Water Act); In re Stanley Plating Co.. Inc., 637 F.. Supp. 71, 73 (D. Conn. 1986) (Resource Conservation and Recovery Act).

MEM. DFTS' OPP. TO P.I. - 9 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (l02) 616-9752; Fax (201) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 16 of 26

10f probable cause by an officer "engaged in the often competitive enterprise of ferreting out

2 crime." Johnson v. United States, 333 U.S. 10 (1948). ICE has every intention of seeking and 3 obtaining a warrant from a neutral magistrate, supported by'probable cause, prior to moving 4 forward with any significant enforcement action aimed at identifying il1~gal aliens. Allen Decl. 5 at , 2 (Appendix 2). Further, it is· well established that ICE, like any other law enforcement
v. '6 agency, may seek and obtain a warrant ex parte. See Marshall Barlow's. Inc., 436 U.S. 307,
'7 320-21 & n.15 (1978); Stoddard Lumber Co. v. Marshall, 627 F.2d 984,989 (9th Cir. 1980); cf.
8 Midwest Growers Co-op Com. v. Kirkemo, 533 F.2d 455,464 n.21 (9th Cir. 1976) (obtaining 9 administrative warrant ex parte does not constitute bad faith because this is the "traditional 10 method" for obtaining warrants). Indeed, the use of civil orders to authorize the entry upon

I
I r

11 premises where illegal aliens are believ~d to be present and to permit their questioning and arrest 12 has longstanding judicial approval. See Blackie's House of Beef. Inc. v.Castillo, 569 F.2d 1211,

[, .

I

13 1219-27 (D.C. Cir. 1981), cert. denied, 455 U.S. 940 (1982).4

14

In this case, ICE will not proceed with the anticipated workplace enforcement action (or any

15 other type of search without Swift's consent) in a particular plant unless and until ICE obtains a

16 warrant from a magistratejudge.5 Allen Decl. at, 2 (Appendix 2). The impact that the workplace

17 enforcement action will have on Swift is one of the many factors that the magistrate judge will

18 consider before issuing the warrant. See Johnson, 33JU.S. at 14 ("[A] magistrate mustjudge.the

19 reasonablene~s of every warrant in light of circumstances of the particular case, carefully

20 considering the description ofthe evidence sought, the situation ofthe premises, and the position 21 and the situation of the owner or occupant."). Critically, then, a process already exists in which 22 a neutraljudge will independently balance particularized facts regarding the anticipated workplace 23 .enforcement action. That is all the Constitution requires. This litigation is nothing more than an

24

25

4 The investigation may also produce information which will lead to the criminal

26 prosecution of some aliens.

. ,

27 5 It is well settled that the Immigration and Nationality Act (INA) authorizes ICE Special Agents to question any alien or person believed to be an alien regarding his or her irmmgration
28 status and their right to be present in the United States. See INA § 287(a)(1), 8 U.S.C. § 1357(a)(1).

MEM. DFTS' OPP. TO P.I. - 10 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (202) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

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1 attemptby Swift to forestall that consideration by requesting an adjudication ofthe potentialharms

2 without consideration of the specific facts to be provided by ICE to the magistrate.

3

Second, even ifSwift had some right to be given notice ofthe workplace enforcement action

4 (which it does not), it can hardly claim lack of notice in this case. Indeed, according to Swift's

5 own pleadiri~s, notice was given to Swift of the planned workplace survey on at least two

6 occasions, on November 17,2006 and again on November 20,2006. See Corp.plaint, 115. Thus,

7 Swift's claim that it was not proyided notice is simply false as Swift has received far more noti~e

8 and consideration than required. In fact, in an effort to work out a compromise process, ICE

9 contacted Swift regarding the scheduled 'action, sought Swift's consent, outlined the' proposed

10 measures it would take to ensure the safety of workers, and provided Swift with sufficient time

11 to rearrange workflow and deliveries to lessen the impact on production. Allen Decl. at 1 7

12, (~ppendix 3-4). Swift declined to consent to the workplace enforcement action, citing economic

13 concerns. Id. (Appendix 4).

14

Third, the effects ofthe anticipated workplace enforcement action that Swift fears are related

15 to the loss of employees who are illegally working in the United States. There is no taking of

16 Swift's property, as Swift has no property interest in its employees. Nor does Swift have a

17 privilege to employ illegal workers by virtue ofthe Basic Pilot program once the illegal nature of
, ,
18 those employees is discovered. The alleged costs of the ICE workplace enforcement action to

19 Swift do not constitute a deprivation of property in the constitutional sense. Cf.,~, FTC v.
20 Standard Oil Co. of California, 449 U.S. 232, 242-43 (1980) (the cost of defending against an

21 investigation, "even substantial and unrecoupable cost, does not constitute irreparable injury"). In

22 conclusion, a process is already in place - the warrant process - which provides an indep~ndent

23 balance of particularized facts regarding the potential search, and thus Swift's claims of a due

24 process violation must fail.

25

Also relevant under the Mathews v. Eldrige balancing test, 424 U.S. 319, 334 (1976) is the

26 burden ot the Government ofproviding additional process. As set forth below, the Government

27 (and public) woudl suffer substantial harm as a result of Swift's proposed approach.

28

MEM. DFTS' OPP. TO P.I. - 11 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (202) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 18 of 26

1

4. INA § 242(f) Deprives Courts Of Jurisdiction To Enter An Injunction Against The Operation orINA § 236.

2

On top of all this, courts simply do not have jurisdiction to issue the injunction that Swift

3. .seeks. Under the plain text ofthe ImmigratIon and Nationality Act ("INA"), "no court (other than

4 the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the

5 provisions of part IV of this sub~hapter." INA § 242(f), 8 U.S.C. § 1252(f). Part IV of the

6 relevant subchapter, aptly titled "Inspection, Apprehension, Examination, Exclusion, and

7 Removal," includes INA § 236, which provides that "an alien may be arrested or detained pending

8 a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a)

9 (emphasis added).

10

. Swift nonetheless requests that the Court enjoin ICE's planned efforts to apprehend and

11 detain illegal immigrants employed and located at their facilities. Indeed, Swift concedes that

12 ICE's planned workplace enforcement action is a "removal action," and that this action is intended

13 to identify possible illegal aliens "for further questioning and possible deportation." Complaint

14 at 15. These the actions that Swift seeks to enjoin - the apprehension and detention of aliens

15 working at their faCilities pending removal- are specifically authorized by INA § 236. See. e.g.,

16 Baldwin Metals Co.. Inc.. v. Donovan, 642 F.2d 768,773 n.9 (5th Cir. 1981) ("'Were art employer

I

17 given the power to invoke the district court's jurisdiction on the eve ofa scheduled hearing be~ore

J.

18 the Review Commission whenever an: inspection warrant is challenged on constitutional grounds,

I
I

19 we might well sunder the statutory balance between swift abatement ofdangerous conditions and

I

20 due process protections."') (quoting Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1140 (3d

,~ . .
I

21 Cir. 1989)). Accordingly, INA § 242(f) specifically' prohibits this Court from granting Swift's

22 requested injunction against those actions.6

23

24
6 In addition, Swift fails even to plead a valid jurisdictional basis for this suit in the first 25 place. It is beyond peradventure that the federal courts are courts of limited jurisdiction, and
the burden is on the plaintiff to demonstrate ,Eroper jurisdiction. Swift has failed this most 26 elementary burden. .As discussed SURra, SWIft pleads jurisdiction under two federal statutes -
28 U.S.C: § 1491(a)(1) and the Decaratory Juogment Act, 28 U.S.C. §§ 2201-2202 - neither 27 one of which vests this Court with jurisdiction. The first statute involves the jurisdiction of the
United States Court of Federal Clalffis, while the Declaratory Judgment Act' IS not an 28 independent ground for jurisdiction [and] permits the award of declaratory relief only when
other bases for jurisdictIOn are present." Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.

MEM. DFTS' OPP. TO P.I. - 12 (2-06CV-314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004·1703
Tel (202) 616-9752; Fax (202) 133-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 19 of 26

1

5. The Court Ought Not Enjoin Judicial Officers In Other Judicial Districts.

2

Finally, this Court should not enjoin judicial officers in other judicial districts. 'Prior to

3 entering, ICE will obtain a judicial warrant authorizing entry, unless Swift decides to consent to

4 entry. Allen Decl. at, 2 (Appendix 2). By seeking to enjoin ICE's enforcement efforts, Swift

5 essentially requests that the Court enjoin those judicial officers, in other districts, from

6 independently reyiewing ICE's warrant request and determining the propriety of issuing such

7 warrants. But principles of comity counsel that this Court ought not enjoin or restrain judicial

8 officers in other districts from proceeding with their review ofICE's warrant requests. Cf. Society

9 of Separationists. Inc. v. Herman, 939 F.2d 1207, 1219 (5th Cir.l991), rev'd en banc on other

10 grounds, 959 F.2d 1283 (5th Cir.1992) (stating that principles of "comity and decorum" suggest

11 that federal courts should not enjoin statejudges unless necessary). "The 'federal-comity doctrine'

12 is defined as '[t]he principle requiring federal district courts to refrain from interfedng in each 13. other's affairs.'" In re Repurchase Corporation~ Debtor, 329 B.R. 8~2 (N.D. Ill. 2005) (citing

14 Black's Law Dictionary (8th ed. 2004)). The federal courts long have recognized that the principle

15 of comity requires federal district courts - courts of coordinate jurisdiction and equal rank - to

16 exercise care to avoid interference with each other's affairs. West Gulf Maritime Ass'n. v. Ila

17 Deep Sea Local 24, 751 F.2d 721 (5th Cir. 1985).

18

In Saleh v. Titan Corp., 353 F. Supp. 2d 1087 (S.D. Cal. 2004), plaintiffs, who were

19 individuals detained and allegedly abused in Iraqi prisons under United States control, asked the

20 court to enjoin an action in another district. Plaintiffs moved to enjoin a subsequently-filed action
21 by other putative class members. The court stated that '''[w]hen an injunction sought in one
,.
22 federal proceeding would interfere with another federal proceeding, considerations of comity

23 require more than the usual measure ofrestraint, and such injunction should be granted only in the

24

25 1980).

.

. Moreover, the controversy must be "definitive and concrete." Aetna Life Ins. Co. Of

26 Hartford. Conn. v. Haworth, 300 U.S. 227, 228-241 (1937). The court must examine whether

the facts demonstrate that a substantial controversy exists, between parties having adverse legal

27 interests, of sufficient immediacy and reality to warrant the issuance of a declaratory

judgment." ld. Here, there is no controversy because Swift and ICE agree that Swift

"1 28 employees have evaded the Basic Pilot verification program and mal have engaged in identity theft and fraud; and Swift is only seeking a remedy. Complaint at 5-7, 11.

MEM. DFTS' OPP. TO P.I. - 13 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASIDNGTON, D.C. 10004-1703
Tel (101) 616-9751; Fax (101) 133-0397

• Case 2:06-cv-00314

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1 most unusual cases.'" Id. at 1089 (citing Bergh v. State of Washington, 535 F.2d 505 (9th Cir. 2 1976)). The court also noted, citing another Ninth Circuit opinion, that as a matter of.comity, a 3 federal court injunction against proceedings in another federal court will rarely be granted. Id. 4 (citing Del Mar Avionics v. Quinton Instruments Co., 645 F.2d 832 (9th Cir. 1981)). The district

5 court in this case detennined that it did no~ have the authority to enj oin putative class members

6 from pursuing a subsequently-filed action in another federal'forum. Id. at 1094.

7

B. SWIFT HAS NOT ESTABLISHED THATIT WILL SUFFERIRREPARABLE HARM.

8

In any event, even if Swift had shown a substantial likelihood of success on the merits, it

9 failed to demonstrate.a substantial threat of irreparable injury. Swift's claim of harm is

10 inextricably tied to its refusal to cooperate fully with the United States Government in ridding its

11 own chosen workforce of illegal aliens and in allowing the apprehension of those who engage in

12 identity theft and fraud. Its hands are unclean, arid the Court should decline to ratify the alleged

13 harm. Anytime there is law enforcement action, those who violate the law will suffer harm. But

14 that of course is no reason to enjoin law enforcement and allow Swift to provide a sanctuary to

15 illegal aliens who have also engaged in identity and document fraud.

16

Moreover, Swift falls far short ofdemonstrating actual or potential irreparable harm because

17 its affidavits are self-serving, unsupported by independ~nt evidence, and contain nothing more

18 than speculation. See generally Declaration of Jack Shandley (in Plaintiffs Appendix) at 11 49-

19 51, 61, 63-64. For example, Swift merely notes without foundation that it "believes that it would

.

.

20 suffer serious, irreparable injury," id. 149, and similarly "believes" (again without foundation) that

21 it would take two months to mitigate these speculative harms by hiring new employees, id. 1 51.

22 Swift also avers that it "appears that" at least one production day will be lost at its plants. Id. 161.

23 Finally, Swift notes a mass removal ofidentity thieves "could cause" S~ift a parade ofhorribles.

24 Id. 1 63. Thus, as the tentative language of Swift's own self-serving·declaration indicates, it has

25 failed its burden to establish a likelihood ofinjury that is certain and irreparable (much less legally

26 actionable), not merely speculative. And such claims of "speculative injury [are] not sufficienf'.

27 to justify a preliminary injunction. Holland Am. Ins. Co. v. Succession ofRoy, 777 F.2d 992, 997

28 (5th Cir. 1985); see also Humana, Inc.v. Jacobson, 804 F.2d 1390,1394 (5th Cir. 198~) (requiring

MEM. DITS' OPP. TO P.1. - 14 (2-06CV-314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C.· 10004-1703
Tel (101) 616-9751; Fax (101) 133-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

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1 a showing of a "significant threat of injury" or that "injury is imminent" before injunctive relief

2 will be granted). On this ground alone, the Court should deny Swift's motion for emergency

3 injunctive relief. See EnterPrise Intern. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d

4 464, 472 (5th Cir. 1985).

5

Moreover, while Swift conjures up a worst-case scenario, it has failed to work ~ith ICE to

6 craft a plan that would reduce the magnitude of the disruption to their business. Allen Decl. at

7 ~~ 7-8 (Appendix 3-4). By contrast, ICE has taken significant efforts to minimize any harm to

8 Swift's facilities and operations. Id. at ~~ 7, 10 (Appendix 3,5). ICE has even coordinated with

9 the Department of Agri.culture ~d with the Food Safety Inspection Service to reduce the risk of

10 product contamination in the plants and to increase the safety factor to both the employees and

11 agents. Id. at ~ 10 (Appendix 5). Both the logistics and timing of the operation are intended to

12 increase safety. Id. ICE's prudent actions in preparation render even more remote the likelihood

13 of significant, irrepar~ble harm to Swift. Notably, Swift's claim contains an ironic twist, asking

14 the Court to consider the deprivation in earnings it will suffer if it is not allowed to continue to

15 profit through the use of illegal and unauthorized employees.

16

C. THE BALANCE OF HARMS TIPS AGAINST SWIFT.

. 17

In addition to ~wift putting forth no legally cognizable claims or irreparable harm, the

18 balance of harms required by the preliminary injunction analysis tips sharply against Swift. The

19 preliminary injunction requested by Swift will have a profound negative impact on defendants by

20 adversely affecting this and other investigations. As an initial matter, "[i]t is not for the courts to

21 interfere with Congress' broad authority to govern immigration." Gunaydin v. INS, 742 F.2d 776, 22 779 (9th Cir. 1984). As the Supreme Court has recognized~ "Congress designs the immigration

23 laws, and it is up to Congress to temper th.e laws' rigidity if it so desires." INS v. Phinpathya, 464

24 U.S. 194, 196 (1984).

. 25

Congress vested DHS, and more specifically, ICE, with the authority for and responsibility

26 of immigration enforcement. See The Homeland Security Act of 2002, Pub. L. No. 107-296,

27 § 441, 116 Stat. 2153 (2002); Allen Decl. at ~ 11 (Appendix 5). The decision whether to

28 investigate a case and refer it for enforcement proceedings is, in the ordinary course, committed

MEM. DFTS' OPP. TO P.I. - 15 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGAnON
1331 PENNSYLVANIA AVE.. N.W•• NPB 1148-14 WASHINGTON. D.C. 10004-1703
Tel (l01) 616-9751; Fax (l01) 133-0397

•• Case 2:06-cv-00314 Document 14

• Filed 12/04/2006 Page 22 of 26

1 to the discretion ofthe investigative agency. See Lewis v. U.S., 70 F3d 5?7, 601 (Fed. Cir. 1995).

2 In the absence ofstatutory directions as to the manner in which an investigation must be conducted

3 by an administrative agency or official, the nature and extent ofan investigation are matters within

4 the sound discretion of administrative officials, and courts give substantial deference to the

5 methods chosen. by an agency to fulfill its responsibiUty. See Former Employees of Alcatel

6 Telecommunications Cable v. Herman, l34 F. Supp.. 2d 445, 448 (Ct. Int'l Trade 2001).

7

The "phased approach" recommended by Swift "would alert illegal aliens in the Swift

8 workforce to the ICE investigation, allowing them to disappear from Swift plants an,d.elude law

9 enforcement." Allen Decl. at" 9, 11 (Appendix 4-5). ICE has a duty to apprehend illegal aliens

10 and remove them from this country. Id. at 11 (Appendix 5). Further, the illegal aliens in Swift's

11 workforce appear to have obtained their employment through identity fraud, making the

12 apprehension and detention of these aliens an even greater concern. See id. at, 12. Issuance of

13 an injunction prohibiting the planned worksite surveys would allow many of these aliens to

14 disappear and move elsewhere within the United States, negatively impacting ICE's ability to

15 locate and remove them. Id:at" 11-12. Swift acknowledges as much in'its "Motion for Leave

16 to File Under Seal," averring that absent a sealed record, "unauthorized workers may leave and

17 thus frustrate the goal of identifying and removing unauthorized workers. from Swift's work

18 force."

19

ICE has already planned the transportation and logistical accommodations for federal law

20 enforcement agents who have been designated to participate in the operation, in addition to

21 training the agents and managers in plant operations, safety concerns, and ways to reduce product

22 contamination during the survey. Id. at" 10, l3 (Appendix 5-6). United States citizens who have

23 needlessly suffered varied financial harms aDd indignities because their identities were stolen by

24 unauthorized workers, and thereafter approved by Swift for employment, will be subject to further

25 losses unless these identity thieves can be apprehended in Swift plants. ICE's effectiveness in

26 apprehending illegal aliens and the adverse effects on the investigation are concrete harms that.

27 would result from a preliminary injunction. Accordingly, the balance ofharms favors Defendants.

28

MEM. DFTS' OPP. TO P.I. - 16 C2-06CV-314-J)

UNlTEDSTATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (202)233-0397

•• Case 2:06-cv-00314 Document 14

• Filed 12/04/2006

Page 23 of 26

1

D. THE PUBLIC INTEREST CLEARLY FAVORS THE GOVERNMENT'S ABILITY

TO ENFORCE IMMIGRATION LAW.

2

Should an injunction enter, the harm to the public interest reaches beyond the immediate

3 effects of halting the planned operation with resp~ct to Swift. As the Secretary of Homeland

4 Security has concluded:

5

Illegal immigration hurts everyone. It flouts the rule of law, and it allows crhninal

6

elements to enter our country. It undercuts those who patiently pursue legal immigration proceedings. It places heavy economic strains on towns ... [a]nd it

7

threatens the lives of the migrants themselves. The human smugglers and traffickers...who bring them to the country all too often rob them, abuse them and leave

8

them for dead. In addItion to this human cost, these smugglers also traffic in guns and narcotics, a threat to the stability of both the United States and Northern MeXICO. [I]f

9

we cart not control our borders, we leave the way open for terrorists hoping to do us harm.

10 Statement of Secretary Michael Chertoff," Comprehensive Immigration Reform II, before the

11 United States S. Judiciary Comm. (4005), submitted as Exhibit 2, Appendix 7-13.

12

Moreover, both Swift and ICE believe that illegal aliens in the Swift workforce are engaging

13 in identity theft. Such identity theft is a real and substantial harm to the public at large. See PI.

14

Appendix

at

178-91

(GAO,

Identity

Fraud.

Prevalence

and

~inks

to

Alien

Illegal

. Activities);

15 . . .

.

Arnold Hamilton, Business ofFake Documents Is Booming: Innocent People Often The Victims· .

16 OfID Theft;, Dallas Morning News (Nov. 17,2006), submitted as Exhibit 3, Appendix 14-16.

17 Identity theft includes the use of fraudulent identity documents, which have been used in

18 connection with narcotics trafficking and terrorism. PI. Appendix at 178-79, 187-89. Likewise,

19 the 9/11 Commission recognized that "[t]or terrorists, trav~l documents are as important as

20 weapons." National Commission on Terrorist Attacks Upon the United States, 2004 WL 1634832

21 at 351. Moreover, the use of a United States citizen's identity by an illegal alien to obtain

22

employment is not a victimless crime, as the individual citizens may be faced with debt collection

23

.

.

enforcement, credit denials, and other harms. See PI. Appendix at 113-41 (GAO, Identity Fraud.

24 Prevalence and Cost Appear to Be Growing); Arnold Hamilton, Business of Fake Documents Is

25 Booming: Innocent People Often The Victims Of ill Theft, D~las Morning News (Nov. 17,

26 2006), Appendix 14-16. Accordingly, the public interest favors the identification and 27 apprehension ofthose involved in identity theft, and would be adversely impacted by the requested 28 injunction.

MEM. DFTS' OPP. TO P.I. - 17 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (202) 233-0397

e.· Case 2:06-cv-00314 Document 14

• Filed 12/04/2006

Page 24 of 26

1

Ifthe Court grants Swift's request for a preliminary injunction, it will cripple ICE's ability

2 to execute its Congressional mandate of enforcing the nation's immigration laws and removing

3 illegal immigrants. See CRS Report for Congress, Border Security: Key Agencies and Their

4 Missions (2004), submitted as Exhibit 4, Appendix 17-22. ICE is the largest investigative branch

5 ofDHS, which was created after the terrorist attacks of September 11, 2001, to more effectively

6 enforce our immigration and customs laws and to target the people, money, and materials that

7 support terrorist and criminal activities. See U. S. Immigration and Customs Enforcement website,

8 at http://www.ice.gov/aboutlindex.htm. submitted as Exhibit 5, Appendix 23-24. Effective

9 worksite enforcement plays an integral role in ICE's fight against illegal immigration and, more

10 broadly, in ICE's efforts to promote national security, protect critical infrastructure, and ens~e

11 fair labor standards. See U.S. Immigration and Customs Enforcement website, at

12 http://www.ice.gov/pi/worksite, submitted as Exhibit 6, Appendix 25. A large aspect ofworksite

13 enf<?rcement efforts focuses on preventing access to critical infrastructure sectors and sites to

14 .prevent terrorism and to apprehend those individuals who aim to do harm to the United States.

15 See Immigration Enforcement at the Workplace: Learning From the Mistakes of 1986, before the

16 United States S. Comm. On the Judiciary, Subcomm. on Immigration, Border Security and

17 Citizenship (2006) (statement of Julie 1. Myers, Assistant Secretary, U.S. Immigration and

18 Customs Enforcement, U.S. Department ofHomeland Security), submitted as Exhibit 7, Appendix

19 26-30. The nation's food supply is part of that critical infrastructure. In addition to critical

20 infrastructure protection, worksite enforcement also combats alien smuggling, human trafficking,

21 financial crimes, commercial fraud, export violations, and document fraud. Id. Hence, a ruling

22 to temporarily enjoin ICE from enforcement efforts in this case would hinder ICE's mandate to

23 enforce the nation's laws at worksites, laws that it is charged with enforcing. See Savomy v. U.S.

24 Attorney General, 449 F.3d 1307,1320 (11th Cir. 2006) (citing INS v. Hibi, 414 U.S. 5, 8 (1973)).

25

Granting the requested injunction would be tantamount to inviting any business that fears

26 investigation to seek a civil remedy to prevent lawful worksite enforcement: any company that

27 fears .investigation will be en r9ute to the courthouse in an effort to delay? minimize, dictate, or

28 eliminate the prospect of enforcement action. Moreover, these same tactics· could be employed

MEM. DFTS' OPP. TO P.1. - 18 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (202) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 25 of 26

1 by any business seeking to avoid investigations conducted by other federal law enforcement

2 agencies. It is beyond question that such limitations on lawful government action would seriously

3 harm the public interest.

~

Indeed, any order that enjoins a governmental entity from enforcing statutes enacted by the

5 duly elected representatives of the people constitutes an irreparable injury that weighs heavily

6 against the entry ofinjunctive relief. See Coa~ition for Economic Equity v. Wilson, 122 F.3d 718,

7 719 (9th Cir. 1997) (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S, 1345, 1351

8 (1977) (Rehnquist, J., in chambers)); INS v. Miranda, 459 U.S. 14, 19 (1982) (noting the

9 "increasingly important interest, implicating matters ofbroad public concern [that] is involved in
10 cases ofthis kind [that involve] [e]nfor~ing the immigration laws . , .It 'and thus refusing to estop

11 the government). Accordingly, the public interest strongly disfavors the requested injunction, and

12 Swift's demands to frustrate this process should fail.

13

CONCLUSION

14

Plaintiffs case fails every test for preliminary injunctive relief, and Plaintiff s motion should

15 therefore be denied for any or all the reasons set out above.

16 Dated: December 4, 2006 .

17

Respectfully submitted,

18

RICHARD ROPER United States Attorney

19

GORDON BRYANT .

20

Assistant United States Attorney

21

PETER D. KEISLER Assistant Attorney General

22

JONATHAN F.COHN . De~uty Assistant Attorney General

23

DA.VID KLINE . Principal Deputy Director

,

24 25

By:EfLfA~BfE-t;J;. .ST.EzVE(N~/~.;./'.".f.t~'l1 ;rA/tff ).

26

Trial Attorney, Office ofImmigration Litigation United States Department of Justice, Civil Division

27

W13a3s1hPinegntnosny, lnv.acm.aA2(v)0e4n4ue, N.W.

.

28

Telephone: (202) 616-9752 Fax: (202) 353-1224

MEM. DFTS' OPP. TO P.I. - 19 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION.
1331 PENNSYLVANIA AVE., N.W., NPB 1148-14 WASHINGTON, D.C. 20004-1703
Tel (202) 616-9752; Fax (202) 233-0397

• Case 2:06-cv-00314

Document 14

• Filed 12/04/2006

Page 26 of 26

1

CERTIFICATE OF SERVICE

2

3

I certify that on the ~ day of December. 2006, a true and correct copy of the foregoing

4 document was forwarded to the following by Federal Express Overnight delivery and bye-mail,

5 as follows:

6 Plaintiffs:

7 W1illiam@E.Llawler,III

w awler ve aW.com

8

C. Michael Buxton Vinson & Elkins, L.L.P.

9

The Willard Office Building

.

1455 Pennsylvania Avenue, Suite 600

10

Washington, D.C. 20004
Fed Ex and email

.

11 Kevin A. Isern 12 Lovell, Lovell, Newsome & Isern, L.L.P.
112 West 8th Avenue, Suite 1000
13 Amarillo, TX 79101-2314
Email only

.14

15

By:

16
Assistant
17

18

19

20

21 22

23

24

25 26

27 28

MEM. DFTS' OPP. TO P.I. - 20 (2-06CV-314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 1148·14 WASHINGTON, D.C. 20004-1703
Tel (101) 616·9752; Fax (102) 233-0397

 
 .....•.. Case 2:0·..6._-cv-0031_4...... Document 15 Filed 12/04/2006 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AT AMARILLO
SWIFT AND COMPANY,

CLEh-i..K, U.S. JISTR~Cf COURT
By _........:..-'------< . Depllty

Plaintiff,

No. 2-06CV-314-J

v.

Th1MIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE DEPARTMENT OF HOMELANP SECURITY and JULIE L. MEYERS,
Defendants

APPENDIX TO DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
I
~ . i

• Case 2:06-cv-00314

Document 15

• Filed 12/04/2006

Page 2 of 40

TABLE OF CONTENTS
1. Declaration of Matthew C. Allen, ICE Acting Deputy Assistant Director, dated December 4, 2006.
2. Statement ofDHS Secretary Michael Chertoff, Comprehensive Immigration, Reform IT, before the United States S. Judiciary COInln. (Oct. 18.2005) .
3. Arnold Hamilton, Business of Fake Documents Is Booming: Innocent People , Often The Victims OfID Theft. Dallas Morning News (Nov. 17,2006).
4. CRS Report for Congress, Border Security: Key Agencies and Their Missions (Aug. 4, 2004).
5. U.S. Immigration and Customs Enforcement website, at htn>://www.ice.gov/aboutlindex.htm .
. j
6. U.S. Immigration and Customs Enforcement website, at http://www.ice.gov/pi/worksite.
7. Julie L. Myers, Assistant Secretary, U.S. Immigration and Customs Enforcement; U.S. Department of Homeland Security, Immigration Enforcement at the Workplace: Learning From the Mistakes of 1986, before the United States S. Comm. On the Judiciary, Subcomm. 'on Immigration, Border Security and Citizenship (June 19,2006) .

• Case 2:06-cv-00314

Document 15

• Filed 12/04/2006

Page 3 of 40

EXHIBIT 1

• Case 2:06-cv-00314

Document 15

• Filed 12/04/2006

Page 4 of 40

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS AT AMARILLO

SWIFT & COMPANY,

)

)

Plaintiff.

)

)

~

)

)

UNITED STATES IMMIGRATION AND )

CUSTOMS ENFORCEMENT ("ICE"); )

JULIE MYERS; Assistant Secretary for )

ICE, Department of Homeland Security )

("DRS").

)

)

Defendants.

)

)

~

No.2-06CV-,314-J DECLARATION OF MATTHEW C. ALLEN

I, Matthew C. Allen, hereby declare:
(1) I sin the Acting Deputy Assistant Di'~tor for the Smuggling and Public Safety'

Division, Office of Investigations, for United States Immigration and Customs Enforcement (ICE) in the DepartmentofHo~eland Security (DRS). My duties include the oversight of operational and

programmatic activities concerning the worksite enforcement of immigration laws by ICE. Prior to

being appointed to my current position, I was the headquarters Unit Chief for the Contraband

I·

Smuggling Unit and previously the Resident Agent in Charge (RAC) in Nogales, Arizona, where I was

I

responsible for managing the ICE enforcement activities within that geographic location. As Acting

Deputy Assistant Director, I have personal)), superVised. from the headquarters level more than fifty i
I,
ICE worksite survey operations. In that capacity, and based upon reasonable inquiry and my

knowledge, infonnation and belief, I state the following. (2) Among its numerous responsibilities, ICE is charged with the worksite enforcement of
immigration laws in the United States. This obligation requires ICE to investigate the immigration

status of various employees in the country and assess whether those individuals are lawfully employed

under the immigration laws. Such activities may require ICE agents to lawfully enter the premises of

1

,-

• Case 2:06-cv-00314

Document 15

• Filed 12/04/2006

Page 5 of 40

an employer. The lawful entry by ICE agents onto the property of an employer may only be effecle9 by

consent of the employer, or with a properly issued criminal or civil search warrant supported by the

requisite cause.

(3) The Department of Homeland Security has also provided employers with a voluntary tool designed to verify the lawful status of its potential employ~. The Basic

Pilot Program Employment Eligibility Verification system ("Basic Pilot'') is a web-based system that

verifies identifying information provided by newly. hired employees. The information is entered into

Basic Pilot by the employer and run against the databases ofthe Social Security Administration (SSA)

and U.S. Citizenship and Immigration Services (USCIS). Basic Pilot is administered by, and the

databases are maintained by, USCIS. Basic Pilot data is not used as the basis for worksite enforcement

activity. Indeed, information ICE obtained and used in analyzing Swift's workforce was neither

derived from nor based on Basic Pilot data. The Basic Employment Verification Pilot, Memorandum

of Understanding, as signed by Swift, the Social Security Administration, aI'!-d the Department of· Homeland Security, clearly states, "The Department of Homeland Security res~rves the right to cOnduct Fo~ 1-9 compliance inspections during the course of the BaSic Pilot, as well as to conduct any other

eI.lforcement activity authorized by law." . (4) On February 14, 2006~ the ICE office in Des ¥oines, Iowa, opened an investigation into the

Swift pork processing plant operating in Marshalltown, Iowa. The investis.ation was initiated based

. .

..

upon information obtained by local ICE agents during the administrative processing of illegal aliens

under ICE's Alien Criminal Apprehension Program (ACAP). During these jail-house interviews in

Marshalltown, many illegal iUiens reported to ICE agents that they were employed at Swift's

Marshalltown plant under assumed identities. The illegal aliens assumed the identities of other people

to obtain employment at Swift. ICE agentS also received information about the illegal alien problem at

. Swift's Marshalltown plant from the Marshalltown police department. The information gathered

during the investigation resulted in the service of an administrative subpoena on Swift re.quiring that

the company provide the ICE Des Moines office with the Employment Eligibility forms (Form 1-9)

DECLARATION OF MATTHEW C. ALLEN 2 Nn .., _(v;rv_':114_T
2

• Case 2:06-cv-00314

Document 15

.-- Filed 12/04/2006 Page 6 of 40

per.taining to all current employees. ICE received approximately 1,300 Form ~-9s from Swift: Based

on the ICE investigation and review of the subpoenaed forms, ICE sUspected that a substantial number

of Swift employees had engaged in identity thc;ft in order to secure employment with Swift. ICE based

this assessment on the review ofForm I-9's and photocopies of identification documents Swift

pre~ent~ to ICE pursuant to the subpoena, as well as on other independent evidence ICE had gathered.

(5) This assessment and any resulting investigative or enforcement activity is not based on any

Basic Pilot information.

(6) After more detailed investigation in Marshalltown, ICE issued additional administrative

subpoenas compelling Swift to produce form 1·9s from seven other Swift plants located in the United

States: As a result ofthis review, ICE agents examined several thousand Forms 1-9 and noted similar

suspect patterns discovered during their review of the Forms 1-9 received from the Marshalltown

facility. Based upon the training and experience of the ICE agents, these patterns suggested to the ICE agents that, company-wide, a substantial number of Swift employees ~ere illegal aliens and had

engaged in identity theft in order to obtain employment With the company. Thereafter, in a letter to

Bloomington, Minneso~ ICE Special Agent in Charge (SAC) Mark Cangemi-dated July 5, 2006.-

Jack Shandley, a Senior Vice President of Human Resources for Swift, addressed ~wift's hiring

practices and its ongoing evaluation of its performance in that area. In this letter, Mr. Shandley

acknowledged "some limitations in our hiring practices and policies, principally related to third-party

document fraud." In a meeting with ICE St. Paul representatives on September 21,2006, Swift

representatives aga~ acknowledged that there might be some problem with the employment of illegal

.

.

aliens and low level criminality within their plants (referring to possible document vendors): They also

acknowledged that their own recent audit revealed highly suspect trends and patterns indicating the

employment of illegal aliens and document fraud..

(7) Although ICE had no obligation to contact or notify Swift, ICE relied solely on Swift's

previously expressed desire to cooperate with the investigation and informed Swift of its desire to

assess the immigration status ofits workforce by conducting contemporaneous consensual interviews

DECLARATION OF MATIHEW C. ALLEN 3
Nn ?O!;C"V_~ 14_ T
3

•..... __ .._._---_._------_.C..._a-s-e--2-:-0_6..-..c__v.._-.-00314_-.__._..•D-.-o.•...c.. u--.m-- .ent 1..-5

----e- Filed 12/04/2006 Page 7 o-f-4-0_._..__._-_._-------

..

of Swift employees in Marshalltown (Iowa), Worthington {Minnesota);Orand Island (Nebraska),

Cactus (Texas), Hyrum (Utah); andOreeley (Colorado). At an October 19,2006 meeting between

Swift and ICE officials, upon information and belief, Swift insisted that ICE conduct any enforcement

operation only one·plant at a time - a so-called "managed" approach. ICE rejected this approach

because the illegally employed illegal aliens at the other plants would learn of the enforcement.

operation at the first plant and flee,and clffered instead to iimit the contemporary consensual interviews

to four simultaneous plants. However, (:iting economic concerns, Swift declined to consent to the

contemporaneous consensual interviews. The ICE and Swift officials also discussed Swift's need to

hire new employees to replace the illegal aliens currently employed by Swift. Additionally, the United

States Attorney for the Southern District of Iowa, working in coordination with ICE. also requested

additional documentation from Swift and the company's consent for ICE agents to contemporaneously

interview its workforce at the ahove locations. rCE specifically discussed the manner in which it

preferred to conduct the consensual inteJviews so as to minimize disruption to Swift operations and

-

-

address any potential safety concerns at the plants, while maximizing law enforc~ent effectiveness

and promoting public safety. ICE indicated, at eacl;! meeting and teleconference with Swift, that any

ICE survey of Swift's workforce would be conducted in manner which minimizes disruption to Swift's

production capacity but maximizes the safety of ICE's and Swift's employees. ICE also reiterated to

Swift that ICE's review and retention of any Form I-9's produced by Swift could npt serve as an !
inference for Swift that any particular employee is unauthorized to work. Last, Swift agreed to provide

the documentation requested by the U.S Attorney's office.

(8) Despite repeated requests by ICE, Swift has never fully explained what a "managed" approach

would involve or how it would be mutually beneficial to ICE and Swift, except that it would involve

. addressing a single plant at a time.

(9) .Based on my experience as a federal agent and the experience of other ICE agents, a pbased

approach witb Swift would not be an effective means to halt the continuing use of stolen identities

within.Swift's workforce. Unfortunately, based upon experience and infonnation available torCE, the

DECLARATION OF MATIHEW C. ALLEN 4
Nn ?_{\I;rV_~14_T
4

----- -

--~-------------------

.. • • ._-_._----_.._----_._._-----_....... --_._._--_._--_.__.-.. - -- _.- - --- ---- ..._- ------ ....... Case 2:06-cv-00314 Document 15 Filed 12/04/2006 Page 8 of 40

initiation of interviews by ICE agents at one plant would only serve to alert illegal aliens and identitytheft perpetrators employed at other locations. Moreover,· it is important that ICE commence its planne4 survey prior to the potential departure pfillegal workers during the holiday season.
(10) With respect to the planned surveys at various Swift locations, great consideration has'been given to the logistics and timing ofthe operation so as to ensure the safety of Swift employees and the federal agents to be. involved. ICE has coordinated its planning with the U.S. Department of Agriculture (USDA) to obtain information about plant operations, schedules and safety considerations. ICE has also coordinated with the Food Safety Inspection Service (FSIS) within USDA in an effort to minimiZe the risk ofproduct contamination in the plants. All ICE agents and managers participating in the operation have been, and will continue to be, thoroughly briefed and trained with respect to the planned operational concerns.
(11) IfICE is unable to conduct surveys at Swift as planned, it·will cause great harm to ICE's efforts to enforce the immigration laws ofthe United States. ICE is charged with the ongoing investigation and enforcement of immigration laws, and cannot be constrained from exercising its lawful authority by a private entity. As I described above, a ''phased'' approach would alert illegal aliens in the Swift workforce to the ICE investigation, allowing them to disappear from Swift plants and elude law enforcement. This would disrupt Swift operations while also increasing the threat to the public interest.
(12) Moreover, the prevention ofany potential enforcement action against Swift employees would also permit the continuation of identity theft by those employees who gained their employment by criminal means. The failure ofICE to apprehend individuals using the stolen identities also results in a continuing harm to.the unassuming victims of identity theft. Additionally, the inability of ICE to ascertain the immigration status and true identities of the suspected illegal aliens presents an unknown threat to the security ofthe nation. The origin, criminal history, and affiliations of these persons remain unknown as they continue to reside and work in the population at large under the color of an assumed legal identity.
DECLARATION OF MATTHEW C. AJ;-LEN 5
Nn . ?_nhrV_~14_T
5

• Case 2:06-cv-00314

Document 15

Filed 12/04/2006 Page 9 of 40

(13) Moreover, ICE has invested operational ~xpenditures.and extensive tactical preparations have already been. made in anticipation of the operation.
I declare under penalty of petjury that the foregoing is true and correct.
Executed on. December 4, 2006, at Washington, D.C.
Matthew C. Allen
Acting Deputy Assistant Director Smuggling and Public Safety Division Office of Investigations U.S. Immigration. and Customs Enforcement U.S..pepartment of Homeland SecU\;ty

DECLARATION OF MATTHEW C. ALLEN 6
Nn ?-f\':;(,V_<1.::1_T

6 .

• Case 2:06-cv-00314

Document 15 Filed 12/04•/2006 Page 10 of 40 ------.-----••- •••••••• - ••--.---------.---.----••_.______•••• _

•••• _ _ _ _ _ ••

"• • • 0• • • • • • _ •

EXHIBIT 2

• Case 2:06-cv-00314

-----------~-----~~~

Document 15

•• Filed 12/04/2006

Page 11 of 40

Page 1 of7

Testimony

United States Senate Committee on the Judiciary

Cornprehensive!mmigratioo Reform II

Octob.r 18, 1001

, .

The Honorable Michael Chertoff Assistant Attorney General, Criminal Division, United States Department of Justice

STATEMENT OF SECRETARY MICHAEL CHERTOFF U.S. DEPARTMPNT OF HOMELAND SECURITY BEFORE THE UNITED STATES SENATE JUDICIARY COMMITTEE TUESDAY, OCTOBER 18,2005 WASHINGTON, D.C.

Mr. Chairman, Senator Leahy, and members ofthe Committee: thank you for the opportunity to

address you today, and for your ongoing sUpport of the Department of Homeland Security's efforts to

keep America secure. I am honored and pleased to appear before the Senate Judiciary Committee for

the first time in my current capacity to discuss the vital issues ofborder security, interior enforcement

and immigration reform as a whole.

.

Illegal immigration is· a severe and growing problem. As members of~s Committee ~ow, over the

lastfew months this Administration has· been consulting with members ofCongress on

comprehensive immigration reform. We have been grateful for your input in these productive

sessions. And I am thankful for your ~upport and input as we move forward. Citizens are rightly

disturbed by illegal immigration. The President has heard these concerns. And I have heard them too,

from all across the COWltry and from right here on Capitol Hill. I am conunitted to taking aggressive

and innovative steps to solve the problem. .

.

We are moving to end the old "catch and release" style ofborder enforcement, increasing removals by tens of thousands a year. We have expanded Expedited Removal along the entire southwest border. We are hiring and'training hWldreds of new border patrol agents. We are deploying new technologies•. from advanced telecommunications to unmanned aerial vehicles. And we are finding new ways to work with state and local law enforcement to deal with illegal immigration and the ills that it brings:

Illegal immigration hurts everyone. It flouts the rule of law, and it allows criminal elements to enter

our COWltry. It Wldercuts those who patiently pursue legal immigration proceedings. It places heavy

econ~mic strains oil towns, overwhelming their ability to cope with the tide of humanity. And it

threatens the lives of the migrants themselves. The human smugglers anll traffickers -- known as

"coyotes" -- who bring them to the COWltry all too often rob them, abuse them and leave them for

i

dead. In addition to this human cost, these smugglers also traffic in gWlS and narcotics, a threat to the

I·

stability of both the United States and Northern Mexico. Finally. if we can not control our borders, we leave the way open for terro~sts hoping to do us harm.

I

Since his first inauguration; President Bush has placed the utmost importance on border security and has devoted significant resources to this challenge. The President believes -- and I agree -- that illegal immigration threatens our commWlities and our national security.

http://judiciary.senate.gov/prinUestimony .cfm?id=163 4&wiUd=66

12/312006

7

_-------.--- Case 2:06-...c. v-00314 ---D---o--c-u- ment 15 Filed 12/04/2006 Page 12 of 40

Page2of7
The President understands that ending illegal immigration means both tough enforcement and action to reduce the demand that draws illegal migrants into the country. That's why his Administration believes we need a three-pillar, comprehensive approach to reforming our immigration system: (1) gain control ofthe border; (2) build a robust interior enforcement program; and (3) establish a Temporary Worker Program (TWP).
The effectiveness of our border security and interior enforcement initiatives is closely tied to creating
a workable and enforceable lWP. While Secretary Chao will speak in more detail, the TWP seeks to
address two huge strains on the current immigration system: high U.S. employer demand for workers and active participation of an estimated eight million undocumented workers in the U.S. economy. A well-designed TWP will provide legal channels for U.S. employers and foreign born workers to meet the needs of a vibrant and successful U.S. economy without disadvantaging American workers.
The President believes we need a well-desi~ TWP, coupled with a tough enforcement regime, to gain control ofour borders. We must aggressively enforce our immigration laws. And enforcement will not wait for enactment of the TWP. We already are making a substantial down payment on the enforcement measures that the President's program will require. Indeed, since President Bush took _office in 2001, the United States government has deported several million illegal aliens, including approximately 300,000 criminal aliens. Since 9/11, yearly spending on border security has increased by $2.7 billion. or 58 percent Yearly spending on immigration enforcement has also increased dramati~ly. Enforcement expenditures by DHS and Justice have gone up by $1 billion, or 35 percent.
I would like to talk today about some of the enforcement measures the Department ofHomeland Security is already taking.
U.S. Customs and Border Protection currently has over 11,000 Border Patrol agents along the 6,000 miles ofour northern and southern borders, which is an increase of'l,649 Border Patrol Agents since 200I., In addition, and an additional 18,000 CBP officers are posted at our Ports ofEntry (POEs), an increase of 4,533 officers added at ports of entry since 2001. Immigration and Customs Enforcement, or ICE, has over 8,000 agents and officers working to apprehend criminals, absconders, and other aliens illegally present within the United States. These DHS agents and officers apprehend illegal aliens in a variety of ways.
For example, CBP Border Patrol agents apprehend aliens attempting to enter the U.S. between the POEs, while CBP and ICE officers at our POEs stop illegal entry by aliens who possess stolen or fraudulent documents. In addition, CBP apprehends or detects aliens who attempt entry with terrorist or criminal intent while ICE officers and agents work with federal, state, and local correctional facilities to identify and remove aliens with criminal records. And I would be remiss in did not mention the critical role that the U.S. Coast Guard plays in securing our land and sea borders.
In FY 2005 alone, CBP Border Patrol agents made over 1.1 million apprehensions. CBP Field Operations officers stopped more than 600,000 aliens attempting to enter at our POEs; our officers referred them for further law enforcement action such as detention or prosecution for those with criminal records. In the same period, ICE apprehended approximately 140,000 illegal aliens in interior
enforcement operations with an additional 15,000 aliens apprehended under its Fugitive Operations
Program. Under the President's leadership, ICE developed the Fugitive Operations Program and its first teams were deployed in 2004. CBP also voluntarily returned over 940,000 Mex:icans and refused entry to an additional 425,000 aliens at POEs. ICE also executed removal orders for over 130,000 aliens who have been placed in proceedings, including 77,000 with criminal records. These are solid

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numbers demonstrating a solid commitment to law enforcement

Today, the President is signing the DHS Appropriations Bill into law. Thanks to this Congress, DHS
now has S940 million in new resources for DHS law enforcement agencies to further strengthen
border security and enforcement This includes more than $890 million alone for CBP and ICE, our
primary border enforcement agencies. These increased resources will support a full range ofcritical border security needs, including 1,000 Border Patrol agents on top of the 500 new agents added iast
year. The bill also permits further expansion ofdetention capacity by as many as 1,920 additional • beds, provides 250 additional ICE investigative agents, and adds 8 new fugitive operations teams to
track down individuals ordered to leave this country. \?ut who instead absconded.

Even now when DHS is continually focused on our response to the tragedy of Hurricanes Katrina and Rita, we have remained constant in our enforcement ofthe law and have not allowed those tragedies to prevent us from implementing new approaches to border security. For example:

• In SeptemberI authoriZed eli~nating the environmental challenges that had for years blocked completion of the 14-mile border barrier in San Diego. This barrier will provide multiple layers of security, further reducing illegal entry to the United States and improving border security.

• With funds appropriated by the Congress earlier this year, we have begun to hire, 1,500 new border patrol agents for deployment along the entire border. This brings the total B.order Patrol agent increase to 3,070 agents smce President Bush took office in 2001. We have already begun to graduate these new agents. In ~dition, there are currently 400 border patrol agents lit the academy in A.rtCsia, New Mexico, whom I will have the honor of addressing this Thursday. We are grateful to the Congress for
providing us the additional funds to hire these agents.

• We recently obtained a Predator B unmanned aerial vehicle. This innovative technology enhances our ability to secure the southwest.border. In addition we continue to partner with the Department of Defense to take advantage oftraining opportunities. For the next month, as part of such training, the Defense Department is providing four UAVs in the EI·Paso sector.

• We have deployed additional Border Patrol agents and support personnel to the Tucson Sector as

part of the Arizona Border Control Initiative, a partnership that combines the best efforts and

~ources of our DHS law enforcement agencies with other federal government agencies and with

State, Loc8l, and Tribal law enforcement.

.

• We are providing additional Immigration Enforcement Agents devoted to criminal removal programs and additional fugitive operations teams to track down absconders.

• We have targeted violent criminal street gangs nationwide for'immigration enforcement, particularly the Mara Salvatrucha organization, one of the most violent and rapidly growing street gangs• . Recently, ICE arrested 359 MS-13 members including 10 clique leaders. The phenomenal success of this effort since its launch in March 2005 led to its expansion to include all criminal street gangs, a targeted effort to keep our communities safer.

Our most pressing enforcement responsibility is on the southwest border, the pathway for two-thirds ofthe illegal aliens currently in our country. (The other third are mostly visitors who enter legally and then overstay their visas.) While visiting the southwest border, I have seen first-hand the efforts of our border enforcement staff. They have done much; but, as we all realize, much still remains to be done.

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Our apprehension work draws upon three interdependent tools: technology, infrastructure and people. Deploying all three assets in proper harmony is the key to our border enforcement work.
In the weeks ahead, I will be speaking much more about a systematic program oftechnology
acquisition, infrastructure improvements,and workforce efficiencies that will animate our work at the border. Congress has generously provided for .additional technology investment I have created a new DHS program office and hired a talented leader for that office. With our DHS team, we will define clear performance mandates for how best to make these investments. Our work ahead is not just.about buying more gizmos - it is about using all the considerable tools in our border security toolkit in a more disciplined, systematic, and effective manner.
This is not rocket science, but it does involve properly applying both high-tech tools such as detection sensors and low-tech, proven tools such as vehicle barriers. What is needed in rural areas will be different from the asset mix needed for border security in urbliJl areas. I have directed thl:!1 a comprehensive, border-wide plan be established for these investments.
The public is impatient for these improvements and I share that impatience. I am convinced that we can soon make dramatic improvements in the use of technology, infrastructure, and our rapidly growing enforcement team. We will set clear, measurable goals and report routinely to Congress and the American public about our performance,
While much ofthe public attention regarding border security has focused on'apprehending those crossing the border, catching illegal entrants is just the first step. Obviously, the security of America and the integrity ofour nation's legal immigration system require that the number of removals at least equal the number ofapprehensions. Otherwise, apprehensions lead to release and disappearance. Regrettably, today apprehensions exceed removals.
Once detained, an illegal immigrarit must be held until he or she is successfully removed from the country. For most illegal entrants, removal is swift, and detention is not a substantial administrative or budget problem. For example, the nearly 900,000 Mexicans who are caught entering the U.S. per year illegally are returned immediately to Mexico.
But other parts of the system have nearly collapsed under the weight of numbers. The problem is especially severe for non-Mexicans apprehended at the southwest border. In FY 2005 alone, the Border Patrol apprehended over 160,000 non-Mexican nationals. Only 30,000 ofthese illegal entrantS were removed trom the Uoited States. The rest will be released, either under bond conditions or on their own recognizance
Let me reiterate this point When a non-Mexican is. caught trying to enter the U.S. across the southwest border today, he has an 80% chance of being released immediately because we have nowhere to hold him. Of course, .he will be charged as an immigration law violator, but he will likely fail to appear at his immigration hearings.
This practice of "catch and release" acts as an enticement for additional bordb- crossers. Indeed, Border Patrol apprehensions of non-Mexican nationals crossing into the U.S. illegally across the Mexican border have tripled in Just three years, We must end "catch 'and release" and implement "catch and return." In fact, we are already taking steps to implement "catch and return" as I :;peak. We are reengineering our detention and removal process, without which we cannot have an effective enforcement strategy. This is the problem we have attacked first, in part to demonstrate decisively the advantage of taking a comprehensive approach to immigration enforcement problems.

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In attacking this problem, we have also learned valuable lessons from recent successful operations. When a large number of Brazilians began illegally crossing the southwest border, we responded in July 2005 with "Operation Texas Hold 'Em." We prioritized the existing space, dedicated bed space and began detaining and removing all of the illegal Brazilians we apprehended. The word spread
surprisingly swiftly; within its first thirty days, the operation had already begun to deter illegal border crossings by Brazilians. In fact, the number of Brazilians apprehended dropped by 50%. After 60 days, the rate of Brazilian illegal immigration through this sector was down 90010, and it is still significantly ~epressed all across the border. In short, we learned that a concentrated effort of removal can actually discourage illegal entries by non-Mexicans on the southwest border.

m Building on that exPerience, we asked how we could achieve the same results with aU non-Mexican
entrants. We undertook a comprehensive review, identified choke points the existing removal . process, and devised ways to eliminate them.

. The essence of our plan is to expand removals by better using our detention anel removal aSsets. For example, our system will be three times as efficient if, inStead of removing one person after a threemonth detention, we can remove three people after detentions ofjust one month each. So our comprehensive plan calls for bOth more beds and f~r turnover.

To improve turnover, we are expanding removal authority, pressing foreign govenunents to take back

their nationals more promptly, streamlining review by their consular officers-we have been

.'

experimenting with secure video links to facilitate this - modifying our staffing requirements for

escorts on international flights, modifying our air transport contracts, and streamlining the paperwork

involved in removal flights. Additional steps are also being ex~ined. Our experience with Brazilian

entrants tells us that an aggressive removal program will deter illegal immigration attempts,

multiplying the effect from increased beds and more rapid turnover of those beds.

Today I am announcing this goal for DHS: eliminate completely the "catch and release" enforcement problem. Return every single illegal entrant - no exceptions. What's more, it should be possible to achieve significant progress in less than a year, as we apply concentrated removal efforts with the support ofindividual countries.

I am pleased to report that DHS has already begun implementing many significant changes in transitioning from "catch and release" to "catch and return." Here are some ofthose changes:

• We have substantially expanded our detention capacity as of October 1. With the President's signing of our appropriations bill, we will have $90 million in new resources to add hundreds ofmore beds. Even with no additional efficiencies in the process, this one change will allow us to remove thousands of additional illegal aliens apprehended along our borders. We are

• I have directed the expanded use ofExpedited Removal to all Border Patrol sectors along the
southwest border. This allows us to remove quickly eligible aliens, reducing the time required in detention prior to removal. Over all, we expect to cut removal times in half, reducing days in detention from an average of 90 days to an average of 45 days.

• We have contracted for expanded air transportation services to move illegal migrants back to their home more quickly and efficiently .

• I have also directed the overhaul of our ground transpo$,tion system. We have a complex system

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that requires moving more than 1.8 million apprehended individuals per year, but we have identified

significant opportunitic?s to improve and streamline this process. For example, we will cut costs and

removal time by using bus drivers and other contractors, rather than law enforcement agents, to

transport apprehended ~grants.

.

• We are modifying our policies on wilen removed aliens require escorts. By adopting a risk-based policy, our officers and agents can send more illegal migrants home faster and more efficiently while IJlaintaini~g the safety of all involved in the removal process.

• Working with the Secretary of State, we are in the process ofstreamlining country clearances, an internal U.S. government processing change that could cut seve!'ai days from every escorted deportation. Because an overstuffed removal pipeline is our most immediate problem, cutting even a . few days from the average deportation will allow us to increase removals by thousands a year.

• Also working with the State Department, we have begun aggressive dialogues with foreign governments to ensure better foreign-country compliance with our repatriation requirements. We often find that people who are removable sit in our detention facilities-simply because the foreign co~try has failed to give us a "travel document" agreeing to take its citizen back. We must make this a top priority in our bilateral.relationships around ·the world, and working with Secretary Rice, I am
sure that we will.

• We are moving to implement internal "best practices" so that all of our offices throughout the

country operate using best-practices infonnation. We want our removal process to be dynamic and

efficient over the long run.

..

The comprehensive approach we have taken to removal can be applied more broadly to other aspects

of border and interior enforcement. In that sense, what we are doing in our removal efforts is simply a

down payment on our overall border enforcement initiative, which we are designing as a complement.

I

to the President's Temporary Worker Program.

~
, f

There is a vitally important component to compreh~nsive immigration reform that I haVe not yet discussed: worksite enforcement. We can all agree that the current state ofworksite enforcement does

not work well enough. In anticipation of the Temporary Worker Program (fWP), we must strengthen

our efforts to monitor worksites to ensure that both now, and with the start of the TWP, we deploy the

necessary resources to·ensure those employers who violate the current laws face appropriate

punishment. We already have more aggressive efforts underway, including the ICE Worksite

Enforcement Units. In addition, we must also give employers the necessary tools to verify the legal

status of their employees. The current verification system is insufficient to detect fraud, particularly

document fraud, and we must resolve this.

Interior enforcement is not worksite enforcement alone, however. It also includes a focus on criminal
aliens, aliens considered a national security risk, traffic stop respOnses as well as criminal investigation and apprehension of aliens with final orders who have absconded. Importantly, it includes working with individual state and local governments to coordinate responses. I have heard and recognize the frustration that some state and local law officials have expressed about illegal immigration and their desire for closer relations with immigration enforcement agencies. We will fmd new ways to work with them. This will include new border enforcement task forces and expanded use
of our existing legal authorities to train state law enforcement personnel.

Working with DHS's state partners is also a key part of our border strategy. We will actively reach

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out to our state partners for their agreement to improve our cooperation. and these are just some ofthe ideas by which our partnership with state and local law enforcement can be most effective.
In summary. my immediate enforcement priorities at DHS focus on five tasks:
• First, we will undertake transformational investment in technology and infrastructure.
• Second, we will work with Congress to staff effectively these enhanced enforcement efforts.
• Third, we will end the policy of catch and release.
• Fourth. we will ~plement more robust interior enforceIilent.
• Fifth, we will coordinate better with our federal. state. local and international partners to improve immigration enforcement overall.

These steps will significantly deter illegal immigration. Moreover. they will greatly improve border

securi~.

.

Each facet of comprehensive immigration reform program that Secretary C~o and I discuss here today is carefully considered. Taken together. they offer a comprehensive strategy. We will continue regularly to apprise this Congress of the steps forward, and the expected outcomes.

As Secretary of Homeland Securi~ I am committed to working closely with the Administration and
with the members of this Congress to pass comprehensive immigration reform legislation that reflects
the principles discussed with you today. This must be legislation that will meet the needs for a total solution to immigration reform. Nothing I do as Secretary ofthe Department of Homeland Securi~ is more important to the national securi~ ofthe United States than securing our borders. and I look
forward to working with the members of Congress on this critical task.

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NEWS Texas/Southwest

Business of fake documents is booming

Innocent people often the victims of ID theft

08:12 AM CST on Sunday, November 19, 2006

ByARNOLD HAMILTON I The Dallas Morning News

CACTUS, Texas - An Iraq war veteran jailed on a DWI-related penalty he knew nothing about A mother threatened with the loss of state aid because she failed to alert authorities to a job she never held.
For Texans Alfrcido Richard Tos~ano Jr. and Joanna Laureles, it was the"first hilit their identities had been hijacked; sold to illegal immigrants trying to get jobs at the local meatpacking plant.

Police and prosecutors say they are swamped with such cases - most linked to the dozen beef and pork operations

that have transformed this region into Packing Ho~e Alley.

-

How pervasive is it?

Cactus, Texas

An illegal inunigrant from Mexico brazenly peddled fake documents from his home next door to the Cactus police chief for nearly two years before Texas Rangers busted what turned out to be one cog i.t:l a multistate operation.
The exasperated Cactus police chief, Tim Turley, said he didn't have the manpower, equipment or expertise to investigate properly. Worse. he said, he never could interest federal law officers.

Partl
• An. i!:pJ.Tlig.~!1t.l1.Ayen.on the
High Plains
• Id~!ltity_ th~fij~.Jmli~Ltmil.!Q
~jQb
• Cash is king. but corruption
~

"The document business is booming," he said. "You've got, what, 11 million illegal aliens? Somebody's got to provide those documents."
It's unknown how many immigrants use phony documents to land jobs, but federal records offer clues: In the last five years, the Social Security Administration mailed 8 million notices annually to individuals and employers, flagging problems with workers' identifying information.

Part 2 • They_come to_~.ru:k_:-al1g to.
s~mtmQn~J1Qme
• For many in Guatemala. no choice but to leave
• Despite many challenges, school succeeds with youths

Nearly half of "earnings in suspense" - Social Sec~ty funds collected, but unclaimed - came from the .agricultural industry, including meatpacking, the agency said last year. About 13 percent came from the service industry, and II' percent from the restaurant industry.
Sometimes it's a clerical error. M~y times, though, the notices expose illegal workers who purchased the lost, stolen or duplicate identifying documents -; from Social Security cards and birth certificates to fake driver's licenses - essential to landing ajob in the U.S.

Part 3 • Processing plants' dangers don't scare off migrants
Tell Us: Many readers have weighed in with their thoughts on immigration. What's your Q];linion of the situation in Cactus, Texas?

"Everybody knows," said Mark A. Grey, who has studied the packing industry as

I!2IiIm
• City Manager Jeff Jenkins

director of the University ofNorthem Iowa's Center for Immigrant Leadership and describes Cactus and its

Integration. "You can't even call them undocumented [workers]. Everybody has doc~ents. They're 'unauthorized.' "

~
• Teachers describe efforts to

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Dr. Grey and other experts describe a delicate public relations ballet involving corporations. unions, law enforcement and elected officials - all aware of the problem but loath to investigate too aggressively for fear it could dry up a ready source of cheap labor, force plants out of business and cripple tax revenues.

teach English in Cactus ~ Law enforcement work is
difficult with the increasing
number of immigrants

'You need IDs?'

Graphics:

• A closer look at Cactus

Evenif they had the want-to or the tools, authorities-say it isn't easy to nab those in • Cactus Elementmy School

the fake-identity trade. Improperly documented workers rarely seem to know much • A dangerous job

about the brokers, and they are reluctant to share specifics.

Photos: Coping in Cactus

Natividad Villa, the 25-year-old Mexican who worked at the Swift & Co. beef

processing plant in Cactus under Sgt. Toscano's name, told Texas Rangers he

En espaiiol: Read Spanish-

bought his fake ID for $600 from an unidentified, long-haired white man in nearby lan~ge coverage from

Dumas who drove a red Jeep Chero~ee.

AlDiaTX.com

Mr. Villa then used that to get a valid Missouri driver's license, which he was
carrying when his true identity was discovered. Held in the Moore CQunty Jail, he declined to speak to a reporter.

Cactus. Texas: Complete
coyerSlg~

- In the last three years, ChiefTurley said, he and his officers have seized dozens of falsified 10 cards - most from Arkansas, Missouri, Kansas, New Mexico and Texas. Sometimes the fraud is so obvious it's almost comical, he said.

There was the Guatemalan with a license for Nelson Wilson.

"He couldn't even pronounce the name," the chief said. Even so, it wasn't enough to make a case because "we couldn't fmd !pe real Nelson Wilson to refute it."

- The most prized documents: lost or stolen birth certificates and Social Security cards. Job-seeking immigrants generally pay between $1,000 and $1,500, using the papers to create a new, hirable identity. Fake IDs alone typically sell for about $800.

"The price of good papers has actually gone down" because of an oversupply, said Northern Iowa's Dr. Grey, "There's more available."

Document brokers can set up shop almost anywhere - at flea markets, in motel rooms. in their cars and vans. Even next to the Cactus police chief.

"They'd rent an apartment for a while and put out the word: You need IDs? Come see us," said David Green, district attorney in four Panhandle counties_

With false identities so prevalent, even the most routine traffic stop can become an adventure: Police aren't certain who is being questioried - or arrested_

Veteran's troubles

In March 2002, Mr. Villa was arrested for drunken driving in Moore County, with a license bearing the name
Alfredo Richard Toscano Jr. He pretended to be Sgt. Toscano in the court where he pleaded guilty.

Seven months later, the real Alfredo Richard Toscano Jr. was headed to his niece's sixth birthday party and stopped for speeding in Claude, Texas.

A bewildered Sgt. Toscano was arrested, his car impounded. The reason: His driver's license was suspended
because of the drunken~driving conviction.
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"I've never gotten a DUI in my life," said Sgt. Toscano, an Amarillo native and Iraq war veteran stationed at Fort . Sill, Okla.

"I'm sorry!' the officer said. "I have to go by what this says."

-He spent about nine hours behind bars, wearing an old-fashioned jail uniform: white with black stripes across it, his inmate number on the front.

The next morning, a sympathetic judge promised to alert the Texas Rangers to his plight.

Six weeks later, a Texas Ranger confronted Mr. Villa - still posing as Alfredo Richard Toscano Jr. - at the Swift plant.

Mr. Villa admitted his real identity and was sentenced to probation on an aggravated perjuiy charge. But his case'

was not over: Last November, a trooper stopped a vehicle in Ochiltree County in which Mr. Villa was a passenger.

Mr. Villa, authorities said, produced another false ID.

.

Mr. Green wants to revoke his probation. And federal agents are taking steps to deport him.

Sgt. Toscano said he doesn't know how his identity was stolen. He's never been burglarized. He's never so much as lost his wallet. .

Shocked mother

Ms. Laureles discovered that her identity was used by an undocumented Guatemalan woman at the Swift plant, when state welfare officials compared a list of recipients to Texas Workforce Commission records.

It turned up a match, showing that Ms. Laureles appeared to be collecting food stamps and Medicaid for her two daughters, ages 1 and 2, at the same time she was employed at the Cactus packing plant.

But it was Maria Gonzales - pOSing as Ms. Laureles - who was working there.

The real Ms. Laureles, 21, lived in Plainview, 100 miles south. She said she'd never heard of the plant.

Even worse: She was on the verge of losing -her welfare assistance and possibly facing charges for defrauding the state.

"It was a big shock," she said.

With the help of Plainview and Cactus police, the matter was cleared up. Ms. Laureles kept her state assistance. Ms. Gonzales, 22, lost her job and surrendered all documents in Ms. Laureles' name.

Ms. Gonzales, who couldn't be reached for comment, was released on bond and permitted to return to Guymon, Okla., to care for her infant child.

But her case isn't near being prosecuted. Chief Turley said he is overwhelmed by so many similar incidents that he hasn't had time to compile all the evidence.

Ms. Laureles just wants it to end so "nobody else is using my papers."

Deborah Turner, a staffwriter andphotographer for AlDla, contributed to this report.

E-mail cactus@dallasnews.com

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EXHIBIT 4

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Order Code RS21899 August 4. 2004

CRS Report for Congress

Received through the eRS Web

-

Border Security: Key .Agencies and Their Missions
Bias Nunez-Neto Analyst in Social Legislation Domestic Social Policy Division
Summary
After the inassive reorganization offederal agencies precipitated by the creation of the Department ofHomeland Security (DHS), there are now four main federal agencies charged with s'ecuring the United States' borders: the Bureau ofOlstoms and'Border Protection (CBP), which patrols the border and conducts immigrations, customs, and agricultural inspections at ports of entry; the Bureau of Immigrations and Customs Enforcement (ICE), which investigates immigrations and customs violations in the interior ofthe country; the United States CoastGuard, which provides maritime and port security; and the Transportation Security Administration (TSA), which is responsible for securing the nation's land, rail, and air transportation networks.
This report is meant to serve as a primer on the key federal agencies charged with border security; as such it will briefly describe each agency's role in securing our nation's borders. This report will be updated as nee~ed.
In the wake of the tragedy of September II, 2001, the U.S. Congress decided that enhancing the security of the United States' borders was a vitally important component of preventing future terrorist attacks. Before September 11, 2001, border security fell piecemeal under the mandate of many diverse federal departments, including but not limited to: the Department of Justice (ihe Immigration and Naturalization Service); the Department of the Treasury (the Customs Service); the Department of Agriculture (the Animal and Plant Health Inspection Service); and the Department ofTransportation (the Coast Guard).-
The Homeland Security Act of 2002 (P.L. 107-296) consolidated most federal agencies operating along the U.S. borders within the newly formed DHS. Most of these agencies are now located in the Directorate ofBorder and Transportation Security (BTS), which was charged with securing the borders; territorial waters; terminals; waterways; and . air,land, and sea transportation systems of the United States; and managing the nation's

Congressional Research Service .:. The Library of Congress
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CRS-2
ports ofentries.· The lone exqlption is the U.S. Coast Guard, which remains astaudalone division within DHS.
The BTS comprises three main agencies: (1) the CBP, which is charged with overseeing commercial operations, inspections, and land border patrol functions, (2) ICE, which oversees investigations, alien detentions and removals, air/marine'drug interdiction operations, and federal protective services, and (3) the TSA, which is charged with protecting the nation's air,lanll, and rail transportation systems against all forms ofattack to ensure freedom ofmovement for people and commerce. Conceptually speaking, CBP provides the front line responders2 to immigrations and customs violations and serves as the law enforcement arm ofDHS, while ICE serves as the investigative branch. Although it is not located within the BTS, the U.S. Coast Guard also serves an importllDt border security function by patrolling the nation's territorial and adjacent international waters against foreign threats. Combined FY2004 appropriations for BTS and the Coast Guard' equaled $17.91 billion,J while the combined full time equivalent (PTE) manpower totaled 142,255 employees.4
The Bureau of Customs and Border Protection (CBP)
CBP combined all the previous border law enforcement agencies under one administrative umbrella. This involved absorbing employees from the hnmigration and Naturalization Service (INS), the Border Patrol, the Customs Service, and the Department ofAgriculture. CBP's mission is to prevent terroristS and terrorist weapons from entering the country, provide security at U.S. borders and ports of entry, apprehend illegal immigrants, stem the flow of illegal drugs, and protect American agricultural and economic interests from harmful pests and diseases.s As it performs its official missions, CBP maintains two overarching and sometimes conflicting goals: increasing security while facilitating legitimate trade and travel.6 In FY2004, CBP appropriations totaled $4.90 billion7 and manpower totaled 30,836 Fl'E.
I For amore detailed information on DHS, see CRS Report RL31549, Department a/Homeland Security: Consolidation a/Border and Transportation Security Agencies, by Jennifer Lake. ZMany argUe that the Stale Department's Consular posts abroad provide the first line ofdefense by reviewing visa applications and detennining which foreign natil1nals will be provided with the documentation required to legally enter the country. ) For a more detailed breakdown of DHS appropriations, see CRS Report RL32302, Appropriations/or FY2005: Department a/Homeland Security, by Jennifer Lake. 4 All manpower estimates taken from The Department of Homeland Security, Perfonnance
Budget Overview, Fiscal Year 200S Congressional Budget Justification.
, U.S. Congress, House Appropriations Committee, Department of Homeland Security Appropriations Bill, 2005, 108· Cong., 2nd sess., H.Rept. 108-541. 6U.S. Customs and BorderProtection, Performance andAnnualReport: Fiscal Year 2003. p. 25. 7 While CBP administers the US-VISIT program. the $328 million appropriated for the program . was plac!ld in a separa.te account directly under the Undersecretary for Border and Transportation Sec~ty by the conference report.
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Between official ports of entry, the U.S. Border Patrol (USBP) enforces U.S. immigration law and other federal laws along the border. As currently comprised, the USBP is the Unifonned law enforcement ann of the Department of Homeland security. Its primary mission is to detect and prevent the entry of terrorists, weapons of mass destruction, and unauthorized aliens into the country, and to interdict drug Smugglers and . other criminals. The USBP is thus vitally 'important to our nation's defense against terrorists and all others attempting to enter goods or persons into the country illegally. In the course ofdischarging its duties the USBP patrols over 8000 miles ofQur international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico.
At official ports ofentry, CBP officers are responsible for conducting immigrations, customs, and agricultural inspections on entering aliens. As a result ofthe new "one face at the border" iIlltiative, CBP inspectors are being cross-trained to perfonn all three types of inspections in order to streamline the border crossing process. This initiative unifies the prior inspections processes, providing entering aliens with one primary inspector who is trained to detennine whether a more detailed secondary inspection is required.'
CPB inspectors-enforce immigration law by examining and verifying the travel documents of incoming international tJ."avelers to ensure they have a legal right to enter the country. On the customs side, CBP inspectors ensure that all imports and exports comply with U.S. laws and regulations, colleot and protect U.S. revenues, and guard against the smuggling of contraband.. Additionally, CBP is responsible for conducting agricultural inspections at ports of entry in order to enforce a wide array of animal and plant protection laws. In order to carry out these varied functions, CBP inspectors have a broad range of powers to inspect all persons, vehicles, conveyances, merchandise, and baggage entering the Uniteq States from a foreign country.'
In order to execute its various missions, CBP maintains and utilizes several databases. CBP also administers the new US-VISIT program, which requires all incoming non-immigrant aiiens to submit to a biometric scan. IO Additionally, CBP administers the Container Security Initiative, a program in which CBP inspectors pre-screen U.S.-bound marine containers at foreign ports ofloading around the world.
Bureau of Immigrations and Customs Enforcement (ICE)
ICE merged the investigative functions o~the fonner ms and the Customs Service,
the INS detention and removal functions, most INS intelligence operations, the Federal Protective Service, and the Federal Air Marshals Service. This makes ICE the principal
ann investigative for DHS. ICE's mission is to detect and prevent terrorist and criminal
acts by targeting the people, money, and materials that support terrorist and criminal
I Department of Homeland Security, Office of the Press Secretary, "Homeland Security Announces New Initiatives," press release, Sept. 2,2003. , For a more detailed analysis of inspections practices along the U.S. border, including the legisilltive foundation for CBP powers, a history of inspections practices, and the policy issues involved, refer to eRS Report RL323'99, Border Security: Inspections Practices, Policies, and Issues, by Ruth Ellen Wasem. 10 For further discussion and analysis of the US-VISIT program, see CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technplogy Program (US- VISIT). by Lisa' Seghetti.
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networks.II A3 such they are an important component of our nation's border security network even though their main focus is on interior enforcement In. FY2004, ICE appropriations totaled $3.43 billion and the agency had 14,410 PTE employees.
Unlike CBP, whose jurisdiction is confined to law enforcement activities along the border, ICE special agents investigate immigrations and customs violations in the interior of the United States. ICE's mandate includes uncovering national security threats such as weapons of mass destruction or potential" terrorists, identifying criminal aliens for removal, probing immigration-related document and benefit fraud, investigatingwork-site immigration violations, exposing alien and contraband smuggling operations, interdicting narcotics shipments,ll and detaining illegal immigrants and ensuring their departure (or removal) from the United States.13
ICE is also re&ponSlble for the collection, analysis and dissemination ofstrategic and .tactical intelligence data pertaining to homeland security. infrastructure protection, and the illegal movement ofpeople, money, and cargo within the U.8.14 In December 2003. the Federal Air Marshal Service (FA.MS) was transferred from the TSA to ICE. FAMS is responsible for detecting, deterring and defeating hostile acts targeting U.S. air carriers, airports, passengers and crews by placing undercover armed agents in airports and on flights. Lastly, ICE polices and secures more than 8,800 federal facilities nationwide via the Federal Protective Service. IS
The United States Coast Guard
The Coast Guard was incorporated into DHS as a standalone agency in 2002. Their overall mission is to protect the public, the environment, and U.S. economic interests in maritime regions - at the nation's ports and waterways, along the coast, and in international waters.'6 The Coast Guard is thus the nation's principal maritime.1aw enforcement authority and the lead federal agency for the maritime component of homeland security, including port security. Among other things, the Coast Guard is responsible for: evaluating, boarding, and inspecting commercial ships as they approach U.S. waters; countering terroristthreats in U.S. ports; and for helping to proteetU.S. Navy ships in U.S. ports. A high-ranking Coast Guard officer in each port area serves as the Captain of the Port and is the lead federal official responsible for the security and safety
II Bureau of Immigrations and Customs Enforcement, Border Security and Immigration Enforccm~t Fact Shect, at [http://www.ice.gov/graphicslncwslfactshcetsl061704det]S.htm].
11 Bureau of Immigrations and Customs Enforcement, Office of. Investigations Fact Sheet, [hnp:llwww.ice.gov/graphicslnewsifactsheets/investigation]S.htm]. 13 Bureau ofhmnigrations and Customs Enforcement Organization; at [hnp:llwww.ice.gov/graphicslaboutJorganizationiindex.htm). 14 Bureau of hnmigrations and Customs Enforcement, Office of Intelligence Organization, at [hnp:llwww.ice.gov/graphicslaboutJorganization/orLintelLhtm). IS Bureau ofhnmigrations and Customs Enforcement, Organization, at [hnp:llwww.ice.gov/graphicslaboutlorganizationlindcx.htm). 16 U.S. Coast Guard, Overview at [http://www.uscg.millovervicwl].
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of the vessels and waterways in their geographic zone.l7 In FY2004, Coast Guard appropriations totaled $6.78 billion and the agency had 45,532 FrE military and civilian employees.
As part ofOperation Noble Eagle (military operations in homeland defense and civil support to U.S. federal, state and local agencies), the Coast Guard is at a heightened state ofalert protecting more than 361 ports and 95,000 miles ofcoastline. The Coast Guard's homeland security role includes protecting ports, the flow· of commerce, and the marine transportation system from terrorism; maintaining maritime border security against illegal drugs, illegal aliens, firearms, and weapons ofmass destruction; ensuring that the U.S.can rapidly deploy and re~upplymilitary assets by maintaining the Coast Guard at a high state of t;eadiness as well as by keeping marine transportation open for the other military services; protecting against illegal fishing and indiscriminate destruction ofliving marine resources; preventing and responding to oil and hazardous material .spills; and coordinating efforts and intelligence with federal, state, and local agencies.II
The Transportation Security Administration (TSA)
The TSA was created as a direct result ofthe events ofSeptember 11 and is charged with protecting the United States' air, land, and rail transportation systems to ensure freedom of movement for people and commerce. The Aviation and Transportation Security Act (ATSA, P.L. 107-71) .created the TSA and included provisions that established a federal baggage screener workforce, required checked baggage to be screened by explosive detection systems, and significantly expanded FAMS. In 2002, TSA was transferred to the newly fonned DHS from the Department of Transportation; as previously noted, in 2003 the Federal Air Marshal program was taken out of TSA and transferred to ICE. In FY2004, TSA appropriations totaled $2.52 billion and the agency had 51,346 FTE employees.
TSA is responsible for guaranteeing the security of aviation in the country. In order to achieve this mission TSA assumed responsibility for screening air passengers and baggage, a function that had previously resided with·the air carriers. TSA is also charged with ensuring the security of air cargo and overseeing security measures at airports to limit access to restricted areas, secure airport perimeters, and conduct background checks for airport personnel with access to secure areas, among other things." However, an opt out provision in ATSA will pennit every airport with federal screeners to request aswitch to private screeners commencing in November 2004.20
17 For an in depth discussion of the Coast Guard and port security, see CRS Report RS21125, HomelandSecurity: Coast GuardOperations- BackgroundandIssues/or Congress, by Ronald O'Rourke, and CRS Report RL31733, Port and Maritime Security: Background and Issues/or Congress, by John Frittelli.
.. U.S. Coast Guard, Homeland Security Factcard, at [http://www.uscg.millhq/g-cp/comrellfactfileIFactcardsIHomeland.htm].
"U.S. Government Accountability Office, Aviation Security: Efforts to Measure Effectiveness and Address Challenges, GAO-04-232T, Nov. 5, 2003, pp. 5-6.
21 See CRS Report RL32383, A Return to Private Security ai Airports?: Background and Issues _ (continued...)
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m, ATSA authorized the TSA to create a Computer-Assisted Passenger Prescreening
System (CAPPS a program that would compare the basic personal infonnation

provided by airline passengers to varied commercial databases in order to conn their

identity. However, due to mounting privacy concerns and operational problems, TSA

recently announced it is scrapping its plans to implement CAPPSII this fall and will

design a new program in its stead.21

.

Conclusion

This report has briefly outlined the roles and responsibilitiE!S of the four main agencies within the DHS charged with securing our nation's borders: the CBP, ICE, the U.S. Coast Guard, and the TSA. It should be noted, however, that while the Homeland Security Act of2002 consolidated all the agencies with primary border security roles in DHS, there are many other federal agencies involved in the difficult task ofsecuring our nation's borders. While border security may not be in their central mission, they nevertheless provide important border security functions. These agencies inclU"!:Ie, but are, not limited to the Bureau of Citizenship and Jmmigrations Services within DHS, which processes permanent residency and citizenship applications, as well as asylum and refugee processing; the DepartmentofState, which is responsible for visa issuances overseas; the DepartmentofAgriculture, which establishes the agriculturalpolicies thatCBP Inspectors execute; the DepartmentofJustice, whose law enforcement branches (the Federal Bureau of Investigation (FBI) and Drug Enforcement Agency (DEA» coordinate with CBP and ICE agents when their investigations involve border or customs violations; the Department of Health and Human Services, through the Food and Drug Administration and the Center for Disease Control; the Department of Transportation, whose Federal Aviation Administration monitors all airplanes entering American air space from abroad; and lastly the Centrallntelligence Agency, which is an important player in the efforts to keep terrorists and other foreign agents from entering the country. Additionally, due to their location, state and local responders from jurisdictions along the Canadian and Mexican borders also playa significant role in the .efforts to secure our nation's borders.

ZD ( ...continued)

Regarding the Opt-Out Provision of the Aviation and Transportation Security Act, by

Bartholomew Elias.

.

21 Chris Strohm, ''DHS Scraps Computer Pre-Screening System, Starts Over," Government Executive Online, July IS, 2004, at [http://www.govexec.comidailyfedl0704/07~S04cl.htm].

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u.s. Immigration
and Customs Enforcement

About Us

Created in March 2003, Immigration and Customs Enforcement (lCE) is the largest iIivestigative branch of the Department of Homeland Security (DHS). The agency was created after 9/11, by combining the law enforcement arms of the fonner Immigration and Naturalization Service (INS) and the fonner U.S. Customs Service, to more effectively enforce our immigration and customs laws and to protect the United States against terrorist attacks. ICE does this by targeting illegal immigrants: the people, money and materials that support terrorism and other criminal a~ti~ties. ICE is a key component of the DHS "layered defense" approach to protecting the nation.

What we stand for

Our mission is to protect America and uphold public safety; We fulfill this mission by identifying criminal activities

and eliminating vulnerabilities that pose a threat to our nation's borders, as well as enforcing economic,

transportation and infrastructure security. By protecting our national and border security, ICE seeks to eliminate the

potential threat of terrorist acts against the United States.

-

How we work

Before 9/11, immigration and customs authorities were not widely recognized as an effective counterterrorism tool in the United States. ICE changed this by creating a'host of new systems to better address national security threats and to detect potential terrorist activities in the U.S. We target the people, money and materials that support terrorist and criminal activity.

• We are the second largest federal law enforcement contributor to the Joint Terrorism Task Force.

• , We dismantle gang organizations by targeting their members, seizing their financial assets and disrupting their criminal operations through our Qpuatiop Community Shield.

• We investigate employers and target illegal workers who have gained access to critical infrastructure

worksites (like nuclear and chemical plants, military installations, seaports and.airports) through our

Worksite Enforcement Initiative.

'

• We help to identify fraudulent immigration benefit applications and fraudulent illegal document manufacture and target violators through our l!lentity all!lJknefit Fraud Program.

• We investigate the illegal export ofU_S. muriitions and sensitive technology through our Project Shield America Initiative.

• We help combat criminal organizations that smuggle and traffic in humans across our borders through our HYman Smuggling and Trafficking.lnitW~.

• We ensure that every alien who has been ordered removed departs the U.S. as quickly as possible. We work to reduce the number of fugitive aliens in the U.S. through ourNational Fugitive Operations Program.

• We aggressively seek to destroy the financial infrastructure that criminal organizations use to eam, move and store illicit funds through our Cornerstone Initiatiye.

• We provide law enforcement and security services to more than 8,800 federal buildings that receive nearly

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one million visitors and tenants daily through our Federal Protective SerVice.
• We playa leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products through our National Intellectual Property Rjghts Coordination Center.
• We support the law enforcement community through three units dedicated to sharing information and providing investigative support: the Law Enforcement Support Center, Forensic Document Laboratory, and the Cyber Crimes Center.
We fulfill all of these roles and many others, acting with courage, integrity and a high level of accountability while striving for excellence in everything we do. We aspire to the highest standards of performance, professionalism and leadership.

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EXHIBIT 6

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u.s. Immigration
and Customs Enforcement

PubUe Illfonnation

Prot~cling America &. 11pholding Public Safety

Worksite Enforcement
Effective worksite enforcement plays an importai1.t role in the fight against illegal immigration and 4t protecting our
homeland. U.S. Immigration and Customs Enforcement (ICE) has developed a comprehensive worksite enforcement strategy that promotes national security, protects critical infrastructure and ensures fair labor standards.

The W orksite Enforcement Unit's nussion encompasses enfc;>rcement' activities intended to mitigate the risk of

terrorist attacks posed by unauthorized workers employed in secure areas of our nation's critical infrastructure. In

order to fulfill this mission, ICE special agents apply risk assessment principles to their critical infrastructure and

worksite enforcement cases in order to maximize the impact of our limited resources against the most significant

threats and violators.

.

Though worksite enforcement efforts are focused on investigations related to critical infrastructure and national security, these efforts· and resources are also eXtended to other places of employment. Unauthorized workers employed at sensitive sites and critical infrastructure facilities-such as airports, seaports, nuclear plants, chemical plants and defense facilities-pose serious homeland security threats.

Worksite enforcement investigations often involve egregious violations of ~riminal statutes by employers and widespread abuses, and by uncovering such violations, ICE can send a strong deterrent message to other employers who knowingly employ illegal aliens. These worksite enforceII?-ent cases often involve additional violations such as· alien smuggling, alien harboring, document fraud, money laundering, fraud or worker exploitation.

ICE agents use many tools to conduct these worksite enforcement investigations, among them ICE's Forensic Docwnents Laboratory, which determines the authenticity of documents used to establish employment eligibility. ICE also works with the private sector to educate employers about their responsibilities to hire only authorized workers and how to accurately verify employment eligibility.

Illegal workers frequently lack the employment protections afforded those wi$legal status and are less likely to

report workplace safety violations and other concerns. In addition, unscrupulous employers. are likely to pay illegal

workers substandard wages or force them to endure intolerable working conditions. In addition to alleviating the

potential threat posed to national security, ICE's efforts also prohibit employers from taking advantage of illegal

workers. ICE's Worksite Enforcement Unit also helps employers improve worksite enforcement of employment regulations, The unit is currently eng~ged in developing automated mechanisms that will enable security agencies

controlling access to sensitive facilities to verify immigration status independently before granting access to new

employees.

.

Worksite Enforcement (WSE) Investigations

Worksi~e Enforcement investigations focus on egregious employers involved in criminal activity or worker

exploitation. This type of employer violation will often iilvolve alien smuggling, docwnent fraud, human rights

abuses and/or other criminal or substantive administrative immigration or customs violations having a direct nexus

to the employment of unauthorized workers. Worksiteinvestigations also encompass employers who are subjecting

unauthorized alien workers to substandard or abusive working conditions. Also included in these types of

investigations are employers who utilize force, threat, or coercion; such as threats to have employees deported in

order to keep the unauthorized alien workers from reporting the substandard wage or working conditions.

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EXHIBIT 7
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Page 1 tifS
.t Testimony
United States Senate Committee on the Judiciary Immigration Enforcement the Workplace: Learning from the Mistakes of 1986
June 1', ZOOI
The Honorable Julie L Myers Assistant Secretary for Immigration and Customs Enforcement, Department of Homeland Security
STATEMENT . OF JULIE L. MYERS ASSISTANT SECRETARY U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT U.S. DEPARTMENT OF HOMELAND SECURITY REGARDING A lIEARING ON "IMMIGRATION ENFORCEMENT AT THE WORKPLACE: LEARNING FROM THE MISTAKES OF 1986" BEFORE THE UNITED STATES SENATE . COMMITTEE ON THE JUDICIARY . SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY and CITIZENSHIP Monday, June 19,2006 @2:00pm 226 Senate Dirksen Building
CHAIRMAN CORNYN AND MEMBERS OF THE SUBCOMMITTEE, it is an honor for me to appear before you today to share U.S. Immigration and Customs Enforcement's (lCE's) perspective on worksite enforcement and how ICE investigates and prosecutes employers engaged in the hiring of illegal aliens.
INTRODUCTION
Among the Department ofHomeland Security (DHS) law enforcement agencies, ICE has the most expansive investigative authority and the largest" force ofinvestigators. Our mission is to protect our Nation and the American people by targeting the people, money and materials that support terrorist and criminal activities. The men and women ofICE accomplish this by investigating and enforcing the nation's immigration and customs laws. Working throughout the nation's interior, together with our DHS and other federal counterparts and with the assistance of state and local law enforcement entities, ICE has begun to change the culture of illegal employment across the country by pursuing the most egregious businesses engaged in the employment of illegal workers. ICE is educating the private sector to institute best hiring practices and garnering their support in identifying systemic vulnerabilities that may be exploited to undennine immigration and border controls. Strategically, a . large part ofour worksite enforcement efforts focuses on preventing access to critical infrastructure sectors and sites to prevent terrorism and to apprehend those individuals who aim to do us harm. .
LESSONS FROM THE 1986 IRCA ICE has a wealth of historical experience implementing the 1986 Immigration Refonn and Control Act (IRCA). We know its strengths and shortcomings and I believe it will be beneficial to provide a quick historical review of worksite enforcement under IRCA. To varying degrees and during specific time periods, the fonner INS focu.sed on worksite violations by devoting a large percentage of their investigative resources to enforce the administrative employer sanctions provisions oflRCA. Conducting labor-intensive inspections and audits of employment

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eligibility documents only resulted in serving busineSses with a Notice ofIn1ent to Fine (NIP) or a compliance notice. Issuing monetary fines that were routinely mitigated or ignored had little to no deterrent effect Not only were the results far from effective, the process involved endless attorney and agent hours in discovery and litigation to adjudicate and resolve cases. Egregious violators ofthe
law viewed the fines as just a "cost of doing business" and therefore the system did not serve as a true
economic incentive to cQange their business model.
Moreover, while IRCA required employers to review identity documents demonstrating employment eligibility, its compliance standard rendered that requirement meaningless and .essentially sheltered employers who had hired unauthorized aliens. Under the 19861aw, an employer complied with the eligibility verification process by reviewing a document that reasonably appeared to be genuine. Employers were not required to verify the validity of a document and were not required to even maintain a copy of the documents that they reviewed. -The apparent validity of a single document and the lack ofany available evidence regarding the document routinely prevented the government from proving that the employer knew the ~mployee was illegal. The law should reasonably require the .employer to review and retain relevant documents and information obtained during the verification process, as well as during the subsequent employment of a worker. It should not allow unscrupulous employers to be "willfully blind" to derogatory information or facts indicative of unauthorized sta~.
Another detrimental result of the documentation compliance standard established under IRCA was explosive growth in an increasingly profitable false document industry that caters to undocumented workers who purchase the documents necessary to gain employment

A NEW APPROACH TO WORKSITE ENFORCEMENT

Based on these lessons, ICE's current worksite enforcement strategy is no longer a piecemeal casespecific effort; instead, it is part of a comprehensive layered approach that focuses on how illegal aliens get to our country, the ways in which they obtain identity documents allowing them to become employed, and the employers who knowingly hire them..

The ICE worksite enforcement program is just one component of the Department's overall Interior Enforcement Strategy and is a critical part of the Secure Border Initiative. Thus, under the new ICE paradigm, worksite enforcement incorporates a vast multitude of investigations and crimes as illustrated below. Using this approach ICE worksite investigations now support felony charges and not just the traditional misdemeanor worksite violations under section 274A ofthe Immigration and Nationality Act. Let me give you some examples to explain whaU mean.

Worksite enforcement includes critical infrastructure protection. Since 9/11, ICE has prioritized

critical infrastructure. Just five days ago, an ICE investigation apprehended S5 illegal aliens working

at a construction site at Dulles International Airport. Effective homeland security requires verifying

the identity of not just the passengers that board the planes, but also the employees that work at the

airports.

.

Worksite enforcement combats alien smuggling. In the last few months, we have made arrests at

employment agencies that served as a conduit between the criminal organizations that smuggle illegal

aliens into this country and the employers that willfully employ them.

Worksite enforcement also combats human trafficking. As the result ofworksite enforcement actions, ICE has dismantled forced labor and prostitution rings, be it Peruvian aliens in New York or Chinese

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aliens in Maryland. The common thread is the greed ofcriminal organizations and the desire of unwitting aliens to come here to work. Human trafficking cases represent the most egregious forms of exploitation, as aliens are forced to work and live for years in inhumane conditions to payoff the debt they incur for being sm~gled into the country.'
Worksite enforcement involves financial crimes, commercial fraud, export violations, and trafficking in counterfeit goods. ICE enforcement efforts leverage our legacy authorities to fully investigate these offenses that involve the employment of illegal aliens to promote and further these other crimes. By careful coordination of our detention and removal resources and our investigative operations, ICE is able not only to target the organizations unlawfully employing illegal workers, but to detain and expeditiously remove the illegal workers encountered. For example, in a recent case in Buffalo, New York, involving a landscape nursery, 34 illegal workers were apprehended, detained and voluntarily repatriated to Mexico within 24 hours.
This sends a strong message to both the illegal workers here and to foreign nationals in their home countries that they will not be able to just move from job to job in the United States once ICE shutS down their employer. Rather, they will be detained and promptly deported.
Of cOurse, a key component of our worksite enforce~ent efforts targets the businesses and industries that deliberately profit from the wholesale employment of illegal aliens. On April 19, 2006, ICE agents executed 9 federal arrest warrants, 11 search warrants, and 41 conSent searches at IFCO Systems (IFCO) worksite locations throughout the United States. In addition, ICE agents apprehended 1,187 una~thorized workers at IFCO worksites. This coordinated enforcement operation also involved investigative agents and officers from the Social Security Administration, the Internal Revenue Service, and the New York State Police. The criminal defendants have been charged with conspiracy to transport and harbor unlawful aliens for a financial gain, as well as document fraud (8 U.S.C. Section 1324 & 18 U.S.C. Sections 1546 and 371, respectively). .
Another recent example of our worksite efforts occurred on May 9, 2006, when 85 unauthorized workers employed by Robert Pratt and other sub-contractors for Fischer Homes, Inc., were arrested as part ofanother ICE-led joint federal, state and local investigation. In this case the targets of the investigation knowingly harbored, transported and employed undocumented aliens. Five supervisors.. were arrested and charged with harboring illegal aliens. (8 U.S.C. Sections 1324 & 1326). 80 of the 84 illegal workers encountered were detained and 12 have ~ady been removed from the United States. What impact will this have? Criminally charging employers who hire undocumented aliens will create the kind of deterrence that was previously absent in enforcement efforts. We are also identifying and ~eizing the assets that employers derive from knowingly employing illegal workers, in order to remove the financial incentive to hire illegals and to pay them substandard wages.
To be clear, the magnet ofemployment is fueling illegal immigration, but the vast majority of employers do their best to comply with the law. ICE has provided training and tools on our website to help employers avoid violations.
However, just as a chain is only as strong as its weakest link. the employment process cannot pennit the widespread use and acceptance of fraudulent identification documents. Accordingly, in April 2006, Deputy Attorney GeneI:al Paul McNulty and I announced the creation ofICE-led Document and Benefit Fraud (DBF) Task Forces in 11 major metropolitan areas. These task forces focus on the illegal benefit and fraudulent document trade that caters to aliens in need of fraudulent documents in order to obtain illegal employment. The DBF Task Forces are built on strong partnerships with

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entities such as U.S. Citizenship and Immigration Services, the Social Security Administration, the U.S. Postal Inspection Service and the Departments of State, Justice and Labor. The DBF Task ForCes identify, investigate and remove organizations that supply identity documents that enable illegal aliens, terrorists or criminals to integrate into our society undetected and obtain employment or other immigration benefits.
NEW TOOLS
ICE has made substantial improvements in the way we investigate and enforce worksites. Yet, we must do more and our experiences can inform your efforts to make that possible. DHS supports several of the additional tools Contained in the iJIUlligration reform bill pasSed by the Senate, and we look forward to workipg with Congress as itconsiders comprehensive immigration reform, including proposals to enhance worksite enforcement.
NO-MATCH
There are millions of.employers in the United States. Contained within the Social Security databases are statistics that show the employers with the greatest raw number, and greatest percentage, of employees who have presented sOcial securi.ty numbers that do not match official social security roles; this is known as "No-Match" data. We believe the availability of this data to DHS would greatly enhance worksite enforcement Access to this data will allow ICE agents to quickly identify and remove unauthorized workers and identify employers who appear to rely on illegal workers as part of . their business practices. In addition, access to this data will provide another tool to locate and remove fugitive ali~ns who have absconded from final orders of deportation. From a national security standpoint, access to SSA no-match data is essential to ICE's efforts to identify criminal employers and vulnerabilities in critical infrastructure industries and sectors throughout the counny. This represents one legislative fix that would go far toward ensuring that our workplace laws are upheld.
Additionally, provisions in current legislative proposals regarding docwnent retention by employers, including evidence of actions taken by employers to resolve employment eligibility issues (e.g., SSA no-match letters), are crucial to worksite enforcement criminal prosecutions. Asking employers to . retain documents for at least as long as the statute oflimitations for these crimes is simply common .sense. ICE has provided additional training and tools on our website to help employers avoid violations. .
PROPOSED MODEL OF FINES AND PENALTIES
Although criminal prosecution of egregious violators is our primary objective in worksite cases, a need exists for ~new and improved process of issuing fines and penalties that carry a significant deterrent effect and that are not regarded as a mere cost of doing business. Only with a strong compliance program, combined with iss)laIlce of meaningful penalties, will the United States have an effective worksite enforcement program.
The Administration has proposed a streamlined administrative flnes and penalties process that gives the DHS Secretary the authority to administer and adjudicate fines and penalties. We would further propose a penalty scheme that is based on clear rules for issuance. mitigation and collection of penalties.
In conclusion, I would like to thank the Subcommittee for its analysis and review of how to prevent the problems of 1986 from occurring again. As I have outlined in my testimony, ICE has made great

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• Case 2:06-cv-00314

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Page 5 of 5

strides in our worksite enforcement program and our efforts are part of a comprehensive strategy that
focuses on several different layers of the problem simultaneously; including smuggling, document and benefit fraud, and illegal employment.

ICE agents are working tirelessly to attack the egregious unlawful employment ofundocumented

aliens that subverts the rule oflaw. We are working more intelligently and more efficiently to ensure.

the integrity ofour immigration system.

.

. Our responsibility at ICE is to do everything we can to enforce our laws, but enforcement alone will not solve the problem. Accordingly. the President has called on Congress to pass comprehensive immigration reform that accomplishes three objectives: strengthening border seewity, ensuring a comprehensive interior enforcement strategy that includes worksite enforcement, and establishing a temporary worker program. Achieving these objectives will dramatically protect our infrastructure, reduce the employment magnet that draws illegal workers across the border, while.eliminating the mistakes that accompanied the 1986 legislation.

ICE is dedicated and committed to this mission. We look forward to working with this Subcommittee in our efforts to seeure our ~ational interests. I hope my remarks today have been helpful and informative. I thank you fO,r inviting me and I will be glad to answer any questions you may have at this time.

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CERTIFICATE OF SERVICE

I certify that on the _ day of December. 2006, a true and correct copy of the foregoing

"document was forwarded to the following by Federal Express Overnight delivery and bye-mail,

as follows:

Plaintiffs:

"William E. Lawler, III

wlawler@velaw.com

C. Michael Buxton

Vinson & Elkins, L.L.P.

"

The Willard Office Building

1455 Pennsylvania Avenue, Suite 600

WI-eadsh£i?nfgt.o,...ne";..D.,.',CA,',10004

Kevin A. Isern

Lovell, Lovell, Newsome & Isern, L.L.P.

112 West 8th Avenue, Suite 1000

~ari1l9i t::~"'1~'

T~Xl1l7y9101-2314

By:

DFTS' OPP. TO P.1. - 2 (2-06CV -314-J)

UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION
1331 PENNSYLVANIA AVE., N.W., NPB 11 48·14 WASHINGTON, D.C. 10004-1703
" Tel (101) 616-9751; Fax (101) 133-0397

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

SWIFT & COMPANY

§

§

VS.

§

§

IMMIGRATION AND CUSTOMS

§

ENFORCEMENT DIVISION OF THE §

DEPARTMENT OF HOMELAND

§

SECURITY and JULIE L. MYERS

§

CIVIL ACTION NO. 2-06CV-314-J

STIPULATION OF DISMISSAL

TO THE HONORABLE COURT:

Pursuant to FRCP 41(a)(1)(ii), all parties stipulate to the dismissal of this case as follows:

Plaintiff no longer wishes to prosecute its claims against Defendants, Immigration and

Customs Enforcement of the Department of Homeland Security and Julie L. Myers.

WHEREFORE, the parties respectfully pray that this action be dismissed, without prejudice,

with costs to be taxed against the parties incurring same.

Respectfully submitted,

William E. Lawler, III – Lead Counsel C. Michael Buxton VINSON & ELKINS, L.L.P. The Willard Office Building 1455 Pennsylvania Ave. Suite 600 Washington, D.C. 20004 Telephone: (202) 639-6676 Facsimile: (202) 639-6604
Kevin A. Isern – Local Counsel LOVELL, LOVELL, NEWSOM & ISERN, L.L.P. 112 WEST 8TH AVENUE, SUITE 1000 Amarillo, TX 79101-2314 Telephone: (806) 373-1515 Facsimile: (806) 379-7176

U. S. Immigration and Customs Enforcement of the Department of Homeland Security c/o Assistant United States Attorney for the Northern District of Texas 500 S. Taylor, Suite 300, LB 238 Amarillo, Texas 79101
Richard Roper United States Attorney

By: /s/Kevin Isern Kevin A. Isern

By: /s/ Gordon Bryant D. Gordon Bryant Assistant U. S. Attorney

1

CERTIFICATE OF SERVICE I certify that on the 14th day of December, 2006, I electronically filed the foregoing document with the clerk of court of the U.S. District Court, Northern District of Texas, using the electronic case filing system of the Court to be forwarded to:

ATTORNEYS FOR DEFENDANTS:
Richard Roper United States Attorney c/o D. Gordon Bryant, Jr. Assistant United States Attorney 500 S. Taylor, Suite 300, LB 238 Amarillo, Texas 79101
Peter D. Keisler Assistant Attorney General Jonathan F. Cohn Deputy Assistant Attorney General David Kline Principal Deputy Director c/o Elizabeth J. Stevens Trial Attorney Office of Immigration Litigation Civil Division United States Department of Justice 1331 Pennsylvania Avenue, N.W. Washington, D.C. 20044

email to elizabeth.stevens@usdoj.gov

/s/ Kevin Isern Kevin A. Isern

2

 
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U.S. District Court Northern District of Texas (Amarillo) CIVIL DOCKET FOR CASE #: 2:06-cv-00314

CLOSED, ECF

Swift & Company v. Immigration and Customs Enforcement Date Filed: 11/28/2006

Division of the Department of Homeland Security et al

Date Terminated: 12/14/2006

Assigned to: Judge Mary Lou Robinson

Jury Demand: None

Cause: 28:1391 Personal Injury

Nature of Suit: 890 Other Statutory

Actions

Jurisdiction: U.S. Government

Defendant

Plaintiff Swift & Company

represented by William E Lawler, III Vinson & Elkins Willard Office Bldg 1455 Pennsylvania Ave NW Suite 600 Washington, DC 20004-1008 202/639-6676 Fax: 202/639-6604 LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Michael Buxton Vinson & Elkins Willard Office Bldg 1455 Pennsylvania Ave NW Washington, DC 20004-1008 202/639-6500

Kevin A Isern Lovell Lovell Newsom & Isern Eagle Centre Bldg 112 W 8th Ave Suite 1000 Amarillo, TX 79101-2314 806/373-1515 Fax: 806/379-7176 FAX Email: kevin@lovell-law.net ATTORNEY TO BE NOTICED

V.
Defendant
Immigration and Customs Enforcement Division of the

represented by David J Kline US Department of Justice - Office of

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Department of Homeland Security
Defendant Julie L Myers
V. Movant UFCW Local 540 and others similarly situated

Immigration Litigation Box 878 Ben Franklin Station Civil Division Washington, DC 20044-0878 202/616-4856 Fax: 202/616-4948 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J Stevens US Department of Justice Office of Immigration Litigation 1331 Pennsylvania Ave NW Washington, DC 20044 202/616-9752 Fax: 202/353-7224 LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Gordon Bryant, Jr US Attorney's Office Amarillo National Plaza Two 500 South Taylor Suite 300 LB 238 Amarillo, TX 79101-2442 806/324-2356 Fax: 806/324-2399 FAX Email: gordon.bryant@usdoj.gov ATTORNEY TO BE NOTICED
represented by David J Kline (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Gordon Bryant, Jr (See above for address) ATTORNEY TO BE NOTICED
represented by Philip R Russ Law Office of Philip R Russ

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TERMINATED: 12/14/2006 on behalf of Hector Ortiz TERMINATED: 12/14/2006 on behalf of Andrea Jimenez TERMINATED: 12/14/2006 on behalf of David Garza TERMINATED: 12/14/2006 on behalf of Juan Cuardada TERMINATED: 12/14/2006 on behalf of Francisco Matta TERMINATED: 12/14/2006 on behalf of Rita Villareal TERMINATED: 12/14/2006 on behalf of Angela Davidson TERMINATED: 12/14/2006 on behalf of Jose Acosta TERMINATED: 12/14/2006 on behalf of Johnathan Rivera TERMINATED: 12/14/2006 on behalf of Herman Garcia TERMINATED: 12/14/2006 on behalf of Ted Quintanilla TERMINATED: 12/14/2006 on behalf of Zavier Hernandez TERMINATED: 12/14/2006 on behalf of Linda Falero TERMINATED: 12/14/2006

2700 S Western Suite 1200 Amarillo, TX 79109 806/358-9293 Fax: 806/358-9296 FAX Email: philiprruss@russlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry Dan McLaughlin Law Office of Jerry Dan McLaughlin 600 S Tyler Suite 1302 Amarillo, TX 79101 806/371-9110 Fax: 806/373-9029 FAX Email: jmclaw@wtxcoxmail.com ATTORNEY TO BE NOTICED

Date Filed 11/28/2006
11/28/2006

#

Docket Text

1 MOTION for Leave to File Under Seal by Swift & Company (djs) (Entered: 11/28/2006)

2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Immigration and Customs Enforcement Division of the Department of Homeland Security, Julie L Myers filed by Swift & Company. (Filing fee $350; Receipt number AM000459) (Attachments:

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11/28/2006 11/28/2006 11/28/2006 11/28/2006 11/28/2006 11/28/2006 11/28/2006
11/28/2006 11/29/2006
12/04/2006
12/04/2006
12/04/2006
12/04/2006

# 1 Civil Cover Sheet) (djs) (Entered: 11/28/2006)
3 CERTIFICATE OF INTERESTED PERSONS by Swift & Company. (djs) (Entered: 11/28/2006)
4 Order Designating Case for ECF - see order for specifics. (Signed by Judge Mary Lou Robinson) (djs) (Entered: 11/28/2006)
5 Summons Issued as to Immigration and Customs Enforcement Division of the Department of Homeland Security. (djs) (Entered: 11/28/2006)
6 Summons Issued as to Julie L Myers. (djs) (Entered: 11/28/2006)
7 MOTION for Preliminary Injunction and MOTION for Expedited Hearing by Swift & Company (djs) (Entered: 11/28/2006)
8 MEMORANDUM of Points and Authority in Support filed by Swift & Company re 7 MOTION for Preliminary Injunction and MOTION for Expedited Hearing (djs) (Entered: 11/28/2006)
9 Appendix in Support filed by Swift & Company re 7 MOTION for Preliminary Injunction and MOTION for Expedited Hearing (Attachments: #(1) #(2) #(3) #(4) #(5) #(6) #(7) #(8) #(9) #(10) #(11) # (12) #(13) #(14) #(15) #(16)) (djs) (Entered: 11/28/2006)
10 SEALING ORDER: granting 1 Motion to Seal Case. Sealed until further order of this Court. (Signed by Judge Mary Lou Robinson on 11/28/06) (djs) (Entered: 11/28/2006)
11 SUMMONS Returned Executed as to Immigration and Customs Enforcement Division of the Department of Homeland Security served on 11/29/2006 by serving US Attorney's Office, Amarillo, Texas, answer due 1/29/2007. (plh, ) (Entered: 11/29/2006)
12 ORDER SETTING EVIDENTIARY HEARING - The Court will conduct a closed hearing on Pltf's 11/28/06 motion for a preliminary injunction. Motion Hearing set for 12/6/2006 10:00 AM before Judge Mary Lou Robinson. (Signed by Judge Mary Lou Robinson on 12/4/06) (plh, ) (Entered: 12/04/2006)
13 RESPONSE in Opposition filed by Immigration and Customs Enforcement Division of the Department of Homeland Security, Julie L Myers re 7 MOTION for Preliminary Injunction MOTION for Hearing (plh, ) (Entered: 12/04/2006)
14 Memorandum in Support filed by Immigration and Customs Enforcement Division of the Department of Homeland Security, Julie L Myers re 13 Response in Opposition to Motion for Preliminary Injunction (plh, ) (Entered: 12/04/2006)
15 Appendix in Support filed by Immigration and Customs Enforcement Division of the Department of Homeland Security, Julie L Myers re 13 Response in Opposition to Motion for Preliminary Injunction (plh, ) (Entered: 12/04/2006)

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12/05/2006
12/05/2006 12/05/2006 12/06/2006 12/06/2006 12/06/2006 12/07/2006 12/07/2006 12/08/2006 12/11/2006 12/11/2006

16 AGREED SCHEDULING ORDER WITH REGARD TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR EXPEDITED HEARING - A hearing has been set for 12/6/06 at 10:00 a.m. In light of this date and by this Agreed Order, the parties have agreed that Pltf's Request for Expedited Discovery, encompassed in their Motion, is withdrawn and the U.S. Immigration and Customs Enforcement will take no action against Pltf before 12/6/06. Therefore, the parties request that the Court enter this Agreed Scheduling Order: 1. Dfts' Response to Pltf's Memorandum of Points and Authority in Support of Pltf's Motion for Preliminary Injunction and Expedited Hearing will be due Monday, 12/4/06; 2. Any reply by Pltf to Dfts' Response will be due Tuesday, 12/5/06; 3. A hearing on Pltf's Motion for Preliminary Injunction will be held Wednesday, 12/6/06 at 10:00 a.m. Motion Hearing set for 12/6/2006 10:00 AM before Judge Mary Lou Robinson. (Signed by Judge Mary Lou Robinson on 12/5/06) (plh, ) (Entered: 12/05/2006)
17 REPLY filed by Swift & Company to Dft's Opposition re 7 MOTION for Injunction MOTION for Hearing (plh, ) (Entered: 12/05/2006)
18 Appendix of Cases filed by Swift & Company re 17 Reply to Response to Motion for Preliminary Injunction (plh, ) (Entered: 12/06/2006)
19 Application and Order for Admission Pro Hac Vice by William E. Lawler, III (Signed by Judge Mary Lou Robinson on 12/6/06) (plh, ) (Entered: 12/06/2006)
Minute Entry for proceedings held before Judge Mary Lou Robinson : Hearing for Preliminary injunction held on 12/6/2006. Attorney Appearances: Plaintiff - William E. Lawler; Defense - David Kline. (Court Reporter Stacy Morrison.) Time in Court: 4 hrs/13 min. NO PDF ATTACHED. (sas) (Entered: 12/06/2006)
20 NOTICE TO COURT OF PRESS INQUIRIES ABOUT THIS MATTER by Immigration and Customs Enforcement Division of the Department of Homeland Security, Julie L Myers (plh, ) (Entered: 12/07/2006)
21 NOTICE TO COURT REGARDING PRESS INQUIRY POSSIBLY RELATED TO THIS MATTER by Swift & Company (plh, ) (Entered: 12/07/2006)
22 ORDER: Plaintiff's Motion for a Preliminary Injunction is DENIED. (Signed by Judge Mary Lou Robinson on 12/7/06) (djs) (Entered: 12/07/2006)
23 MOTION to Unseal by Swift & Company (djs) (Entered: 12/08/2006)
24 RESPONSE "Opposition" filed by Immigration and Customs Enforcement Division of the Department of Homeland Security, Julie L Myers re 23 MOTION to Unseal Case (djs) (Entered: 12/11/2006)
25 ORDER: ON 12/8/06, the government orally moved for leave to provide copies of the Court's 12/7/06, order to Magistrate Judges from whom Dft

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12/12/2006 12/12/2006 12/12/2006
12/12/2006 12/14/2006 12/14/2006 12/14/2006 12/14/2006
01/10/2007

ICE may move to obtain warrants. The Court orally granted that motion on 12/8/06. This order memorializes that ruling for the record. (Signed by Judge Mary Lou Robinson on 12/11/06) (djs) (Entered: 12/11/2006)
26 NOTICE TO COURT REGARDING ICE ENFORCEMENT ACTIONS by Swift & Company re 23 MOTION to Unseal Case (djs) (Entered: 12/12/2006)
27 AMENDED NOTICE TO COURT REGARDING ICE ENFORCEMENT ACTIONS by Swift & Company re 23 MOTION to Unseal Case (djs) (Entered: 12/12/2006)
Minute Entry for proceedings held before Judge Mary Lou Robinson : Telephone Conference. Attorney Appearances: Plaintiff - William E. Lawler; Defense - David Kline. (Court Reporter Stacy Morrison.) Time in Court: 10 minutes. NO PDF ATTACHED. (sas) (Entered: 12/12/2006)
28 ORDER. This case is unsealed, effective immediately upon entry of this order (Signed by Judge Mary Lou Robinson on 12/12/06) (djs) (Entered: 12/12/2006)
29 MOTION to Intervene by UFCW Local 540 with Memorandum in Support. (plh, ) (Entered: 12/14/2006)
30 STIPULATION by Swift & Company, Immigration and Customs Enforcement Division of the Department of Homeland Security, Julie L Myers to Dismiss. (Isern, Kevin) (Entered: 12/14/2006)
31 ORDER denying 29 Motion to Intervene (Signed by Judge Mary Lou Robinson on 12/14/06) (plh, ) (Entered: 12/14/2006)
32 AGREED ORDER OF DISMISSAL - Before the Court is the parties' Stipulation of Dismissal. This action is dismissed without prejudice. Costs are taxed against the parties incurring same. (Signed by Judge Mary Lou Robinson on 12/14/06) (plh, ) (Entered: 12/14/2006)
33 TRANSCRIPT of Proceedings held on December 6, 2006 before Judge Mary Lou Robinson. Court Reporter: Stacy Morrison. (1 Vol.) (Attachments: # (1) # (2) # (3) # (4) # (5) # (6)) (plh) (Entered: 01/10/2007)

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