El diaro de la Gente Hispana en Iowa

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Immigration Lawyer Advice
JoAnn L. Barten,
Barten Law Office

Immigration Enforcement at the Worksite or Home

In a typical raid, Immigration Customs Enforcement (ICE) may not enter a worksite or home unless they have a warrant. 
Arrest Warrant or Search Warrant to Gain Entry
There are two types of warrants: (1) an arrest warrant - for when they are coming to arrest someone at the worksite or home, and (2) a search warrant -  for when they have permission to search the worksite or home.  ICE can issue arrest warrants, but only a court can issue a search warrant.  In the Postville, Iowa raid at Agri-processors, the raid was carried out as a civil ICE arrest warrant to find people who were in the US illegally and a criminal law enforcement agency search warrant to find evidence of fraudulent documents. 
Consent to Gain Entry
Besides warrants, another way an immigration officer can enter the worksite or home is if the officer is given permission to enter.  A consented to search does not require a warrant.  By consenting, the individual cannot later complain about everything done by officers. 
    An ICE officer is not allowed to force someone to consent to enter their worksite or home without a valid warrant.  Often the worksite receptionist or roommate unwittingly gives consent to enter without the knowledge of the other people.  ICE prefers consent because they can search even places they could not obtain a warrant to search from a judge. 
When an Officer Knocks on the Door
If an officer knocks on the door, the individual may decide not to open the door and ask the officer through the closed door to identify himself.  Once the officer names the agency, such as “Department of Homeland Security,” through the closed door the individual may ask if the officer has a warrant.  If the officer says “yes,” the individual may ask the officer to slip it under the door.  If the officer says “no” the individual may decide not to open the door. 
    The individual can examine the warrant for the name, address and a signature to make sure it is a true and valid warrant.  If the warrant does not look valid, such as the wrong address or missing a signature, the individual can return it under the door and say it is incorrect. 
Arrest Warrant
If the warrant looks valid, examine the warrant to see if it was issued by a court or by ICE.  If the warrant was issued by Immigration and Customs Enforcement (ICE), but not a court, you are not allowed to walk away from the Officer.  You may want to go outside to meet the officers.  You can decide not to allow entry.  If you allow the Officer in the worksite or home, the officer can ask questions of anyone else who is in there too.
Search Warrant
If the warrant was issued by the court and authorizes search of the worksite or home, the Officer should be allowed entry.  Officers are only allowed to take steps to get the items listed in the search warrant.   During the execution of the search warrant, individuals may decide to leave the premises walking.  Running away or hiding, however, creates reasonable suspicion to detain and arrest.  Individuals may also ask if they and the others with them are allowed to leave.  If Officers tell the individual he or she cannot leave then, they must remain. 
    ICE cannot shut down a business to execute a search warrant.  Instead, the employer and its employees are legally allowed to continue working.  ICE cannot force the employer to corral employees.  When ICE asks the employer to “get all your employees in the yard” the employer can say no.  ICE cannot require the employer identify who is who.  Often the Officers will ask an employer to seal the exits.  The employer can say “no.”
Shielding others can lead to a criminal charge of obstruction of justice.  An individual cannot hide people, cannot warn people, cannot sneak them out the back door and cannot tell other individuals not to talk.  Instead, an employer can only say to employees, “you have the right not to talk.  Or to talk and if you talk you must tell the truth.”
After the Raid
Nearly everyone found at the Postville raid are being charged criminally in federal district court.  Immigration lawyers speculate the US Attorney’s Office will attempt to persuade those arrested to plead guilty to a crime that will be an aggravated felony with automatic removal from the US.  As of this writing, no civil immigration charges have been filed but these are expected soon. 
    In the confusion of the raid and the aftermath, it is sometimes difficult to determine whether the individual was arrested by police or by immigration enforcement.  The rights by those individuals which may be demanded are different depending upon whether criminal authorities or ICE is involved.  Individuals lose two important rights when dealing with immigration officers, individuals do not have the right to a lawyer and also cannot request all questioning be stopped.  The most important right is the right to remain silent which is granted to all persons.
Arrested by Criminal Authorities - Rights of Defendants in Criminal Proceedings
• The right to remain silent - anything you say will be used against you later on
• The right to an attorney even if you cannot afford one
• The right to request all questioning stop
• Lawyers typically advise clients not to volunteer information about themselves to the criminal authorities
Arrested by Immigration Authorities - Rights of Respondents in Immigration Proceedings
• The right to remain silent - anything you say will be used against you later on
• The right NOT to sign any statements or document, especially giving up your right to a hearing
• You have the right to have access to your lawyer, but not to a free lawyer.  Sometimes it will take a lawyer time to find you.  However, your lawyer must be granted access to meet with you.
• Do NOT lie to an immigration officer.  Lying about your status carries serious punishment.  You may say I want to speak with a lawyer as a response. 
• The right to contact your consulate. 
    The phone number for the Mexican Consulate is (402) 595-1841.
    The Guatemala Consul Gustavo Lopez will be visiting people detained in Waterloo on Wednesday March 14 and Thursday March 15 and the phone number for Guatemalan citizens is 312-332-1587.

Immigration Lawyer Advice
JoAnn L. Barten,
Barten Law Office

All foreign nationals are required to file the Form AR-11 with USCIS within 10 days of moving their residence, even if the move will be temporary.  Notification to the US post office does NOT satisfy this requirement.  The Form AR-11 may be found at the USCIS website and can be filed by certified mail or by electronic filing.  Proof of filing the Form AR-11, such as through a certified return receipt cards or the electronic receipt should be kept in a safe place. 

The Visa Bulletin provides the public with notice of which family and employment petitions are available to apply for a green card.  The May 2008 Visa Bulletin reports that in the coming months, the MEXICO F2A Spouse and Children of Permanent Residents family category will go backwards.  For this reason, Mexico F2A applicants with a petition date before May 1, 2002 need to file their green card applications before June 1, 2008 to avoid additional delay in eligibility for the work permit.  

Employers filed approximately 163,000 H-1B petitions for employees during the first 5 days in April.  The applications were for jobs which require a bachelor’s degree or above.  Only 65,000 H-1B visas are available for an employment start date of October 1, 2008.  On April 14th, USCIS began a random lottery to decide which cases will be chosen for processing.  Some cases will be put on a wait list.   If an employer’s petition has been selected, USCIS will notify the employer by June 2nd.  Petitions that are not selected will be returned with the filing fee.

Employers can expect to receive social security mismatch letters again this year.  An employer that receives a SSA no-match letter cannot terminate the employee without attempting to resolve the mismatch.  In addition, employers are not allowed to treat employees differently or discriminates based upon national origin or other prohibited characteristics.  Employers who engage in unlawful discrimination after receiving a social security mismatch letter may be found by the Office of Special Counsel to have engaged in unlawful discrimination.  Employers may call (800) 255-8155 and employees may call (800) 255-7688 or (202) 616-5525 to find out more information about the Office of Special Counsel’s anti-discrimination efforts.

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