Ice is a chilly substance, and the government agency called ICE—Immigration and Customs Enforcement—is aptly named. It sends chills down the spines of fruit growers and packers who hire seasonal labor to pick and pack fruit, and of workers who may be in the United States illegally.

It is estimated that 60 percent of seasonal workers are in the country illegally and should not be working in orchards, vineyards, and packing houses. Almost all of them are from Central America.

While “ICE raids” have been far from a daily occurrence in the fruit industry, the few that have occurred have put the fear of ICE into many employers.

Remember, too, that agriculture hires just under 2 million workers, and the total population of immigrants in the United States illegally is estimated at 12 million. ICE has more than agriculture on its agenda, although many believe agriculture is “targeted.”

What is ICE?

ICE is the largest investigative agency in the U.S. Department of Homeland Security. ICE’s Enforcement and Removal Operations are vast.
In a fact sheet called “a day in the life of ICE Enforcement and Removal Operations,” the agency says that, among other things, on an average day in 2012, it managed six processing centers, housed an average of 34,260 illegal aliens in more than 240 detention facilities, and managed more than 1.71 million aliens in the various stages of immigration removal proceedings.

The agency says it has prioritized its limited resources on identifying and removing criminal aliens and those caught at the border attempting to unlawfully enter the United States.

“Removals”—deportations—can be people turned back after being apprehended within 100 miles of a border (having entered in the previous two weeks) without any further judicial proceedings. Or, “removals” can be people arrested in the interior of the United States and returned after legal proceedings.

In 2013, ICE deported almost 370,000 people. Of those, just over a third were apprehended in the interior of the country.Of the 150,000 removals of individuals without a criminal conviction, 84 percent were apprehended at the border.

Questions for ICE

Good Fruit Grower submitted several questions to the media office of ICE and received the following answers from Danielle Bennett, an agency spokesperson. These responses were edited for clarity.

Q: Is there some way growers or packers might predict a visit from ICE?

A: ICE is committed to protecting employment opportunities for the nation’s lawful workforce. In April 2009, U.S. Immigration and Customs Enforcement adopted a three-pronged approach to its worksite enforcement strategy, using enforcement (criminal arrests of employers); compliance (Form I-9 Employment Eligibility Verification inspections, civil fines, and suspension and debarment); and outreach (the ICE Mutual Agreement between Government and Employers program).

ICE uses Form I-9 inspections to ensure that employers are complying with the employment eligibility verification requirements. It begins the inspection process by serving a Notice of Inspection upon an employer compelling the production of Forms I-9. Employers are given at least three business days to produce them.

Q: What triggers an ICE decision to come to a farm or packing house looking for illegal workers?

A: ICE does not discuss law enforcement tactics.

Q: What happens to workers who are found to be working in the United States illegally?

A: Each individual immigration case is handled on a case-by-case basis. Under the deferred action process, and prosecutorial discretion as a whole, ICE is screening every alien we encounter, including those in custody. Decisions are based on the merits of each case, the factual information provided to the agency, and the totality of the circumstances.
ICE’s fiscal year 2013 removal numbers make clear the agency’s enforcement prioritization efforts are paying dividends. Nearly 60 percent of individuals removed by ICE in 2013 had previously been convicted of a criminal offense; 82 percent of individuals removed from the interior of the country had previously been convicted of a criminal offense.

Q: What happens to employers who are found to be employing workers who are in the United States illegally?

A: Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
When companies are found in noncompliance with the employment eligibility verification requirements through a Form I-9 inspection, they may be issued a Notice of Intent to Fine.  The employer can either negotiate a settlement with ICE or request a hearing before the Department of Justice’s Office of the Chief Administrative Hearing Officer.  Many cases are either settled or resolved by the administrative judge without a hearing.  If the employer takes no action after receiving a Notice of Intent to Fine, ICE will issue a Final Order.  In fiscal year 2013, ICE issued 637 Final Orders amounting to $15.8 million.
Additionally, in 2013, 179 managers were arrested on criminal charges related to worksite enforcement, and 120 individuals were indicted in federal court.

Q: What is the responsibility of employers, especially growers who hire seasonal workers, to determine whether their employees are in the United States legally?

A: The law requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986.  Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files or banking records.

Q: The Obama administration has apparently set priorities about which kind of illegal immigrants it will go after and attempt to deport. Is there policy that would focus on certain kinds of criminal conduct and avoid those who are living decent lives but are here illegally?

A: ICE is focused on sensible, effective immigration enforcement that prioritizes efforts first on those serious criminal aliens who present the greatest risk to the security of our communities, not sweeps or raids to target undocumented immigrants indiscriminately. ICE prioritizes the removal of convicted criminal aliens, recent border crossers, and immigration fugitives who have failed to comply with final orders of removal issued by the nation’s immigration courts. ICE exercises prosecutorial discretion on a case-by-case basis, considering the totality of the circumstances in an individual case.

Q: Are produce operations—fruit and vegetable farms and packers—thought to have higher levels of illegal workers? Are they under closer scrutiny than other industries—hospitality, foodservice, construction, etc.?

A: ICE conducts Form I-9 inspections on businesses each year across a wide spectrum of industries in all 50 states, the District of Columbia, and U.S. territories. ICE Form I-9 inspections are based on leads and designed to ensure employer compliance with our nation’s immigration laws.  All industries, regardless of size, location and type, are expected to comply with the law.

Q: Is the Obama administration more lenient or more diligent in its efforts to find illegal immigrants and deport them?

A: This administration is doing more than any previous administration to prioritize resources on criminal aliens who are threats to public safety, through smart policies and a focus on enforcing the law effectively. •


Good records are best defense

As you enter the busiest part of the fruit harvest season, you might want to look over your file folder of I-9 documents and make sure everything is in order.

If Immigration and Customs Enforcement decides to visit your farm or packing house, your only defense is good records, says Frank Gasparini, the executive vice president of the National Council of Agricultural Employers.

“If your paperwork is perfect, you won’t be subject to fines,” he said, “but that doesn’t mean half your workforce won’t be loaded into a van and hauled away.”

There’s no doubt that fruit growers are living in tough times, he said. ICE, working on a mission to “seal the borders and enforce immigration law,” has reduced the number of people who cross the U.S-Mexican border illegally and has deported large numbers of undocumented people that it finds in the course of auditing the I-9 forms all U.S. employers must fill out when they hire any worker.

An estimated 12 million people have come into the United States illegally. Of the 1.5 to 2 million seasonal workers U.S. farmers hire, it is estimated that 70 percent come from that pool of people who enter the country illegally, Gasparini said.

The enforcement actions have shortened the labor supply. “Labor is becoming a scarcer and scarcer commodity,” he said. “It is altering growers’ plans for growth and causing some to shift to row crops where seasonal labor is not needed.”

Just as growers are affected by having a smaller pool of willing workers, the farm workers are also caught in a pincer, Gasparini said. Not only is it more difficult for people to move north across the border, but once here, they can’t go back unless they plan to stay away or risk another illegal crossing. “Many say they plan to just stay here as long as they can and make as much money as they can until they’re arrested and deported,” Gasparini said.

Some growers are turning to the H-2A guest-worker program if they can meet the criteria, afford the expense, and provide housing. “H-2A still provides less than 100,000 workers, less than five percent of the total,” he said.

In the absence of action by Congress to address immigration and provide a larger, legal pool of potential farm workers, President Barack Obama has said he will take administrative actions—“but we don’t know what those are,” Gasparini said. “We don’t know what he’s planning for agriculture, and no one’s telling.”

So, meanwhile, use due diligence on the I-9 forms.

“It is very possible that you have workers whose documents will not stand up to an audit, but that does not mean you must be cited,” he said. “It is important that you prepare and maintain your I-9 forms as required to protect your business, yourself, and your employees. Proper I-9 compliance is your only shield in an audit.”

In filling out I-9s, employers—so as to not violate applicants’ civil rights—may ask for documents, must accept documents offered if they are of the eligible kind, and must not steer applicants toward some documents over others.

“An I-9 audit can be daunting, disturbing, and disruptive at best,” Gasparini added. “At worst it can be disastrous, destructive, and costly. “An I-9 audit can be costly to a grower in three different ways: fines or penalties for failure to complete them properly or at all; the time and effort to comply with the audit requirements; and lost workers, which can result in lost harvest.”

Complete instructions on filling out I-9s can be found online at the website