LAWYER OFFERS TIPS ON PREPARING FOR ICE 

Concerns last summer about widespread farm visits by Immigration and Customs Enforcement (ICE) agents never materialized and, according to Tim Bernasek of the Portland law firm Dunn Carney, probably won’t anytime soon.

Tim Bernasek of the Portland law firm Dunn Carney at the Oregon Blueberry Conference outlines some measures growers can take in preparation for possible visits by ICE.

“That did not happen, and I continue to believe that is not going to happen,” Bernasek told participants in the 2018 Oregon Blueberry Conference.

If it does, however, Bernasek said there are preparations farmers can take.

First, he said, it is important for farmers to know what ICE can and can’t do.

“They can come up to you and come up to your workers and ask you questions,” he said. “But you do not have to answer those questions and your workers don’t have to answer those questions.”

ICE also can detain people they think are unlawfully in this country, Bernasek said, but they cannot conduct random stops.

ICE agents also do not have open access to farm fields. “They cannot enter your farm fields without permission or a warrant,” he said.

The U.S. Department of Labor, on the other hand, operates under different rules. Under the Migrant Seasonal Worker Protection Act, the DOL has broad authority to the point where if it wants to conduct an investigation of workers, its agents can enter a field without a warrant, he said.

“The good news is that with ICE, there are specific regulatory restrictions about entering a farm,” Bernasek said. “So, it is really important to know who you are dealing with.”

Also, Bernasek said, if ICE agents provide a warrant, farmers should check to see if it is a judicial warrant or an administrative warrant.

A judicial warrant will have parameters about what the agency can and cannot do, he said. An administrative warrant often is much more open ended. “You and your lawyer may ask to take the (administrative) warrant before a judge and let the judge decide if the warrant is legal,” he said.

Among preparations for ICE visits, Bernasek said it is important for farmers to post fields with “No Trespassing” signs that include the name of the farm and a phone number or address of a location nearby where agents can obtain contact information.

Also, he said, workers, supervisors and crew leaders should be trained to deny all parties permission to enter fields. “Somebody needs to be the point person for anybody who comes to that field,” he said, “and they should under no circumstance give anybody permission to enter your fields.”

Bernasek said it is best for farmers to avoid providing advice to farmworkers on how to deal with ICE agents, other than providing them a card with basic information that they can hand agents.

“You can provide them with a card that includes, ‘I do not wish to speak with you or have further contact with you. Please be informed that I choose to exercise my right to remain silent and refuse to answer your questions. If I am detained, I request that I immediately be allowed to contact an attorney. I will exercise my right to refuse to sign anything until I am allowed to speak to an attorney.’

“Beyond giving them that card, I wouldn’t get involved in advising your workers,” Bernasek said.

He also said farmers should be aware that they cannot provide ICE agents access to farmworker housing.

“That is something maybe you can have a discussion about with your workers,” he said. “Make sure that they are informed that you cannot give ICE the ability to enter that house, even though you own the housing. (The agents) have to get that permission from the tenant.”