December, 1997

INS raids in New York frighten workers, enrage growers

Immigration and Naturalization Service raids in western New York state have seized migrant workers, caused others to leave farms early and have prompted growers to wonder if the INS is an agency out of control.
Vegetable and fruit operations in the Batavia and Elba areas were particularly hard hit. During one raid, shots were fired by INS agents as workers were fleeing into the woods. Growers say agents have entered their property without proper search warrants, use SWAT-team tactics and are randomly detaining anyone who looks Hispanic. U.S. Rep. Bill Paxon has asked Attorney General Janet Reno to investigate the agents' conduct.
"These raids have been done with intimidation. They think they are above the law," said Maureen Torrey, who operates Torrey Farms in Elba with her brothers. "They don't identify themselves and they make sure you know they have a revolver."
In July, the Buffalo INS office requested I-9 forms from 22 western New York farms "just to take the temperature and see how things looked out there," said John Ingham, director of the INS Buffalo office. Nearly 50% of the 850 people for whom I-9s were provided did not have the proper documentation
The vast majority of raids took place at vegetable operations, but George Lamont's orchard near Albion was raided August 28 and 10 workers were removed. His farm was one of the 22 which were asked to supply information to INS.
"Obviously, the INS found some people they didn't think belonged here," said Lamont. "We knew they had the information, so we didn't demand a search warrant."
The 1997 season was the first in which INS was the lead agency for regional worksite enforcement, taking that role from the U.S. Border Patrol. Growers believe the enforcement activity has increased in intensity, with more agents making more visits.
Ingham denies the reports of agency misconduct and says his agents are well-trained, experienced men who are doing their jobs in a professional manner.
"I don't know how to resolve the perception that there's a sharp increase in activity," he said. "Our agents are doing the things that are expected of them. The farmers who have lost workers are upset with us. I can understand that, but we're not able to let them keep people illegally in the United States."
Visits made to farms were not random sweeps, but were "lead-driven," said Ingham. Torrey Farms was raided October 21 and 25 people were arrested. The most controversial raid took place Nov. 5 at Star Farms near Byron. Neighbor Herb Bateman told the Batavia Daily News he heard at least five shots fired as workers jumped from a van and ran across a field.
"I went over to see what was going on and I asked them what gave them (agents) the authority to shoot. The agent told me they (the migrants) were fleeing. He told me 'I shoot for the legs,'" Bateman told the Daily News.
INS officials said the shots came from turkey hunters in the area. Growers scoff at that explanation, and note that turkey season wasn't open when the incident occurred.
The Genessee County Sheriff's Department investigated and determined three shots were fired, although not directly at workers. District Attorney Lawrence Friedman said there is no basis for criminal prosecution, although such conduct appears to be a violation of INS regulations. An INS internal investigation is underway.
"They probably shot in the air or down in the ground," said Sheriff Gary T. Maha. "They more or less fired a warning shot, hoping the fleeing migrants would stop."
Maha said his deputies interviewed witnesses, migrants and residents near the area of the incident. Seven INS agents were on the scene - six of them talked to deputies, while one would not. Agents are not required to cooperate with local law enforcement in such an investigation, he added.
Despite the count investigation, Ingham is standing by his agents while not commenting further in the probe. The internal investigation is being conducted by INS' Office of Internal Audit in Washington. He said agents are allowed to fire their weapons only in cases of self-defense or defense of an innocent third party who is in danger.
"In the past, we've indicated our officers didn't fire their weapons and we have no reason to disbelieve them," said Ingham."
Gary Fitch of Ag Affiliates, which specializes in helping growers with labor issues, has heard an earful from growers on how INS has been conducting its affairs.
"The biggest offense I've heard from the growers is that these agents are coming on the property without search warrants," he said. "We know the regulations, and they say agents can cross somebody's property line if they are in pursuit of a worker. But they are not in pursuit of any workers."
Most growers are aware that, by statute, law enforcement agents shall not enter property without a signed, specific warrant, said Fitch.
"But when the INS guys come in and talk to you about seeing workers, their hand just kind of pushes back their jacket to show they have a revolver on. If that isn't intimidation, you tell me what is. And if there's seven or eight of them standing around, it's damn intimidating to have that happen to you."
Despite the high percentage of fraudulent documents, no growers have been cited and none are likely to be as long as they act in good faith. Ingham said growers do the best they can and are not expected to have the expertise to detect realistic looking, yet fake papers.
Pilot I-9 verification programs have been approved by Congress which would allow a grower to check the validity of documents and get a quick answer from the authorities. One such system was used this season in New Jersey, said Stuart Mitchell, president and CEO of Rural Opportunities, a Rochester-based farmworker advocacy group.
"INS gave workers 30 days to either leave voluntarily or prove they were here legally," he said. "But they were allowed to continue to work. The grower's responsibility was to use the INS system to verify the legality of anyone they hired. That's a mutually acceptable solution for advocates as well as those employers in New Jersey. Why the immigration people here have not allowed that system to happen, I don't know."
If these verification problems take away a huge chunk of the workforce, the grower is now left with the dilemma of having enough hands to bring in the crop. That's where a bill first introduced in the U.S. House of Representatives by Bob Smith (R-Ore) comes in.
The Smith bill, H.R. 2327, would establish a 24-month pilot program in five states to permit alien guest workers to enter the U.S. on a temporary basis to help fill the labor gap. The existing H2-A guest worker program is extremely difficult to work with because of red tape and challenges from farmworker advocate groups. The Smith bill also comes under fire from these groups.
"Politically, I don't think it has a snowball's chance to ever make it," said Mitchell. "Labor unions and progressive public policymakers are simply not going to let another second-class workforce be institutionalized."
Grower groups will be spending the winter and beyond increasing their knowledge of their rights as they encounter INS agents, and how to obtain an adequate supply of legal employees. Two National Council of Agricultural Employers seminars were set for mid-December.
Amy Hanaburgh, associate director for research and policy analysis for the New York Farm Bureau, said her organization is gathering facts from every grower who was visited by INS. These interviews may yield a clearer picture of possible violations of individual, business and private property rights, she said.
Despite the discord, there is one area where all parties agree - the INS activities will not abate any time soon, and may even increase in size and geographic range.
"We are not insensitive to the needs of the farmers," said Ingham. "But we're not able to permit them to have people working in the U.S. illegally. So we will continue to do the best that we can to do our job in a professional manner. We need to be able to control the borders of the U.S., but it's the intention of INS to be able to control the interior as well."