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Law professor tells producers to keep cool if ICE shows up

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Worried about labor shortages and seeking to protect their workers, five Oregon agricultural groups hosted an Immigration Forum.

An Oregon law professor says producers need to keep their cool, ask questions, take pictures and be prepared to help detained employees if agents from the federal Immigration and Customs Enforcement agency show up at an orchard, vineyard, dairy or other ag facility.

Susan Felstiner, who teaches at Lewis & Clark College in Southwest Portland, was part of a panel discussion at an Immigration Forum put on in late April by five Oregon producer groups. With immigration issues and labor shortages hot on producers’ minds and farmworkers fearful that they’ll get swept up in raids, Felstiner said it’s easy to get caught up in emotion.

She offered steps to head off problems and protect the rights of producers and employees.

• Owners should mark parts of their businesses as private. ICE agents don’t need an owner’s consent to enter the public area of a business, but entering a private office, for example, would require a warrant. Fields should be posted as private property as well, she said.

• If agents arrive, have employees tell them to wait in a designated public area while the owner contacts an attorney, “So they don’t go wandering around,” Felstiner said.

• Keep employees’ I-9 forms and supporting documents together in a secure place. The I-9 forms are ones by which employees show they can legally work.

• Determine if agents have a warrant, and what kind. An ICE administrative warrant usually gives them authority to detain an individual, Felstiner said, while a broader judicial warrant gives them authority to search the premises.

• If agents have a warrant, take a photo of it with your phone and send it to your attorney, Felstiner said. Write down names, badge numbers and agencies involved. Video shot with cell phones has become an important tool to document officers’ behavior, she said, but it’s important not to obstruct agents. Stand about 10 feet away.

“You shouldn’t do any harboring (of undocumented employees) or hiding, or aid in escaping, provide false information or shred documents,” she said.

• In case of an arrest, remember your personal right to remain silent, and brief employees ahead of time on their rights. If an employee is detained, ask where he or she is being taken, and follow up to track their location.

• If an employee is arrested, think about helping the family hire an immigration attorney, Felstiner said. Consider paying the bond amount so the detainee can be released pending a hearing, and make sure any money owed to the employee is paid.

Felstine works at Lewis & Clark Law School’s Small Business Legal Clinic. She’s a founding member and past president of the Oregon Hispanic Bar Association. In addition, she’s a member of the Hispanic National Bar Association and Oregon Women Lawyers.

The Immigration Forum, held April 20 in Newberg, involved the Oregon Farm Bureau, Oregon Association of Nurseries, Oregon Winegrowers Association, Oregon Cattlemen’s Association and Oregon Dairy Farmers Association. Close to 200 producers attended. The meeting was closed to the media, but representatives of three groups spoke to the Capital Press afterward about what was said and the mood inside.

All agreed workers are scared by the tough talk coming out of the Trump administration about a crackdown on illegal immigration, especially because even though the worker may be documented, a husband, wife or children might not be.

Tom Danowski, CEO of the winegrowers group, said there is a “chilling effect” on employees, with some afraid to drive to work or take their children to events such as athletic practices.

Jeff Stone, executive director of the nursery association, said there is a “pervasive fear more tangible and real than we’ve seen in the past.”

He said the agricultural labor shortage is severe, and for nurseries represents a cap on growth. Nurseries have recovered from the recession, he said, but some are operating with 40 percent to 50 percent of the labor force they could use. As a result, some who could grow their business 25 percent are growing at a rate of only 2 or 3 percent because they don’t have sufficient labor, Stone said.

Representatives from ICE and other staff from the U.S. Department of Homeland Security attended the forum and took questions from producers. According to producers, the ICE representatives said they are not going on big sweeps or raids to catch undocumented immigrants. Instead, they’ve enhanced what Obama administration did; they go after targeted felons, and if other illegals are in the vicinity, they sweep them up, too. Under Obama, they let go the ones who were simply undocumented.

The ICE officials said a highly publicized Feb. 24 incident in Woodburn, Ore., was an example of that policy. Agents stopped a pair of worker transport vehicles, seeking two men wanted on criminal charges, and ended up detaining 11 people on allegations they were in the country illegally.

Dave Dillon, executive vice president of the Oregon Farm Bureau, said despite fear of an ICE crackdown, there’s “more smoke than fire” at this point.

He and others, however, said dysfunctional immigration policies are at the heart of the problem.

“This is 30 years of a broken system coming home to roost,” said Stone, of the nursery association. He said fixing it is not a mystery: Bring workers into “legal status,” avoiding the politically-loaded word “amnesty,” and create a guest worker program.

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