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Until a few months ago, civil investigative demands had rarely, if ever, been used in Indiana as a tool in an immigration-related inquiry.
That changed in November when Attorney General Todd Rokita announced the issuing of investigative demands—a kind of civil subpoena—to several businesses and nonprofits, requiring them to provide years of data and other material related to any steps they had taken to allow migrants to enter Indiana or any portion of the United States.
At least eight organizations, from Logansport to Evansville, have received the demands.
“The influx of these illegal aliens, which are coming from over 150 different countries, have strained our schools and the children of taxpayers are suffering as a result,” Rokita said in November. “It has caused unneeded stress on law enforcement, local hospitals and healthcare facilities, and our housing and labor markets. It also raises serious questions about how these individuals’ arrival in Indiana is being facilitated.”
As Rokita seeks answers about what he calls potential labor trafficking networks, the Haitian Center of Evansville, an immigration assistance group, and Berry Global, a major packaging company based in Evansville, have pushed back against his tactics. They argue that he has yet to provide any evidence as to why there is reasonable cause to seek information from them.
Both filed motions to quash Rokita’s investigative demands. However, those requests have been denied in Vanderburgh and Marion county courts, causing disappointment especially among the small nonprofits swept up in controversy.
“We have yet to see any suggestion how this is helpful to anyone,” said Buddy Lobermann, an attorney with Evansville-based law firm Ziemer, Stayman, Weitzel & Shoulders, which is representing the Haitian Center.
What is Rokita seeking?
When Rokita announced his investigation in November, he acknowleged he was “creatively trying to use every tool in the law” to stop illegal immigration in Indiana.
But his office has not shared very much information about what exactly he is trying to learn via the investigative demands.
The Indiana Lawyer submitted a public records request Jan. 15 for copies of all civil investigative demands issued by the attorney general in November and any responses received and then followed up with a Feb. 11 email to the office.
A paralegal responded Feb.12, telling The Lawyer that “we will email you any disclosable records when our search is complete.”
While the office has yet to provide any documents related to the request, a copy of the civil investigative demand received by the Haitian Center and released by the center’s attorney shows a litany of requested documents.
The request covers a period from Nov. 1, 2021 to the present and says the attorney general’s office has “reasonable cause to believe that you may be in possession, custody or control of documentary materials or may have knowledge of facts that are relevant to an investigation being conducted concerning human labor trafficking and indecent nuisances.”
Among many other things, the investigative demand calls on the Haitian Center to:
• Provide any and all documents concerning programs, initiatives, partnerships, policies or agreements the center has implemented, maintained, utilized or entered into in the past three years related to the entry and/or settlement of migrants in the U.S. and/or the State of Indiana.
• Identify and describe any and all financial or non-financial incentives or benefits that the Haitian Center has provided or made available, either on its own or in cooperation with other entities, to migrants in the past three years to encourage, aid, or facilitate migrants’ entry and/or settlement in the United States or the State of Indiana and/or migrants’ placement with employers.
• Identify and describe any and all standards, practices, policies, procedures, and/or guidance implemented, maintained, or utilized by Haitian Center concerning the safety and well-being of migrants whose entry into the United States or the State of Indiana or whose recruitment by, pairing with, and/or placement with, an employer was facilitated, encouraged, or aided by Haitian Center.
• Identify and describe any and all standards, practices, policies, procedures, and/or guidance implemented, maintained, or utilized by the Haitian Center concerning human trafficking.
• Identify and describe any and all employers, non-profit organizations, or other entities with which Haitian Center works, partners, cooperates, or interacts concerning migrants and/or migrant services.
• Identify and describe any and all instances of which the Haitian Center is aware in the past three years of a migrant who is unlawfully present being recruited by, paired with, or placed with, an employer.
Fighting in court
In a brief it filed in Vanderburgh Circuit Court to quash the civil investigative demand, the Haitian Center argued that the document “purports to seek information into an investigation of ‘human labor trafficking’ but provides no information to suggest that there is a legitimate investigation of this nature, nor does it provide any basis to suggest that the Haitian Center possesses relevant information.”
The brief describes the Haitian Center as a non-profit organization that seeks to integrate immigrants of Haitian origin into the Evansville community and offers a variety of services including English as a Second Language classes, employment assistance, interpreter services, computer literacy, and immigration workshops.
“Put simply, the CID fails to establish any basis for any investigation into human labor trafficking and provides no cause, let alone a reasonable cause, to believe that the Haitian Center has any information related to any such investigation, and does not establish that the information sought is relevant to any such investigation,” the brief read.
The Haitian Center also argued “the CID does not at all describe what acts are being investigated, who is under investigation, or any information that would clarify to the Haitian Center the scope of the investigation or their role in it” and alleged the attorney general was improperly using the demand to enforce federal immigration law.
“They didn’t present anything that showed ‘this is the reason we sent this, here it is,” Lobermann said.
Berry Global Group has also challenged its demand in court but Marion Superior Court Judge Clayton Graham denied Berry Global’s motion to quash, The Evansville Courier & Press reported.
Like the civil demand issued to the Haitian Center, the 14-page document sent to Berry Global “included demands for documents, electronically stored information, explanations and details about the company’s activity relative to migrants.”
The newspaper reported the AG Office’s lawyer, Jefferson Garn, said the demand is not an accusation of wrongdoing and, that without enforcement action, Berry Global had suffered no injury with serious consequences.
Before Graham’s ruling, Berry Global attorney Kian Hudson complained that the whole process had been unfair to the company.
“The attorney general is taking the position that the Attorney General‘s Office can issue burdensome CIDs with irrelevant and improper requests, publicly announce the CIDs and their recipients through the national news media, burden CID recipients with the costs of responding, refuse to provide the recipients or the courts any evidentiary support for the reasonable cause of the CIDs — and then, still prevent the CID recipients from challenging the CIDs’ validity,” Hudson was quoted as saying by the Courier & Press.
Concerns raised about use of CIDs by Rokita
Rokita’s use of the demands has alarmed at least one prominent civil rights organization.
Chris Daley, executive director of the American Civil Liberties Union of Indiana, said one of his group’s main concerns about the demands was that Rokita seemed to be using them as an intimidation tactic.
Businesses and nonprofits that choose to respond to the attorney general’s office face a dramatic administrative burden, through time spent and legal costs, in providing requested information, Daley said.
“I think we all know, there’s a group of attorney generals around the country that are being expansive in their power towards groups they disfavor,” Daley said.
Jenifer Brown, a co-founder of Brown Glier Law LLC in Indianapolis who advises businesses on immigration matters, said she’s never had a client receive a civil investigative demand.
However, she said was aware of a couple instances recently in Virginia and Texas where state attorney generals had used the demands in efforts to obtain immigration-related information.
She said from what she knows of the demands, “they’re a little onerous.” She said she wasn’t sure what information a business could provide, other than proof of compliance with established federal immigration laws.
Lobermann said the Haitian Center is now waiting to see if the attorney general’s office is going to bring a court action to force it to respond.
He said the situation has been stressful for the center, which he described as an organization with a goal of helping integrate Haitian immigrants into the Evansville community in a way that benefits everybody.
“It’s not normal to have to go through something like this. And it shouldn’t be,” Lobermann said.
Rokita’s office shows no signs of backing down.
“Our work investigating potential labor trafficking is ongoing,” his office said in a written statement. “We continue to pursue these investigations vigorously and will hold accountable anyone we find who has violated the law.”•
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