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May 27, 2011

Supreme Court: key provision in Arizona immigration law is OK


Yesterday 5/26 the U.S. Supreme Court upheld Arizona’s 2010 immigration law, SB 1070, in particular the provision under which businesses are penalized for hiring illegal workers. (The Court did not rule on the most publicized part of the law, which is to authorize police officers to inquire about immigration status.) This ruling will likely accelerate state initiatives to create their own immigration law enforcement programs.

The case is Chamber of Commerce of America vs. Whiting et al. Here is the key passage from the decision:

The [Federal] Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio- late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2).

IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsi- bility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.

Against this stautory background, everal States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.

The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspension and revocation provisions were both expressly and impliedly pre- empted by federal immigration law, and that the mandatory use of E- Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit affirmed.

Held: The judgment is affirmed.

Justice Breyer’s minority opinion says, “Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. (excepting professional licenses, and water and environ- mental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s pre- emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful work- ers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.”

According to the New York Times, “The decision on Thursday turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who” recruit or hire “unauthorized aliens.”

The question was whether Arizona was entitled to supplement the penalties in the 1986 federal law with much tougher ones of its own. The state argued that the phrase in parentheses — “other than through licensing and similar laws” — allowed it to suspend or revoke the business licenses of repeat offenders. Critics called that provision of the state law a “business death penalty.”

Continue reading "Supreme Court: key provision in Arizona immigration law is OK" »

January 18, 2011

workers comp benefits for injured illegal workers: where are we?

In yet another informative article on WorkCompCentral (subscription required), the legal status of illegal immigrants in the 50 states’ workers compensation systems is reviewed, with a case study from the District of Columbia. The article summaries the current situation, nationwide:

“Currently, Wyoming is the only state that expressly denies workers' compensation benefits for injured workers. Lawmakers in Ohio talked earlier this year about passing legislation that would also prohibit illegals from participating in the workers' compensation system. Bills have been introduced in Arizona in each of the past two legislative sessions, but failed to win approval. Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin are silent on the issues, while the remaining states expressly include illegal aliens in their work comp statutes. Courts in Oregon, California and Nebraska have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.”


Court: Illegal Alien Eligible for Total Temporary Disability Benefits
By Greg Jones, reporter

Palemon Casarrubia Gonzalez can't legally work in the U.S., but an appellate court in Washington, D.C., ruled last week that he is entitled to temporary total disability benefits from the period he was injured until he was medically cleared to return to work.

The decision marks the first time a District of Columbia court has expressly stated that undocumented workers are entitled to participate in the workers' compensation system, according to attorney Manuel Rivera, the Virginia attorney who represented Gonzalez. The decision addressed only Gonzalez's entitlement to temporary disability benefits.

"It's a very important decision for D.C. because this is the first time the D.C. court expressed itself about the rights of undocumented aliens to workers' compensation," Rivera said. "It's a great decision and I think it is going to be cited again."

The case is Asylum Co. et al. v. District of Columbia Department of Employment Services et al., 08-AA-1158, published Dec. 23.

Gonzalez was working as a bus boy for a bar owned by Asylum Co. on June 30, 2005, when a customer threw a bottle that struck him in the eye. Gonzalez suffered a dislocated lens in his right eye that required immediate medical treatment and later needed surgery. He initially suffered from 100% total loss of vision in his right eye, and from blurry vision and increased pressure in his eye while he was recovering.

Gonzalez attempted to return to work in a part-time position at Asylum July 17, 2005. He was told the company learned he was an undocumented alien and could not rehire him.

During the trial, the company said Gonzalez applied for the position under the name of Armando Casarrubias. The company did not learn of his immigration status until it received hospital bills for Gonzalez rather than Casarrubias.

Gonzalez filed for workers' compensation benefits Aug. 15, 2005. Asylum neither started paying benefits nor filed a notice of controversion.

Continue reading "workers comp benefits for injured illegal workers: where are we?" »

December 13, 2010

Web of Mass. employer abuses of immigrant worker rights


The Boston Globe has reported on the shoddy practices of a Massachusetts pizza restaurant chain, focusing on a case involving a Brazilian worker (eastern Massachusetts has a very high number of Brazilian immigrants. Here is the story:

Upper Crust said to face probe by AG

By Jenn Abelson Globe Staff / December 10, 2010

The Upper Crust pizza chain is coming under scrutiny by the Massachusetts attorney general’s office for potential violations of the state’s minimum-wage and other workplace laws, according to an official briefed on the matter.

This inquiry comes days after the Globe reported allegations from former Upper Crust employees that the Boston pizzeria exploited Brazilian immigrant workers as it rapidly expanded over the past decade. Former employees have accused Upper Crust and owner Jordan Tobins of taking back thousands of dollars in overtime payments that were ordered by the Department of Labor and failing to pay minimum wage.

“We have nothing to hide. We welcome any investigation,’’ said George Regan, a spokesman for Upper Crust.

“The violations in this case are particularly egregious, and we are pleased to see another agency looking into this as well,’’ said Shannon Liss-Riordan, one of the lawyers representing former workers who filed a lawsuit in July against Upper Crust.

Continue reading "Web of Mass. employer abuses of immigrant worker rights" »

January 27, 2010

Illegal worker awarded workers comp benefits in legal twist

Work injuries sustained by an illegal worker often lead into a legal labyrinth ending up, usually, with the worker being granted some or all the benefits allowed by a state’s workers compensation system. This Florida case fits the mold.

As reported by WorkCompCentral (subscription required) Angel Miranda was injured in July 2008. His employer paid him under the table for his disability.

When the employer stopped its payments, he filed a workers compensation claim. Only problem: he had no formal record of having earned a wage, presumably he had been paid in cash, and to award disability benefits a worker has to show evidence of what he was paid. Miranda tried to remedy the situation by filing in April 2009 a tax return for 2008. A workers compensation judge awarded Miranda disability benefits; the decision was upheld of appeal.

Whether he was later deported or not the news article did not say.

The article:

Illegal Alien's Tax Return Entitled Him to Benefits:

An illegal alien's filing of a tax return with the Internal Revenue Service entitled him to workers' compensation benefits, Florida's 1st District Court of Appeal ruled.

Case: JBD Brother's and Masonry Inc., et al. v. Miranda, No. 1D09-3402, 1/25/10, published.

Facts: Angel Miranda was an illegal alien from Mexico who has lived in the United States since 2000. In 2008, he began working as a forklift driver and laborer for JBD Brother's and Masonry. Miranda was injured in July 2008, when he fell from a scaffold at the employer's job site in Miami.

The employer failed to immediately report the accident to its workers' compensation carrier, and instead, agreed to make "under the table" payments for Miranda's medical care and lost time until he recuperated. When the employer halted the payments in September 2008, Miranda retained an attorney and filed a petition for benefits.

The employer responded by reporting the accident to its carrier, which accepted the accident and injury as compensable. However, the carrier denied indemnity benefits because there was no record of Miranda ever having reported his wages to the Internal Revenue Service.

In April 2009, Miranda and his attorney filed forms reporting his 2008 income to the IRS, and seeking an individual taxpayer identification number.

Procedural History: The parties stipulated that Miranda's reported income equated to an average weekly wage of $480. However, the employer argued that because Miranda failed to file the correct forms with complete information to the IRS, he failed to properly report his income and therefore failed to establish his wages for purposes of calculating an AWW.

The judge of compensation claims rejected this argument, and awarded temporary total disability benefits.

The appellate judges concluded that Miranda was entitled to workers' compensation benefits despite the allegation that his tax return may have had some technical flaws. The court based this upon another Jan. 25, 2010, decision, which is named Rene Stone Work Corp. v. Gonzalez.

In that decision, the court concluded that an employee simply needs to report his or her income to the IRS to become entitled to benefits, and rejected arguments that the tax return needs to be technically precise.

Source: WorkCompCentral

September 16, 2009

Global Workers Defender Network

New from the Global Workers Justice Alliance (press release):

The Global Workers Defender Network is comprised of human rights organizations and individual advocates, in the migrant sending countries, who facilitate employment law cases for migrant workers in partnership with advocates in the countries of employment. The Defenders also identify cases of migrants who have suffered labor exploitation and educate migrants on their labor rights.

The Defender Network was launched in April 2008 in Chiapas, Mexico when the first group convened for an intensive training. Through the training program, the Defenders learned about U.S. employment-related law, human trafficking, U.S. civil procedure, and international law. For more information and photos from the training, click here.

Currently, the Global Workers Defender Network is operational in Mexico and Guatemala. Over time, the Network will expand within Mexico and Guatemala as well as to additional countries.

July 14, 2009

Federal program to deputize local law immigration enforcement cut back

The Wall Street Journal reports that Homeland Security is reining in a Bush Administration program to authorize state and local law enforcement to make immigration violation arrests. It writes, “Opponents said the program, known as 287g, was intended to identify criminal aliens but instead has led to racial profiling; it allowed local police to identify and arrest illegal immigrants for such minor infractions as a broken tail light. In the past two years, more than 120,000 suspected illegal immigrants were identified through the program, and most ended up in deportation proceedings. By comparison, ICE removed 356,739 illegal immigrants from the U.S. during the fiscal year ended Sept. 30, 2008 -- a 23.5% increase over the 2007 total.”


The article in full:

New Curbs Set on Arrests of Illegal Immigrants
By Miriam Jordan
The Wall Street Journal, July 11, 2009

The Department of Homeland Security said Friday it was revising a program that authorized local police to enforce federal immigration law -- a controversial aspect of U.S. border policy.

Opponents said the program, known as 287g, was intended to identify criminal aliens but instead has led to racial profiling; it allowed local police to identify and arrest illegal immigrants for such minor infractions as a broken tail light. Program supporters said it has been an effective tool for combating illegal immigration.

The new guidelines sharply reduce the ability of local law enforcement to arrest and screen suspected illegal immigrants. They are intended to prevent sheriff and police departments from arresting people 'for minor offenses as a guise to initiate removal proceedings,' according to Homeland Security. The program will instead focus on more serious criminals.

'In a world of limited resources, our view is that we need to focus first and foremost on people committing crimes in our community who should not be here,' said John Morton, Assistant Secretary of U.S. Immigration and Customs Enforcement. Mr. Morton said his agency would sign new contracts with local law enforcement that would bolster federal oversight.

In the past two years, more than 120,000 suspected illegal immigrants were identified through the program, and most ended up in deportation proceedings. By comparison, ICE removed 356,739 illegal immigrants from the U.S. during the fiscal year ended Sept. 30, 2008 -- a 23.5% increase over the 2007 total.

The most active local enforcer has been Joe Arpaio, the sheriff of Arizona's Maricopa County. He said Friday he would continue pursuing illegal immigrants, arguing that state laws allow neighborhood crime sweeps and worksite raids.

'If I'm told not to enforce immigration law except if the alien is a violent criminal, my answer to that is we are still going to do the same thing, 287g or not,' said Mr. Arpaio. His deputies have identified in jail or picked up on the streets more than 30,000 illegal immigrants in the Phoenix area. 'We have been very successful,' said the five-term sheriff.

The Department of Justice is investigating whether Mr. Arpaio's deputies have used skin color as a pretense to stop Latinos suspected of being illegal immigrants.

Mr. Obama's policy change is expected to bolster his standing with Latinos and some Democratic legislators. The administration is seeking to set the stage for a sweeping overhaul of immigration legislation that could put millions of illegal workers on the path to U.S. citizenship.

President George W. Bush pursued a similar goal. After the efforts failed in Congress, his administration stepped up enforcement with raids and the expansion of such programs as 287g.

The provision was created by Congress in 1996 and designed to train local police to help federal immigration authorities locate criminal aliens. It took six years for the first state, Florida, to sign on to the program.

The Bush administration promoted the program among sheriffs and police chiefs, turning it into a symbol of his crackdown on illegal immigration.

Since January 2006, more than 1,000 state and local law-enforcement officials have been certified. Many jurisdictions used those officers in jails, where they could sort through many inmates in a single shift.

Southern states account for more than 40 of the 66 existing participants. There are 42 applications pending, most of them in the South. Both Virginia and North Carolina, where the Latino immigrant population has grown, each have nine 287g agreements, more than other states.

'I think the program is working great,' said Wake County, N.C., Sheriff Donnie Harrison. 'If the highway patrol brings someone to our jail, and they say they are foreign born, then they are flagged for 287g. They have committed a violation of some sort to be brought to our jail...from broken tail lights to murder and rape.'

Raleigh, N.C., resident Maria Hernandez was booked into a Wake County jail after failing to show up for her 6-year-old son's truancy hearing, according to her account and that of her attorney, Marty Rosenbluth.

Ms. Hernandez, a cleaning lady who came to the U.S. illegally nine years ago, is now in deportation court. 'I don't understand why they come after people like me,' she said.

Homeland Security Secretary Janet Napolitano ordered a comprehensive review of 287g shortly after taking her post earlier this year. Members of Congress and the Government Accountability Office had raised concerns the program was being used 'to process individuals for minor crimes, such as speeding, contrary to the objective of the program.'

The shift on 287g follows other recent modifications to immigration policy by the Obama administration, reflecting an effort to shift the burden of immigration enforcement to employers, while making it difficult for illegal immigrants to get hired.

In the past two weeks, Ms. Napolitano said federal contractors would be required to check the identity of new hires against a federal database. DHS also will audit hundreds of companies to verify whether their employees are eligible to work.

July 3, 2009

The Obama policy: no more showboat raids

As I have already posted, the Obama Administration’s ICE enforcement policy has shifted, in two ways. First, to focus on the employer rather than the employee. Second, to work more constructively rather than go for red-meat news headlines. The Los Angeles firm of American Apparel employs 5,600 workers, 1,800 of whom are probably illegal. The firm has been fined $150,000 but there have been no raids, which can destroy communities and jar the conscience. In this case, the economy being what it is, the city government wants these jobs to remain filled. A campaign was launched with a clever title of “Legalize L.A.” I do not have figures in hand, but I would not be surprised in 25% of low wage jobs in southern California are filled by illegal workers.

The New York Times article in full:

July 3, 2009
U.S. Shifts Strategy on Illicit Work by Immigrants

By JULIA PRESTON

Immigration authorities had bad news this week for American Apparel, the T-shirt maker based in downtown Los Angeles: About 1,800 of its employees appeared to be illegal immigrants not authorized to work in the United States.

But in contrast to the high-profile raids that marked the enforcement approach of the Bush administration, no federal agents with criminal warrants stormed the company’s factories and rounded up employees. Instead, the federal immigration agency sent American Apparel a written notice that it faced civil fines and would have to fire any workers confirmed to be unauthorized.

The treatment of American Apparel, which has more than 5,600 factory employees in Los Angeles alone, is the most prominent demonstration of a new strategy by the Obama administration to curb the employment of illegal immigrants by focusing on employers who hire them — and doing so in a less confrontational manner than in years past.

Unlike the approach of the Bush administration, which brought criminal charges in its final two years against many illegal immigrant workers, the new effort makes broader use of fines and other civil sanctions, federal officials said Thursday.

Continue reading "The Obama policy: no more showboat raids" »

June 16, 2009

Update on Global Workers Justice Alliance

www.globalworkers.org


This NY-based public interest group advocates for the labor rights of immigrant workers. It focuses on building up the capacity of immigrant workers to protect their rights, for example for fair pay, even while back in their country of origin. The Alliance has worked in Mexico and other Central American countries.

Its recent news letter profiles one project involving immigrant workers who worked in planting pine trees in the South:

Partnering with the Southern Poverty Law Center (SPLC), Global Workers and one of its Defenders in Guatemala ensured that hundreds of workers who planted pine trees in the southern US recovered wages stolen from their paychecks. After SPLC won a lawsuit for the failure to pay minimum wages (which is far less than the wage set by the government for guestworkers) the contractor continued to violate the law.

The contractor was charging exorbitant and unlawful fees to work in the United States, such as a fictitious $500 hotel "security deposit." SPLC asked Global Workers to help them collect testimonies about these illegal charges from the guestworkers who had returned to Guatemala. According to the Director of SPLC's Immigrant Justice Project our "amazing" help secured 50 testimonies and the court held the contractor in contempt ordering the workers to be reimbursed.

June 7, 2009

A note on E-Verify

The Obama Administration has been promoting E-Verify, the now-voluntary program for employers to ascertain the legal status of employees and job applicants to work in the country. A recent news article reported that "in prepared remarks to the Senate Judiciary Committee in May, Napolitano said E-Verify’s accuracy was continually improving, and more than 122,000 employers use the system."

"She defended the system's accuracy by explaining its statistics this way: The most recent surveys found that 96.1 percent of cases queried through the system automatically authorized the employees for work, and 3.9 percent showed a mismatch or a tentative non-confirmation. Also, only 0.4 percent of the total number of candidates had successfully contested an adverse initial decision about their eligibility, while the other 3.5 percent remained ineligible."

The U.S. Chamber of Commerse has sued to stop the federal government from requiring use of E-Verify by federal contractors.

June 3, 2009

New California program to assist in workers comp benefits

Many illegal immigrants work for companies who cheat by not taking out workers compensation insurance. These include farms, construction firms, and restaurants. When the worker has an injury, she or her is left in legal limbo to get coverage for medical treatment and disability payments.

While this is a pretty small issue for workers as a whole, it is a very real problem for illegal workers as they are naturally afraid to seek legal help. To help low income immigrant workers in the country, one has to address access problems in the workers comp system.

A California coalition, which I had a hand in launching several years ago, has brought about a new policy which will provide legal assistance to workers even if they are undocumented.

The coalition, the Workers Compensation Enforcement Collaborative, was put together by activist organizations, such as the Watsonville Law Center, and main stream workers comp experts, such as Bill Zachry, the risk manager of California’s largest private sector employer, Safeway. Also, law enforcement organizations are involved.

Below is the press release dated 5/28/09 of the new policy.


Department of Industrial Relations partners with community based organizations to provide extra assistance to injured workers
Pilot project in Salinas will help identify illegally uninsured employers

The Department of Industrial Relations (DIR) and the Division of Workers’ Compensation (DWC) have teamed up with the Watsonville-based Workers’ Compensation Enforcement Collaborative (WCEC) to overcome hurdles faced by injured workers seeking benefits when their employers are illegally uninsured. The DWC’s Information and Assistance (I&A) Unit in Salinas has been planning with WCEC members and others and, on June 1, will launch a “customer service initiative” pilot project designed to help these injured workers get benefits while shining a spotlight on their illegally uninsured employers.

Continue reading "New California program to assist in workers comp benefits" »

May 7, 2009

DHS press release about new enforcement guidelines

Thanks to Risk & Insurance Magazine: here is how DHS summarizes its change of policy towards more focus on employers:

Fact Sheet

April 30, 2009
Contact: DHS Press Office, 202-282-8010

Worksite Enforcement Strategy

The Department of Homeland Security (DHS) has a vital responsibility to enforce
the law and engage in effective worksite enforcement to reduce the demand for
illegal employment and protect employment opportunities for the nation's lawful
workforce.

An effective, comprehensive worksite enforcement strategy must address both
employers who knowingly hire illegal workers as well as the workers themselves.
Of the more than 6,000 arrests related to worksite enforcement in 2008, only 135
were employers.

This week, updated worksite enforcement guidance was distributed to
Immigration and Customs Enforcement (ICE), which reflects a renewed
Department-wide focus targeting criminal aliens and employers who cultivate
illegal workplaces by breaking the country's laws and knowingly hiring illegal
workers.

Effective immediately, ICE will focus its resources in the worksite enforcement
program on the criminal prosecution of employers who knowingly hire illegal
workers in order to target the root cause of illegal immigration.

ICE will continue to arrest and process for removal any illegal workers who are
found in the course of these worksite enforcement actions in a manner consistent
with immigration law and DHS priorities. Furthermore, ICE will use all available
civil and administrative tools, including civil fines and debarment, to penalize and
deter illegal employment.

ICE officers will be held to high investigative standards including:

ICE will look for evidence of the mistreatment of workers, along with
evidence of trafficking, smuggling, harboring, visa fraud, identification
document fraud, money laundering, and other such criminal conduct.

ICE offices will obtain indictments, criminal arrest or search warrants, or a
commitment from a U.S. Attorney's Office (USAO) to prosecute the
targeted employer before arresting employees for civil immigration
violations at a worksite.

Existing humanitarian guidelines will remain in effect, impacting worksite
enforcements involving 25 or more illegal workers. This reflects a change from
the previous threshold of 150.

DHS is committed to providing employers with the most up-to-date and effective
resources to comply with our nation’s laws.

DHS will continue to work with partners in the public and private sectors to
maintain a legal workforce through training and employee verification tools like
E-verify, which improve the accuracy of determinations of employment eligibility
and combat illegal employment

As a former border state Governor, Napolitano signed into law one of the toughest
employer sanctions laws in the country in 2007 to target employers who
knowingly hired illegal workers.

DHS shifts enforcement focus onto employers

Last week, according to the NY Times, the Department of Homeland Security issued internal guidelines which put higher priority on enforcing immigration laws by targeting employers instead of workers. In effect, the large worker raids of the last few years – in New Bedford MA and Postville IA and against Swift – are not going to continue, in favor of catching executives who break the law.

The Bush Administration’s focus on round-ups actually made it more difficult to indict executives. Per the article, “Under the Bush administration, the officials said, most raids were conducted largely on the basis of tips that an employer was hiring illegal workers, rather than on information gleaned from audits of employer records or undercover investigations. As a result, agents rounded up thousands of illegal immigrants but rarely developed the evidence necessary to show whether businesses were knowingly using illegal labor.”

The times quotes the guidelines: “ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force.”


The article in full:

Immigration Agents to Turn Focus to Employers

By GINGER THOMPSON
Published: April 30, 2009

WASHINGTON — In an effort to crack down on illegal labor, the Department of Homeland Security intends to step up enforcement efforts against employers who knowingly hire such workers.

Under guidelines to be issued Thursday to Immigration and Customs Enforcement field offices, agents will be instructed to take aim at employers and supervisors for prosecution “through the use of carefully planned criminal investigations.”

Continue reading "DHS shifts enforcement focus onto employers" »

May 5, 2009

Supreme Court: ICE can no longer use identity-theft charges

After the Postville, IA raid on May 12, 2008, Immigration and Law Enforcement pressed criminal charges against 300 illegal workers for identity theft, asserting that these workers had criminally stolen the identity of the social security card holders whose numbers they used. The defendants were railroaded through a court. One of the workers, now in federal prison, appealed. The Supreme Court yesterday in a unanimous decision threw out the conviction and in doing so forbad ICE from using this overkill tactic. The court’s reasoning: the workers had not idea the numbers were for actual people.

According to the NY Times, “The Obama administration has said that it will shift the focus of immigration enforcement to employers who intentionally hire unauthorized immigrants in order to pay lower wages or otherwise lower costs. But last week the administration said agents would continue to detain illegal immigrants found in raids.”


The article in full:

By ADAM LIPTAK and JULIA PRESTON
Published: May 4, 2009

WASHINGTON — The Supreme Court on Monday rejected a favorite tool of prosecutors in immigration cases, ruling unanimously that a federal identity-theft law may not be used against many illegal workers who used false Social Security numbers to get jobs.

The question in the case was whether workers who use fake identification numbers to commit some other crimes must know they belong to a real person to be subject to a two-year sentence extension for “aggravated identity theft.”

The answer, the Supreme Court said, is yes.

Continue reading "Supreme Court: ICE can no longer use identity-theft charges " »

March 13, 2009

Colorado local police raid tax practice to nab illegals

On October 7, 2008, as reported by the New York Times, “the Weld County, CO, Sheriff’s Office, armed with a search warrant, seized thousands of confidential tax returns from Ms. Cerrillo’s business. They told her they were looking for people with fraudulent Social Security numbers, commonly used by illegal immigrants to get work.”

This raid set off a legal fight over creative enforcement of immigration laws by state and local police. Under the so-called 287G program, the Department of Homeland Security contracts with non-federal agencies to enforce immigration laws. Janet Napolitano, Obama’s head of DHS, has launched a review of the program.

Below is a March 11 article by the Times on an ACLU suit in a state court to prevent the tax returns from being used by law enforcement. Following that is the original Times article from February 9.

Amalia’s tax service Judge Puts Halt to ID Theft Inquiry Focusing on Immigrants

Continue reading "Colorado local police raid tax practice to nab illegals" »

December 12, 2008

Agriprocessors declared bankruptcy in November

I missed this one – the Postville plant which was raided in May this year (see prior postings) filed on bankruptcy on November 4. It is still operating at a much lower volume. Below is the article about the bankruptcy filing by the Des Moines Register.


Agriprocessors files for bankruptcy after bank seeks to foreclose

ERIN JORDAN • ejordan@dmreg.com • November 5, 2008

A kosher meatpacking plant in Postville filed for bankruptcy Tuesday, blaming a May 12 immigration raid for financial difficulties.

Agriprocessors Inc. filed for Chapter 11 protection in New York, where the headquarters are located. The Postville plant is listed as the company's principal asset.

The company says it owes between 200 and 999 creditors $50 million to $100 million, according to records filed in U.S. District Court. Agriprocessors lists assets of $100 million to $500 million.

The company's board of directors met Tuesday and decided to file for bankruptcy a day before a scheduled hearing on a lawsuit from the company's largest lender, First Bank of St. Louis.

Continue reading "Agriprocessors declared bankruptcy in November" »

October 19, 2008

Delusional thinking about immigrants and voting registration fraud

I stay away from much of the news about immigrants and voting but this looney study is too outrageous not to comment on. the Center for Immigration Studies, which does some decent conservative work in the area of immigration policy, and is a good place to go to read arguments critical of liberal immigration policies, fell off the train in a recent study on voter fraud. Actually a former executive director of the CIS wrote the study. He estimates that between 1.8 and 2.7 million illegal immigrants may be registered to vote. Given the scrupulous, under-the-glare-of-headlights approach of voter registrars, the figure is patently ridiculous. CIS previously published a report which associated immigration with climate problems in the United States.


Study calls into question number of non-citizen voters
By John Riley
The Dallas Morning News, October 7, 2008
http://trailblazersblog.dallasnews.com/archives/2008/10/study-calls-into-question-numb.html

The former head of a Washington think tank specializing in immigration issues says that voter registration numbers in Texas and elsewhere may be inflated because of the presence of non-citizens on voter rolls.

Below is a news article from the Dallas Morning News of 10/7/08.

Continue reading "Delusional thinking about immigrants and voting registration fraud" »

October 17, 2008

Federal court upholds Arizona law sanctioning employers for illegal hires.

According to the Migration Policy Institute, Arizona's employer-sanctions law that went into effect on January 1, 2008, does not preempt federal immigration law or violate federal constitutional protections according to a recent court ruling. I have posted on this law earlier this year.

The US Court of Appeals for the Ninth Circuit rejected the arguments of various business and civil rights organizations but left open the possibility of a challenge to the law once the statute is enforced.

Under the Arizona law, employers that hire unauthorized immigrants can have their business licenses suspended or revoked. The law also requires them to use E-Verify, a federal database, to determine their employees' work-authorization status.

No action has been brought against an employer since the law went into effect.

The Ninth Circuit was the first federal appellate court to rule on state employer-sanctions laws in recent years. A similar case is now pending before the Third Circuit Court of Appeals. Depending on the outcome of that appeal, the issue may be headed to the US Supreme Court for resolution.

September 2, 2008

Follow up on the Mississippi ICE raid

The ICE raid on August 25 netted 595 workers at the plant of Howard Industries, Inc., which produces electrical transformers. This was the largest raid in history. Workers came from Germany, Peru, Mexico, El Salvador, Guatemala, Panama, Honduras and Brazil. It appears that ICE will not pursue its highly objectionable practice of railroaded illegal workers through a mass criminal conviction, but rather deport them, as ICE did in the Postville IA raid in May of this year.

The particularly noxious aspect of the Postville strategy is that of railroading the workers into confessing, with scant legal advice, to plead guilty to Social Security fraud in misusing social security numbers. Many of the worker were not aware they were misusing numbers, rather just using numbers given to them by management. Only eight were charged criminally with identity theft.

The Des Moines Register ran an article late last week about the apparent change in strategy by ICE. Most likely the uproar over the strategy influenced ICE.

The article in full:

Critics tie scant new charges to wariness after Iowa raid. Raid in Postville: Comparison to Mississippi Arrests
By Leys Tony
The Des Moines Register, 1August 28, 2008

Critics of the way suspected illegal immigrant workers were handled after last May's raid in Iowa noticed a change in government tactics after this week's raid in Mississippi.

Federal officials detained 595 workers at a Mississippi electric-transformer factory Monday but filed criminal charges against just eight of them.

That's in marked contrast to what happened after the raid at the Agriprocessors meatpacking plant in Postville, where prosecutors filed criminal identity-theft charges within days against 305 of the 389 workers who were arrested. Most of those people quickly pleaded guilty during mass hearings held at the National Cattle Congress grounds in Waterloo and now are serving five-month prison sentences.

Continue reading "Follow up on the Mississippi ICE raid " »

July 21, 2008

Chained to bed while delivering baby

Talk about over-reaching! A few more stories like this will help discredit the more florid of the anti-illegal immigration crowd. In a suburb of Nashville, an illegal immigrant was arrested at a routine traffic police stop, nine months pregnant. At delivery, a police officer stood in the delivery room, she was chained to bed most of the time, and she was refused a breast pump when sent back to prison. She returned to her baby after two days.

The police of Davidson County were operating under a so-called 287G agreement with ICE, which is intended to expedite the deportation of criminals found to be illegal.

The New York Times article in full:

Immigrant, Pregnant, Is Jailed Under Pact

It started when Juana Villegas, an illegal immigrant from Mexico who was nine months pregnant, was pulled over by a police officer in a Nashville suburb for a routine traffic

By the time Mrs. Villegas was released from the county jail six days later, she had gone through labor with a sheriff’s officer standing guard in her hospital room, where one of her feet was cuffed to the bed most of the time. County officers barred her from seeing or speaking with her husband.

Continue reading "Chained to bed while delivering baby" »

July 13, 2008

Mass convictions after the Postville raid – railroading the defendants

Shortly after the May 12 raid of Agricproecessors, close to 400 arrested illegal workers are tried and pled guilty to criminal charges. One of the professional trnaslaters, Erik Camayd-Freixas, found the judicial process so unnervingly abusive of defendant rights that he wrote an 8,000 word account of it. The NY Times published an article on July 11th about his account. The Sanctuary posted a copy of the entire account, which I have coped below.

INTERPRETING AFTER THE LARGEST ICE RAID IN US HISTORY:
A PERSONAL ACCOUNT

Erik Camayd-Freixas, Ph.D.
Florida International University
June 13, 2008

On Monday, May 12, 2008, at 10:00 a.m., in an operation involving some 900 agents, Immigration and Customs Enforcement (ICE) executed a raid of Agriprocessors Inc, the nation's largest kosher slaughterhouse and meat packing plant located in the town of Postville, Iowa. The raid ...officials boasted... was "the largest single-site operation of its kind in American history." At that same hour, 26 federally certified interpreters from all over the country were en route to the small neighboring city of Waterloo, Iowa, having no idea what their mission was about. The investigation had started more than a year earlier. Raid preparations had begun in December. The Clerk's Office of the U.S. District Court had contracted the interpreters a month ahead, but was not at liberty to tell us the whole truth, lest the impending raid be compromised. The operation was led by ICE, which belongs to the executive branch, whereas the U.S. District Court, belonging to the judicial branch, had to formulate its own official reason for participating. Accordingly, the Court had to move for two weeks to a remote location as part of a "Continuity of Operation Exercise" in case they were ever disrupted by an emergency, which in Iowa is likely to be a tornado or flood. That is what we were told, but, frankly, I was not prepared for a disaster of such a different kind, one which was entirely man-made.

I arrived late that Monday night and missed the 8pm interpreters briefing.

Continue reading "Mass convictions after the Postville raid – railroading the defendants" »

July 8, 2008

More on Postville IA raid

Thanks to Citizen Orange for following the Agriprocessors story emenating from Postville, IA. To bring us to this week recall that On May 12 ICE raided the Agriproccessors plant in Postville, IA, said to be with its 1,000 odd employees the largest kosher meat processing facility in the world. ICE arrested 389 workers for illegal status. This was heralded as the largest ICE raid ever.

Several newspapers reported that arrests have begun at the low managerial levelfor immigration fraud. None of the top executives, including the surrounding the Rubashkin family, from Brooklyn, has been arrested, but I expect that is in the cards, and for offenses which carry serious time in the slammer. The Wall Street Journal reports that one official described the working conditions in the plant as "medieval."

The Wall Street Journal article:

U.S. Arrests 2 Supervisors at Agriprocessors
By MIRIAM JORDAN
July 5, 2008

Federal agents Thursday arrested two supervisors at Agriprocessors Inc., a large kosher meatpacking plant, on charges that they helped illegal immigrants secure fake documents and encouraged them to reside in the U.S.

The arrests marked the first by U.S. authorities of individuals in supervisory roles at the Postville, Iowa, plant. On May 12, Immigration and Customs Enforcement agents arrested 389 workers at the facility, most of them undocumented immigrants from Latin America.

Continue reading "More on Postville IA raid" »

April 26, 2008

State legislation on illegal immigration: a 2008 inventory

The National Council of State Legislatures issued a report on 1,106 bills which have been filed in state legislatures to deal with illegal immigrants. Of the 44 states considering at least one bill, 26 have enacted at least one.

The leading topics are employment (sanctions against employers who hire illegal workers, and other provisions); driver’s licenses (tightening their distribution); and law enforcement (some calling for coordination with ICE). Other topics include education and healthcare.

Go here for a copy of the report.


Article on status of Arizona’s Legal Arizona Workers Act

Cameron O’Toole, a college student at Arizona State University with a major in journalism, wrote the following article about the implementation of that state’s Legal Arizona Workers Act, and with his permission I am posting it here. He says that as of the end of March, only 15% of employers were using the E-Verify system which is required to verify legal status of employees.

His article in full:

It was designed to curb the illegal immigration problem Arizona has. It was supposed to be an easy and quick way to check eligibility status for potential employees. The E-Verify system was supposed to be a requirement for all business owners to use. But as of March 31, 2008 only 15 percent of Arizona’s registered employers were using the system, according to immigrationbuzz.com.

Some employers like Red, White and Brew, a restaurant in Chandler, have not had any major issues with the legislation.

“I was dialing in social security numbers before anyways so it was a very easy transition for me,” said Greg Freed, general manager and owner of Red, White and Brew. “There was so much notice before it happened and we have made sure that our initial hiring practices help us deal with any problems.”

Effective Jan. 1, 2008 Arizona implemented the Legal Arizona Workers Act which aimed at keeping illegal immigrants out of the state’s workforce. The legislation penalizes businesses that knowingly hire undocumented workers by suspending or revoking their business license, according to azcentral.com.

This means that 10 percent of Arizona’s workforce will no longer be eligible for employment, as estimated by the Pew Hispanic Center.

Continue reading "Article on status of Arizona’s Legal Arizona Workers Act" »

April 23, 2008

Iowa House of Reps hammers illegal immigrants


The Iowa House of Representatives passed last week a bill to hammer illegal immigrants by requiring employers to check their employees, employees to carry driver’s licenses or other state-issued identification, and for bail to be denied for illegal aliens who are arrested. Local police must notify ICE. The House majority leader called the bill a symbolic statement. Ah?

The article in full:

By CHARLOTTE EBY, Courier Des Moines Bureau

DES MOINES --- Trying to deal with an influx of illegal immigrants, the Iowa House moved forward Wednesday with a measure meant to reduce the employment of undocumented workers.

House Majority Leader Kevin McCarthy, D-Des Moines, said Democrats wanted to send a message to the federal government and try to deal with a problem Iowans have been concerned about.

"The symbolic statement is a plea to the federal government to start enforcing the law and have a comprehensive, logical immigration policy," McCarthy said.

The measure, which cleared the House on an 84-16 vote, requires employers to check driver's licenses or other state-issued photo identification from Iowa or the surrounding states and verify it within 10 business days of a hire. Employers or their designee must sign a form under penalty of perjury confirming they have examined the ID and "facially validated" the employee.

Continue reading "Iowa House of Reps hammers illegal immigrants" »

April 10, 2008

Case of instant local police – ICE data link.

What is interesting about this Chicago case, reported in the Wall Street Journal today, is that the police officer during a routine car stop could, through electronic search, instantly locate information that the driver had a deportation order issued to him in the mid 1990s. He, a Pole, was stopped in 2006 for driving while on his cell phone, which is banned there. Andrezj Derezinski came to the U.S in 1990 on a visa and overstayed, raising a family and starting businesses.

“State and local law-enforcement officers can in many instances determine with a quick computer search or phone call whether a person stopped for a traffic violation or arrested for a crime has violated immigration law. If a match is confirmed, ICE instructs the police officer to detain the person until an agent can take custody. In the fiscal year ended Sept. 30, 2007, ICE's Law Enforcement Support Center -- which operates around the clock handling immigration queries -- received a record 728,243 inquiries from local law enforcement, up from only 4,000 in fiscal 1996.”

According to the article, “About 580,000 illegal immigrants currently living in the U.S. are individuals who failed to heed their deportation orders, according to ICE.”. This seems a ridiculously low figure given as there are about 13 million illegal immigrants in the U.S. About half of these are thought to be here, as Derezinski, on a once valid visa.


The article in full:

Visa Violators Swept Up In Widening Dragnet
By MIRIAM JORDAN
April 10, 2008

CHICAGO -- Polish native Andrezj "Peter" Derezinski came to the U.S. 18 years ago and was soon living the American dream. The 41-year-old father of three owns two homes, some commercial property and a thriving heating and cooling business here.

Continue reading "Case of instant local police – ICE data link. " »

March 7, 2008

CT's strategy to cut down on illegal workers

I have posted often on the tight association of hiring illegal workers with failure to take out workers comp insurance. Now WorkCompCentral, a leading source of information about workers compensation (subscription required) reports how Connecticut regulators are using stop work orders on uninsured job sites in part to crack down on hiring of undocumented workers. “The Connecticut Department of Labor's use of a six-month-old law that allows investigators to stop work at job sites where workers aren't covered by workers' compensation insurance has proven a key tool in running unscrupulous subcontractors out of the state and cracking down on the use of undocumented crews, a top regulator said Thursday…. In some cases, investigators found undocumented workers being paid "off the books" without workers' compensation insurance. In others, construction companies bought coverage but grossly underestimated the size of their payrolls, he said.”

According to WorkCompCentral, the state legislature decided to use this strategy to crack down on use of illegal labor when other strategies were deemed to be in conflict with federal law.

The report in full:

Gary Pechie, director of Wage and Workplace Standards for the labor agency, said legislation that took effect last Oct. 1 gave his investigators their first role in enforcing insurance laws, and has prompted 10 stop-work orders so far.

Continue reading "CT's strategy to cut down on illegal workers" »

February 27, 2008

Immigrants have lower incarceration, crime rates

Do immigrants have higher criminal rates than non-immigrants? Those critical of immigration, in particular the presence of illegal immigrants, often allege that crime rates are higher. Here are some articles which report that if anything the reverse may be truer.

“Incarceration rate lower for immigrants” ran in the San Francisco Chronicle this week. Its two leading sentences are: “Immigrants in California are far less likely to land in prison than their U.S.-born counterparts, a finding that defies the perception that immigration and crime are connected, according to a study released Monday. Foreign-born residents make up 35 percent of the state's overall population, but only 17 percent of the adult prison population, according to the Public Policy Institute of California, which conducted the research.” I post the entire article below to hyperlinks for other related articles.

Immigrants in California are far less likely to land in prison than their U.S.-born counterparts, a finding that defies the perception that immigration and crime are connected, according to a study released Monday.

Foreign-born residents make up 35 percent of the state's overall population, but only 17 percent of the adult prison population, according to the Public Policy Institute of California, which conducted the research.

Noncitizen men from Mexico between the ages of 18 and 40, which the study indicated were more likely to be in the country illegally, were eight times less likely to be in a 'correctional setting,' the study found.

The study did not address the visa status of those included among the foreign-born, which would include citizens and noncitizens, including those in the country legally and illegally.

Nonetheless, these results have implications for the current debates over immigration policy, said Kristin Butcher, co-author of the report.

'Our research indicates that limiting immigration, requiring higher educational levels to obtain visas or spending more money to increase penalties against criminal immigrants will have little impact on public safety,' Butcher said in a statement.

While immigrants often have lower levels of education and higher poverty rates, which are normally associated with higher crimes rates, other factors are probably contributing to the underrepresentation among the foreign-born in state prisons.

Current immigration laws, for example, screen legal immigrants for criminal activity. Also, all noncitizens - including those in the country legally - face deportation for crimes that carry a prison sentence of a year or more.

And those here illegally have incentive to avoid contact with the law, which could lead to detection of their immigration status.

The study acknowledged several factors that could affect the incarceration rates among foreign- and U.S.-born residents, including the possibility that one group might receive more lenient treatment within the criminal justice system or have greater resources to mount a defense.

Also, the deportation of foreign-born criminals also could affect the rates, the study said.

The PPIC report is available online at: http://www.ppic.org/main/publication.asp?i=776

+++

Study finds immigrants commit less California crime
Reuters, February 26, 2008
http://www.reuters.com/article/domesticNews/idUSN246261520080226?pageNumber=2&virtualBrandChannel=0&sp=true

Report says immigrants commit fewer crimes
The Associated Press, February 25, 2008
http://www.signonsandiego.com/news/state/20080225-1503-ca-immigrantcrime.html

California: Study of Immigrants and Crime
By Julia Preston
The New York Times, February 26, 2008
http://www.nytimes.com/2008/02/26/us/26brfs-STUDYOFIMMIG_BRF.html

January 31, 2008

Analysis of the Legal Arizona Workers Act

Late last year, Arizona Republic reporter Ronald J. Hansen has compiled the basics on Arizona's new employer-sanctions law, which went into effect Jan. 1. The sanctions law, known as the Legal Arizona Workers Act, is intended to ensure that no businesses in Arizona knowingly or intentionally hire or employ illegal immigrants.

The article - Everything you need to know about the new employer-sanctions law:

Continue reading "Analysis of the Legal Arizona Workers Act " »

January 4, 2008

South Carolina court approves workers comp for illegal immigrant

An insurance newswire reported that the state’s Supreme Court ruled unanimously in favor of the claimant, Mario Curiel. The court cited prior decisions by North Carolina,
Florida, Georgia, Maryland and Minnesota.

The article:

COLUMBIA, S.C. 01/03/2008 (BestWire)-Illegal immigrants injured at work are entitled to workers’ compensation benefits, the South Carolina Supreme Court said in a ruling.

The court unanimously upheld a decision by the state’s Workers’ Compensation Commission and a lower court ruling that held the worker, Mario B. Curiel, was eligible for benefits because of an eye injury suffered while working on a demolition site.

The employer, Environmental Management Services, argued that because Curiel is a Mexican national who used false documentation to get the job, he was not eligible for benefits under the federal Immigration Reform and Control Act of 1986.

Although South Carolina law specifies workers’ compensation eligibility for any injured worker “including aliens … whether lawfully or unlawfully employed,” the company claimed IRCA’s prohibitions on the use of fraudulent documents to obtain employment superseded the state law.

“To the contrary," wrote Justice James E. Moore for the court, “disallowing benefits would mean unscrupulous employers could hire undocumented workers without the burden of insuring them, a consequence that would encourage rather than discourage the hiring of illegal workers. We find IRCA does not pre-empt state law and claimant is not precluded from benefits under our Workers’ Compensation Act.”

Moore wrote that the decision was in line with those in other states, and specifically cited a 2002 North Carolina ruling in a similar case because, he said, the states’ workers’ compensation laws are the same. That decision, Ruiz vs. Belk Masonry Co., quoted from the original congressional hearings that IRCA is not intended “to undermine or diminish in any way labor protections in existing law.”

Moore also referenced similar decisions by courts in Florida, Georgia, Maryland and Minnesota.

The appeal also dealt with questions concerning the degree of damage to Curiel’s vision, and ordered the Workers’ Compensation Commission to make a determination.

January 3, 2008

A case study of identity theft involving illegal immigratns

Searching for a tangled case of identity theft by illegal immigrants? Here is one involving a woman citizen on workers comp whose identity was used by an illegal worker, who at the same time was receiving benefits of a work injury at another employer. This citizen’s husband’s identity also was stolen and that mixed him up with traffic violations incurred by the impersonator. In this article there is an unrelated third story of identity theft involving a woman on disability. The two women’s cases are linked to an employer, Koch Foods, which had hired the illegal workers and who was uncooperative in helping untangle the messes.

The story in full, from the Citizen Tribune of Morristown, TN:

Newport, TN
Newport couple faces taxes on income never earned
BY ROBERT MOORE, Tribune Staff Writer

For Lora and Jamey Costner, a $7,854 federal income tax bill is the painful indigestion that followed two unsatisfying servings of identity theft cooked up by two former Koch Foods employees, records indicate.

The criminal cases involving the Newport married couple and the two illegal immigrants, who IRS records indicate worked for Koch Foods, have been resolved in the court system.

The bitter aftertaste that remains is the unpalatable possibility of having their wages garnished to pay tax bills on income they never earned at the Morristown chicken-processing plant.

Continue reading "A case study of identity theft involving illegal immigratns" »

December 13, 2007

More on aftermath of December 2006 Swift raids

Thanks to Workers Comp Insider for alerting me to an excellent follow up on the raids. It is in CtW Connect (Courage to Win). Towns in Colorado, Minnesota and Nebraska are reviewed, with lots of hyperlinks. I have included the report in full below:

The ICE Raids: One Year Later

Today marks the one year anniversary of the Immigration and Customs Enforcement agency’s (ICE) raids of Swift and Co. meatpacking plants in six cities in Nebraska, Texas, Iowa, Minnesota and Utah. In all, 1,282 Swift employees were arrested.

Continue reading "More on aftermath of December 2006 Swift raids" »

December 4, 2007

Domestic slavery in America among foreign workers

The New York Times on 12/3 ran a lengthy article about a slavery case now before the court on Long Island. The article refers to a handful of other domestic slavery cases in the U.S. How big is this problem? The article surmises that “5,000 to 7,000 migrant domestic servants take jobs each year in homes where they are highly vulnerable to abuse by their employers…” Thanks to Cathleen Caron of Global Worker Justice for bringing this story to my attention.

The entire story:

From Stand in Long Island Slavery Case, a Snapshot of a Hidden U.S. Problem
By PAUL VITELLO

CENTRAL ISLIP, N.Y., Nov. 30 — The two tiny Indonesian women know just a handful of English words. They know Windex. Fantastik (the cleanser, not the adjective). They know the words Master and Missus, which they were taught to use in addressing the Long Island couple they served as live-in help for five years in the sylvan North Shore hamlet of Muttontown.

Their employers, Varsha Sabhnani, 35, and her husband, Mahender, 51, naturalized citizens from India, have been on trial in U.S. District Court here for the past month. They are charged with what the federal criminal statutes refer to as involuntary servitude and peonage, or, in the common national parlance since 1865, the crime of keeping slaves.

The two women, the government charged in its indictment, were victims of “modern-day slavery.”

Continue reading "Domestic slavery in America among foreign workers" »

October 30, 2007

Spitzer waffles on driver licenses for illegal immigrants

The New York Times in an editorial today says that New York Governor Sptizer, who announced plans to issue drivers licenses to qualified illegal immigrants, has retreated, apparently in response to pressure from the Department of Homeland Security. The new plan is very complicated, providing some ID for illegal immigrants but in an attention grabbing way, as the editorial describes:

Governor Spitzer Retreats

Gov. Eliot Spitzer has confronted the most intense public criticism of his political career — and caved. Not so long ago, Mr. Spitzer was doing the right and brave thing, planning to offer driver’s licenses to qualified but undocumented immigrants. The plan was inherently fair and would have made the state and its roads safer. Unfortunately, it also made Mr. Spitzer the target of some very nasty rhetoric from his political opponents, while his allies offered mostly weak-kneed support.

Continue reading "Spitzer waffles on driver licenses for illegal immigrants" »

September 30, 2007

Driver licenses in New York State

New York State Governor Spitzer has made it official policy to grant driver licenses to anyone, including undocumented residents (of which there may be 750,000, including children). This is a sensible approach. The New York Times reports that “The move drew angry responses from Republicans in the state who charged that the governor was in danger of giving valid state identification cards to potential terrorists.”

Here is the entire text of the Times’ editorial on the matter:

Gov. Eliot Spitzer made a very important if politically hazardous decision yesterday. He decreed that New York State’s Department of Motor Vehicles will award driver’s licenses to those who can prove who they are and pass the tests, not only those in good standing with the federal immigration authorities. That decision is correct for all who use New York’s roads.

Like other governors and mayors, Mr. Spitzer is trying to deal with Washington’s failure to produce a coherent immigration policy that would deal humanely with the 12 million illegal immigrants who have come to America to work, often in the lowliest of jobs. That lack of resolve forced states and sometimes local communities to figure out how to cope with reality — housing, working conditions, all sorts of local problems. Mr. Spitzer’s licensing rules are an attempt to deal with higher accident rates among unlicensed drivers — many of whom flee the scene because they fear immigration authorities.

The new rules would expand the kinds of documents that would be accepted by the state to get a license. A Social Security card would no longer be required if there are enough other documents, like an up-to-date passport, a birth certificate or other items. The governor promised new security measures — such as making sure state officials are trained in verifying foreign documents and using photo comparison technology to make certain one person does not get more than one license.

Mr. Spitzer and his administration argue that licensing more people would not only make the roads safer, it might result in a lowering of New York’s high automobile insurance rates. If that really does happen — and it is worth reminding the governor of this promise — less costly insurance would be another bonus.

The move drew angry responses from Republicans in the state who charged that the governor was in danger of giving valid state identification cards to potential terrorists. That argument is absurd on its face; organized terrorists hardly lack access to forged documents. It also fails to deal with the need to bring more of the state’s immigrant workers out of the shadows so that if they drive — and they will drive — they can do it safely. Also, New York State would have a better idea who many of these residents really are.

With these enlightened changes, New York will join eight other states that do not require applicants for drivers’ licenses to prove their immigration status. Like New York, these states want a drivers license to achieve what it is supposed to do — certify a safe driver.

September 27, 2007

Legal assaults against illegal immigrants

Workers Comp Insider has a sharp tongued and informative posting on municipal ordinances which bar the residency and hiring of illegal immigrants. One of its sources was a NY Times article which I have placed below. The NJ township of Riverside intordued an ordinance against illegal immigrants only to see businesses disappear. the Times reports:

With the departure of so many people, the local economy suffered. Hair salons, restaurants and corner shops that catered to the immigrants saw business plummet; several closed. Once-boarded-up storefronts downtown were boarded up again.

Meanwhile, the town was hit with two lawsuits challenging the law. Legal bills began to pile up, straining the town’s already tight budget. Suddenly, many people — including some who originally favored the law — started having second thoughts.

So last week, the town rescinded the ordinance, joining a small but growing list of municipalities nationwide that have begun rethinking such laws as their legal and economic consequences have become clearer.

the full article:

Continue reading "Legal assaults against illegal immigrants" »

February 28, 2007

The IFCO guilty pleadings: what was behind them

The Wall Street Journal (subscription required) on Tuesday 2/27 ran an article about how ICE (Immigration and Customs Enforcement) went after the executives at IFCO, the pallet manufacturer raided last year, for systematically hiring illegal workers. The article contains nuggets of information about ICE’s new strategy – which I have excerpted here. They include patiently collecting information in several states on manager communications; getting Social Security to cooperate in revealing huge mismatches of Soc Sec numbers; and planting an informant. (I have previously posted on IFCO.)

According to an article in the Salt Lake City Tribune, five managers pleaded guilty:

James Rice, 37, of Houston, an executive regional general manager of the Netherlands-based IFCO Systems, pleaded guilty to conspiring to employ illegal workers. Robert Belvin, 43, of Stuart, Fla., a former general manager of the Albany IFCO plant, pleaded guilty to two felony conspiracy charges. They face up to 2 years in prison. Dario Salzano, 36, of Amsterdam, N.Y., Scott Dodge, 44, of Elmira, N.Y., and Michael Ames, 44, of Shrewsbury, Mass., each pleaded guilty Tuesday to one misdemeanor. They could face up to six months in jail and $3,000 in fines for each undocumented worker employed, though they likely will get reduced terms because they cooperated, Sciocchetti said. Charges were pending against two other IFCO managers in Houston and Cincinnati.

Here in addition are some figures from the ICE Fact Sheet on the net:

* The number of criminal arrests in worksite enforcement cases has increased from a mere 25 in Fiscal Year 2002, the last full year under the old INS, to 716 during Fiscal Year 2006 under ICE..

* The number of individuals arrested on administrative immigration violations in worksite enforcement cases has increased from 485 in Fiscal Year 2002, the last full year under the old INS, to 3,667 during Fiscal Year 2006 under ICE.

Continue reading "The IFCO guilty pleadings: what was behind them" »

February 9, 2007

Human trafficking suit in CT

The Associated Press today reported a federal suit by Guatamalan workers in Connecticut alleging a nursery engaged in human trafficking. The suit goes after both the nursery, Imperial Nurseries, and the labor contractor. If the suit is half true, it's still 100% awful. Yale Law School students helped to prepare the suit. The labor contractor, who appears to have been fired some time ago by the nursery, seems to agree with the suit but denies it know anything about it.

Story follows:

Continue reading "Human trafficking suit in CT" »

Tidbits from the first year of this blog

In passing into the second year of workingimmigrants.com, I have compiled some notable entries from the first year -- Peter Rousmaniere

Relative role of U.S. in transborder migration

Number of cities in world with at least one million foreign born residents: 20
Number of these cities in the United States: 8
Number of these cities in India or China: zero
Size of foreign born population in the world today: 200 million out of 6.5 billion (3%)
Size of foreign born population in U.S. Today: 35 million out of 300 million (12%)

Relative role of China in intraborder migration

Number of internal migrants from rural to urban areas in China: 150 million out of total population of 1.2 billion.

Off-shoring of work and the polarization of the American workforce

MIT professor David Autor argues that highly routine mental and manual jobs are being outsourced overseas or eliminated by automation, but that mental and manual jobs involving a level of irregularity in decision making and face to face servicing are growing. This concept explains why some manual jobs are expected to grow in the future along with the growth of high end mental jobs.

Impact of all immigrant workers on American workforce

Share of new jobs 2002 – 2012 to be filled by an immigrant: one out of eight

Size of illegal workforce

Illegal workers in U.S. as of early 2006: about 7.3 million

Illegal workers as % of total U.S. workforce: 4.9%

Illegal workers as % of total U.S. workforce in jobs requiring less than high school degree and without strict documentation requirements: 9/7%

Where do illegal workers work?

Per the Pew Hispanic Center:

Some 55-60% of these undocumented workers are in formal employment and are paying social security taxes

About 3 million of the 7.2 million illegal workers are in occupations in which undocumented workers account for at least 15% of total employment in that occupation. These include construction labor (25%), cooks (20%). Maids and housecleaners (22%), and grounds maintenance (25%). among roofers, 29% of the total workforce is estimated to be undocumented workers.

One half of undocumented working men here are single. But a phenomenal 94% of undocumented men work compared to 83% for native Americans.

Economic impact of illegal population in U.S.

A Texas study says that illegal household payments of consumer and property taxes (via rent or home ownership) exceeds by about 30% the taxpayer burden for education, healthcare, and incarceration.

Do illegal workers displace American workers?

Some say yes, others say no.

It appears that illegal worker compensation is about 30% below what it would be with 100% worker protections afforded to Americans. Go here for a case study.

Waves of Hispanic work immigration since 1980s

1980s: agricultural workers, mostly on farms
1990s: meat processing workers, mostly in rural; towns
2000s: urban work including residential construction: in cities and suburbs

Employment of Indians in the U.S.

They own 20,000 hotels, or 50% of all economy hotels in the U.S.
There are 40,000 Indian physicians in the U.S, or about 4% of all doctors

Role of foreign born entrepreneurs in the U.S.

They are involved in one quarter of all technology start-ups.

Is there a nursing shortage?

Yes.

Percentage of Philippine nurses working outside the Philippines

75%

Foreign nurses in the U.S.

300,000, or about 11% of all nurses.

Mexican population in U.S.

Percentage of Mexican workforce that is working in the U.S.

16%

Remittances from Mexicans in U.S. to Mexico

$25 billion in 2006

Total remittances from all parts of world to Latin America

$54 billion in 2005

Number of community-based immigrant worker centers

upwards of 200

Foreign day laborers in the U.S.

Estimated number on any particular day:

117,600 at 500 sites in the U.S.

Percentage who speak English very well:

3%

February 4, 2007

An initiative in California to protect immigrant workers from insurance fraud

This is a model for every state with a large low wage immigrant work population to follow. California is the most active state in private/public sector expression of concern and action about protecting low wage immigrant workers. I have posted several times about California. This time I am posting about two overlapping initiatives:

AWAHP: The Agricultural Workers Access to Healthcare Project
WCEC: The Workers Compensation Enforcement Collaborative

The Collaborative it aiming to identify employers who are un- or under-insured. It involves a creative mingling of community activist, law enforcement, and state regulatory efforts. Financially supporting the effort is the state’s insurance fraud commission.

According to the Watsonville Law Center, in Watsonville CA (831-722-2845)


“Uninsured employer cases account for 25% of all injured workers served through the Agricultural Workers’ Access to Healthcare Project (2003—2006). Nearly all injured workers whose employers lack workers’ compensation insurance coverage are Spanish-speaking low-wage immigrant workers. These clients are often unaware of or afraid to exercise their right to workers’ compensation benefits because they fear retaliation in the form of termination of employment and/or deportation. Injured workers come to The Watsonville Law Center (WLC) usually because they have not been able to access medical treatment or legal assistance.”


AWAHP:
The Agricultural Workers Access to Healthcare Project was formed to assist low-wage immigrant workers access medical treatment and related benefits under the workers’ compensation system. A collaborative between California Rural Legal Assistance, Salud Para La Gente and The Watsonville Law Center, AWAHP is the first of its kind in the state and possibly the nation and noted as a model approach for worker health in California in a report published by the Commission on Health and Safety and Workers’ Compensation under the California Department of Industrial Relations.

WCEC:
The Workers Compensation Enforcement Collaborative (WCEC) is comprised of state and local enforcement agencies and others committed to tracking and addressing barriers to enforcement of low wage immigrant workers’ compensation rights. Over the last year, WCEC has worked to develop goals and objectives to ensure workers are informed of their right to medical treatment and related benefits under the workers’ compensation system, and are provided accessible medical and legal services so they can obtain the medical treatment they need. Agencies represented and proposed goals for the collaborative are listed below.

WCEC Members:
The Watsonville Law Center, Department of Insurance (DOI) Fraud Division, Santa Cruz and Monterey County Offices of the District Attorney, the Fraud Assessment Commission, Kaiser, the Commission on Health and Safety and Workers’ Compensation (CHSWC) and the U.C. Berkeley Labor and Occupational Health Project. The project is working on developing collaborative partnerships with the following agencies: Workers’ Compensation Injury Rating Bureau (WCIRB), Uninsured Employers Fund (UEF), Division of Labor Standards Enforcement (DLSE), and the Division of Workers’ Compensation (DWC)-Information and Assistance Unit, Salud Para La Gente, California Rural Legal Assistance (CRLA), California Applicants’ Attorney Association (CAAA).

January 20, 2007

Income tax and social security tax payments of illegal immigrants - a legal analysis

I located an article in the Harvard Latino Law Review analyzing the tax contributions of undocumented immigrants

Francine Lipman, The Taxation of undocumented immigrants: separate, unequal and without representation published in October, 2006. The article focuses in-depth on income tax and social security tax issues, and is heavily annotated. I found the article in the reports section of the website for the Massachusetts Immigrant and Refugee Advocacy Coalition, or
(MIRA).

January 2, 2007

A valuable new public interest group: Global Workers Justice Alliance

Hundreds of millions of workers have migrated internally or across borders for work. The New York City – based Global Workers Justice Allianceprotecting the rights of cross border workers through an international network of worker advocates and resources. Its initial focus is on the trans border workforces connecting the United States with Mexico and/or Guatemala. It tools include education, advocacy of public policies, and litigation support.

The Alliance is filling a huge hole into which many injured, payroll shortchanged or in other ways abused injured immigrant workers have fallen. I hope that the Alliance will help to place some estimates of the number and types of these problems.

Every immigrant worker community organization including legal aid organizations should connect with the Alliance.

The basic theme of the Alliance is “Businesses are global. Workers are global. Justice is not.”

Millions of people, more than ever before, cross national borders seeking employment. Too often these global migrants are often cheated of wages, injured, and have other rights violated on the job in their host country. When the workers return home, however, the obstacles to achieving justice both practical and legal--are nearly insurmountable. The result is that valid claims are routinely abandoned and thousands of workers never receive their wages or treatment for compensable injuries. Without advocates supporting each other to provide a continuum of legal representation, these workers will continue to be used and abused within the globalized economy. Workers should not have to check their legal rights at the border. Global workers require global justice.


One of its services is “Case Facilitation”.

Global Workers facilitates employment-related litigation for low-wage migrant workers who have left the country of employment to return home Practical and legal barriers usually result in migrant workers being unable to access justice in the country of employment once they have left that country. Global Workers bridges that gap by connecting and supporting advocates in the country of employment to the country of origin so that workers have access to justice no matter where they go. Cases are initiated either in the country of employment or the country of origin by advocates in those countries.

August 24, 2006

A new legal tactic against illegal workers in California

The Wall Street Journal (subscription required) reports that a temporary employment agency has sued an erstwhile client under California’s unfair competition laws that it took business away from it by hiring illegal workers. the plaintiff,
Global Horizons, was itself a defendant in a Washington state case of cheating immigrant labor it recruited, and settled with a fine.

Frustrated businesses took their fight against illegal immigration to a Los Angeles court Tuesday, filing the first in a series of lawsuits accusing competitors of hiring illegal workers to achieve an unfair advantage. "We see the legal profession bringing to this issue the kind of effect it's had on consumer product safety,'' said Mike Hethmon of the Immigration Reform Law Institute, a Washington D.C.-based group backing the California cases.
In the complaint filed Tuesday, a temporary employment agency that supplies farm workers sued a grower and a two competing companies. Similar cases claiming violations of federal anti-racketeering laws have yielded mixed results. The California lawsuits are believed to be the first based on a state's unfair-competition laws, legal experts said. Santa Monica-based Global Horizons claimed in the lawsuit that Munger Brothers, a grower, hired illegal immigrant workers from Ayala Agricultural Services and J&A Contractors. All the defendants are based in California's farm-rich Central Valley.
The suit alleges that Munger Brothers had a contract with Global Horizons to provide more than 600 blueberry pickers this spring, but nixed the agreement so it could hire illegal immigrants. "Competitors hiring illegal immigrants is hurting our business badly,'' Global Horizons President Mordechai Orian said. "It's to the point that doing business legally isn't worth it.'' To prove competitors hire illegal immigrants, businesses could use public records involving prior violations, testimony from former employees who have worked alongside illegal immigrants, and recovered W-2 tax forms that show people working under fake names and Social Security numbers, said David Klehm, the lead lawyer for cases in Southern California.
Legal experts said the cases could be difficult to win. Under the California statutes, plaintiffs must prove a competitor directly harmed their business. "Unless you've got smoking gun evidence, it's hard to tie economic loss of one business to another's practices,'' said Niels Frenzen, a law professor at the University of Southern California.

July 2, 2006

Massachusetts State Police, IRS use the same illegal worker cleaning crew

The conservative base - hunting governor of Masachusetts, when he decided it was smart to bully the roughly 150,000 plus illegal workers in Massachusetts, forgot to do his homework. The local newspaper did it for him.

The Boston Globe ran a story today titled "Troopers had relied on illegal workers, Yet they may enforce immigration laws"


Governor Mitt Romney is pushing to give state troopers the authority to enforce federal immigration laws so they can arrest those who are here illegally. But records indicate the State Police has relied for years on a company to clean its barracks and headquarters that has employed scores of undocumented immigrants. A Globe review of payroll data from National Facility Services of Boylston found that more than 80 percent of the 192 unionized maintenance workers employed there in 2004 had questionable or bogus Social Security numbers. The company has received more than $2.2 million in state contracts since 2000. National Facility Services said it has cleaned State Police facilities for at least a decade….The company also maintains the Internal Revenue Service center in Andover.

The article goes on (excerpted):

Continue reading "Massachusetts State Police, IRS use the same illegal worker cleaning crew" »

June 25, 2006

Three suits over subcontracted janitor labor violations

The Boston Globe reports a suit dealing janitors and kitchen staff working for a leading Boston-area healthcare organization, Cambridge Health Alliance, while technically employed by an outsourcing company, Clean Link. Last year two major settlements over janitorial services were made, one involving Walmart.

The blog Contingent Law summarizes this $22 million settlement and a Walmart settlement as follows:

Wal-Mart Agrees to $11 Million Settlement in Illegal Foreign Janitors' Class Action Lawsuit Holding Wal-Mart Liable for Its Contract Janitorial Firms' Violations of Federal Immigration and Labor Laws. (Zavala et.al. v. Walmart Stores, Inc. , U.S. D.Ct. D. N.J.) settled March 18, 2005). The illegal immigrant janitors were employed by Wal-Mart's contract janitorial services companies. Wal-Mart was liable as a joint employer with 12 contract janitorial services firms. The janitorial firms were charged with criminal violations and were fined $4 million.

$22 Million Settlement for 2,000 Illegal Immigrant Contract Janitors in Federal Class Action Lawsuit Charging National Supermarkets and their Subcontractor Cleaning Companies with FLSA Violations. (Florex v. Albertson's. et. al. , U.S. D.Ct., C.D., Cal. Jan 26, 2005)

The Globe article goes on:

Continue reading "Three suits over subcontracted janitor labor violations" »

June 8, 2006

Colorado split on immigration reform

The state has one of the higher rates of illegal immigrants – 6.5% of the labor force, well above the 4.9% average for the country. Washington delegation members embrace aggressive anti-immigrant positions; the legislature has passed new policing laws; yet on March 25, 50,000 people showed up for a pro immigration rally in Denver.

Congressman Tom Tancredo, Chairman of the 97-member House Immigration Reform Caucus, attacked the Senate’s amnesty bill. According one profile of him, Tancredo believes that “immigration is a life-or-death issue in the culture war to save America”.

At the federal level, Senator Allard voted against the Senate’s immigration bill. Senator Salazar did not vote. A reportied by the Rocky Mountain News, The state legislature passed and Governor Bill Owens signed a bill to create a small immigration enforcement unit in the state police, and to require state contractors to sign up for the federal government’s online program to check a worker’s immigration status. Meanwhile, Denver Mayor Frederico Pena has been organizing a pro-immigration group.

Gov. Bill Owens this week signed into law bills that will create an immigration unit in the Colorado State Patrol and require state contractors to sign up for an online federal program that checks a worker's immigration status.

Continue reading "Colorado split on immigration reform" »

June 5, 2006

Mohawk RICO case dismissed by Supreme Court

In a one paragraph ruling, the U.S. Supreme Court has dismissed the effort by a class action lawyer to use the RICO law in order to sue Mohawk Industries for its use of illegal workers. It sent the case back to the Appeals Court level for reconsideration. The Supreme Court appears in effect to be rejecting the notion that RICO can be applied. If this is the case, a dark cloud is removed from over the heads of thousands of American employers who recruited undocumented workers. For those interested in the Court's apparent reasoning, go to The White Collar Crime Prof Blog which discusses how the Supreme Court had problems with the expansionist use of RICO in another case.

I have covered this RICO strategy in several earlier postings.

Per Reuters, "The Supreme Court on Monday dismissed a case on whether carpet and floor-covering maker Mohawk Industries Inc. can be sued under the federal anti-racketeering law for allegedly using outside recruiters to hire illegal workers.'

The story continues:


In a one-paragraph ruling, the high court said the appeal was dismissed and that it should not have been granted in the first place. The court gave no explanation why, but the ruling did not decide the main issue. The justices also set aside a U.S. appeals court ruling that the Calhoun, Ga.-based company and the recruiters can constitute an "enterprise" within the meaning of the Racketeer Influenced and Corrupt Organizations Act. The justices sent the case back to the appeals court for more consideration in view of a different Supreme Court ruling on Monday in which it held that Ideal Steel Supply Corp. cannot sue rival National Steel Supply under the anti-racketeering law for allegedly underpaying New York sales tax. The court said the direct victim of the alleged racketeering violations is New York state, not Ideal.

In the Mohawk case, a group of current and former employees claimed in the lawsuit that the carpet giant engaged in the systematic hiring of illegal workers and it was done by entering into contracts with outside recruiting firms. Mohawk has denied the allegations.

The employees said they have been hurt because the hiring practices have depressed their wages and they seek triple damages, as provided under the anti-racketeering law. The case attracted attention because it had been before the Supreme Court at a time when Congress is considering a sweeping overhaul of immigration laws and the federal government has been attempting to crack down on companies that hire illegal workers. The anti-racketeering law was initially adopted in 1970 and designed mainly to fight organized crime. But the law has been used in a number of lawsuits against businesses, and in 1996 it was expanded to include violations of federal immigration law.

Analysis of employer liabilities over illegal employees

Risk & Insurance Magazine published an article by me on the current employer dilemma with regard to hiring of illegal immigrants: the workers are needed, but the practice is illegal. Employers hiring workers who live in the United States illegally risk fines and civil lawsuits. In addition, the huge size of the illegal work force is causing the workers' compensation system in some states to deteriorate.

Here is the full text of the article:

The last time the United States tried to reform its immigration laws was in 1986. Now the economic stakes are a lot higher, and vastly more employers are at legal risk. Twenty years ago, illegal workers were mainly in agriculture. Because the 1986 legislation did nothing to prevent more illegal workers from entering the United States, and because the law also fell short in giving them a legitimate status regarding their employment, the reform efforts of 20 years ago are considered a failure.

Since then, the illegal U.S. work force has increased to 7.5 million persons, growing at a rate of 350,000 annually. This is about equal to the number of new legally authorized foreign workers who come each year. Employers large and small who hire illegal workers risk incurring heavy fines from federal immigration authorities. They also risk being targeted by new state laws and aggressive state attorneys general. And they risk private action law suits. Any of these actions can lead to financial ruin. In addition, employers, workers' compensation insurers and state regulators are coping with the impact of the illegal work force on the workers' comp systems, which have deteriorated under the weight of hidden employment practices and legal quandaries.

Continue reading "Analysis of employer liabilities over illegal employees" »

May 22, 2006

A good source for info about working immigration news

Try the About.com website. I have mentioned it before. Very practical and informed.

April 28, 2006

RICO suit against Mohawk Industries heard by U.S. Supreme Court

I have previously blogged about how a Chicago based law firm is waging a legal fight against employers who hire lots of illegal workers, calling the practice a violation of the nation’s anti-racketeering law, RICO. Well, the Mohawk Industries case was heard this week by the Supreme Court. Mohawk along with other carpet manufacturers hires large numbers of Hispanics at its Datlon, GA, operations. I’ve been there: huge, faded but well staffed buildings on one side of town; a slice of flag waving America on the other.

The Washington Times
ran an article about the oral presentation before the Court.

The article says that “Winning parties in RICO cases can be awarded triple damages -- notably higher awards than winners in non-racketeering criminal cases. Congress expanded RICO in 1996 to include violations of immigration law.”

The article goes on:

Continue reading "RICO suit against Mohawk Industries heard by U.S. Supreme Court" »

April 20, 2006

ICE raids an employer, IFCO, for hiring illegal workers

ICE woke itself up from its indifference and made a aggressively publicized enforcement raid on an employer, pursuant of IRCA, Immigration Reform and Control Act. The Washington Post reported that ‘Federal agents on Wednesday arrested seven current and former managers of IFCO Systems, a manufacturer of crates and pallets, on criminal charges, and more than 1,100 people were arrested on administrative immigration charges at more than 40 IFCO sites in the U.S.” This is more of a publicity stunt, because ICE likely has no real resources to make many raids, but the raid might well work to temper the enthusiasm of many employers for hiring undocumented workers and to drive many employers more underground. According to the Post, ICE has only 325 agents to cover the entire country. I expect that raids of this size -- in many company sites, apparently -- will be rare.

The last enforcement action of this magnitude may have been the Tyson case, which I have written about here. That ended in no convictions of the company, but only of fall guys.

Continue reading "ICE raids an employer, IFCO, for hiring illegal workers" »

April 19, 2006

New Georgia law on undocumented workers S. Bill 529: worth a look

Georgia Governor Sunny Perdue signed Senate Bill 529, Georgia Security and Immigration Compliance Act, on April 17. This law includes some very interesting provisions which, in effect, codify the role of states in immigration status verification, employer and employee responsibilities, and the provision of public services to undocumented persons. The law surely contains some problematic language. However, I am impressed by the evenhandedness and reasonableness of many of the provisions. For instance, local law officials must be certified by the state in order to enforce federal immigration law; undocumented persons under 18 can presumably continue to receive public benefits; and persons 18 and over can continue to receive Good Samaritan services. There is a special section devoted to stemming human trafficking.

This may well become a model for other states. I have excerpted large sections of the law.

For a complete copy of the law, go here. For the summary provided by the Governor’s office, go here.

Governor’s Office fact sheet on the law: go here:

Excerpts from the law:

Continue reading "New Georgia law on undocumented workers S. Bill 529: worth a look" »

April 14, 2006

Ten reasons why illegal immigrants should file income tax returns

The very well managed About.com site, by Jennifer and Peter Wipf, on immigration issues has has a checklist of reasons why it is in the interest of undocumented workers to file income tax returns. Bob Alcorn, a Dallas CPW, prepared the list. Here is a summary.

According to Alcorn, “Non-citizens who reside in the U.S. for more than 183 days [generally] meet the definition of a ‘tax resident,’ or a ‘resident for tax purposes.’ They are "subject to the tax laws as if they were citizens (with some minor differences).”

1. It's the Law.
2. Proof of Presence
This proof may be required if and when any future guest worker program or amnesty provisions are made.
3. Proof of Spouse's Presence and/or Spousal Relationship
Tax returns indicate your marital status (single, married, head of household), thus possibly later improving or proving a spouse's eligibility for any guest worker or amnesty claims.
4. Proof of Dependents' Presence and/or Relationship
5. Proof of Income and Self-Sufficiency
6. Possible Eligibility for Tax Benefits/Credits
Tax returns allow you to receive certain tax benefits - such as the Child Tax Credit, including the refundable portion of the Additional Child Tax Credit if you otherwise qualify.
7. Tax Payer Identification Number Eligibility
Filing tax returns provides a legitimate basis for getting an Individual Taxpayer Identification Number. Having a legitimate TIN is actually much less of a red flag than using a fake Social Security number at work or for finances and taxes.
8. Proof of Income as Basis for a Mortgage and Other Credit
9. Demonstration of Good Moral Character
In any immigrant legalization process, the applicant needs to demonstrate "good moral character."
10. It's Good to be Prepared, Just in Case

April 2, 2006

The Tyson Foods - illegal immigrant case: past and present.

Steve Striffler’s highly informative book, “Chicken: the dangerous transformation of America’s favorite food”, gives the story behind the indictment and trial of three Tyson Food executives for systematically hiring illegal Hispanic immigrants. I will relate in skeletal form the story. It starts with the arrival of a 20 year old man from Chihuahua into the U.S. in 1979, runs through the poultry industry boom in the 1990s, the federal indictment of and subsequent jury vote in favor of Tyson Foods, and a current effort to sue Tyson for RICO violations.

Continue reading "The Tyson Foods - illegal immigrant case: past and present." »

March 13, 2006

The “Real ID” program to catch illegal immigrants: Stalled? Dead?

This program, hatched by Congress last Spring to impose immigrant IDs through the states’ driving license systems, seems to be going nowhere, a reflection of the lack of serious thought put into the idea at the outset. I am presenting here a summary of the bill and excerpts of an information technology magazine article from 2005.

Homeland Security Watch has been monitoring progress and as of late January 2006 found the program to be in a near-complete mess, with wildly ranging estimates of costs and an array of opponents. Consider this: to make Real ID work, you need to get the Registry of Motor Vehicle Departments to not only get their individual IT systems up to snuff, but then to coordinate with a single national IT standard.

Now for a summary of the bill and an early analysis of the IT challenges....

Continue reading "The “Real ID” program to catch illegal immigrants: Stalled? Dead?" »

February 24, 2006

Line up of endorsers of McCain guest worker bill

McCain's bill calls for gradual conversion of undocumented workers to a legal status. It is free of the Rube Goldberg complexity and get-tough approach of proposals of Arizona Sen. Jon Kyl and Texas Sen. John Cornyn.

According to the Phoenix Business Journal

The U.S. Chamber of Commerce is teaming with top labor unions, other business interests and the U.S. Conference of Catholic Bishops in support of a guest worker program and legal way for undocumented workers already in the U.S. to stay in the country. Arizona Congressmen Jeff Flake and Jim Kolbe, as well as the Arizona Chamber of Commerce & Industry, behind the bill

Also behind the bill are U.S. Sen. Edward Kennedy (D-Mass.) are the Service Employees International Union, the second largest union, the Laborers International Union, the American, bishops group and the American Health Care Association. The Arizona state chamber also backs that guest worker effort. The ALF-CIO has taken a position in opposition to guest worker legislation.

The Republican National Committee (RNC) officially endorsed a guest worker program.


Other heavyweight business interests backing guest worker include the Travel Industry Association of America, Ford Motor Co., Eastman Kodak, DaimlerChrysler and the California Chamber of Commerce.

Go here to get a copy of the bill, Secure America and Orderly Immigration Act – S. 1033

The New York Times today carried a profile of Eliseo Medina, vice president of the Service Employees International Union, the nation's second-largest union, and an advocate of Bush’s guest worker program proposal.

Thai worker case in WA reveals turmoil in use of foreign workers

A case involving a employer in Washington State who hired Thai workers on a temporary visa program puts into sharp relief today’s turmoil in using foreign workers under federally run special visa programs. The employer is being investigated by federal and state officials. And local American workers are suing the employer.

According to Rural Migration News, the state of Washington reached a $230,000 settlement with Los Angeles-based Global Horizons September 22, 2005 over the treatment of 170 H-2A visa Thai workers who picked apples in the state in 2004. Global agreed to reimburse their travel costs and improperly deducted wages.

The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature, and for which the employer attests there are not sufficient numbers of American workers.

Per the report,

Thai H-2A workers say that they had to pay $2,000 each in Thailand to get the H-2A contracts, putting up their homes and land as collateral for the cost of getting work visas. According to the Thai workers, only persons with land and other assets that they could pledge to Global were allowed to get H-2A contracts. Once in the US, 24 of the Thai workers abandoned their contracts.
Local workers are suing Global in federal court, alleging that they were not hired when they applied for the jobs that Global filled with Thais.
Washington's Department of Labor and Industries and the Employment Security Department sent a letter to Global Horizons on December 20, 2005,saying that it was in violation of state laws requiring timely payment of unemployment taxes. Under the September 2005 settlement, Global was to retain an independent third party to investigate and provide reports on the company's treatment of workers, which it had not done.

The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor. For 2005, the minimum wage set by DOL for Washington State is $9.03.

The employer must provide workers' compensation insurance where it is required by state law. Where state law does not require it, the employer must provide equivalent insurance for all workers. Proof of insurance coverage must be provided to the regional administrator before certification is granted.

February 22, 2006

New York court in Balbuena case: worker gets full lost wages

New York’s highest court, the Court of Appeals, ruled that an undocumented worker can receive back pay at prevailing wages as part of a tort suit against employer due to work injury. The Balbuena vs. IDR Realty case stems from a work accident in 2000 resulting in multiple skull fractures. A lower court ruled in 2005 that Balbuena was entitled to lost wages but only at the amount he would have received in Mexico. This was a tort case, not a workers compensation case, but it has implications for workers compensation. The courts in New York State have yet to rule definitively on workers comp benefits to undocumented workers.

This information was derived from the Sun, in an article written by Daniala Gerson 2/22/06

According to the Sun,

Noting that "the power to regulate immigration rests exclusively with the federal government," Judge Graffeo concluded that state Labor Law "applies to all workers in qualifying employment situations - regardless of immigration status - and nothing in the relevant statutes or our decisions negates the universal applicability of this principle." Moreover, she wrote, by not providing compensation to illegal immigrants, the state would encourage their employment, deterring federal objectives.

A copy of the decision is available. The court folded in a similar case involving a Polish immigrant, Stanislaw Majlinger

February 21, 2006

WA Employer settles private RICO suit over use of illegal immigrants

According to WorkForce Management, in December 2005 the executives of a fruit grower in Washington State settled for $1.3 million a suit “by a group of legal workers accusing the grower of depressing wages, which is illegal under RICO laws, by hiring illegal immigrants.” The case was initially filed in 2000, dismissed, and then appealed. The settlement covers the company’s operations between 1999 and 2004.

This is first time that a privately filed RICO suit about the use of illegal immigrants has come to a positive ending for the plaintiffs, who are American workers. In 2005, Wal-Mart last year paid $11 million to settle a federal investigation into its use of undocumented workers as janitors. Also in 2005, Washington State negotiated a settlement relating to the importation of Thai workers.

Johnson & Bell, headquartered in Chicago, handled the plaintiff’s case. The firm is involved in similar litigation against Tyson Foods, the poultry processing firm, and Mohawk Industries, the carpet manufacturer. The U.S. Supreme Court will hear the Mohawk case in April.

Zirkle Fruit used a recruitment firm, Selective Employment Agency, to manage the hiring. According to Workforce Management, all the companies being sued under RICO claim they were unaware that they were employing illegal immigrants because external labor recruiters were the ones responsible for the hiring.

RICO is the Racketeer Influenced and Corrupt Organizations Act.


February 19, 2006

Proposals to tighten worker documentation enforcement

The following description of ICE worksite enforcement of worker documentation, and proposals to tighten identity standards, is excerpted from an article by Stanley Mailman and Stephen Yale-Loehr. The article appeared in the August 22, 2005 issue of the New York Law Journal. The article is posted on the website of the law firm of Miller Mayer, which has other informational resources on immigration.

A common criticism of the President’s proposal, and indeed any program that smacks of an amnesty, is that it will simply invite further violations of our border. To try to prevent future undocumented immigration, both Senate bills would tighten the documentary rules on work eligibility.
Everyone agrees that the current I-9 system for verifying workers’ identity and work eligibility is broken. Counterfeit documents are easily available. Moreover, worksite enforcement has been a low priority for many years. According to a recent report by the Government Accountability Office (GAO), in fiscal year 1999 the former Immigration and Naturalization Service devoted only about nine percent of its total investigative efforts to worksite enforcement. [See footnote 1.]
By fiscal year 2003 that number dropped to about four percent. Id. The number of notices of intent to fine issued to employers for knowingly hiring unauthorized workers or improperly completing I-9 forms, never a high number, decreased from 417 in fiscal year 1999 to just three in fiscal year 2004. [See footnote 2.]

Continue reading "Proposals to tighten worker documentation enforcement" »

February 18, 2006

Can illegal immigrants receive workers compensation benefits? MA said, “Yes”.

The Massachusetts Medellin case, finally resolved at the end of 2003, is a good example of how a state can reach a decision that workers compensation laws benefits are available to undocumented workers. Subsequent decisions in other states may have relied on this case. I will report on them later. The MA decision relied on two findings: the validity of employment contracts, and the lack of authority of federal laws over state workers compensation law.

This information is drawn from a 2004 analysis by the National Immigration Law Center.

A cleaner and construction laborer, Guillermo Medellín, sustained lasting injuries when he fell into an eight-foot-deep hole. An administrative law judge for the Department of Industrial Accidents (DIA) ruled that Medellin was eligible for benefits, even after Medellin testified that he was in the country illegally. The insurer then filed an appeal after the U.S. Supreme Court ruled in 2002, in Hoffman Plastic Compounds, Inc. v. NLRB, that an undocumented worker could not receive back pay.

The DIA then affirmed the original decision on the two findings noted above. Below is a summary of its reasoning. :

Continue reading "Can illegal immigrants receive workers compensation benefits? MA said, “Yes”." »

February 8, 2006

Immigration officials to continue to impersonate OSHA safety trainers

In July 2005 federal immigration officials impersonated OSHA safety trainers in a sting to lure and arrest illegal aliens working for subcontractors at an airforce base in North Carolina. See below for the first paragraphs of a New York Times article on that event.

The blog Confined Space now reports that Immigration and Customs Enforcement (ICE) officials reportedly plan to continue this tactic, according to Inside OSHA (paid subscription):

Immigration officials told immigration and labor groups during a closed-door meeting Jan. 30 that the department will continue to have its agents pose as officials from other agencies, including OSHA, to nab illegal immigrants at work sites, despite earlier signals the policy would be dropped. The meeting was set up to discuss last year's controversial sting operation where ICE officials posed as OSHA employees, which had prompted an outcry from labor groups and concerns from OSHA.
OSHA was not present at the meeting.
ICE officials told attendees of the meeting that the department's first priority is national security and public safety and they would not change their controversial sting policy, according to sources involved in the discussions. In a letter sent to [the National Immigrant Law Center] NILC last year, ICE officials said they would no longer continue the practice, however, they now say they view everything from a threat-based level and would continue to increase their work site enforcement of food production companies and industries related to national security, the sources say.

Continue reading "Immigration officials to continue to impersonate OSHA safety trainers" »

February 6, 2006

National Employment Law Project on wage abuses

The National Employment Law Project (NELP) describes itself as a non profit law and policy organization advocating on behalf of low-wage, unemployed and immigrant workers. It has recently published two papers on civil and criminal penalties for non-payment of wages. Non-payment, delays in payment, and failure to pay overtime are common complaints among immigrant workers.

The two papers are Fifty state chart of penalties for unpaid wages and Criminal penalties for failure to pay wages

February 3, 2006

TN's program for driver’s license and Real ID

What is going on with driver's licenses and immigrants? And what is Real ID?

The State of Tennessee is cited as a state intent on making a driver’s license or certificate available two individuals without requiring a valid social security number. According to a recent AP story published in the Washington Post (registration required), Tennessee continues to have a liberal policy towards awarding of driver’s licenses. This is at a time when state governments are beginning to struggle to comply with the Real ID requirements Congress imposed in 2005, to be effective in 2008.

The AP reported on 1/29/06 that

Tennessee has issued more than 51,000 certificates since it became the first state to offer them in July 2004, but not every certificate has gone to someone living there.
The disclosures come as Tennessee's certificate system is being studied as a possible model for handling "non-conforming drivers" under the Real ID program recently enacted by Congress that will set a national standard for driver's licenses by 2008.
Although the words "not valid for identification" appear in bold red letters on the face of the wallet-size certificates, banks accept them as legal ID.
“What we tried to do in Tennessee was to recognize that there are people who may be legally here but they are not completely documented," Gov. Phil Bredesen said.
Tennessee had started licensing illegal immigrants, without a Social Security number requirement, in early 2001. More than 180,000 obtained licenses before 9-11 fears set in. The driving certificates were created in 2004 to satisfy homeland security concerns while allowing illegal immigrants to drive with certified proficiency.

Here is a brief analysis of Real ID when Congress passed it in May 2005 as part of a supplemental budget act. The following was excerpted from www.fcw.com:

According to the bill, the Homeland Security Department will be responsible for setting those standards. Under the Real ID Act, driver’s licenses and personal ID cards must include the cardholder’s legal name, date of birth, address, gender, signature, card number, digital photograph, physical security features to prevent tampering, counterfeiting or duplication and common machine readable technology with defined minimum data elements.
State motor vehicle administrators must verify the validity of at least four feeder documents, such as a Social Security card or passport, before issuing driver’s licenses or personal ID cards.
By Sept. 11, states must sign a memorandum of understanding with DHS to use the automated Systematic Alien Verification for Entitlements system to verify the legal presence of a driver's license applicant who is not a U.S. citizen. States must capture digital images of applicants and electronically exchange driver histories with other states.
According to the bill, the new measures would take effect in three years, possibly affecting travel and access for some individuals. For example, federal officials could stop people from boarding a plane or entering a building if they have a driver's license or personal ID card from a state that does not comply with the federal standards.

The National Immigration Law Center issued in October 2005 a comparison of application requirements for U.S> Passport and “Real ID” Driver’s License.

The National Employment Law Project contributed analysis used in the NILC's study.

. http://www.nelp.org/

http://www.nilc.org/immspbs/DLs/app_rqrmnts_pssprt&realid_1005.pdf

January 22, 2006

Workers compensation rights of undocumented workers (2006)

Work Comp Central discusses a noteworthy new report issued by a task force of workers compensation lawyers:

State courts have not yet resolved tensions between federal immigration law and workers' compensation statutes, leaving in question exactly what benefits to which illegal aliens are entitled when they are injured on the job, according to an analysis by the American Association of State Compensation Insurance Funds (AASCIF).
The legal analysis, written by lawyers for the Ohio Bureau of Workers' Compensation and the New York State Insurance Fund, outlines key state court decisions and how they interact with the federal Immigration Reform and Control Act of 1986 (IRCA).

In a future post, I will be offering commentary on this analysis. AASCIF is the American Association of State Compensation Insurance Funds. Its members are workers compensation insurers, which at some time in the past were created in part with state government support to make sure that employers will have access to insurance. A few of the largest, in CA, NY, OH and WA, are state agencies staffed by civil servants.

The full report and a complete list of members with contact information can be found at AASCIF.