Immigrant Rights News – Thursday, September 25, 2008
1. Arizona Daily Star: Push is on to legalize 12 million illegal residents, let more in
2. Houston Chronicle: Cleanup spurs labor need. Undocumented workers will be linchpin in efforts
3. Daily Record: Disparity in denied asylum. Data show two county judges denied asylum more than others in U.S.
4. The Nation: RAILROADING IMMIGRANTS
Arizona Daily Star
Push is on to legalize 12 million illegal residents, let more in
By Howard Fischer
CAPITOL MEDIA SERVICES
PHOENIX — Local and national business groups are paying for a media campaign — launched Wednesday in Arizona — to convince voters this country has done enough to secure the border.
Instead, backers say the U.S. now needs to legalize the 12 million or more undocumented immigrants already here and consider allowing more foreigners into the country.
The group, Mexicans and Americans Thinking Together, plans to spend "several hundred thousand dollars" on TV ads in four states. Jim Pignatelli, president and chief executive officer of UniSource Energy Corp., the parent of Tucson Electric Power, said it's time to move the debate along and find ways to help businesses get the workers they need.
Pignatelli said the best place to start is with those already here. "You can't ignore 10 to 12 million people who are trying to make a living, who are undocumented," he said.
Pignatelli said if they could somehow be deported "it would take years for another 10 to 12 million to come in" to fill the jobs they are doing now.
"These people are providing valued services to the economy," he said.
The commercial says there have been "incredible strides" made in border security, the number of deportations is up and there are stronger penalties against employers who hire undocumented workers. Glenn Hamer, president of the Arizona Chamber of Commerce and Industry, said those accomplishments are fine, as far as they go.
"We need to finish the job on immigration reform at the federal level," he said. That means not just legalizing those already here but ensuring employers can bring in more foreign workers, he said.
"It is an extraordinary benefit, not a burden, that people from all over the world who are bright and hardworking want to come to the United States, want to come to Arizona, improve their lives and improve the prosperity for all Americans," he said.
But the effort to reshape the debate comes as many incumbent federal lawmakers and those hoping to unseat them in November are appealing to voters by promising to do more to stop the flow of illegal immigrants into Arizona.
Even Sen. John McCain, who sponsored a comprehensive immigration-reform bill last year that included a path to citizenship for illegal immigrants, has backed away from his own plan since announcing his bid for president, acknowledging the public wants more done to secure the borders before any talk of immigration reform.
But former Congressman Henry Bonilla, a Texas Republican who is spokesman for the business group, said that ignores what has happened in the last few years, including more Border Patrol officers and more arrests.
"Major progress has been made," said Bonilla who served in the U.S. House of Representatives for 14 years. "So I think those who have been concerned about that can say, 'OK, we've made progress.' Now can we bring this back to the table and try to move forward?"
Pignatelli said he's not trying to shift the focus away from securing the border but simply recognizing the economic need.
"We need nurses, we need trained people, which we're not able to produce out of our own work force," he said.
If nothing else, Pignatelli said providing legal status to undocumented immigrants makes sense.
"I'd like to see them all on paper so we know who they are, what they're doing and everything is proper, tax-wise," he said. Pignatelli said that also addresses concerns illegal immigrants and their children are a financial burden on schools, hospitals and government.
"Once you've provided the appropriate papers to people and put them into where they're in a taxpaying situation and their employer has to provide for the same levels of taxation that you would for any other employee, then you start to cover some of those costs," he said.
Hamer said the claim of great progress in punishing employers who knowingly hire undocumented workers is not undermined by his organization's effort to kill Arizona's employer-sanctions law. The chamber is a plaintiff in a lawsuit to overturn that law.
"We do support penalties against employers who knowingly hire illegal workers," Hamer said. He said the chamber's position is this should be handled only at the federal level.
But the chamber specifically objects to the fact state penalties — which include suspension or revocation of the right to do business — are far stiffer than the civil fines meted out for federal violations.
Sheridan Bailey, owner of an iron-fabricating company in Phoenix, said the desire for more foreign workers is not simply a question of companies wanting people willing to work cheap, contending there aren't enough workers within the borders of the United States to solve the problem.
Cleanup spurs labor need
Undocumented workers will be linchpin in efforts
By JENALIA MORENO and SUSAN CARROLL Copyright 2008 Houston Chronicle
Sept. 25, 2008, 7:12AM
All across southeast Texas, roofs need repair, debris must be discarded and towns hope to rebuild.
Hurricane Ike's destruction is sparking one of the largest rebuilding efforts the state has seen in decades, but at the same time is highlighting a thorny facet of the region's labor force: A lot of the recovery work will be done by illegal immigrants.
Homeowners have already turned to day laborers — many of whom are undocumented — to help clear brush, tent roofs and repair other storm damage. Contractors have hired them to rebuild or restore businesses and the city's infrastructure.
And the major work of rebuilding small towns along the Gulf Coast or big homes in Galveston will likely be aided by undocumented workers.
But this tug and pull of the labor force highlights an uneasy dilemma: The region needs the muscle of undocumented immigrants, but simultaneously is a cog in a broader crackdown of illegal immigrants at worksites.
"There's just no mechanism in place right now to provide those important laborers work authorization," said Leigh Ganchan, a Houston immigration attorney with Haynes and Boone. "It's a shame that employers can't tap into a whole segment of society that's willing and capable to provide those services. Our nation is more vulnerable than it would like to admit, I think. Vulnerable, meaning we need people to help us rebuild our infrastructure after major disasters like this."
Carlos González, Mexico's consul general in Houston, expects the area's existing immigrant population will do the rebuilding work, a key difference with what happened post-Katrina. New Orleans experienced an influx of Hispanic immigrants because it did not have as large of an immigrant population as Houston.
"You will find the immigrant community — as they always have — will play a very big role," said Laura Murillo, president of the Houston Hispanic Chamber of Commerce.
However, Americans devastated by the storm should have the option of doing the rebuilding, said Ira Mehlman, spokesman for a Washington, D.C.-group that seeks to stop illegal immigration.
"Those people should have first crack at the reconstruction jobs," said Mehlman with the Federation for American Immigration Reform. "I'm sure there are an awful lot of people who can use the jobs and use the paychecks to get themselves back on their feet."
The looming demand for immigrant labor for rebuilding efforts illustrates how dependent Texas industry and commerce are on undocumented workers.
According to a 2006 study by the Greater Houston Partnership, construction is the largest employer of undocumented workers in the city, employing nearly 36,000 people.
"The storm hasn't done anything but point out again how badly these workers are needed and how much they contribute," said Angela Blanchard, president and chief executive officer of Neighborhood Centers Inc.
Chase Duhon, with an Austin-based company that contracted to remove brush and debris across Houston, said he's having trouble finding legal local workers to help with hurricane cleanup. He posted an ad online to find more workers.
"We don't hire anyone who's illegal," said Duhon, a Houston native. "We want to keep it local. We want to use people here in Texas, but there's so much work, there are people coming from Michigan and Massachusetts."
Paralyzed by politics, immigration reform has yet to be approved by Congress despite years of hot debate. Supporters of reforms — such as a guest worker program — say storms like Ike prove how hard it is for employers to fill certain jobs.
"We need the labor. These people want to work," said Norman Adams, co-founder of Texans for Sensible Immigration Reform and president of Adams Insurance Service. "I don't think anybody has enough workers here."
Adams said the contractor repairing his water-damaged office building in the Heights area after the storm hired immigrant workers.
Honduran immigrant Esteban Valle, 49, said construction work has picked up since Ike hit.
"I think there's more work," said Valle, a legal permanent resident who previously lived in Dallas. "But it's easier for me because I have papers."
At one of the city's most popular day labor sites, the competition was stiff, with those skilled in trades like roof repair and hanging plaster wallboard often getting picked first.
"It's difficult because we don't have papers, and there are so many people," said 22-year-old Emanuel Hernandez, an undocumented immigrant from southern Mexico, gesturing to three dozen men gathered at the corner of Shepherd Drive and 11th.
Staff writer Jim Pinkerton contributed to this report.
Disparity in denied asylum
Data show two county judges denied asylum more than others in U.S.
By EUGENE PAIK
Daily Record/Sunday News
Article Last Updated: 09/21/2008 03:04:12 AM EDT
From fiscal years 2002 to 2007, immigration judges in York County denied asylum to three out of every four refugees, according to an analysis of more than 200 immigration judges in the country.
The average rate in the nation? About three out of five. The data, compiled by the Transactional Records Access Clearinghouse, showed the frequency of asylum denials varied widely nationwide, sometimes within the same court.
It doesn't reflect the current lineup on the local immigration bench, however. One of York's judges moved to the Atlanta immigration court in 2006; her replacement arrived in 2007, and an additional judge was added to the county early this year.
The two York County judges analyzed in the report each denied asylum at a higher rate than the national average -- combined, their denials were 18 percent higher than the average. Several attorneys who have tried cases in the local court struggled to pinpoint a major reason why it was so much higher.
Judge Grace A. Sease, the immigration judge who decided cases in York until 2006, denied asylum in nearly 90 percent of her cases.
Several attorneys declined to comment about Sease's tenure in York because they have pending cases with her. They praised Judge Walter A. Durling, Sease's colleague in the county's immigration court. Durling, who has been in York since 1997, denied asylum in about 71 percent of his cases. The attorneys said Durling's rate might be a better indication of what percentage of asylum seekers needed to stay in the country.
"He considers the evidence that's in front of him," Philadelphia lawyer Doug Grannan said. Harrisburg attorney Craig Shagin agreed. When Durling rules against asylum, he said, "he's not doing it because he's enjoying it. He's doing it because it's the law."
Sease and Durling did not respond to the comments. According to the Executive Office for Immigration Review, the U.S. Department of Justice office that runs the courts, immigration judges must adhere to a strict no-interview policy.
Chinese refugees formed the largest group of asylum seekers who appeared before Durling and Sease during the study. They were responsible for almost 12 percent of Durling's caseload and 21 percent of Sease's, according to TRAC's statistics.
Haitians and Nigerians also appeared frequently before both judges. The judge who replaced Sease, Andrew R. Arthur, did not review enough asylum requests in York to be included in TRAC's analysis. The position is Arthur's first immigration court appointment, according to the county immigration court.
Jeffrey L. Romig, most recently from Los Angeles, was transferred to the county early this year. Only his track record from the Los Angeles immigration court - an 81 percent denial rate - was included.
With those judges being so new, the attorneys said they couldn't give an informed opinion of them. Shagin said the difference between the county's denial rate and the nation's might be related to cases of those detained in York County Prison.
Detained immigrants are in a stressful situation, so they might be less willing to talk. If immigrants don't cooperate, judges might miss some facts that could result in them granting asylum, he said.
The constant stream of new detainees leaves little time for the judges to prepare for each case and understand each person's background, he said.
Shoba Sivaprasad Wadhia, the director of the Center for Immigrants' Rights at Penn State's Dickinson School of Law, said she hasn't studied the county's situation, but said Shagin's view made sense.
When judges are crunched for time, she said, it's natural that some cases won't receive their full attention. Another issue, Shagin said, is that the trauma of detention could prevent asylum seekers from finding adequate legal representation.
About 20 percent of the asylum seekers who appeared before Durling did not have an attorney, and about 23 percent in front of Sease were without representation, the data showed.
Nationally, almost 8 percent of asylum seekers did not have an attorney. TRAC believes it has a clue why the range of the nation's asylum denial rates is so broad. The group speculated that the temperament of the judges impacts their decisions. The nationalities of the asylum seekers and the availability of legal representation are also influences, the group said.
TRAC acknowledged the speculation was based solely on the statistical research. If temperament wasn't a factor, TRAC said, shouldn't the decisions be more consistent and the disparity more narrow? The data shows that judges in the same court, who see asylum seekers of similar nationalities, can be far apart in their rulings.
The group said it believes that is evidence the immigration court system needs an overhaul. "That's not the way it's supposed to be," said David Burnham, co-director of the Syracuse University-based research group.
EOIR contends that a statistical analysis like TRAC's research is flawed because it did not delve into each case. The numbers do not reflect all the complexities that go into an asylum decision, the office said in a fact sheet that was published on its Web site.
"It is therefore important that any statistical analysis acknowledge these variables and not draw comparisons between substantially different cases," it said.
The disparity among courts nationwide could be affected by judges too inexperienced to sort out the legitimate claims, Shagin said. The skill of identifying the liars is developed after years of exposure to immigration cases, he said.
For instance, he said, one of the most obvious signs of a false claim is if the person is not afraid of being in court.
But mixed with the liars are those who could face death or torture in their native countries, York attorney Craig Trebilcock said.
"I wouldn't take their job for a million dollars," he said of being an immigration judge. "Every day, they make a life and death decision, and every day, they're lied to."
Wadhia said she wants to see the federal government require judges have a background in immigration law. She said she believes that "training on the front end" is crucial, especially with what she called flaws in the administrative body responsible for ensuring the fairness in immigration rulings.
In 2002, the federal government instituted a series of reforms to clear a backlog of cases in the Board of Immigration Appeals.
The board moved away from three-member panel assessments on all appeals, and individual members were charged with screening them first.
As a result, Wadhia said, the board issued thousands of single-member decisions that were not accompanied by written opinions.
"Nationally, there is a real need for reform in immigration courts," Wadhia said. "To me, the solution is broader than a couple of judges."
The federal government has tried to shore up the courts, especially after a scandal in the Department of Justice that resulted in the politicized hiring of immigration judges, Burnham said.
Former U.S. Attorney General Alberto Gonzales pledged in 2006 to hire more immigration judges and reform the process, but Burnham said, as of July 5, about 11 percent of the immigration bench is still unfilled.
According to EOIR, the office has met or is taking measures to meet the changes in Gonzales' proposal. It expanded training for judges from two weeks to five and improved reference materials, the office said in a fact sheet released Sept. 8. It also created procedures to identify cases involving questionable judge conduct.
At the very least, Grannan said, TRAC's data has raised some important questions. "When you see those numbers, you wonder," he said.
The immigration court system, the U.S. Department of Justice's Executive Office for Immigration Review, is independent from the federal Bureau of Immigration and Customs Enforcement.
ICE, part of the federal Department of Homeland Security, enforces immigration laws. The courts decide if someone can stay or should be deported.
The two immigration courts in Pennsylvania are in York and Philadelphia.
Decisions made in the courts can be appealed to the Board of Immigration Appeals, and can be sent even higher to federal appeals courts and to the U.S. Supreme Court.
There are more than 200 immigration judges and more than 50 courts nationwide. Three judges are in York County: Andrew R. Arthur, Walter A. Durling and Jeffrey L. Romig.
On the web
The EOIR's Web site is www.usdoj.gov/eoir/
WHAT IS TRAC?
The Transactional Records Access Clearinghouse (TRAC) is a data research organization based at Syracuse University that tracks the activities of the federal government.
It uses the federal Freedom of Information Act to obtain data about enforcement and regulatory activities, according to the group's Web site. It also verifies and analyzes the information.
The group is directed by Susan Long, a statistician and professor at Syracuse University, and David Burnham, an investigative writer and former New York Times reporter.
You can view the most recent asylum denial rates across the country at:
By David Bacon
The Nation, October 6, 2008
[Courtesy of the author]
Research support for this article was provided by the Puffin Foundation Investigative Fund at The Nation
TUCSON, AZ (9-17-08) -- A special Federal District court convenes every day at one PM in Tucson. All the benches, even the jury box, are filled with young people whose dark brown skin, black hair and indigenous features are common in a hundred tiny towns in Oaxaca or Guatemala. Their jeans, tee shirts and cheap tennis shoes show the dirt and wear from the long trek through north Mexico, three days walking across the desert, and nights sleeping at the immigration detention center on the Davis Monthan Air Base.
Presiding over one court session in June, Judge Jennifer Guerin called these defendants before her in groups of eight. They walked up in tiny waddling steps, heavy chains binding their ankles and wrists to their waists. Judge Guerin recited a litany of questions, translated into Spanish through headphones. "You've been charged with illegal entry, a criminal offense...at trial you would have the subpoena power of the court...you have certain rights," she intones. At the end she asks anyone who doesn't understand to stand up. No one does. She asks if they plead guilty. After a moment in which her question is translated, seventy voices mumble "Si."
Leaving the courtroom a young woman stumbles, eyes streaked with tears. A public defender tells the judge her feet are covered with blisters from walking through the wilderness. A boy looking no older than 13 or 14 searches the room with his eyes as he's led away, perhaps seeking a friend or relative. No one seems older than 30, and most are much younger. They are today's border crossers - the mostly-indigenous youth of southern Mexico and Central America.
They all plead guilty to a Federal criminal charge. Sentences run from time served to six months in a Federal lockup run by Corrections Corporation of America.
According to the Spanish news agency EFE, this new court process, dubbed Operation Streamline, convicted 5187 migrants from January 14 to June 10 of this year. Isabel Garcia, who heads Derechos Humanos, a leading immigrant rights organization in southern Arizona, says the current daily quota of 70 chained defendants will soon be raised to 100 - 50 tried on one shift, and 50 on another. Twenty-one new federal prosecutors will handle the surge, with CCA detention facilities to house it.
A new bureaucracy is growing rapidly, thanks to drastic changes in immigration enforcement. In past decades, migrants were treated very differently when caught without papers. They were allowed to leave voluntarily, or deported after being found guilty of an administrative infraction, the equivalent of a parking ticket.
Today's migrants have become criminals. The features pioneered in Tucson's courtroom - serious Federal criminal charges, mass trials of defendants in chains, and incarceration - are becoming standard features of immigration raids from Postville, Iowa, to Los Angeles, California. State laws now supplement Federal statutes, and Federal, state and local authorities cooperate closely to bring a large variety of criminal charges against migrants.
Working without papers has become the most serious crime of all. The vast increase in workplace raids under the Bush administration, however, is motivated by more than a zeal for enforcing the law, or even placating the nativist wing of the Republican Party. Enforcement is part of a pressure campaign designed to win passage of immigration reform centered on guest worker programs.
In November, 2006, 1282 workers were detained by hundreds of heavily armed ICE agents in military garb at six Swift and Co. packinghouses. Homeland Security Secretary Michael Chertoff then told reporters that raids would show Congress the need for "stronger border security, effective interior enforcement and a temporary-worker program.'' Bush wants, he said, "a program that would allow businesses that need foreign workers, because they can't otherwise satisfy their labor needs, to be able to get those workers in a regulated program."
This spring, in a New York Times interview, Chertoff elaborated: "We are not going to be able to satisfy the American people on a legal temporary worker program until they are convinced that we will have a stick as well as a carrot." His carrot is the prospect of massive contract labor programs for business. The sticks are the chains in the Tucson courtroom.
According to Garcia, each day's defendants are less than 10 percent of those picked up on the Arizona border. "They're making an example of them to create a climate of fear," she charges. "We are a laboratory. The model they're developing in Arizona is coming everywhere."
Garcia's warnings have made her a target of rightwing talk radio hosts, who routinely urge listeners to call the county executive to get her fired from her job as a public defender. But in Postville, Iowa, where Tucson's assembly-line justice was transplanted virtually intact, her warning was accurate.
On May 12 Immigration and Customs Enforcement (ICE) agents swooped down on workers at the Agriprocessors meatpacking plant. Twenty minutes after the shift started, Maria Rosala Mejia Marroquin saw people running past the line where she stood cutting up chicken breasts, shouting that the migra was in the plant. She ran too, and in a dark warehouse tried to squeeze between huge boxes. "Men came in with flashlights. One pointed a gun in my face, shouting 'No one will escape!'" she remembered. When she was interrogated, she told agents she had a daughter in childcare, but lied to keep them from knowing where the babysitter lived, fearing she'd be picked up as well. Agents finally strapped an electronic monitoring device onto her ankle, telling her she had to wait for a hearing.
Her brother Luz Eduardo was taken with 388 others to the National Cattle Congress, a livestock showground in Waterloo, two hours away. In a makeshift courtroom they went in chains before a judge who'd helped prosecutors design Tucson-style plea agreements five months before the raid even took place. In order to get a job at Agriprocessors, workers had given the company Social Security numbers that were either invented, or belonged to someone else. The judge and prosecutor told workers they'd be charged with aggravated identity theft, which carries a two-year prison jolt, and held without bail. If they pleaded guilty to misusing a Social Security number, however, they would serve just five months, and be deported immediately afterwards.
"They told [my brother] if he signed the papers they'd deport him, but it was a lie," Mejia says. "He didn't know he was agreeing to criminal charges, and now he's been in prison in Kansas for months." Translation into Spanish was provided, but according to Elida Tuchan, who was also arrested, about half the detainees speak only Cachiquel, an indigenous language from San Miguel Dueñas, their Guatemalan hometown. "They felt terrorized, that everything was against them. They didn't understand anything about the process or their rights."
To the workers, deportation became desirable. Anacleta Tajtaj was also braceleted, while her husband was deported and three brothers went to prison. "Our family in Guatemala was eating because of us. Now they'll go hungry," she lamented. It cost them each 33,000 quetazales (about $4000) to get to the U.S., a huge sum in San Miguel Dueñas, requiring them to mortgage homes and farms. "Now we just want to go back. Everything here is a crime - all the normal things like working." Tajtaj and the other women can't go home yet, however. Three months after the raid they didn't even have dates for their first hearing.
"They can't work, they have no way to pay rent or buy food, their husbands or brothers are in prison or deported, and they're being held up to ostracism in this tiny town," says Luz Maria Hernandez, who heads the support network for 48 braceleted women at Postville's St. Bridget's Catholic Church. "This is a form of psychological punishment."
Ostracism has become a common element of workplace raids. Women released for so-called humanitarian reasons to care for children become isolated and dependent on friends and relatives. In Los Angeles,, women braceleted after a raid at the Micro Solutions electronics plant on February 7 were shunned by their own roommates, who left them and their children facing eviction. A challenge by the Coalition for Humane Immigrant Rights in Los Angeles finally won removal of the bracelets after three months, but the support network of immigrant rights groups is not as strong in northern Iowa.
Workplace raids are sweeping the country. According to Secretary Chertoff, "arrests in worksite cases have jumped from a total of 850 in 2004 to 4,940 last year, including 863 arrests based on criminal charges." From January 1 to May 31, 2008 alone, ICE had arrested 3000 people for immigration violations, and 875 more on criminal charges.
In June among those arrested were 160 workers at Action Rags in Houston, 32 farm workers for Boss 4 Packing in Heber, California, and nine workers at water parks in Arizona. In May "cops and guns and badges and everything" were used to detain 16 workers at San Diego's French Gourmet bakery, according to Rod Coon, company vice-president. The same month, 25 construction laborers were picked up in Florida working on the Lee County Jail. April saw raids detaining 28 landscapers in El Paso, 24 construction workers in Little Rock, 63 taco makers at El Balazo restaurants in the San Francisco Bay area, 22 restaurant workers on Maui, 33 laborers on the federal courthouse project in Richmond, Virginia, 20 workers at Shipley's Do-Nuts in Texas, and 45 workers at a Mexican restaurant chain in several states.
This two-month snapshot is an incomplete count of smaller worksite enforcement actions, which go on constantly, along with frequent raids on street-corner day laborers. But in addition to Postville, large raids have also become much more frequent.
Worksite enforcement, in turn, is used to dramatize Bush reform proposals that come from some of the country's largest corporations. In 1999 a group of corporate trade associations, in industries employing large numbers of immigrant workers, formed the Essential Worker Immigration Coalition because U.S. industry, it said, faced a huge labor shortage. "Part of the solution," EWIC announced, "involves allowing companies to hire foreign workers to fill the essential worker shortages."
The group, headed by the US Chamber of Commerce, includes the American Meat Institute, the National Association of Chain Drug Stores (Wal Mart, among others), the National Council of Chain Restaurants, and other industry associations. While EWIC doesn't contribute money directly to political campaigns, any politician its lobbyists visit know EWIC member industries give plenty. In the 2000 election cycle, for instance, the meat processing industry gave $1,292,877 -- $145,520 to Democrats and $1,143,107 to Republicans. So far in 2008, the restaurant industry has already given $7,361,945 ($2,918,797 / $4,427,704).
In an August 2001 letter to Bush, EWIC argued for "a temporary worker framework that provides a role for such workers whose labor is needed in the US." A 2002 Cato Institute report, authored by Daniel T. Griswold, said "the experience of the bracero program demonstrates that workers prefer the legal channel." A huge temporary visa program "should be created that would allow Mexican nationals to remain in the United States to work for a limited period." EWIC and its member associations immediately greeted the report. The National Restaurant Association warned that restaurants faced "a worker shortage of 1.5 million jobs," and said the plan "would give employers greater opportunities to fill these jobs."
The Bush administration issued its own proposals a year and a half later, and they were identical to those in the report. Cato's ties to the media helped guest worker proposals achieve greater legitimacy. When the Institute asserted that industries face a tremendous labor shortage, rather than a corporate unwillingness to pay higher wages to attract workers, much of the media treated it as fact. Cato and EWIC members shared an aversion to minimum wages. Rob Rosado, director of legislative affairs for the American Meat Institute, said "We don't want the government setting wages [in guest worker programs.] The market determines wages."
EWIC's ideas were embraced by Democrats as well as Republicans. The McCain/Kennedy, Hegel/Martinez and STRIVE bills all shared a similar architecture. They established large guest worker programs, allowing corporations and contractors to recruit hundreds of thousands of workers a year outside the country, on temporary visas that would force them to leave if they became unemployed. To force workers to come only as guest workers, and to stay in the program once they were in the U.S., the bills all mandated a tighter border to make crossing without papers more difficult, and beefed-up employer sanctions to make it impossible to hold a job without a guest worker visa.
In the bracero program of the 1950s and early 1960s, many workers simply remained in the U.S., working under the table until they found a way to get a permanent visa. Many workers in current guest worker programs also stay in the country as undocumented immigrants, even though getting permanent status has become almost impossible. The enforcement provisions sought to cut off that option.
"Enforcement is not an issue you can separate from guest worker programs," says Mary Bauer, director of the Immigrant Justice Project at the Southern Poverty Law Center. An SPLC report, Close to Slavery, documents extensive abuse of workers in current programs, and the benefit to employers of a workforce with few rights, whose vulnerable status makes organizing to raise wages difficult. "Immigration enforcement is structurally necessary for these programs," she explains.
Most comprehensive bills also contained legalization provisions for currently undocumented people, but would have imposed fines and long waiting periods from 11 to 18 years, during which time applicants would be as vulnerable as ever. Employers, however, would be immune to employer sanctions for employing them, while recruiting new workers through guest worker programs.
A much more liberal immigration bill sponsored by Congress member Sheila Jackson Lee and members of the Congressional Black Caucus was dismissed as "politically unrealistic" because it contained no guest worker program. EWIC anchored an alliance with immigration lawyers, establishment civil rights organizations and several unions. John Gay, representing the National Restaurant Association in EWIC, became board chair of the National Immigration Forum, a powerful mainstream immigration lobbying group in Washington. Tamar Jacoby, former staffer at the rightwing Manhattan Institute, was one of the coalition's most prominent spokespeople. Today she has organized a new corporate lobby, ImmigrationWorks, that includes EWIC, National Council of La Raza, the National Restaurant Association, and the U.S. Chamber of Commerce. One key affiliate, the Federation of Employers and Workers of America, calls itself "the national voice of the existing legal guest worker programs," and represents industry associations that push for them.
After Congress failed to pass a guest worker/enforcement/legalization package, the administration began to implement its enforcement proposals through increased raids. "But we would have had raids with those bills too, because of their enforcement and funding provisions," says Marielena Hincapie, executive director of the National Immigration Law Center.
The administration also used the bills' failure as a pretext for relaxing restrictions on current guest worker programs. ICE Director Julie Myers told the Detroit Economic Club in April that "the administration has both streamlined the H2-A [agricultural guest worker visa] application process and has given U.S. employers more flexibility... These changes will make it easier for agricultural employers to hire foreign temporary or seasonal labor to harvest crops." It also allowed employers seeking H2-B guest workers to simply "attest" that they'd tried to find local workers, rather than have the Department of Labor certify that they'd made a real effort.
The Southern Poverty Law Center, the AFL-CIO and immigrant rights groups have bitterly opposed these changes. Employers have generally supported them. "We see employers on the Hill all the time, saying they have to have guest workers. At one hearing they had to open extra rooms to accommodate all the lobbyists," Bauer fumes. "And support is coming, not just from Republicans, but from Democrats like Barbara Mikulski, Zoe Lofgren, Ted Kennedy and even John Conyers."
Making it a crime for an undocumented person to hold a job is made possible by the Immigration Reform and Control Act, passed in 1986. Prior to that, workers could be deported for being in the U.S. without a visa, but working itself was not a crime. The then-Immigration and Naturalization Service conducted some workplace raids, but immigrants were either forced to leave the country voluntarily, or held for deportation hearings. They could make bail.
In the late 1970s, the INS and others began seeking laws to make it illegal for people without papers to work, and for employers to hire them. They argued that if people could not work legally, they would leave. The INS campaigned for passage of IRCA (then the Simpson-Mazzoli and Simpson-Rodino bills), with a wave of raids called Operation Jobs. Agents would arrest workers in a factory, and go to the local unemployment office to hold a press conference. With reporters and unemployed workers in tow, they'd return to the raided factory, claiming they'd "created" jobs. They would then demand that Congress pass sanctions.
Raids became more difficult after the INS was sued by Molders Union Local 164 and the Mexican American Legal Defense and Education Fund in the early 1980s. After the suit was won, agents had to stop their practice of locking workers in a factory, interrogating foreign-looking people about their legal status, and instead were required to have warrants naming specific individuals.
Then IRCA's passage made it a federal offense for an employer to hire someone without immigration papers, and for that person to hold a job. Job applicants now have to provide two pieces of identification to show their status, and a Social Security number. By inspecting employer hiring records, INS agents can come up with the names of workers to put on warrants for a raid.
Immigrants didn't go home, however. Defenders of sanctions ignored the ongoing displacement of people by structural adjustment programs in Mexico and other developing countries, reinforced by the passage of the North American Free Trade Agreement. In the NAFTA years, over six million Mexicans came to live in the U.S. Since relatively few visas are available for legal immigration, most came without them.
Although Bush officials claim worksite enforcement hardly existed before the present administration, the current wave actually started in the Clinton era. The Social Security Administration began sending letters to employers listing employees' names and numbers that didn't match SSA records. Employers were then left free (and often encouraged) to assume that the reason for the mismatch was that the workers were undocumented. After numerous employers used the letters to fire activist workers during union campaigns, unions and immigrant advocates convinced SSA to include language in the letters warning employers not to construe a mismatch as evidence of lack of immigration status. Nevertheless, although no count has ever been made, thousands of undocumented workers have lost their jobs because of the letters.
In 1999, using Social Security numbers in Operation Vanguard, INS agents sifted through the names of 24,310 workers in 40 meatpacking plants throughout Nebraska. They then sent letters to 4,762, demanding they report to INS agents at their jobs. A thousand did, of whom 34 were arrested and deported. The rest, over 3500 people, were forced to find new jobs. One of Operation Vanguard's architects, INS Dallas District Director Mark Reed, claimed success, saying the operation was really intended to pressure Congress and employer groups to support guest worker legislation. "We depend on foreign labor," he declared. "If we don't have illegal immigration anymore, we'll have the political support for guest workers." Reed and the INS also conducted more traditional raids during those years, seizing workers for deportation at Nebraska Beef, Montfort Packing, Tyson Foods, and other plants.
Social Security grew so uncomfortable with the use of its database for immigration enforcement that after Operation Vanguard the agency refused to make it available for similar operations in other states. Today, however, ICE seems to have regained access to the files, and now uses mismatches to identify workers for raids, and to charge them with criminal offenses. Meanwhile, the money paid by undocumented workers under bad numbers reached $586 billion in 2006. Since those workers may never collect benefits based on those earnings (which go into the Earnings Suspense File), they are contributing a huge subsidy to the retirement of all Social Security recipients.
Worksite enforcement actions accelerated enormously after George W. Bush took office. Following the 9/11 attacks, raids dubbed Operation Tarmac targeted airports around the country, leading to the firing and deportation of hundreds of mostly food service workers. After the creation of the Department of Homeland Security, the new Bureau of Immigration and Customs Enforcement (ICE) took over from the old Immigration and Naturalization Service, and more raids followed.
The administration used worksite enforcement actions to dramatize its call for comprehensive immigration reform (the shorthand name given by Washington groups to the bills combining guest workers, increased enforcement and legalization). On April 10, 2006, the first huge immigrant rights march took place in Los Angeles, protesting House passage of the Sensenbrenner bill (HR 4437) the previous December, which would have made undocumented status a federal felony. On April 19, 1187 workers were arrested at plants of IFCO Systems North America, Inc. in New York, Texas, Wisconsin and Massachusetts. Then in December, after the Senate passed an immigration bill more in line with administration proposals, ICE mounted probably the largest workplace raid in U.S. history, detaining 1282 workers at six Swift and Co. packinghouses.
The administration's drive was dramatized by other large-scale, highly publicized worksite sweeps. They included the arrest of 81 plastics workers at Iridium Industries in Poconos, Pennsylvania, 136 chicken workers at George's Processing in Missouri, 165 workers at Portland's Fresh Del Monte produce plant, 327 workers at the Michael Bianco leather factory in New Bedford, and 200 janitors for Rosenbaum-Cunningham International in 17 states.
Once the comprehensive reform proposals died in Congress in 2007, more major raids followed, including two at the Smithfield pork slaughterhouse in Tarheel, North Carolina, which took place in the middle of one of the country's longest and hardest-fought union organizing campaigns. In addition, 130 immigrants were arrested at Micro Solutions in Van Nuys, dozens at a Fresh Direct produce warehouse in New York City, and 161 poultry workers at Koch Foods in Ohio. Just before the Postville raid, 311 workers were detained at Pilgrim's Pride plants where they cut up chickens for KFC.
As early as the IFCO raid, some workers and low-level supervisors were charged with criminal violations, not just being in the country illegally. At Swift the administration began to shape its new strategy of substituting criminal charges for status violations. Some 65 of the workers arrested there were charged with identity theft or other criminal offenses, as were the workers picked up at Smithfield. Barbara Gonzalez, an ICE spokesperson, told reporters outside one Swift slaughterhouse that "we have been investigating a large identity theft scheme that has victimized many U.S. citizens and lawful residents." ICE head Julie Myers told other reporters in Washington, D.C. that "those who steal identities of U.S. citizens will not escape enforcement."
Dramatic identity-theft charges were intended to gain public support for the raids and the bills in Congress, but ICE was also announcing a new strategy for criminalizing work.
ICE claims that raids and sanctions protect wages against employers' use of undocumented labor. A week after the Postville raid, ICE Director Myers claimed enforcement targeted "unscrupulous criminals who use illegal workers to cut costs and gain a competitive advantage." An ICE Worksite Enforcement Advisory claims "unscrupulous employers are likely to pay illegal workers substandard wages or force them to endure intolerable working conditions. ... ICE's Worksite Enforcement Unit also helps employers improve worksite enforcement of employment regulations."
Actual enforcement of labor standards, however, is in freefall. On July 15 the Government Accountability Office charged that Department of Labor inspectors routinely fail to investigate complaints, and close half of them after short calls to employers. From 1997 to 2007, the number of inspectors dropped from 942 to 732, and the number of cases went from 47,000 to 30,000, the lowest since World War Two. Meanwhile, the budget for the Border Patrol has climbed to $1.6 billion, while 15,000 agents make ICE the second-largest investigative agency in the Federal government.
The affidavit supporting ICE's search warrant for the Postville plant stated a source saw a supervisor "duct-tape the eyes of an undocumented Guatemalan worker shut and hit the Guatemalan with a meat hook, apparently not causing serious injuries. The Guatemalan did not want to report the incident because 'it would not do any good and could jeopardize his job.'" Although ICE would not identify the beaten worker or confirm his detention, it is probable that after the raid he was in Federal prison, while the supervisor continued working. The Iowa Labor Commissioner documented 57 cases of child labor at Agriprocessors and filed 9000 child labor charges against the company. Some of the 57 young people are now undoubtedly in prison or wearing electronic ankle bracelets. Although some may get temporary visas as witnesses, all will eventually be deported.
Despite ICE claims that raids protect labor standards, enforcement often helps employers attack efforts by undocumented workers to better conditions. The two raids at Smithfield's Tarheel, North Carolina, packinghouse created a climate of terror during the union organizing drive, according to organizers. When housekeepers at the Woodfin Suites in Emeryville, California, tried to enforce a new municipal living wage law, ICE investigated them at the request of Congressman Brian Bilbray (R-San Diego), and company president Samuel Hardage. According to Mejia, supervisors often used immigration status to threaten workers in a union drive at Agriprocessors a year before the raid. And at Pilgrim's Pride packing plants ICE and employers cooperated to arrest employees this spring.
After the first Smithfield raid in January, 2007, Mark Lauritsen, UFCW packinghouse director, said the Department of Homeland Security and the company "were worried about people organizing a union, and the government said, 'here are the tools to take care of them.'" Scott Frotman, spokesperson for the United Food and Commercial Workers, says "raids let companies drive down wages and working conditions." To NILC's Marielena Hincapie, raids show the employers' power: "Enforcement intimidates even citizens and legal residents. The employer brings in another batch of workers and continues business as usual. People who protest get targeted and deported."
Employers, while complaining about the inconvenience of raids, have been very willing to accept greater enforcement. American Meat Institute chair and Tyson Foods CEO Dick Bondhas supported the Bush plan "because it included some of the provisions that AMI and the industry really want: a path to legalization, a guest worker program and a better employee verification program."
Nan Walden, a former Democratic Congressional aide who owns a large pecan ranch near Tucson, and helped organize Arizona Employers for Immigration Reform, worries that "removing 9-12% of the workforce will be a disaster." She advocates a "humane" guest worker program, a verifiable identification system, a path to citizenship for undocumented people, and "market-based quotas" for future migration. She criticizes Arizona's sanctions law, however, for its "piecemeal approach." While she's "disturbed by the hatred stirred up by opponents of immigration," Walden warns that without a reform like the one she describes, employers will move operations out of the state and country. "Raising wages isn't the answer, because our costs are all going up, and we still have to be competitive."
Criminalizing work has helped ICE gain the involvement of state and local authorities. Last year Arizona passed bills requiring state employers to use the E-Verify system to ensure they were not hiring the undocumented. Employers must verify an applicant's immigration status with a database, that DHS said in 2006 "is still not sufficiently up to date to meet the ... requirements for accurate verification." The original bill would have punished any employer with an undocumented employee, but after employers protested, the law was changed so that they would be fined only for future hiring.
E-Verify makes undocumented workers more vulnerable. One woman employed in a Tucson bakery, who withheld her name, explained she was getting only $10/hour for tending the oven, while legal residents were getting $16 for the same job. "If I leave or get fired, how will I find another job with a bad Social Security number?" she wondered. A Tucson union organizer, also afraid to be identified, added that construction workers told her that contractors lowered wages from $18 to $10/hour after the law passed, and told them to bring their own tools to the job. She described rising unemployment, with workers leaving for other states. "It's not going to stop us from organizing the union," she said, "but it will certainly make it harder."
In March Arizona state police arrested 14 employees at a Tucson Panda Express restaurant for mismatching Social Security numbers. After the state prosecutor threatened felony identity theft charges, carrying long prison sentences, workers pleaded guilty to lesser charges and were sentenced to time served. Nevertheless, in June they were still in jail, four months after the raid. As in Postville, deportation became a desirable outcome that would free them from incarceration. Francisco Mondaca, the only one able to get bail, pleaded guilty to "impersonating a Panda worker." He says "I didn't hurt anyone. I filed W-2s and paid taxes. All I did was go to work."
After the raid Panda Express fired all its Arizona workers, according to one terminated employee, and brought in a new workforce. "The company knew we didn't have papers," he said. "Managers would talk about it." No action was taken against company management.
Over a dozen states now have some version of employer sanctions, and Colombia County in Oregon has put a local sanctions ordinance on the ballot. On March 17, Mississippi Governor Haley Barbour signed SB 2988, which requires employers to use E-Verify, and gives them immunity for hiring undocumented workers if they do. An undocumented worker holding a job faces felony charges carrying one to five years in prison, and fines up to $10,000. Workers are ineligible for bail.
Then, on August 25, ICE agents raided a Howard Industries plant in Laurel, Mississippi, sending 481 workers to a privately-run detention center in Jena, Louisiana, and releasing 106 women for "humanitarian reasons," most in ankle bracelets. While workers taken to Jena weren't immediately hustled before a judge, as in Postville, they were incarcerated with no idea of where they were being held, and weren't charged or provided lawyers for days. ICE spokesperson Barbara Gonzalez declined to say how long detention would last. Federal prosecutors charged eight with felony identity theft, and Gonzalez said criminal charges might be brought against the others.
Patricia Ice, attorney for the Mississippi Immigrant Rights Alliance (MIRA), called the raid political. "They want a mass exodus of immigrants out of the state, the kind we've seen in Arizona and Oklahoma," she declared. "The political establishment here is threatened by Mississippi's changing demographics, and what the electorate might look like in 20 years." In the last two decades, the percentage of African Americans in the state's population has increased to over 35%. Immigrants, who were statistically insignificant until recently, are expected to reach 10% in the next decade. And workers have been joining Mississippi unions in catfish and poultry plants, casinos and shipyards.
Raids and sanctions come on top of day-to-day harassment. At roadblocks near local chicken plants in Laurel, police stop workers and confiscate the cars of those who can't get drivers' licenses because they don't have papers. "They take us away in handcuffs and we have to pay over $1000 to get out of jail and get our cars back," according to one worker who asked that her name be withheld. Similar roadblocks and auto confiscations are common now in many states.
Jim Evans, state AFL-CIO staffer, leader of the legislature's Black Caucus, and MIRA board chair, says the state sanctions law and the raid serve the same objective. "They are efforts to drive a wedge between immigrants, African Americans, white people and unions - all those who want political change here." At the same time, he says, "they make it easier to exploit workers. The people who profit from Mississippi's low wage system want to keep it the way it is." He points to the fact that while workers without papers now risk fines, prison time and deportation, Mississippi employers have hired thousands of guest workers in the state's packinghouses, shipyards and casinos. At the Signal International shipyard, workers contracted in India paid thousands of dollars for temporary visas, and were then been fired and threatened with deportation when they protested bad conditions. Guest workers are welcome in Mississippi, so long as they don't settle down with families, organize unions, or push for political change.
Two weeks before the Laurel raid Homeland Security Secretary Chertoff made the same connection. "We tried very hard last year to get a guest worker program which I continue to believe is not only necessary for the economy but it is actually a way of enabling the enforcement," he said. "There's obviously a straightforward solution to the problem of illegal work, which is you open the front door and you shut the back door...Congress wasn't willing to open the front door ... In the interim, to be honest, we're closing the back door." Closing the back door is a euphemism for immigration raids. Opening the front door means guest worker programs.
Immigrant rights organizations and unions, however, have challenged this enforcement program with demonstrations and lawsuits. In Phoenix, county sheriff Joe Arpaio became a hero to nativist groups for invading immigrant communities with deputies, busses and helicopters, picking up people on the street and holding them for ICE. But when Pruitt's Furniture Store hired off-duty deputies to arrest day laborers, and Arpaio brought in the Minutemen, huge picket lines of workers, churches and immigrant rights groups grew to over a thousand people. "Even the Phoenix Police Department came out to protect us from him," says Pablo Alvarado, director of the National Day Laborer Organizing Network. "The mayor called for an FBI investigation, and the governor took $1.8 million from Arpaio's budget."
The United Food and Commercial Workers organized five hearings to investigate raids, and filed a lawsuit to stop ICE from conducting the kind of mass detentions it made at Swift. The union also organized a National Commission on ICE Misconduct and Violations of Fourth Amendment Rights. "Showing up for work should not subject workers to being detained," says UFCW President Joe Hansen. "Work is not a crime. Workers are not criminals. We do not leave our constitutional rights at the plant gate."
In California the AFL-CIO, two central labor councils and one building trades council, the NILC and the ACLU filed suit in 2007 to stop ICE from issuing a new no-match regulation. Under Chertoff's proposal Social Security would have sent letters to over 160,000 employers, listing the names of at least eight million workers with mismatched numbers. Employers would have had to fire all who could not produce numbers SSA could verify. The order was blocked by U.S. District Judge Maxine Chesney, and is still on hold.
And just three days after the Mississippi raid, while many immigrants hid in their homes in fear, MIRA organizer Vicky Cintra and over a hundred raid victims and family members marched down to the Howard Industries plant in Laurel to demand withheld paychecks. When company managers called the police, who tried to arrest Cintra, immigrants began shouting "Let her go!" As news reporters arrived on the scene, the police backed off. Seventy families got paychecks to keep them eating, while their men were in immigration jail and their women were braceleted and unable to work. More protests in the following days forced the company to pay hundreds of other families as well.
Newspaper reports had highlighted an incident in which some workers applauded as immigrants were led from the plant in handcuffs during the original raid. But when Cintra and the braceleted women protested on the grass outside the gate, African American workers leaving at shift change crossed the street, embraced them, and offered to find them food and to support their protest.
Implementing its program by executive action, the administration is using immigration raids to create a large bureaucracy, with rich contracts and high-paying jobs. It hopes to give it an unstoppable political momentum that will tie the hands of any new administration.
Should John McCain be elected President, he is likely to embrace that program, and continue the quest in Congress to weld that system into place. McCain cosponsored the Kennedy-McCain bill, helping set the terms for Washington's immigration debate. As Arizona Senator he belongs to the political establishment that made his state an enforcement testing ground.
Barack Obama has the chance to stop this juggernaut. At the AFL-CIO, Anna Avendaño, director of immigration programs, is drafting ideas for an Obama administration's first 100 days. "At the very least, it could change the regulations and terms of enforcement," she says, ending, for instance, the practice of charging undocumented immigrants with federal crimes like identity theft.
The larger question, however, is whether Obama would challenge the mushrooming enforcement bureaucracy and the raids it feeds on, advocating a more humane immigration policy. Organizations like the National Network for Immigrant and Refugee Rights urge that instead of the enforcement/guest worker/legalization triad, Congress should legalize people without papers, and make more visas available for legal migration, without setting up guest worker programs. The AFL-CIO, the Network, and many others want much greater enforcement of labor standards and union rights, and call for repealing employer sanctions. Congress member Jackson Lee advocates combining jobs programs with legalization and organizing rights, to bring workers together instead of pitting them against each other.
If an Obama administration and a Democratic-controlled Congress move in this direction, immigration policy would no longer be the "third rail of American politics," in the words of party strategist Rahm Emmanuel. Instead, it would protect the rights and living standards of immigrants, and workers generally.
For more articles and images on immigration, see http://dbacon.igc.org/Imgrants/imgrants.htm
Just out from Beacon Press:
Illegal People -- How Globalization Creates Migration and Criminalizes Immigrants
See also the photodocumentary on indigenous migration to the US Communities Without Borders (Cornell University/ILR Press, 2006)
See also The Children of NAFTA, Labor Wars on the U.S./Mexico Border (University of California, 2004)
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