Railroading Immigrants…and the Constitution

By Kathleen Walker

Federal immigration officials swept into Postville, Iowa in May and detained nearly 400 workers at a kosher meat processing plant. Swiftly, local enforcement and U.S. Immigration and Customs Enforcement Agency arrested, charged with crimes, extracted pleas, and sentenced 297 of these individuals by the end of the following week. Apparently, this shock and awe strategy was specially designed to drop the hammer on undocumented workers doing backbreaking jobs under reportedly sub-optimal conditions.

This new high-speed judicial railroad required extensive planning and coordination between the U.S. Attorneys' office in Iowa, the Department of Homeland Security, and the Federal Judiciary. The tracks laid down to carry this new enforcement train were designed to force rapid guilty pleas under the threat of serious jail time, avoid the inconvenience of trials, limit access to immigration counsel, eliminate the prospect of all future relief, and impose criminal sentences and removal orders simultaneously. To speed the process up, the court appointed attorneys were required to represent groups of 10 to 20 or more individuals, and more than 90 individuals were processed by the court in a single day.

The American Immigration Lawyers Association wrote to the U.S. District Judge who apparently authorized these expedited procedures, Chief Judge Linda R. Reade, expressing our deep concerns with the process. Chief Judge Reade subsequently said that "the immigration lawyers do not understand the federal criminal process as it relates to immigration charges." It would be hard to overstate our respectful disagreement with that assertion.

It is precisely because immigration lawyers understand the complexity of the interplay between immigration law and criminal charges that we have recoiled so forcefully at this new approach. Leveraging excessive criminal charges through an exploding plea bargain (sign the deal within seven days of arrest or face max prosecution) to secure jail time and forfeiture of all possible immigration relief, shows an utter disregard for that very complexity.

The nearly 300 individuals subjected to this process who reportedly pled guilty to the use of false documents (in order to work, mind you) in exchange for five-month prison terms and deportation were neither adequately screened, nor advised of their rights under U.S. immigration law. Some may have derivative U.S. citizenship claims. Others may have legitimate fears of persecution or torture in their home country. Still others may be eligible for visas as witnesses to crimes that may have been committed by their employer. Many are ethnic Mayan Guatemalans for whom Spanish is a second language and who signed agreements without any Mayan interpretation. In the interest of government efficiency, however, these individuals were denied access to the experts needed to help them make informed judgments about whether pleading guilty was in their best interest.

With the “government” bearing down hard and fast, these folks did just what the engineers of this new machine intended, they got on board and signed away their life in this country. The court proceedings in Iowa were a travesty of justice and have no place in a constitutional democracy. Immigrants, even those working without documentation, deserved their day in court, not a five-minute ride on a judicial cattle car that compromises the integrity of our system.
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Walker is the immediate past president of the American Immigration Lawyers Association.
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Copyright (C) 2008 by the American Forum. 7/08

Immigration Raids Lead U.S. to a Moral, Legal Crisis

By Raquel Aldana

Postville, Iowa has been turned into a ghost town. Nearly a third of its residents, mostly undocumented workers from Guatemala and Mexico, sit in jail convicted of identity crimes or awaiting deportation. Hundreds more hide in fear. Their children, too scared to go to school, have left the town’s classrooms nearly empty. For this, Postville should thank their local police, the U.S. Immigration and Customs Enforcement Agency (ICE), and a failed immigration policy.

Aided by local law enforcement, ICE arrested 389 workers during the largest single-site immigration raid in U.S. history at the Postville meatpacking plant, the area’s major employer. In an unprecedented move, ICE criminally charged 302 of these workers with aggravated ID theft and/or using false social security numbers. Within days, ICE resolved their fate: 297 men and women pled guilty and were sentenced to prison and subsequent deportation. Only a few await criminal trials or immigration hearings.

Postville is one of the latest in a series of immigration raids that have intensified in the past three years. These raids are leading our nation to a moral, legal and humanitarian crisis.

ICE’s heavy handed enforcement against undocumented workers in the wake of failed immigration reform is shameful. Under current immigration laws, no more than 10,000 of the backlogged visas for unskilled workers and 66,000 temporary visas for seasonal workers are available each year. In contrast, an estimated 2,000 persons cross the Southwest border into the U.S. daily and an estimated 12 million undocumented persons live in the U.S.

Global economic realities push willing workers out of their nations, where they have no means to earn even a subsistence living and pull them into low wage jobs in the U.S., where the lack of labor protection leaves them vulnerable to exploitation. U.S. employers and we as consumers benefit from their cheap labor, but these workers and their families bear the brunt of a broken immigration system.

Few employers face civil and criminal sanctions for violating immigration and labor laws. So far, no one from Postville plant has been charged despite overwhelming evidence that the company helped workers procure false documents, paid substandard wages, failed to pay overtime, and seriously mistreated its workers. All the while, Congress continues to kill proposals granting even temporary legal status to agricultural workers, while doling out large subsidies to U.S. farmers without regard to their effect on future migration of rural workers from developing nations into the U.S.

Legally speaking, ICE and federal prosecutors overstepped their powers when they criminally charged the workers. Congress specifically exempted from prosecution workers who use false Social Security numbers to engage in otherwise lawful conduct, such as to procure jobs.

This unprecedented criminalization of undocumented workers also has not been accompanied by a comparable infusion of constitutional guarantees in the handling of these cases. ICE conducted the investigation leading to the Postville raid with easy access to immigration databases and employee documents. ICE then executed the raid with easily-procured administrative, not criminal, warrants.

Thus, the protection of stricter Fourth Amendment search and seizure, Fifth Amendment due process, and Sixth Amendment right to counsel constitutional guarantees available to most criminal defendants were unavailable to these workers. Nearly all waived any rights they might have had under extreme prosecutorial pressure. The uncharacteristic speed and efficiency of the Postville raid left workers without adequate opportunity to consult with defense counsel, and none or few had access to immigration lawyers to learn about the immigration consequences of their pleas.

The involvement of local law enforcement in these raids is also worrisome. Distrust of police keeps many immigrants from reporting crime. This increases their vulnerability as victims. Moreover, the drain on limited resources from these additional responsibilities on local police takes away from their primary duties as community caretakers.

The courts must be vigilant in protecting the rights of workers and their families and insist on stricter constitutional guarantees when criminal charges are involved.

These raids should be halted immediately. The prospect of future raids should certainly create a sense of urgency for the U.S. to adopt immigration policies that allows employers to hire migrant workers, and include strong labor protections that offer a path to legalization for workers and their families. If workers are legal, we are all better off.
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Aldana is a board member of the Society of American Law Teachers and a professor of law at the University of Nevada, Las Vegas School of Law.
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Copyright (C) 2008 by the American Forum. 6/08