E-Verify: A Flawed Approach to Immigration Reform

By Suzanne Brown

The federal government has continually failed to address fundamental, structural problems with the country’s broken immigration system. Missouri’s leadership hasn’t done us any favors either by approving the Illegal Aliens and Immigration Status Verification law. This law does not adequately deal with Congress’ failures to provide options for employers to hire legal workers or to keep families together because an “enforcement-only” approach is not a viable solution.

There are three main problems with the new law.

First, the Missouri State Highway Patrol will now be required to designate at least some of its officers for training with the Department of Homeland Security in order to enforce federal immigration laws – a measure which not only redirects already limited law enforcement funding to target minor traffic violations, but also encourages racial profiling, as more motorists are stopped for “Driving While Foreign” violations. Additionally, such agreements instill a mistrust of police within immigrant communities, resulting in increased victimization of immigrants, who are already too afraid to report many crimes, or to come forward as witnesses to others.

Second, Missouri municipalities are prohibited from enacting “sanctuary policies” and are denied state funding if they are found to be in violation of this policy. The term “sanctuary policy” is ambiguously defined and a complaint of any state resident can initiate an investigation, which is ultimately decided by the Attorney General’s opinion. The lack of guidelines coupled with the consequence of withheld state funding make this policy potentially disastrous for municipalities across the state.

Finally, participation in the federal work authorization program E-Verify is required for a broad spectrum of employers. E-Verify is a result of the latest in a growing patchwork of state immigration laws employers are forced to navigate. Many fear that the growing number of regulatory burdens imposed by state laws will drive existing businesses to relocate, and deter new businesses from operating in Missouri.

In addition to the added cost of an e-Verify system are the headaches associated with a system that is still very flawed. Missouri is now one of only five states mandating the use of E-Verify (proposals are pending in 13 other states) even though a recent Immigration Policy Center report cited a 4.1 percent error rate in the system. Although these errors can and do affect immigrant workers, many of them involve U.S. citizens. All of them are unacceptable if they keep lawfully authorized immigrants or citizens from working.

The Illegal Aliens and Immigration Status Verification law changed several laws regarding undocumented immigrants and immigration status verification and duplicates several provisions of ineffective federal laws that have already been in place since 1996. It also presents additional challenges to businesses and employers which will only deter growth in this time of economic uncertainty.

Missouri’s new illegal Aliens and Immigration Status Verification law is a mean-spirited and hopelessly flawed approach to immigration reform.

The state and federal government must disregard the politics of the issue and come up with a fair and practical solution to our immigration crisis that requires undocumented immigrants to earn legal status and contribute to the American economy and society if they so choose.
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Brown is the Missouri/Kansas chapter chair of the American Immigration Lawyers Association.
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Copyright (C) 2008 by the Missouri Forum. 7/08

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

Eating American on the Fourth of July

By Rinku Sen

[Click here to read this essay in Spanish. You can also see a video of Rinku Sen speaking.]

On this Fourth of July, I will be eating hot dogs. While I was trying to fit in as an Indian immigrant child throughout the 1970's, they represented the quintessential American food. I begged my mother to let me have them for dinner every night instead of chicken curry and rice. She nixed the hotdogs but sometimes allowed spaghetti and meatballs -- straight from a can. Hotdogs were "invented" by German immigrants serving their traditional sausages in the hustling streets of the new world, and spaghetti, everyone knows, came from Italy. If I had been celebrating Independence Day 150 years ago, however, neither would have been on the menu. In those days, Germans and Italians weren't considered Americans, or even white. When they fought over the most lucrative street corner for food vendors in the 1880's, the press reported these incidents as "race riots."

I'll be sharing this holiday with a group of restaurant workers, largely immigrants. Along with the hotdogs, we'll have tacos, samosas, falafel. According to one side of the immigration debate, we can keep our goodies to ourselves. America doesn't want them, or us.

Immigration restrictionists argue not only that we need to stop undocumented immigration, but cut back drastically on legal immigration as well. They argue that this economy -- no longer industrial but focused on information and service -- has no room for masses of poor immigrants. There's a fear that technology makes travel and communication so easy that new immigrants won't break ties with the old country and reassign their loyalty. To them, the telephone is a dangerous device and communication with relatives a terribly un-American act.

Restrictionists have tried to modernize their argument, but it hasn't changed much through the years. Immigration of the late 19th century was dominated by Italians, Poles, Hungarians, Jews, and other groups from southern and eastern Europe. At that time, these new residents were widely seen as inferior to native-born whites. They were reviled for their refusal to speak English, for their political and economic demands on American corporations, for being so poor that they became "public charges" or undercut the wages of the native-born workers, and for their unacceptable sexual behavior.

The Immigration Acts of 1920 and 1924, the most restrictive immigration policies we've ever had, limited new entrants to 150,000 per year, which was less than a quarter of the total immigration rate at that time. These laws crafted large quotas for northern Europeans while setting limits for countries like Russia and Italy. Thousands of southern and eastern Europeans, however, continued to come.

As immigrants were deported for violating the quota policies, social reformers began to fight for long-time residents who had built families and communities in the U.S. These reformers won a series of changes that gave immigration officials the ability to change someone's status.

The liberalization remade the American identity, but kept it white. Mexicans, for example, were left behind by the process. According to historian Mae M. Ngai, They weren't explicitly excluded, but they had little access to the mechanisms through which to change their status, and no one cared to correct that oversight. In 1929, Congress also passed the Registry Act, allowing people to change their status if they paid $20, hadn't left the U.S. since 1921, and were of good moral character. Of the 115,000 people who were forgiven between 1930 and 1940, 80 percent were European or Canadian. The attorney general began to suspend deportation orders after 1940, and an internal Justice department study in 1943 revealed that the overwhelming majority of suspensions went, ironically, to Germans and Italians; only 8 percent involved Mexicans. Instead of liberalization, Mexicans got a guest worker program, and in 1954, Operation Wetback, the country's first mass deportation program.

Restrictionists have frozen images of a "true" America, as though our identity hasn't changed since 1776. Stasis, however, is a fiction. Cultures do not stand still, nor should we want them to. We have the chance now to remake our immigration policy in the modern era, not by taking it back to the 1920's, but by grappling honestly with the fact that the American identity is always undergoing cultural change. Modernity challenges us to create a policy that finally recognizes the full humanity of all immigrants without regard to their racial identity.

If we are indeed what we eat, Americans are already eating like the world. It's time for our policy to catch up to our palates.
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Sen is the president of the Applied Research Center and the publisher of ColorLines magazine. Her book, The Accidental American, will be released in September.
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Copyright (C) 2008 by the American Forum. 6/08

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

Juan’s Story: Undocumented But Not Un-American

Watch a video of Juan telling his story.

By Sally Kohn

The first thing I noticed about Juan when I met him is his presence. For a young man, just graduated from high school --- that period when most of us were shy and awkward at best --- Juan is confident and vocal, the kind of person with clear potential to be a leader in whatever field he might choose.

The second thing you notice about Juan is the sadness in his eyes. His country, the only home he has ever known, decided his potential is irrelevant --- that no amount of talent and passion and vision and drive could ever overcome the fact that he and his family once crossed our nation’s borders without permission. It’s as though Juan the person doesn’t exist without Juan the paperwork. In our country, he’s treated as a number --- one to be reduced or feared.

Fear is one of the dominant motivating and manipulating forces in politics today. Some have tried to convince us that we should be afraid of immigrants, exploiting our fear about our jobs, healthcare and the economy, while pointing fingers at immigrants and saying they’re the cause of our problems. These are problems that have existed for years, deep flaws in the distribution of wealth and opportunity in our society, and undocumented immigrants are just the latest scapegoats. Fear is used to distract us while the real problems only grow.

The other motivating force is usually pity. But that’s not the answer either. Pity is equal parts compassion and isolation --- a sort-of thank goodness that it’s not me in his shoes. Pitying Juan would rob him of his dignity and power --- and absolve ourselves of responsibility.

What else, then? The most mutually respectful of emotions, where your fate is entwined with another’s, where you could never be truly safe if they are in danger, truly free if they are imprisoned, truly happy if they are unhappy -- we call that love. I don’t just mean romantic love. I mean the moral, even spiritual love --- a deep feeling of connection to other human beings, that their struggles are our struggles, their pain our pain, and that no one person’s happiness or security or hopes for the future can be rightly put above any one else’s. Just as the interests of billionaires should not be put ahead of people who are starving or losing their homes, one person’s claim on the American dream should not be put above anyone else’s by simple virtue of the geography of birth.

At what point did we close the borders on the American dream? The ideal of America has never been perfect in practice --- our present is still stained by a past of Native American extermination, slavery and sexism. Yet we have always marched toward inclusion, sometimes slowly, sometimes begrudgingly, but always bending the arc of our nation toward justice, as Dr. Martin Luther King, Jr. observed. When did the arc start flattening out? Did we decide we’ve dished out just enough love and justice or that there’s not enough to go around? In a nation founded on the idea that freedom and equality and opportunity are renewable resources and the more the merrier, have we achieved “peak love” and tapped out?

The writer CS Lewis wrote, “We love to know that we are not alone.” And we are not alone. And as a nation, we are blessed by the bounty of generation upon generation of immigrants who have come to our borders and our shores to make a better life for themselves and, in so doing, make a better country for us all. It is the nation that, despite its hiccups and growing pains on the path to justice, is one that we should be proud to love. And Juan, like millions waiting at the gates of the American dream, loves his country and asks for our love in return.

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Kohn is a senior campaign strategist for the Center for Community Change.
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Copyright (C) 2008 by the American Forum. 4/08