Bush administration takes unprecedented punitive action against Postville workers

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Julia Preston at the New York Times reported yesterday on an alarming development in the Postville debacle:

In temporary courtrooms at a fairgrounds here, 270 illegal immigrants were sentenced this week to five months in prison for working at a meatpacking plant with false documents.

The prosecutions, which ended Friday, signal a sharp escalation in the Bush administration's crackdown on illegal workers, with prosecutors bringing tough federal criminal charges against most of the immigrants arrested in a May 12 raid. Until now, unauthorized workers have generally been detained by immigration officials for civil violations and rapidly deported.

. . .

The large number of criminal cases was remarkable because immigration violations generally fall under civil statutes. Until now, relatively few immigrants caught in raids have been charged with federal crimes like identity theft or document fraud.

"To my knowledge, the magnitude of these indictments is completely unprecedented," said Juliet Stumpf, an immigration law professor at Lewis & Clark Law School in Portland, Ore., who was formerly a senior civil rights lawyer at the Justice Department. "It's the reliance on criminal process here as part of an immigration enforcement action that takes this out of the ordinary, a startling intensification of the criminalization of immigration law."

As SylviaM correctly observes, a felony charge will not only make the Postville workers deportable, it will almost certainly doom any efforts to reenter the country and establish legal residence in the future.  One of the consequences of the harsh Illegal Immigration Reform and Immigrant Responsibility Act of 1996, by which Bill Clinton trampled the dreams of hardworking migrants on his way to a second term, was permanent ineligibility for citizenship--and in some cases, permanent exile--for migrants convicted of certain felonies or even misdemeanors (a criminal charge need not necessarily be aggravated or a felony under applicable state or federal criminal statute in order to constitute an "aggravated felony" under immigration law).  By filing these charges, the government is choosing the "nuclear option" and destroying these workers' chances for a life in this country with their U.S. citizen loved ones.  

Many of the Postville workers were bullied into accepting plea agreements by hard line tactics of federal prosecutors. 

Defense lawyers, who were appointed by the court, said most of the immigrants were ready to accept the plea deals because of the hard bargain driven by the prosecutors.

If the immigrants did not plead guilty, Mr. Dummermuth said he would try them on felony identity theft charges that carry a mandatory two-year minimum jail sentence.

The American Immigration Lawyers Association (AILA) objected to this tactic on grounds of basic fairness.

[G]rave concerns about coercion of pleas have arisen. More than 300 people are being threatened with criminal charges that carry a 2-year minimum sentence, even though it appears that many did not commit the acts that constitute that crime. Nevertheless, people unfamiliar with our legal system are being told that if they don't agree to be deported, regardless of their potential rights to stay in the country or legitimate claims for relief, they will face lengthy imprisonment.

The Times article continues:

In many cases, court documents show, the immigrants were working under real Social Security numbers or immigration visas, known as green cards, that belonged to other people.

One of the rhetorical tactics the government has used to good effect so far in its raids PR efforts, going largely unchallenged, is the conflation of identity theft with the use of false documents in order to get a job.  Identity thieves steal someone's personal data in order to access and deplete existing credit or bank accounts or to open new ones to run up large bills with no intent of paying them back.  Undocumented migrants sometimes pay for a Social Security card--many of them may not know that a Social Security Number is free and only available to migrants authorized to work under the Immigration and Nationality Act--for the privilege of contributing to a Social Security pot they may never access.  Many of them have never used a credit card and keep their assets under the mattress, not in a bank account.  Conflating the two acts is dishonest and misleading and ICE and DHS should be called on it.  The Postville workers were not criminals, unless the term is used dishonestly, for political purposes rather than to promote public safety.

All but a handful of the workers here had no criminal record, court documents showed.

"My family is worried in Guatemala," one defendant, Erick Tajtaj, entreated the federal district judge who sentenced him, Mark W. Bennett. "I ask that you deport us as soon as possible, that you do us that kindness so we can be together again with our families."

In a letter to District Court Judge Reade, AILA President Kathleen Campbell Walker last week expressed deep concern over the way the criminal charges have been handled (restricted access):

We understand that hundreds of people arrested pursuant to this enforcement action were denied access to immigration counsel all day Monday and until Tuesday. In addition, during "processing" and questioning, criminal charges were brought against scores of those arrested, but inadequate provisions were made to ensure that each individual charged is afforded meaningful access to counsel familiar with both criminal and immigration laws; and that mass hearings have been held in which one court-provided defense counsel was called upon to represent as many as 10 defendants at a time in a single proceeding.

Further, the United States Attorneys Office and the Court have invoked an obscure, seldom-used, and complicated provision of the Immigration and Nationality Act referred to as Judicial Removal. See, 8 U.S.C. § 1228(c). Yet, we understand that the defendants have only seven (7) days to decide whether to accept the terms of plea agreements that require them to give up all rights to immigration relief they may not even realize they have with removal from the U.S. as a condition of their pleas. This condition, in and of itself, would appear to contradict the Judicial Removal provision. See, e.g. 8 U.S.C. § 1228(c)(2).

Immigration law is extremely complex. For example, people born outside the U.S. may be U.S. citizens, derivatively through parents or grandparents and not even realize it. In addition, they may be eligible for various forms of relief from removal, including potential asylum relief in some cases. It is not possible for a credible review of these potential issues to be even cursorily addressed in the time frame being forced upon these individuals and their over-burdened counsel. Stated simply, to impose Judicial Removal and obligate the federal defense bar in Iowa, within seven (7) days, to fully evaluate any legal or factual arguments against the arrests themselves, and to identify and evaluate any possible challenge to removal or relief from removal for scores of new clients, works a travesty of justice.

The Times:

No charges have been brought against managers or owners at Agriprocessors, but there were indications that prosecutors were also preparing a case against the company. In pleading guilty, immigrants had to agree to cooperate with any investigation.

I'll believe it when I see the CEO frogmarched out of his penthouse on CNN.  However, I do not think ratcheting up prosecutions of employers is the answer here.  Rather, we should legalize the undocumented workforce and make legal immigration a realistic option for migrants and employers alike. 

Finally, I'd like to get to the reasons behind the ongoing raids and extreme enforcement measures:

Claude Arnold, a special agent in charge of investigations for Immigration and Customs Enforcement, said it showed that federal officials were "committed to enforcing the nation's immigration laws in the workplace to maintain the integrity of the immigration system."

George Borjas can't be the only one wondering why the Bush administration is now using the mano duro--utilizing extreme interpretations of already punitive U.S. immigration laws--when "everybody knows" Bush has a soft spot the size of Texas for immigrants and wants badly to pass comprehensive immigration reform. 

One theory for this turnabout is that it's Bush's way of sticking it to the business community for failing to make the necessary sacrifices to push through comprehensive reform, a way to show them the pain certain sectors of the economy will feel unless the business community backs reform over the objections of the vocal restrictionist minority.  DHS Secretary Chertoff has advanced this explanation in various forms since the crackdown began about a year and a half ago.  But I think this alone falls far short of explaining the rising intensity and frequency of the raids. 

One reason could be that, given Bush's political weaknesses on Iraq and the weakening economy, he can no longer ignore the powerful, well-organized restrictionists in the GOP.  Publicly throwing a few hundred migrants (out of millions now here in the U.S. out of status) in jail every few weeks and then quickly deporting them probably makes his life a lot easier than it was in the days he stood next to McCain, Kennedy, and Clinton and was routinely mauled by his own party.  Restrictionists have long called for "attrition through enforcement" to make life in the U.S. so miserable for migrants that they pack up and leave on their own.  Bush may be banking on the gnawing anxiety that the raids produce in millions of families throughout the country to solve the problem for him through self-deportation. 

Perhaps his advisers have explained that fear of the outsider and jingoistic militarism constitute the political lifeblood of today's GOP.  Perhaps they mentioned that when the fight against enemies abroad turns sour, internal enemies can always be found to serve as the locus of politically essential unifying hatred.  Often those enemies are U.S. citizens caught up in the prison-industrial complex, through which the citizenry vents its fear and frustration upon the bodies of young men of color.  The scapegoat du jour is the migrant--usually poor, usually Latino.  It's not just the business wing of the GOP that needs migrants--the politicians and talking heads rely on them to maintain power and influence over a fearful public.  By failing to "do something about 'the illegals,'" Bush could have jeopardized the GOP's chances in the upcoming elections by splitting the restrictionist vote, sending much of it to Ron Paul or keeping it home on election day. The raids represent a way to avoid that outcome.

In addition, by ratcheting up punitive enforcement now, Bush's advisers may calculate that a Democratic president would have to expend valuable political capital to rein in enforcement early in his/her term, knowing that restrictionists will broadcast the faintest slow in the pace of the raids under a President Obama or Clinton.  In the zero-sum game of politics, any Democratic loss will be the GOP's gain.

I've seen some conspiracy theorists (exemplified in comments here at Borjas's blog) speculate that Bush and Chertoff want to use the raids to create a humanitarian catastrophe so that the public will rise up and demand that comprehensive reform be passed.  This is premised on the idea that Bush is so ideologically and emotionally invested in comprehensive immigration reform (CIR)--reform that he knows can't succeed in this election year--that he's trying to lay the groundwork for CIR to succeed after he leaves office so President Obama can take all the credit.  I very much doubt this. 

Finally, the Bush administration isn't well known for competent, coherent policy execution.  Julie Meyers at ICE has taken nepotism-hire bungling to a new low.  There may be no holistic explanation for what's been going on, but rather some combination of the above-mentioned factors and trademark Bush negligence.

Whatever their causes, the raids and extreme enforcement tactics need to stop.  I'm waiting to hear how each presidential candidate intends to address the situation next year should he/she win election.  Even better would be some forceful denunciations of the raids, but I am not holding my breath. 

[Cross-posted at the Sanctuary.]

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kyledeb said:

I knew you would be best at elucidating what was happening here. I was going to write something on the criminalization of the migrant, but figured you could better and more concisely explain the significance of this move.

It's disturbing, really, that these almost 400 migrants have been made an example of. Thanks for writing this post.

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This page contains a single entry by David Bennion published on May 25, 2008 11:48 PM.

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