Immigration Laws: January, 2002 - Number #2

Tyson Foods Inc., one of the world's largest poultry processors, was indicted December 19, 2001, charged with 36 counts of recruiting illegal workers from Mexico and transporting them to 15 of Tyson's 57 poultry processing plants in the Midwest and South. According to the indictment, Tyson managers arranged with smugglers to pick up workers just inside the US border and paid them $100 to $200 a worker. The migrants also paid the smugglers a fee. Tyson then arranged transportation to its plants.

The INS used undercover agents, wiretaps and paid informants in the two and a half-year investigation. The INS estimated that 25 percent of meatpacking workers are not authorized to work in the US.

Tyson has 120,000 employees and annual sales of $11 billion; employment in the US meat and poultry processing industry is 400,000. According to the INS, Tyson sought to hire 2,000 unauthorized foreigners, usually in plants in rural locations. If convicted, Tyson could face fines exceeding $100 million, based on allegedly illegal profits derived from lower wages paid to the workers and their willful exploitation.

The government alleged that Tyson "did cultivate a corporate culture in which the hiring of illegal alien workers" was condoned by management "to meet its production goals and cut its costs to maximize Tyson profits." Analysts cited a management committed to aggressive cost-cutting, and said that at least some executives in the Springdale, AR headquarters knew about the smuggling of unauthorized workers. The charges are the first time INS has taken action against a company of Tyson's magnitude.

Tyson, like most meat processors, generally uses the INS's Basic Pilot program to verify the right to work of newly hired workers- employers submit the A-numbers of newly hired non-US citizens to the INS for verification. In this case, however, the government alleges that "Tyson utilized workers that were hired and provided to Tyson by temporary service agencies that did not utilize the ... Basic Pilot Program, well knowing that most of these workers were unauthorized for employment within the United States."

Tyson said it would contest the charges, that they involved a handful of managers who had been operating outside of company policy and that the six Tyson employees charged had been dismissed or placed on administrative leave. In a 1996 statement, Tyson said: "The consequences of knowingly hiring illegal workers are quite simply too high for us to hire people without proper documentation."

The undercover operation was based on the work of a Mexican citizen who, while employed at Tyson, "functioned as an illegal recruiter, smuggler and coordinator of transportation for illegal aliens and a trafficker in fraudulent documents." The illegal recruitment allegedly began in October 1994, when a Tyson executive referred to production problems at a Shelbyville, Tennessee plant and told subordinates, "That plant needs more Mexicans."

Tyson admitted that it used temporary employment agencies to obtain foreign workers, but denied responsibility for the violations committed by the agencies. For example, in 2001, 22 Chinese workers lost their temporary work visas less than nine months after arriving in the US to work at the Glen Allen, Virginia plant. Each worker had paid $10,000 to a Chinese company for the chance to work for as long as two years in jobs that paid $6 to $7 an hour.

The Tyson indictment raised questions about the personnel policies of Midwestern and southeastern meat and poultry processing firms. Shelbyville, Tennessee, a city of 16,000 that is 60 miles south of Nashville, is typical of the places with Tyson plants. The number of Hispanic residents rose from 92 in 1990 to 2,343 in 2000, and the higher number is considered an underestimate. Many live in a trailer park near the Tyson plant. Similarly, in Noel, Missouri, Tyson has a plant employing 1,265 workers at $7 an hour.

Joseph R. Greene, the INS assistant commissioner in charge of investigations, said that in setting enforcement priorities the agency looks at such issues as whether the employment of illegal migrants unfairly depresses wages and whether employers are "conspiring and working with organized criminals? Are they putting people at risk in terms of their lives or their health and safety? Those are the kinds of questions I have to ask before we're going to commit the limited resources that we have."

In April 1999, the INS reached a $1.9-million settlement with Filiberto's, a chain of Mexican restaurants based in Phoenix that admitted recruiting undocumented workers, "the biggest fine for a work site enforcement case in US history." In 1997, nearly 200 illegal immigrants were arrested when the INS raided 15 Filiberto's restaurants.

In another case with broad implications, the U.S. Court of Appeals for the 2nd Circuit in November 2001 ruled that a business may sue a competitor that competes unfairly by employing illegal alien workers under the Racketeer Influenced and Corrupt Organizations statute. Commercial Cleaning Services, a janitorial firm, sued Colin Service Systems, Inc. for operating an " illegal immigrant hiring scheme" that allowed Colin to underbid Commercial to win the right to clean commercial buildings.

The suit was prompted by Commercial's loss to Colin of a contract to clean Pratt & Whitney facilities in Connecticut in the mid-1990s. Colin has about 4,000 employees, compared to Commercial's 80 employees and paid a $1 million fine to the INS in March 1996 to settle charges that it unlawfully hired illegal workers. A federal district court dismissed the suit, but the Court of Appeals ruled that Commercial's suit can go forward.

In Los Angeles, the Hotel Employees and Restaurant Employees Local 814 complained that Loews Santa Monica Beach Hotel unlawfully demanded proof of authorization to work from employees recalled after September 11 layoffs. Two employees were not rehired after they presented Social Security numbers that did not match those on file, according to HERE, which filed a complaint with the Office of Special Counsel, a division of the Department of Justice created to protect workers from discrimination under employer sanctions laws.

Smuggling charges were filed in mid-December against a Los Angeles bus company, Golden State Transportation Co., which allegedly transported thousands of illegal migrants who had been smuggled across the border in Arizona and hidden in safe houses until they could be put on Golden State buses. Golden State drivers chose routes around Border Patrol checkpoints and traveled at night to avoid detection, according to the 39-count indictment. The INS targeted Golden State management, alleging that the bus company colluded with smugglers.

Airport Enforcement. Under Operation Safe Travel, the INS in October 2001 began to audit the I-9 forms of all employees of major airports in the Western region, including employees of contractors such as security firms and caterers who have security badges that allow them into restricted areas of airports. These I-9 checks are believed to be the largest employment audits ever conducted by the INS.

At Salt Lake City International Airport, 271 workers were fired and 69 were arrested and charged with using false immigration and Social Security documents to obtain jobs and security badges. Hispanic leaders protested the arrests, arguing that the workers should have been charged under state law with using false documents, not federal law, under which the charges can lead to deportation. In September 2001, 29 foreigners were arrested on similar charges at Denver International Airport, and 30 were arrested at Portland International Airport in December 2001.

Salt Lake City Mayor Rocky Anderson lamented the arrests. In a letter to other mayors, he wrote: "Those migrant workers who falsified Social Security numbers…likely had no idea they were doing anything that would subject them to prosecution or deportation. They were simply doing what thousands of other economic migrants are doing throughout the state, and what millions are doing throughout the nation." Anderson urged other mayors to warn airport workers that they would be checked and to leave their jobs voluntarily if they wanted to avoid arrests.

The airport security act enacted in November 2001 requires that the federal government become the employer of most of the 20,000 to 25,000 screeners of passengers and their carry-on luggage. Since federal employees have to be US citizens, there will be changes in the screening work force. Across the US, about 75 percent of screeners are believed to be US citizens. The Service Employees International Union, which represents 2,000 screeners in California and Illinois, lobbied against the citizenship requirement, noting that pilots and the military, including the National Guardsmen stationed at airport terminals, do not have to be US citizens.

The SEIU is leading an effort to amend the law to allow non-US citizen security screeners, emphasizing that 81 percent of the 800 screeners (60 percent Filipino) are immigrants at the San Francisco International Airport, while at Los Angeles International Airport about 40 percent of the more than 1,000 screeners are immigrants. Bills have been introduced in Congress to allow immigrant screeners to keep their jobs if they have applied for US citizenship.

There are about 28,000 security screeners at US airports, and they are to become employees of the Transportation Security Administration, the new federal agency created to supervise aviation security, in November 2002. TSA originally announced that all would have to be high school graduates, but then said that it would allow one year of "any similar work experience" to substitute for a high school diploma.

Detention. A federal appeals court in December 2001 overturned an INS policy in effect since 1998, that required all immigrants who face deportation because of crimes committed in the US to stay in detention after they finish serving their time, no matter how long the deportation process may last. The court held that the blanket detention policy violates the constitutional right to due process.

The court in a benefit-cost analysis concluded that detention is costly "to the government, the alien and the alien's family. The goals [of detention] articulated by the government - to prevent aliens from absconding or endangering the community - only justify detention of those individuals who present such a risk."

In Summer 2001, the US Supreme Court held 5-4 in Zadvydas v. Davis, No. 99-7791 that, after six months of detention, if deportation did not seem likely in the "reasonably foreseeable future," the government would have to come up with special reasons for keeping in custody a foreigner who had already served a prison term for a US crime.

Border Enforcement. Many Mexican migrants return to the US in January-March, when they are hired into seasonal jobs. Volunteers are stocking emergency shelters in the mountains east of San Diego with blankets, sweatshirts and trail-mix bars, hoping to help migrants who might otherwise die if they try to slip into the US unprepared.

Since September 11, seizures of illegal drugs at US borders are up sharply, with the largest percentage increase, 362 percent, discovered in commercial traffic entering the US from Canada. The commissioner of the Customs Service, Robert C. Bonner, said, "There has been a definite unintended consequence of the effort against terror: we are doing a better job of keeping illegal drugs out of the United States."

Law enforcement officials are uncertain whether the increase in seizures means that they are intercepting a larger proportion of the narcotics being smuggled into the United States, or that the traffickers are themselves contributing to the trend by increasing the number or size of their shipments as a way of overwhelming the tighter security. However, retail prices in major US cities are reportedly unchanged, which may suggests that the volume of drugs arriving in the US was greater than previously believed.

Trafficking. The US Department of State issued its first Trafficking in Persons report in July 2001, and opened its Office to Monitor and Combat Trafficking in October 2001. The Victims of Trafficking and Violence Prevention Act of 2000 provides T-visas for foreigners who assist in the prosecution of smugglers.

Pat Buchanan. Reform Party presidential candidate Pat Buchanan has a new book, "Death of the West," that asserts "Collapsing birth rates in Europe and the U.S., coupled with population explosions in Asia, Africa and Latin America, are set to cause cataclysmic shifts in world power, as unchecked immigration swamps and polarizes every Western society and nation."