Wednesday, September 17, 2008

Illegal Employers? ICE on the Blind spot

Recent immigration raids in U.S. and Hawaii have all ended the same way, with federal authorities quickly prosecuting and deporting workers who are working Undocumented.

But it isn’t clear what happens to the companies CEO, HR Managers that hired them.

Even as they highlight their efforts to find Undocumented workers, federal officials have refused to release any information on fines or penalties paid by employers implicated in immigration raids.

U.S. Attorney Ed Kubo declined to answer questions about employer penalties. Representatives of several companies found to have hired Undocumented workers either declined to talk to or issued statements saying they are committed to following federal employment laws.

U.S. Immigration and Customs Enforcement, the largest division within the federal Department of Homeland Security and which oversees enforcement of immigration laws, has moved aggressively in recent months in Hawaii and on the Mainland, targeting companies that are “job magnets” for Undocumented workers.

Since last December, 120 Undocumented workers have been arrested in four Hawaii workplace raids of construction sites, restaurants and even a Waipahu apartment complex where farm workers lived.

I.C.E moves quickly to deport Undocumented workers and says it has brought down the average time to process deportations to 19 days.

But building cases against the companies that hired the workers can take years. Investigators say they have to prove that employers knew the workers they hired were in the country Undocumented and that they intentionally lied on the federal I-9 employment verification form.

In cases involving construction work, the developer points to the general contractor who then blames subcontractors, who in turn blame other subs or day-labor agencies that provide some of the workers. Whoever made the hire typically says they were duped by an Undocumented worker using forged or stolen identification papers.

Wayne Wills, special agent in charge of the U.S. Immigration and Customs Enforcement’s Office of Investigations in Honolulu, acknowledged that investigations can take several years. But he said he believes that the fines and penalties are sufficient to discourage employers from hire Undocumented workers.

We haven’t seen all of our cases fully come to fruition and we may not be seeing all of those charges [yet],” he told them. “So the deterrent effect is very hard to measure right now.”

In addition to fines levied by I.C.E., the U.S. Attorney’s Office can pursue criminal charges against employers.

But neither Wills nor Kubo would say if any Hawaii companies had been criminally charged. They also declined to provide any Hawaii statistics on work site enforcement fines and penalties.

Advocates for Undocumented workers, as well as a construction industry trade group, say the authorities have to do more than arrest and deport Undocumented workers. They say some businesses are repeat offenders that have figured out it’s still cheaper to employ Undocumented workers, even if they have to pay the occasional fine.

In my view, it is the workers who are being targeted in this enforcement effort and they are the ones paying the price for the United States’ haphazard approach to immigration management,” said John Robert Egan, chairman of the American Immigration Lawyers Association’s Hawaii chapter and director of the Immigration Law Clinic. “I have not heard of any employers being jailed, or having their families split up or having to pull their kids out of school.”

The spotlight on Undocumented workers has become an increasingly divisive issue in Hawaii, especially given the faltering economy, which has caused nearly 5,000 people to be thrown out of work since the start of the year.

The Pacific Resource Partnership, a consortium of the Hawaii Carpenters Union and some 200 unionized contractors across the state, has taken a particularly strong stance against contractors who hire undocumented workers by launching a public service campaign called Play Fair in Hawaii.

The goal is to encourage contractors and developers to comply with hiring laws so as not to sully the industry and take away jobs from Hawaii residents and deter what it calls the “disturbing number of Undocumented immigrants being brought into Hawaii to work in the building trades.”

We don’t begrudge any individual who comes here trying to advance their life because we are a nation of immigrants,” said Kyle Chock, executive director of the Pacific Resource Partnership. “We definitely have a problem with [employers] cutting corners, who knowingly exploit these individuals, especially when the economy starts to slow down and there’s local guys sitting on the bench without work.”

Recent raids on the Mainland have drawn national attention, particularly in rural Postville, Iowa and Laurel, Miss., to more aggressive immigration enforcement efforts.

As of last month, more than 3,900 administrative arrests and more than 1,000 criminal arrests made in fiscal 2008 were tied to work site enforcement investigations nationwide, according to U.S. Immigration and Customs Enforcement statistics.

Of the 1,022 people arrested and charged with felonies, 116 were owners, managers, supervisors or human resources employees who are facing charges of harboring or knowingly hiring Undocumented workers.

The agency said it has levied administrative fines against employers totaling more than $30 million in fiscal 2007.

By comparison, the number of “intent to fine” notices sent to employers fell from 417 in 1999 to three in 2004, according to statistics in an August 2005 report from the U.S. Government Accountability Office.

The increased law enforcement, that’s misguided,” said Pat McManaman, executive director of Na Loio – Immigrant Rights and Public Interest Legal Center in Honolulu, which is assisting some of the workers arrested in the Hawaii raids. “Arresting pockets of undocumented immigrants will do nothing in the long run to cure the immigration ills that face our country.”

Companies say they try to comply with laws

Last month, 41 Undocumented workers were arrested at the construction site of the Maui luxury condominium project Honua Kai, which is being developed by Vancouver-based Intrawest ULC.

Ledcor - U.S. Pacific Construction Honolulu is the general contractor on the project and it recently issued letters to its subcontractors, who employed the arrested workers, warning them to comply with federal laws.

Any further discoveries of undocumented workers in your employ will result in Ledcor taking every action available to us under the contract including the possibility of the termination of your contract and your immediate removal from the site,” said Jeff Thompson, project manager for Ledcor, in the letter.

In late July, 43 men were arrested at a Waipahu apartment complex. U.S. Immigration and Customs Enforcement officials said the men were from Mexico and worked for The Farms Inc. in Central Oahu.

Dax Deason, an immigration attorney with the Houston law firm Alaniz & Schraeder who is representing The Farms Inc. owner Larry Jefts, told that the company has not received notice of any civil fines or criminal violations.

We feel we fully complied with the laws and should they decide to go further, we’re prepared to defend our practices,” Deason said.

In May, 22 Undocumented workers, mostly from Mexico, were arrested at three Maui restaurants — Cheeseburger Island Style, Cheeseburger in Paradise and Bubba Gump Shrimp Co. in Lahaina.

Steve Moreau, director of communications for Bubba Gump Shrimp Co. Restaurants Inc. of San Clemente, Calif., declined to say whether the company had paid any fines. He issued a prepared statement:

We have cooperated fully with the government officials. Our operations in Lahaina have returned to normal. We continue our commitment to preventing employment of unauthorized workers. Our guests and employees alike can expect us to continue to take the lead on guest service, food safety and employment practices.”

Civil fines start at $375

In March, the federal government raised the civil fines against employers who violate federal immigration laws.
The fines, which increased by an average of 25 percent, had not been changed since 1999.

Employers found to have knowingly or egregiously hired illegal or undocumented workers face administrative fines for each violation and each worker.
In addition, those employers could also have all of their assets seized for the entire period that they employed Unauthorized or undocumented workers.

First offense: $375 to $3,200 each Undocumented worker.
Second offense: $3,200 to $6,500 each Undocumented worker.
Third offense: $4,300 to $16,000 for each Undocumented worker.

Nonfraudulent paperwork violations, i.e. failure to accurately complete the I-9 employment verification form, carry fines of up to $1,100

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