February 2009, Page 53

Immigration
By Ivan Dominguez

Cold ICE Brings Heat, But Not Light, To Immigration Debate

2008 — The Year in Immigration Enforcement
In the aftermath of the congressional failure of the McCain-Kennedy immigration reform legislation in the summer of 2007, which would have resulted in comprehensive immigration reform, the issue of how to fairly and effectively enforce U.S. immigration laws is proving to be as vexing and divisive as ever.

Inherently unjust mass trials, known as “Operation Streamline,” which began in 2005, continued in 2008. It was also a record arrest year for workplace immigration raids. Local and state governments persisted in their efforts to arrogate to themselves immigration enforcement authority. And discrimination, violence, and even murder of those perceived to be immigrants –unauthorized or otherwise — galvanized communities from the Long Island seashore and the five boroughs of New York City to the border towns in the desert southwest and rural agricultural centers in the heartland of America.

Perhaps the difficulty in the administration of a fair, just, and consistent approach to the millions of unauthorized immigrants who call America home was best reflected in some of the more unexpected violations of immigration law. Dozens of unauthorized workers were arrested in July 2008 while performing their maintenance duties in six different courthouses in Rhode Island.1 The following October in Mesa, Ariz., local law enforcement, arrogating to itself immigration enforcement authority, raided city hall and the public library in the middle of the night with 60 heavily armaed officials hunting for unauthorized custodial workers.2 And in December, it came to light that at least five unauthorized workers, retained through an outside contractor, had worked as cleaners in the home of Secretary of Homeland Security Michael Chertoff.3

By way of background, the estimated unauthorized immigrant population in the United States increased from 8.4 million to 11.9 million, or about 42 percent, from 2000 to 2008, according to the Pew Research Center. The pace of inflow, however, slowed from approximately 800,000 per year from 2000 to 2004 to about 500,000 in each year since 2005.4

Operation Streamline and Worksite Raids
Through Operation Streamline, undocumented people arrested while attempting to cross the border are brought to a local jail, and those without a criminal history or prior illegal entry are charged in federal court with a misdemeanor, “entry without inspection.” These individuals often meet their attorney for the first time at their initial appearance, where they are brought bound together in groups of 50 or more before a U.S. magistrate judge, who explains the charges en masse. The defendants are offered a short sentence in return for guilty pleas and then speedily deported to their own country, usually Mexico. The procedures barely, if at all, comport with due process of law.

A species of Operation Streamline was implemented in Postville, Iowa, last May, where after the mass arrest of undocumented individuals employed at the Agriprocessors plant, CJA lawyers were appointed to dozens of clients each.
The arrestees were offered seven days to plead guilty and consent to deportation or face being charged with aggravated identity theft (which carries a two-year mandatory minimum penalty per charge as opposed to less severe misdemeanor offenses).

“[T]he program is punishing people, with criminal convictions and collateral consequences, whose only offense was to try to slip into this country and find work,” explained NACDL’s Immediate Past President Carmen Hernandez. “The next time they try — and statistics show that most of them will — they face serious time in federal prison, a consequence of the government’s goal of zero-tolerance for illegal immigration and poor representation.”5

Such “streamlined” procedures preclude the proper exploration of potentially available defenses. Often, inadequately resourced groups of court-appointed lawyers are being forced to handle cases, like cattle at the stockyards, in mass guilty pleas. And arrestees may not be given adequate explanations of the collateral consequences of a decision to plead guilty, which include inability to re-enter the United States legally in the future or apply for citizenship.

Of course, Operation Streamline is just one of the latest federal prosecutorial initiatives that attack perceived problems without regard to the individual circumstances of the accused. In addition, it dilutes the independence of the judiciary when otherwise conscientious federal judges acquiesce to these procedures. No federal judge should arraign more than one person at a time nor convict and sentence a fellow human being to prison in a communal sentencing procedure.

Through it all, NACDL stands firm in its role as “Liberty’s Last Champion,” urging the adoption of rational immigration policies, including a cessation of Operation Streamline and “champion[ing] the development of laws that provide a sensible supervision program for non-U.S. citizens to enter this county for the purposes of work.”6

“Postville pointed up very dramatically the need for the defense, immigration, and civil liberties bars to come together for the same clients,” explained Tova Indritz, Chair of NACDL’s Immigration Law Committee. NACDL has since embarked upon a collaborative effort with the American Civil Liberties Union, the American Immigration Lawyers Association, federal public defenders from across the country, CJA lawyers, and immigration and civil rights lawyers, which took the form of an extensive training program in September in Kansas City, Mo. NACDL President-Elect Cynthia Hujar Orr, who is also Chair of NACDL’s Operation Streamline Task Force, was on the team that prepared a motion “tool kit” for attorneys to use after future workplace raids. Orr was also a speaker at the training program on a panel titled “Ethical Issues in Postville-Style and Operation Streamline Prosecutions.”7

The Criminalization Surge
From 2002 to 2008, worksite criminal arrests increased almost 45-fold, from 25 to over 1,100. The overwhelming majority of arrestees were workers, not owners, managers, or supervisors, according to U.S. Immigration and Customs Enforcement (ICE). During the same period, administrative worksite enforcement arrests jumped from 485 to 5,184, a greater than 1,000 percent increase in just seven years. ICE identifies aggravated identity theft and social security fraud as charges faced by criminally arrested workers.8

Of course, the question of the applicability of the federal “aggravated identity theft” statute, 18 U.S.C. § 1028A(a)(1), to individuals who used false means of identification without knowing it belonged to another person is a serious mens rea issue. It has significant implications in the immigration enforcement setting in light of the trend toward increased criminal prosecutions. Indeed, in October 2008, the U.S. Supreme Court granted certiorari in the matter of Flores-Figueroa v. United States (No. 08-108) to address this very question. And NACDL is out front. On December 22, NACDL filed an amicus brief in support of Petitioner in Flores-Figueroa.9

ICE says that it “focuses on employers who are egregiously violating immigration laws, especially when those violations can compromise our nation’s security.” So let’s look at the year in workplace immigration raids. According to U.S. government data, during fiscal year 2008, there were 1,103 criminal and 5,184 administrative workplace immigration-related arrests. Just over 10 percent of the criminal arrests, and about 2 percent of the total arrests (criminal and administrative), were of owners, managers, or supervisors, while the remaining arrests were of allegedly unauthorized workers.10

More than 10 percent of the U.S. federal prison population is incarcerated on immigration-related offenses, while non-U.S. citizens make up more than 25 percent of the federal prison population, according to the federal Bureau of Prisons.11

This trend toward criminal prosecution is reflected dramatically in the most recent Transactional Records Access Clearinghouse (TRAC) analysis of data from the Justice Department. It reflects that in August 2008, the most recent month available, the growth in federal prosecution is largely driven by prosecutions in the area of immigration, which accounted for 54.4 percent of federal prosecutions.12

Adding insult to injury, according to ICE’s Web site, among the leading harms caused by unauthorized aliens working in the United States is that “Every job taken by an illegal alien is a job taken from a lawful U.S. worker.”13 Apart from questionable nature of such a sweeping conclusion, this premise fosters discrimination and violence. Examples of suspected violence of this nature include the widely reported November 2008 stabbing death of Ecuadorean immigrant Marcelo Lucero in Patchogue, N.Y., and the December 2008 fatal beating (with a bottle and a baseball bat) of another Ecuadorean immigrant, Jose O. Sucuzhanay, on the streets of Brooklyn, N.Y.14

Looking Back, but Looking Forward
Now, a new administration and a new Congress are taking shape. The Obama transition team was clear that it supports comprehensive immigration reform that “reaffirms our heritage as a nation of immigrants.” Part of its immigration agenda is to “bring people out of the shadows” and “support a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens.”15 We must watch closely.

A witness to Operation Streamline proceedings in Tuscon, Ariz., NACDL Executive Director Norman L. Reimer, put it best: “As a perversion of our criminal justice system, Operation Streamline deserves scrupulous attention by NACDL. As a manifestation of our nation’s immigration policy, it deserves scrupulous attention by every American.”16 The same goes for ICE’s “worksite enforcement” practices and the proceeding that emanate from them. And NACDL has risen to the call.

Under the inspired leadership of the late Robert Hooker, a passionate champion of liberty, NACDL established an Operation Streamline Task Force in 2008. Led by Hooker and Cynthia Hujar Orr, NACDL adopted a detailed policy, including specific guidelines for attorneys, concerning Operation Streamline proceedings. Collaborating with the immigration and civil rights bars, NACDL helped prepare motion “tool kits” and train attorneys to provide quality, effective representation in Operation Streamline proceedings and those following mass worksite raids. NACDL has also passed resolutions concerning both Operation Streamline and ICE worksite sweeps, outlining a specific roadmap of abuses arising from these immigration enforcement actions and urging Congress to take immediate action. Through The Champion, NACDL has educated its members, the legal community, and the public about the significant criminal justice issues implicated by the government’s tactics in its immigration enforcement “surge.” NACDL will remain vigilant.

Notable Workplace Raids of 2008
1 Action Rags USA, a Houston, Texas-based exporter and grader of used clothing (June 2008) — more than 150 workers arrested.
2 Agriprocessors, a meat processing company in Postville, Iowa (May 2008) — 389 workers arrested.
3 House of Raeford Columbia Farms, a chicken processing plant in Greenville, South Carolina (Oct. 2008) — more than 300 workers arrested.
4 Howard Industries, an electrical transformer manufacturer in Laurel, Mississippi (Aug. 2008) — 595 workers arrested.
5 Micro Solutions Enterprises, a computer printer cartridge manufacturing plant in Van Nuys, California (Feb. 2008) — 138 workers arrested.
6 Rhode Island courthouses (six of them) using two contractors — Falcon Maintenance Co. and Tri-State Enterprises (July 2008) — 31 workers arrested.
*Source: U.S. Immigration and Customs Enforcement, Department of Homeland Security17


Notes
1. Karen Lee Ziner and Felice J. Freyer, Dozens Arrested in Raids at Courthouses, PROVIDENCE J., July 16, 2008.
2. Paul Giblin, Arizona Sheriff Conducts Immigration Raid at City Hall Angering Officials, N.Y. TIMES, Oct. 17, 2008, at A10.
3. Spencer S. Hsu, Homeland Security Secretary Michael Chertoff Unwittingly Paid Undocumented Workers, L.A. TIMES, Dec. 11, 2008.
4. More information on trends in unauthorized immigration is available in the complete report issued on October 2, 2008, by the Pew Hispanic Center, a Pew Research Center Project at http://pewhispanic.org/ reports/report.php?ReportID=94. This and all Web sites cited in this article were last visited on Dec. 30, 2008.
5. Carmen Hernandez, Operation Streamline, THE CHAMPION, May/June 2008, at 5.
6. A complete copy of the Policy adopted May 4, 2008, emanating from the work of NACDL’s Operation Streamline Task Force, is available at http://www.
nacdl.org/public.nsf/freeform/BoardResolutions?OpenDocument.
7. Members can access the motion “tool kit” as well as the PowerPoint presentation, which also sets forth NACDL guidelines for these matters, in the Committee Reports section of the October 2008 Fall Meeting Board Book, available in the “Staff and Committee Reports” section of the “Members Only” portion of NACDL’s Web site, at http://www.nacdl.org/private .nsf/Freeform/reports?OpenDocument.
8. Additional details are available at the Web site of the U.S. Immigration and Customs Enforcement, Department of Homeland Security at http://www.ice.gov/ index.htm, and specifically at ICE’s worksite enforcement “Fact Sheets” at http://www.ice.gov/pi/news/factsheets/worksite.htm, http://www.ice.gov/pi/news/ factsheets/worksite_cases.htm, and http:// www.ice.gov/pi/investigations/worksite/newsreleases.htm.
9. A copy of NACDL’s brief is available at http://www.nacdl.org/public.nsf/new sissues/Amicus?opendocument.
10. See note 8.
11. Information concerning the U.S. federal prison population is available in the “Quick Facts” section of the Web site of the Federal Bureau of Prisons, U.S. Department of Justice, at http://www.bop.gov/ news/quick.jsp.
12. Transactional Records Access Clearinghouse data available at http://trac.syr.edu/tracreports/bulletins/.
13. “What’s the harm of illegal aliens working in the U.S.?” at http://www.ice.gov /pi/news/factsheets/worksite.htm.
14. Kareem Fahim and Karen Zraick, Killing Haunts Ecuadoreans Rise in New York, N.Y. TIMES, Dec. 15, 2008, at A28.
15. See agenda item “Immigration” at http://change.gov/agenda/immigration_agenda/.
16. Norman L. Reimer, Operation Streamline Is Operation Heartbreak, THE CHAMPION, April 2008, at 51.
17. See note 8.


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org