David Bacon will be speaking at CSU-Sacramento at the Progressive Forum on Oct.9,2008.
By David Bacon
The Nation, October 6, 2008
Research support for this article was provided by the Puffin Foundation Investigative Fund at The Nation
TUCSON, AZ (9-17-08) -- A special Federal District court convenes every day at one PM in Tucson. All the benches, even the jury box, are filled with young people whose dark brown skin, black hair and indigenous features are common in a hundred tiny towns in Oaxaca or Guatemala. Their jeans, tee shirts and cheap tennis shoes show the dirt and wear from the long trek through north Mexico, three days walking across the desert, and nights sleeping at the immigration detention center on the Davis Monthan Air Base.
Presiding over one court session in June, Judge Jennifer Guerin called these defendants before her in groups of eight. They walked up in tiny waddling steps, heavy chains binding their ankles and wrists to their waists. Judge Guerin recited a litany of questions, translated into Spanish through headphones. "You've been charged with illegal entry, a criminal offense...at trial you would have the subpoena power of the court...you have certain rights," she intones. At the end she asks anyone who doesn't understand to stand up. No one does. She asks if they plead guilty. After a moment in which her question is translated, seventy voices mumble "Si."
Leaving the courtroom a young woman stumbles, eyes streaked with tears. A public defender tells the judge her feet are covered with blisters from walking through the wilderness. A boy looking no older than 13 or 14 searches the room with his eyes as he's led away, perhaps seeking a friend or relative. No one seems older than 30, and most are much younger. They are today's border crossers - the mostly-indigenous youth of southern Mexico and Central America.
They all plead guilty to a Federal criminal charge. Sentences run from time served to six months in a Federal lockup run by Corrections Corporation of America.
According to the Spanish news agency EFE, this new court process, dubbed Operation Streamline, convicted 5187 migrants from January 14 to June 10 of this year. Isabel Garcia, who heads Derechos Humanos, a leading immigrant rights organization in southern Arizona, says the current daily quota of 70 chained defendants will soon be raised to 100 - 50 tried on one shift, and 50 on another. Twenty-one new federal prosecutors will handle the surge, with CCA detention facilities to house it.
A new bureaucracy is growing rapidly, thanks to drastic changes in immigration enforcement. In past decades, migrants were treated very differently when caught without papers. They were allowed to leave voluntarily, or deported after being found guilty of an administrative infraction, the equivalent of a parking ticket.
Today's migrants have become criminals. The features pioneered in Tucson's courtroom - serious Federal criminal charges, mass trials of defendants in chains, and incarceration - are becoming standard features of immigration raids from Postville, Iowa, to Los Angeles, California. State laws now supplement Federal statutes, and Federal, state and local authorities cooperate closely to bring a large variety of criminal charges against migrants.
Working without papers has become the most serious crime of all. The vast increase in workplace raids under the Bush administration, however, is motivated by more than a zeal for enforcing the law, or even placating the nativist wing of the Republican Party. Enforcement is part of a pressure campaign designed to win passage of immigration reform centered on guest worker programs.
In November, 2006, 1282 workers were detained by hundreds of heavily armed ICE agents in military garb at six Swift and Co. packinghouses. Homeland Security Secretary Michael Chertoff then told reporters that raids would show Congress the need for "stronger border security, effective interior enforcement and a temporary-worker program.'' Bush wants, he said, "a program that would allow businesses that need foreign workers, because they can't otherwise satisfy their labor needs, to be able to get those workers in a regulated program."
This spring, in a New York Times interview, Chertoff elaborated: "We are not going to be able to satisfy the American people on a legal temporary worker program until they are convinced that we will have a stick as well as a carrot." His carrot is the prospect of massive contract labor programs for business. The sticks are the chains in the Tucson courtroom.
According to Garcia, each day's defendants are less than 10 percent of those picked up on the Arizona border. "They're making an example of them to create a climate of fear," she charges. "We are a laboratory. The model they're developing in Arizona is coming everywhere."
Garcia's warnings have made her a target of rightwing talk radio hosts, who routinely urge listeners to call the county executive to get her fired from her job as a public defender. But in Postville, Iowa, where Tucson's assembly-line justice was transplanted virtually intact, her warning was accurate.
On May 12 Immigration and Customs Enforcement (ICE) agents swooped down on workers at the Agriprocessors meatpacking plant. Twenty minutes after the shift started, Maria Rosala Mejia Marroquin saw people running past the line where she stood cutting up chicken breasts, shouting that the migra was in the plant. She ran too, and in a dark warehouse tried to squeeze between huge boxes. "Men came in with flashlights. One pointed a gun in my face, shouting 'No one will escape!'" she remembered. When she was interrogated, she told agents she had a daughter in childcare, but lied to keep them from knowing where the babysitter lived, fearing she'd be picked up as well. Agents finally strapped an electronic monitoring device onto her ankle, telling her she had to wait for a hearing.
Her brother Luz Eduardo was taken with 388 others to the National Cattle Congress, a livestock showground in Waterloo, two hours away. In a makeshift courtroom they went in chains before a judge who'd helped prosecutors design Tucson-style plea agreements five months before the raid even took place. In order to get a job at Agriprocessors, workers had given the company Social Security numbers that were either invented, or belonged to someone else. The judge and prosecutor told workers they'd be charged with aggravated identity theft, which carries a two-year prison jolt, and held without bail. If they pleaded guilty to misusing a Social Security number, however, they would serve just five months, and be deported immediately afterwards.
"They told [my brother] if he signed the papers they'd deport him, but it was a lie," Mejia says. "He didn't know he was agreeing to criminal charges, and now he's been in prison in Kansas for months." Translation into Spanish was provided, but according to Elida Tuchan, who was also arrested, about half the detainees speak only Cachiquel, an indigenous language from San Miguel Dueñas, their Guatemalan hometown. "They felt terrorized, that everything was against them. They didn't understand anything about the process or their rights."
To the workers, deportation became desirable. Anacleta Tajtaj was also braceleted, while her husband was deported and three brothers went to prison. "Our family in Guatemala was eating because of us. Now they'll go hungry," she lamented. It cost them each 33,000 quetazales (about $4000) to get to the U.S., a huge sum in San Miguel Dueñas, requiring them to mortgage homes and farms. "Now we just want to go back. Everything here is a crime - all the normal things like working." Tajtaj and the other women can't go home yet, however. Three months after the raid they didn't even have dates for their first hearing.
"They can't work, they have no way to pay rent or buy food, their husbands or brothers are in prison or deported, and they're being held up to ostracism in this tiny town," says Luz Maria Hernandez, who heads the support network for 48 braceleted women at Postville's St. Bridget's Catholic Church. "This is a form of psychological punishment."
Ostracism has become a common element of workplace raids. Women released for so-called humanitarian reasons to care for children become isolated and dependent on friends and relatives. In Los Angeles,, women braceleted after a raid at the Micro Solutions electronics plant on February 7 were shunned by their own roommates, who left them and their children facing eviction. A challenge by the Coalition for Humane Immigrant Rights in Los Angeles finally won removal of the bracelets after three months, but the support network of immigrant rights groups is not as strong in northern Iowa.
Workplace raids are sweeping the country. According to Secretary Chertoff, "arrests in worksite cases have jumped from a total of 850 in 2004 to 4,940 last year, including 863 arrests based on criminal charges." From January 1 to May 31, 2008 alone, ICE had arrested 3000 people for immigration violations, and 875 more on criminal charges.
In June among those arrested were 160 workers at Action Rags in Houston, 32 farm workers for Boss 4 Packing in Heber, California, and nine workers at water parks in Arizona. In May "cops and guns and badges and everything" were used to detain 16 workers at San Diego's French Gourmet bakery, according to Rod Coon, company vice-president. The same month, 25 construction laborers were picked up in Florida working on the Lee County Jail. April saw raids detaining 28 landscapers in El Paso, 24 construction workers in Little Rock, 63 taco makers at El Balazo restaurants in the San Francisco Bay area, 22 restaurant workers on Maui, 33 laborers on the federal courthouse project in Richmond, Virginia, 20 workers at Shipley's Do-Nuts in Texas, and 45 workers at a Mexican restaurant chain in several states.
This two-month snapshot is an incomplete count of smaller worksite enforcement actions, which go on constantly, along with frequent raids on street-corner day laborers. But in addition to Postville, large raids have also become much more frequent.
Worksite enforcement, in turn, is used to dramatize Bush reform proposals that come from some of the country's largest corporations. In 1999 a group of corporate trade associations, in industries employing large numbers of immigrant workers, formed the Essential Worker Immigration Coalition because U.S. industry, it said, faced a huge labor shortage. "Part of the solution," EWIC announced, "involves allowing companies to hire foreign workers to fill the essential worker shortages."
The group, headed by the US Chamber of Commerce, includes the American Meat Institute, the National Association of Chain Drug Stores (Wal Mart, among others), the National Council of Chain Restaurants, and other industry associations. While EWIC doesn't contribute money directly to political campaigns, any politician its lobbyists visit know EWIC member industries give plenty. In the 2000 election cycle, for instance, the meat processing industry gave $1,292,877 -- $145,520 to Democrats and $1,143,107 to Republicans. So far in 2008, the restaurant industry has already given $7,361,945 ($2,918,797 / $4,427,704).
In an August 2001 letter to Bush, EWIC argued for "a temporary worker framework that provides a role for such workers whose labor is needed in the US." A 2002 Cato Institute report, authored by Daniel T. Griswold, said "the experience of the bracero program demonstrates that workers prefer the legal channel." A huge temporary visa program "should be created that would allow Mexican nationals to remain in the United States to work for a limited period." EWIC and its member associations immediately greeted the report. The National Restaurant Association warned that restaurants faced "a worker shortage of 1.5 million jobs," and said the plan "would give employers greater opportunities to fill these jobs."
The Bush administration issued its own proposals a year and a half later, and they were identical to those in the report. Cato's ties to the media helped guest worker proposals achieve greater legitimacy. When the Institute asserted that industries face a tremendous labor shortage, rather than a corporate unwillingness to pay higher wages to attract workers, much of the media treated it as fact. Cato and EWIC members shared an aversion to minimum wages. Rob Rosado, director of legislative affairs for the American Meat Institute, said "We don't want the government setting wages [in guest worker programs.] The market determines wages."
EWIC's ideas were embraced by Democrats as well as Republicans. The McCain/Kennedy, Hegel/Martinez and STRIVE bills all shared a similar architecture. They established large guest worker programs, allowing corporations and contractors to recruit hundreds of thousands of workers a year outside the country, on temporary visas that would force them to leave if they became unemployed. To force workers to come only as guest workers, and to stay in the program once they were in the U.S., the bills all mandated a tighter border to make crossing without papers more difficult, and beefed-up employer sanctions to make it impossible to hold a job without a guest worker visa.
In the bracero program of the 1950s and early 1960s, many workers simply remained in the U.S., working under the table until they found a way to get a permanent visa. Many workers in current guest worker programs also stay in the country as undocumented immigrants, even though getting permanent status has become almost impossible. The enforcement provisions sought to cut off that option.
"Enforcement is not an issue you can separate from guest worker programs," says Mary Bauer, director of the Immigrant Justice Project at the Southern Poverty Law Center. An SPLC report, Close to Slavery, documents extensive abuse of workers in current programs, and the benefit to employers of a workforce with few rights, whose vulnerable status makes organizing to raise wages difficult. "Immigration enforcement is structurally necessary for these programs," she explains.
Most comprehensive bills also contained legalization provisions for currently undocumented people, but would have imposed fines and long waiting periods from 11 to 18 years, during which time applicants would be as vulnerable as ever. Employers, however, would be immune to employer sanctions for employing them, while recruiting new workers through guest worker programs.
A much more liberal immigration bill sponsored by Congress member Sheila Jackson Lee and members of the Congressional Black Caucus was dismissed as "politically unrealistic" because it contained no guest worker program. EWIC anchored an alliance with immigration lawyers, establishment civil rights organizations and several unions. John Gay, representing the National Restaurant Association in EWIC, became board chair of the National Immigration Forum, a powerful mainstream immigration lobbying group in Washington. Tamar Jacoby, former staffer at the rightwing Manhattan Institute, was one of the coalition's most prominent spokespeople. Today she has organized a new corporate lobby, ImmigrationWorks, that includes EWIC, National Council of La Raza, the National Restaurant Association, and the U.S. Chamber of Commerce. One key affiliate, the Federation of Employers and Workers of America, calls itself "the national voice of the existing legal guest worker programs," and represents industry associations that push for them.
After Congress failed to pass a guest worker/enforcement/legalization package, the administration began to implement its enforcement proposals through increased raids. "But we would have had raids with those bills too, because of their enforcement and funding provisions," says Marielena Hincapie, executive director of the National Immigration Law Center.
The administration also used the bills' failure as a pretext for relaxing restrictions on current guest worker programs. ICE Director Julie Myers told the Detroit Economic Club in April that "the administration has both streamlined the H2-A [agricultural guest worker visa] application process and has given U.S. employers more flexibility... These changes will make it easier for agricultural employers to hire foreign temporary or seasonal labor to harvest crops." It also allowed employers seeking H2-B guest workers to simply "attest" that they'd tried to find local workers, rather than have the Department of Labor certify that they'd made a real effort.
The Southern Poverty Law Center, the AFL-CIO and immigrant rights groups have bitterly opposed these changes. Employers have generally supported them. "We see employers on the Hill all the time, saying they have to have guest workers. At one hearing they had to open extra rooms to accommodate all the lobbyists," Bauer fumes. "And support is coming, not just from Republicans, but from Democrats like Barbara Mikulski, Zoe Lofgren, Ted Kennedy and even John Conyers."
Making it a crime for an undocumented person to hold a job is made possible by the Immigration Reform and Control Act, passed in 1986. Prior to that, workers could be deported for being in the U.S. without a visa, but working itself was not a crime. The then-Immigration and Naturalization Service conducted some workplace raids, but immigrants were either forced to leave the country voluntarily, or held for deportation hearings. They could make bail.
In the late 1970s, the INS and others began seeking laws to make it illegal for people without papers to work, and for employers to hire them. They argued that if people could not work legally, they would leave. The INS campaigned for passage of IRCA (then the Simpson-Mazzoli and Simpson-Rodino bills), with a wave of raids called Operation Jobs. Agents would arrest workers in a factory, and go to the local unemployment office to hold a press conference. With reporters and unemployed workers in tow, they'd return to the raided factory, claiming they'd "created" jobs. They would then demand that Congress pass sanctions.
Raids became more difficult after the INS was sued by Molders Union Local 164 and the Mexican American Legal Defense and Education Fund in the early 1980s. After the suit was won, agents had to stop their practice of locking workers in a factory, interrogating foreign-looking people about their legal status, and instead were required to have warrants naming specific individuals.
Then IRCA's passage made it a federal offense for an employer to hire someone without immigration papers, and for that person to hold a job. Job applicants now have to provide two pieces of identification to show their status, and a Social Security number. By inspecting employer hiring records, INS agents can come up with the names of workers to put on warrants for a raid.
Immigrants didn't go home, however. Defenders of sanctions ignored the ongoing displacement of people by structural adjustment programs in Mexico and other developing countries, reinforced by the passage of the North American Free Trade Agreement. In the NAFTA years, over six million Mexicans came to live in the U.S. Since relatively few visas are available for legal immigration, most came without them.
Although Bush officials claim worksite enforcement hardly existed before the present administration, the current wave actually started in the Clinton era. The Social Security Administration began sending letters to employers listing employees' names and numbers that didn't match SSA records. Employers were then left free (and often encouraged) to assume that the reason for the mismatch was that the workers were undocumented. After numerous employers used the letters to fire activist workers during union campaigns, unions and immigrant advocates convinced SSA to include language in the letters warning employers not to construe a mismatch as evidence of lack of immigration status. Nevertheless, although no count has ever been made, thousands of undocumented workers have lost their jobs because of the letters.
In 1999, using Social Security numbers in Operation Vanguard, INS agents sifted through the names of 24,310 workers in 40 meatpacking plants throughout Nebraska. They then sent letters to 4,762, demanding they report to INS agents at their jobs. A thousand did, of whom 34 were arrested and deported. The rest, over 3500 people, were forced to find new jobs. One of Operation Vanguard's architects, INS Dallas District Director Mark Reed, claimed success, saying the operation was really intended to pressure Congress and employer groups to support guest worker legislation. "We depend on foreign labor," he declared. "If we don't have illegal immigration anymore, we'll have the political support for guest workers." Reed and the INS also conducted more traditional raids during those years, seizing workers for deportation at Nebraska Beef, Montfort Packing, Tyson Foods, and other plants.
Social Security grew so uncomfortable with the use of its database for immigration enforcement that after Operation Vanguard the agency refused to make it available for similar operations in other states. Today, however, ICE seems to have regained access to the files, and now uses mismatches to identify workers for raids, and to charge them with criminal offenses. Meanwhile, the money paid by undocumented workers under bad numbers reached $586 billion in 2006. Since those workers may never collect benefits based on those earnings (which go into the Earnings Suspense File), they are contributing a huge subsidy to the retirement of all Social Security recipients.
Worksite enforcement actions accelerated enormously after George W. Bush took office. Following the 9/11 attacks, raids dubbed Operation Tarmac targeted airports around the country, leading to the firing and deportation of hundreds of mostly food service workers. After the creation of the Department of Homeland Security, the new Bureau of Immigration and Customs Enforcement (ICE) took over from the old Immigration and Naturalization Service, and more raids followed.
The administration used worksite enforcement actions to dramatize its call for comprehensive immigration reform (the shorthand name given by Washington groups to the bills combining guest workers, increased enforcement and legalization). On April 10, 2006, the first huge immigrant rights march took place in Los Angeles, protesting House passage of the Sensenbrenner bill (HR 4437) the previous December, which would have made undocumented status a federal felony. On April 19, 1187 workers were arrested at plants of IFCO Systems North America, Inc. in New York, Texas, Wisconsin and Massachusetts. Then in December, after the Senate passed an immigration bill more in line with administration proposals, ICE mounted probably the largest workplace raid in U.S. history, detaining 1282 workers at six Swift and Co. packinghouses.
The administration's drive was dramatized by other large-scale, highly publicized worksite sweeps. They included the arrest of 81 plastics workers at Iridium Industries in Poconos, Pennsylvania, 136 chicken workers at George's Processing in Missouri, 165 workers at Portland's Fresh Del Monte produce plant, 327 workers at the Michael Bianco leather factory in New Bedford, and 200 janitors for Rosenbaum-Cunningham International in 17 states.
Once the comprehensive reform proposals died in Congress in 2007, more major raids followed, including two at the Smithfield pork slaughterhouse in Tarheel, North Carolina, which took place in the middle of one of the country's longest and hardest-fought union organizing campaigns. In addition, 130 immigrants were arrested at Micro Solutions in Van Nuys, dozens at a Fresh Direct produce warehouse in New York City, and 161 poultry workers at Koch Foods in Ohio. Just before the Postville raid, 311 workers were detained at Pilgrim's Pride plants where they cut up chickens for KFC.
As early as the IFCO raid, some workers and low-level supervisors were charged with criminal violations, not just being in the country illegally. At Swift the administration began to shape its new strategy of substituting criminal charges for status violations. Some 65 of the workers arrested there were charged with identity theft or other criminal offenses, as were the workers picked up at Smithfield. Barbara Gonzalez, an ICE spokesperson, told reporters outside one Swift slaughterhouse that "we have been investigating a large identity theft scheme that has victimized many U.S. citizens and lawful residents." ICE head Julie Myers told other reporters in Washington, D.C. that "those who steal identities of U.S. citizens will not escape enforcement."
Dramatic identity-theft charges were intended to gain public support for the raids and the bills in Congress, but ICE was also announcing a new strategy for criminalizing work.
ICE claims that raids and sanctions protect wages against employers' use of undocumented labor. A week after the Postville raid, ICE Director Myers claimed enforcement targeted "unscrupulous criminals who use illegal workers to cut costs and gain a competitive advantage." An ICE Worksite Enforcement Advisory claims "unscrupulous employers are likely to pay illegal workers substandard wages or force them to endure intolerable working conditions. ... ICE's Worksite Enforcement Unit also helps employers improve worksite enforcement of employment regulations."
Actual enforcement of labor standards, however, is in freefall. On July 15 the Government Accountability Office charged that Department of Labor inspectors routinely fail to investigate complaints, and close half of them after short calls to employers.. From 1997 to 2007, the number of inspectors dropped from 942 to 732, and the number of cases went from 47,000 to 30,000, the lowest since World War Two. Meanwhile, the budget for the Border Patrol has climbed to $1.6 billion, while 15,000 agents make ICE the second-largest investigative agency in the Federal government.
The affidavit supporting ICE's search warrant for the Postville plant stated a source saw a supervisor "duct-tape the eyes of an undocumented Guatemalan worker shut and hit the Guatemalan with a meat hook, apparently not causing serious injuries. The Guatemalan did not want to report the incident because 'it would not do any good and could jeopardize his job.'" Although ICE would not identify the beaten worker or confirm his detention, it is probable that after the raid he was in Federal prison, while the supervisor continued working. The Iowa Labor Commissioner documented 57 cases of child labor at Agriprocessors and filed 9000 child labor charges against the company. Some of the 57 young people are now undoubtedly in prison or wearing electronic ankle bracelets. Although some may get temporary visas as witnesses, all will eventually be deported.
Despite ICE claims that raids protect labor standards, enforcement often helps employers attack efforts by undocumented workers to better conditions. The two raids at Smithfield's Tarheel, North Carolina, packinghouse created a climate of terror during the union organizing drive, according to organizers. When housekeepers at the Woodfin Suites in Emeryville, California, tried to enforce a new municipal living wage law, ICE investigated them at the request of Congressman Brian Bilbray (R-San Diego), and company president Samuel Hardage. According to Mejia, supervisors often used immigration status to threaten workers in a union drive at Agriprocessors a year before the raid. And at Pilgrim's Pride packing plants ICE and employers cooperated to arrest employees this spring.