03/04/2012
Peter Brimelow writes: We’ve been interested for many years in Chicago lawyer Howard Foster’s application of the swingeing RICO [Racketeer Influenced and Corrupt Organizations] statute to illegal immigration. He achieved a signal victory against Mohawk Industries in 2010. Here, adapted from his blog, he reports his new class action, against Mississippi-based Sanderson Farms Inc.
I won one of my very few MSM journalism prizes, along with my co-author Leslie Spencer, for a 1989 exposein Forbes magazine of the trial lawyers' formidable power. (They are who really created Ralph Nader, for example). I am delighted to see this ferocious group descend on the corporate crooks who employ illegals aliens at the expense of Americans — the group we at VDARE.com call the “Slave Power”. I think they deserve each other.
And Howard Foster is a patriot into the bargain, as you can see from his writing here and here and here.
We have filed a new civil RICO wage depression class action, Simpson v. Sanderson Farms, Inc. against Sanderson Farms, Inc., a large poultry processor in Moultrie, Georgia and several of its HR (Human Resources) personnel for depressing the wages of the legal workers (Ms. Simpson and co-class representative Ms. Roberts).
Anyone believing the illegal immigration problem has abated due to the recession should read the Complaint, which will be posted on our homepage.
Here are a few highlights:
Janie Perales, an HR hiring clerk in charge of interviewing Spanish-speaking applicants for hourly-paid positions at the plant (a significant portion of all applicants) boasted that she “could get a busload of Mexicans anytime [Sanderson] needs them.” In conducting job interviews she routinely accepted IDs issued from Mexico, photos which had been cut and pasted into homemade documents and photos with images of more than one person (all of which violate the Immigration Reform and Control Act, (IRCA), the law prohibiting the hiring of illegal immigrants). She was trained by her superiors not to ask the obvious follow-up questions of such persons (like where were you born?).
The Company’s line was always, “we’re not immigration; we’re here to run our business.” But this is patently wrong. IRCA made employers “the front line in the enforcement of federal laws governing employment eligibility.” Castro v. Attorney General of the United States, _F.3d _, 2012 WL 456530 at *10 (3d Cir. 2012).[PDF]
The situation grew so offensive to Moultrie, Georgia that even the pro-Mexican Bush administration conducted a raid of sorts in 2008. Word leaked out in advance to Sanderson. Some of the Defendants tipped off known illegal immigrants. They did not come to work the day of the “raid.”
It is typical for companies using large numbers of illegal immigrants to have sympathetic HR personnel to facilitate the illegal hiring. In my case against Zirkle Fruit Co. in Selah, Washington, Perales’ counterpart was herself an illegal immigrant who obtained her first job with the Company using a fake social security number and was promoted to HR executive. She even married the HR Director.
After the raid, Sanderson conducted a symbolic purge of some known illegal immigrants and fired Perales. It wanted to give the illusion to the Department of Homeland Security (DHS), charged with enforcing IRCA, that it had turned over a new leaf.
But Perales’ replacement also makes sure that Spanish-speaking job applicants are not really questioned about their suspicious identification documents.
Sanderson now uses DHS’ E-Verify program, an on-line confirmation system which advises employers whether document numbers tendered by perspective employees are legitimate.
But if a job applicant is using a social security card with a number issued to someone now dead, a common form of document fraud, E-Verify will give the employer the “authorized for employment” message. Thus, as I have written before, the system does not guard against document fraud.
Sanderson’s Spanish-speaking applicants are mostly illegal. This is obvious from their job applications, which are completed before the document review occurs. Many indicate graduation from Mexican high schools and prior employment in Mexico or Guatemala.
This does not by itself mean the person is not in the U.S. legally; we do admit about 50,000 immigrants from these two countries annually. But when someone with such a background cannot speak English (a requirement for naturalization) and then checks the U.S. citizen box on the I-9 form (which IRCA requires be completed at the time of employment), any law-abiding employer should be on alert for document fraud. The applicant is very likely using a social security card issued to someone else and is not authorized for employment under IRCA. It is a felony and a potential RICO violation for both the employee to tender such a document and for the employer to knowingly accept it and employ that person.
So we have the phenomenon of E-Verify as a fig leaf. DHS could improve the system by displaying a digital photo image of the prospective employee tendering the document on the employer’s computer screen. But this has limited utility. DHS does not have digital images of U.S. citizens. It only takes photos of legally admitted aliens at their time of entry. Most document fraud occurs by illegal immigrants stealing the identity of U.S. citizens.
And secondly, anyone like Ms. Perales, hell bent on hiring illegal immigrants, could simply ignore the photo or claim it bore a close enough likeness to the job applicant sitting in front of her to constitute a match.
For this reason, any law making use of E-verify mandatory, a good idea in theory, must have a strict enforcement regime to back it up. The Obama administration, pining for amnesty for all illegal immigrants, will not do so — bringing to mind the proverbial fox guarding the chicken coop. (Although here legal U.S. workers trying to get jobs are the chickens.)
If Mitt Romney, a supposed hard- liner on illegal immigration, is elected, he may push for such a law. And then it may be worth supporting.
But we need to remember that non- enforcement of tough- sounding laws is disastrous. In 1986 Congress passed and President Reagan signed IRCA into law which made it illegal to hire illegal immigrants. For the first time, American employers had to ask employees for their documents, verify under oath that they examined them and that the documents appeared “genuine” and “related to the person” tendering them (i.e., no fakes).
This sounded great at the time, and for a while the flow of illegal immigration from Mexico slowed to a trickle as the Mexicans waited to see if the U.S. government would really enforce IRCA. But the Reagan administration brought very few prosecutions against HR managers and their companies for violating IRCA. And the trickle of illegals turned into a torrent throughout the 1990’s.
A serious DHS director (I have someone in mind if Romney wins) would subject poultry processing plants, notoriously rife with illegal immigrants, to special scrutiny. This could be accomplished by making the plant turn over copies of the verification documents, employment applications and I-9 Forms to DHS agents on a regular basis for review. It does not take long to identify fraud.
Or the plant could be required to employ independent fraud examiners in the HR department to review all documents at the time of hire. The government takes such measures in enforcing other criminal laws, for example by enacting special regulations for companies which handle toxic chemicals and subjecting those companies to more rigorous inspection.
DHS knows which industries tend to rely on illegal workers. It needs to take strong ongoing measures against them. The occasional “raid” such as occurred at Sanderson, in which the target of the raid is discreetly tipped off in advance, is designed merely to appease a public fed up with the problem.
For now, we have the Obama DHS, which has brought a tiny number of IRCA workplace enforcement actions (and always against the employers, never the illegal workers), and of course RICO.
I will keep readers updated on the progress of this and other RICO cases against employers of illegal immigrants as events warrant.
Howard Foster is principal of Foster PC in Chicago.
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