THE OBAMA ADMINISTRATION IS NOT ENFORCING THE LAWS AGAINST HIRING ILLEGAL IMMIGRANTS

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Postville, Iowa was a small mainly Lutheran Midwestern town of 2,300 when Abraham Rubashkin and his son Sholom, members of the fundamentalist orthodox Jewish Lubavitch sect and purveyors of kosher meat through their Brooklyn, New York-based company, Agriprocessors, bought the town’s defunct meatpacking plant in 1987.  Soon more than a hundred Lubavitchers moved from New York to Postville to work for the kosher meat processing plant, primarily in management positions.  The actual processing of livestock was done, as the nation learned in 2008, by a workforce of Guatemalan and Mexican illegal immigrants using fake identity documents.  However, Agriprocessors’ flagrant use of  illegal immigrants was an open secret among consumers of kosher meats, discussed on numerous websites and debated in orthodox synagogues around the country.  There were boycotts of the Company’s Glatt (meaning strict adherence to Jewish dietary laws)  products, marketed under the labels “Aaron’s Best” and “Rubashkin’s.”  

The situation persisted for years, actually decades, until the Bush administration got serious about enforcing the laws against hiring illegal immigrants (which I’ll refer to as “workplace enforcement”) in 2007.  (It should be noted that President Bush’s interest in workplace enforcement began only after the failure of Congress to enact his “comprehensive immigration reform” legislation, which would have allowed illegal immigrants to live and work legally in the U.S. upon payment of a modest fine in June 2007.  Apparently, the administration decided the country really did want immigration enforcement after all.)  In May 2008 the Bureau of Immigration and Customs Enforcement (“ICE”) raided Agriprocessors, rounding up 389 illegal workers.  (Most of the remainder of the 968 employees had apparently been tipped off and failed to show up for work on the fateful day.)  This was reportedly the largest single ICE enforcement action since the agency’s creation in 2003 as the successor to the I.N.S., which was abolished. 

Five hundred federal agents were deployed for the raid.  The subsequent processing of the prisoners was such a vast undertaking that ICE had to use Postville’s large Exhibition Center.  At least 70 of the illegal workers pled guilty at the Center and were promptly deported.  Another 40 illegals were detained so they could testify as prosecution witnesses against Sholom Rubashkin for hiring, harboring and falsifying documents in the long-running scheme to employ a mostly illegal workforce, which he, as CEO of the plant, directed be paid $5-$6 per hour, below the minimum wage.  He also employed many underage workers, for which the State of Iowa is prosecuting him.

One of the government’s most sensational allegations was that Rubashkin, having been tipped off shortly before the raid, ordered his Human Resources personnel to dispense cash to the illegal workers so that they could purchase new, more authentic-appearing fake identity documents and fill out new, backdated, employment applications with their new identities.  This entailed the commission of hundreds of felonies: soliciting illegal workers to purchase fake identity documents, knowing acceptance of fake documents and backdating of I-9 forms (required to be completed within three days of employment).  Rubashkin could not only have been put away for life but also been  fined and been divested of the financial  gains of his immigration crimes, the huge savings in labor costs he enjoyed for years.  But as we will see, it never came to pass.

Although the government indicted Rubashkin for these immigration crimes it also charged him with bank fraud, particularly using false financial statements to induce banks and oither firms to extend credit to Agriprocessors. In November 2009 a jury in Sioux City, S.D. (where the trial had been moved) convicted Rubashkin of nearly all of the financial crimes. (The district judge ordered two separate trials, one on the financial crimes and a second on the immigration crimes). 

The government should have been emboldened for the next trial.  But on November 19, 2009 the Justice Department quietly announced it was dismissing all of the immigration charges against Rubashkin.  Why?  The U.S. Attorney in charge of the case explained that any sentence Rubashkin would receive on the immigration charges “would be eclipsed” by the very long prison sentence he will likely receive when sentenced on the financial charges (theoretically up to 1200 years).  But this is a highly unsatisfactory outcome for two fundamental reasons:  First, criminal laws have dual purposes, to punish and to deter others.  Dropping the huge number of criminal workplace charges sends the message to employers that the government does not really care about such offenses.  And secondly, it’s a waste of the taxpayers’ money to have planned the massive raid fror the stated purpose of cracking down on illegal immigration, deploying 500 agents for days, diverting them from other worthy law enforcement efforts, and detaining 40 witnesses for over a year in federal prison for basically nothing.

If the government only wanted to prosecute the financial crimes, then it should not have staged the raid.  And staging the raid only to subsequently drop all of the immigration charges amounts to a tacit admission by the government that even the most egregious workplace violations can be bargained away with a guilty plea to some other offense.  This was made quite clear by the government’s sentence of Karina Freund, one of Rubashkin’s accomplices in the workplace violations.  She was sentenced to one year of probation and fined $10 (yes, ten dollars), less than a slap on the wrist.

A comparison of the enforcement efforts of the Justice Department’s Civil Rights Division and ICE tells us where the administration’s priorities are.  The Civil Rights Division of DOJ is, in the words of Attorney General Eric Holder, “the crown jewel” of the Agency.  It has a most impressive and detailed website filled with evidence of of a steady stream of civil and criminal actions against employers who allegedly violate the civil rights of their employees  (www.justice.gov/crt/emp/papers.php, visited March 9, 2010).  I cannot find any evidence that the Obama DOJ has voluntarily dismissed a civil rights case.  (Many are settled with consent decrees to enforce changes in hiring procedures, but that is not a dismissal of the charge.)  If I am wrong about this, I would like to be told so I can correct the record and explore the reasons for the dismissal.

On the other hand, ICE’s website evidences a far more modest mission.  It states, “The Worksite Enforcement Unit’s mission encompasses enforcement activities intended to mitigate the risk of terrorist attacks posed by unauthorized workers employed in secure areas of our nation’s infrastructure”  (www.ice.gov/pi/worksite/index.htm, visited March 9, 2010).  In other words, the government has no interest in enforcing ordinary non-terrorist workplace violations, like at Agriprocessors.

In fairness, it must be pointed out that Janet Napolitano, Secretary of the Department of Homeland Security, which oversees ICE, has made public statements to the effect that the administration will prosecute employers who egregiously violate workplace laws (rather than the illegal workers).  But one cannot really come up with a more egregious case than Sholom Rubashkin.