Commentary on Postville Raid

I want to thank Kevin and Bill for asking me to join the Immigration Prof Blog. As my first post, I include my reaction to the Postville raids, which has been published an op ed.

Immigration Raids Lead U.S. to a Moral, Legal Crisis

By Raquel Aldana

Postville, Iowa has been turned into a ghost town. Nearly a third of its residents, mostly undocumented workers from Guatemala and Mexico, sit in jail convicted of identity crimes or awaiting deportation. Hundreds more hide in fear. Their children, too scared to go to school, have left the town's classrooms nearly empty. For this, Postville should thank their local police, the U.S. Immigration and Customs Enforcement Agency (ICE), and a failed immigration policy.

Aided by local law enforcement, ICE arrested 389 workers during the largest single-site immigration raid in U.S. history at the Postville meatpacking plant, the area's major employer. In an unprecedented move, ICE criminally charged 302 of these workers with aggravated ID theft and/or using false social security numbers. Within days, ICE resolved their fate: 297 men and women pled guilty and were sentenced to prison and subsequent deportation. Only a few await criminal trials or immigration hearings.

Postville is one of the latest in a series of immigration raids that have intensified in the past three years. These raids are leading our nation to a moral, legal and humanitarian crisis.

ICE's heavy handed enforcement against undocumented workers in the wake of failed immigration reform is shameful. Under current immigration laws, no more than 10,000 of the backlogged visas for unskilled workers and 66,000 temporary visas for seasonal workers are available each year. In contrast, an estimated 2,000 persons cross the Southwest border into the U.S. daily and an estimated 12 million undocumented persons live in the U.S.

Global economic realities push willing workers out of their nations, where they have no means to earn even a subsistence living and pull them into low wage jobs in the U.S., where the lack of labor protection leaves them vulnerable to exploitation. U.S. employers and we as consumers benefit from their cheap labor, but these workers and their families bear the brunt of a broken immigration system.

Few employers face civil and criminal sanctions for violating immigration and labor laws. So far, no one from Postville plant has been charged despite overwhelming evidence that the company helped workers procure false documents, paid substandard wages, failed to pay overtime, and seriously mistreated its workers. All the while, Congress continues to kill proposals granting even temporary legal status to agricultural workers, while doling out large subsidies to U.S. farmers without regard to their effect on future migration of rural workers from developing nations into the U.S.

Legally speaking, ICE and federal prosecutors overstepped their powers when they criminally charged the workers. Congress specifically exempted from prosecution workers who use false Social Security numbers to engage in otherwise lawful conduct, such as to procure jobs.

This unprecedented criminalization of undocumented workers also has not been accompanied by a comparable infusion of constitutional guarantees in the handling of these cases. ICE conducted the investigation leading to the Postville raid with easy access to immigration databases and employee documents. ICE then executed the raid with easily-procured administrative, not criminal, warrants.

Thus, the protection of stricter Fourth Amendment search and seizure, Fifth Amendment due process, and Sixth Amendment right to counsel constitutional guarantees available to most criminal defendants were unavailable to these workers. Nearly all waived any rights they might have had under extreme prosecutorial pressure. The uncharacteristic speed and efficiency of the Postville raid left workers without adequate opportunity to consult with defense counsel, and none or few had access to immigration lawyers to learn about the immigration consequences of their pleas.

The involvement of local law enforcement in these raids is also worrisome. Distrust of police keeps many immigrants from reporting crime. This increases their vulnerability as victims. Moreover, the drain on limited resources from these additional responsibilities on local police takes away from their primary duties as community caretakers.

The courts must be vigilant in protecting the rights of workers and their families and insist on stricter constitutional guarantees when criminal charges are involved.

These raids should be halted immediately. The prospect of future raids should certainly create a sense of urgency for the U.S. to adopt immigration policies that allows employers to hire migrant workers, and include strong labor protections that offer a path to legalization for workers and their families. If workers are legal, we are all better off.

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Aldana is a board member of the Society of American Law Teachers and a professor of law at the University of Nevada, Las Vegas School of Law.

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Copyright (C) 2008 by the American Forum. 6/08

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