Wednesday, April 24, 2013

The Senate's Hoffman Plastics Fix, but Problematic Identity Fraud

Guest blogger: Vivian Denise Valencia, third-year law student, University of San Francisco

The Senate proposal for immigration reform, “Boarder Security, Economic Opportunity, and Immigration Modernization Act,” (S. 744) included a few provisions that will radically transform the conversation we have about immigration and immigrants in this country.  There are many other parts of the proposed bill that raise grave concerns for immigrant rights groups. 

Most notably, the legislations would provide a pathway of citizenship to millions of immigrants in the United States.   One of the most devastating issues that immigrant communities face today is the injustices they face in labor.  Currently, immigrant workers have very little protection from oppressive employers and are forced to settle for what jobs they find and take them as they find them, regardless of whether the working conditions are safe, wages are fair, or discrimination is rampant.  Whistleblowers in such workplaces run the risk of exposing themselves to possible inadmissibility or deportation.  The proposed bill changes that by offering protection to victims of “serious violations of labor and employment law.”   Under the labor protection provisions, immigrants will be granted the opportunity to help the government enforce labor and employment laws.  Immigrants are typically in a disadvantaged bargaining position in labor talks because employers acknowledge the lack of protection they have; consequently, many employees are exploited and not fairly compensated.  Many times wages are held, safe working conditions are denied, and unionization is prohibited, leaving the immigrant worker even more vulnerable to social pressures.  This provision in the proposed bill would empower workers to protect themselves, their labor, and immigrant communities. 

Specifically, the immigration bill addressees the devastation to immigrant communities caused by the Hoffman Plastic Supreme Court decision.  Hoffman Plastics denied undocumented workers from back pay.   The bill provides that workers may not be denied back pay or other damages based on their immigration status. 

However, the bill’s extension of inadmissibility and deportability for criminal reasons is bothersome.   For example, passport and immigration fraud triggers inadmissibility and removal. Passport fraud is not rare in the immigration context, considering immigrants already face so much exclusion from society for not being able to prove their own identity.  They are excluded from working, the very reason most come to this country, without identification, and therefore many choose to commit fraud in order to work.  The effects of this is a tragic reality that I have experienced in my work with indigent criminal defendants.  Many of the defendants that get charged with fraud are exploited and coerced into believing that fraud is the only way to achieve the “American Dream.”  Unluckily, many desperate immigrants succumb to the enticement of more seasoned producers of fraudulent documents.  When the hard working immigrant with false documents is convicted, they realize their trust in someone promising them a better life was misplaced.  Unfortunately, then it is too late.  The proposed provision will further punish already disenfranchised, desperate immigrants for frauds they commit in order to better their lives and the lives of their families.  This over criminalization and misappropriation of law enforcement focus burdens our communities and our economy. 

Further, the bill is unclear as to whether its provisions would apply retroactively.  If so, it is likely that even though a person may have been convicted of fraud decades ago and has since lived a law-abiding and contributing life in the United States, they could face severe immigration consequences.  These mandatory provisions should be eliminated and discretion allowed to consider the proportionality of the punishment and the appropriateness of cruel immigration consequences.

bh

http://lawprofessors.typepad.com/immigration/2013/04/the-senates-hoffman-plastics-fix-but-problematic-identity-fraud.html

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