Thread: EMPLOYER CRACKDOWNS, ENFORCE THE LAW

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Federal Immigration and Nationality Act

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)

"Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

* assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or

* encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or

* knowingly assists illegal aliens due to personal convictions.

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. Day laborers or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verfication of authorization to work, employer also means an independent contractor, or a contractor other than the person using the alien labor. The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.

An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.

Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.

IT IS ILLEGAL FOR NONPROFIT OR RELIGIOUS ORGANIZATIONS to knowingly assist an employer to violate employment sanctions, REGARDLESS OF CLAIMS THAT THEIR CONVICTIONS REQUIRE THEM TO ASSIST ALIENS. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.

Encouraging and Harboring Illegal Aliens

It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any alien who is in the United States in violation of law. HARBORING MEANS ANY CONDUCT THAT TENDS TO SUBSTANTIALLY FACILITATE AN ALIEN TO REMAIN IN THE U.S. ILLEGALLY. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.

An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.

The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.

Enforcement

A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.

State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.

RICO -- Citizen Recourse

Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, AND CAN INCLUDE NONPROFIT ASSOCIATIONS.

Tax Crimes

Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In additon to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.
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http://www.americanpatrol.com/REFERENCE ... C1324.html


Employees sue employer under RICO

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09 | 29 | 2006

U.S. Court of Appeals for the Eleventh Circuit Gives Green Light to Employees Suing Mohawk Industries For Immigration Law Violations under RICO

The Racketeer Influenced and Corrupt Organizations Act (RICO) permits plaintiffs to act as private prosecutors and sue for injuries arising out of alleged conspiracies to commit specified types of felonies. In 1996, Congress amended RICO to add workplace immigration crimes to the list, including knowingly hiring 10 or more undocumented workers in a 12-month period.

A class of current and former hourly employees of carpet manufacturer, Mohawk Industries, sued the company in 2004 alleging that the company had conspired with recruiters and temporary help agencies to locate and transport large numbers of undocumented workers from the Brownsville, Texas, area, to Mohawk's plants in Georgia, for the purpose of driving down the wages of its U.S. workers. The complaint recited violations of various immigration crimes taking place over a five-year period, including knowingly hiring more than 10 illegal workers in 12-month increments, harboring said workers though employment and shielding them from detection by federal authorities, and accepting fraudulent documents to satisfy I-9 requirements.

Mohawk publicly denied these allegations and responded legally with a preliminary dismissal motion. The company lost its motion fight in the district court, but convinced the court to stay discovery pending the outcome of an appeal to the U.S. Court of Appeals for the Eleventh Circuit. There, Mohawk lost as well, but it also convinced the appeals court to continue the stay for Mohawk's appeal to the Supreme Court. The Supreme Court agreed to accept the case and to decide whether a corporate defendant, in combination with non-employee recruiters and temporary help agencies, may constitute a RICO enterprise if formed to locate and place undocumented aliens for employment with Mohawk.

Ultimately, the Supreme Court did not decide that issue, even though the issue was fully briefed and argued. Instead, the Supreme Court dismissed the appeal and remanded the case to the Eleventh Circuit with directions to reconsider its ruling in light of the Supreme Court's ruling in an unrelated RICO case which the Court dismissed for failure to state a RICO claim. The unrelated case, Anza v. Ideal Steel Supply Corp., involved a dispute between business competitors, one of whom claimed that defendant's failure to pay state income taxes gave it an enhanced competitive position in the market that plaintiff lacked, causing plaintiff's business to suffer. In Anza, The Supreme Court held that the alleged injury was too indirect to satisfy the proximate cause test required to state a RICO claim. In remanding the Mohawk case, the Supreme Court signaled that employees should not be able to sue their employers under RICO for immigration hire violations because the employees' alleged wage injuries were not directly caused by defendant's immigration infractions.

In the aftermath of the Supreme Court's remand decision in the Mohawk Industries case, some commentators predicted that RICO class actions were dead in the immigration/employment arena. That obituary appears to have been prematurely delivered. In hearing the case on remand, after reaffirming its prior decision with respect to other RICO requirements, the Eleventh Circuit turned to the proximate cause issue and held that at the pleading stage the Mohawk employees' complaint was sufficient to justify keeping the case alive for discovery. The complaint alleged that Mohawk had recruited, hired and harbored thousands of undocumented workers for its facilities in Georgia, undermining the individual and collective bargaining power of plaintiffs and their union to press for higher wages. The court rejected Mohawk's arguments that myriad factors could account for low wage rates other than the alleged unlawful conduct, and therefore the proximate cause test could not be met. Mohawk also argued that the injury ran to the federal government that enforces workplace immigration laws, not individual employees. The court also rejected this argument, stating: "It is consistent with civil RICO's purposes-to expand enforcement beyond federal prosecutors with limited public resources-to turn victims (here, Mohawk's legal workers) into prosecutors as private attorneys general seeking to eliminate illegal hiring activity by their own employer."

The Sixth and Ninth Circuits agree with the Eleventh Circuit's reasoning on the proximate cause issue; the Seventh Circuit does not. That split suggests that one day this issue will return to the Supreme Court, where the Court will be required to face it head-on. Until that happens, Mohawk and many other employers are likely to be called to defend their hiring practices against RICO claims. The incentive for bringing such civil actions is huge: treble damages and the prospect of recovering attorney's fees and costs as well.

Written by Mary Pivec

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Call your Senators and Representative and tell them we want Interior Enforcement and Employers held accountable. If you suspect that a company hires illegals, you can make the call to ICE. You need to have as much information as possible. Supply the agent with any addresses, phone numbers, vehicle tag numbers, number of people, and any other reasons you suspect illegal aliens. You are not required to leave your name, but your information needs to be accurate.

If you suspect someone is harboring, aiding and abetting illegal aliens you may call ICE or the FBI.

To Find local offices contact your senator or representative and if they do not have the number available (can you believe they often don't know it), ask them to find the number please and call you back.

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Legal Affairs

Tyson Foods Faces Suit over Illegal Workers

by Tanya Ott

Morning Edition, January 26, 2007 · Tyson Foods faces a class-action lawsuit accusing the company of hiring illegal immigrants at eight U.S. plants. A similar case in 2003 ended in acquittals and plea agreements. How are lawyers preparing for this trial? Tanya Ott of member station WBHM reports.

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http://www.npr.org/templates/story/stor ... Id=7029375