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Immigration Enforcement: A Tool to Silence Workers? Part 1

December 15, 2014
By Steven Wishnia

Last April, Ramon Mendez, a Mexican-born roofer in Los Angeles, complained to the Department of Labor that the contractor he worked for had stiffed him out of $12,000 he’d earned.

“Within a few days, immigration officers showed up at his house and put in a deportation order,” says Cliff Smith, business manager of Roofers and Waterproofers Local 36 in Los Angeles. But Mendez was on the street nearby and saw them coming. He escaped, and with union, community, and political support, was able to make a deal. He turned himself in to the Bureau of Immigration and Customs Enforcement, and as he had no criminal background and the agency has a policy of staying neutral in labor disputes, he was given an “order of supervision” and later a work permit. However, says Smith, “vindictive ICE officials are requiring him to wear an ankle bracelet, making it difficult to hold steady employment to provide for his wife and four children.”

Local 36 has no proof that the accused contractor reported Mendez to ICE, but the timing was definitely suspicious, Smith adds. The union has filed a Freedom of Information Act request for details on his case.

How employers use immigration laws against workers who speak out on the job is a complex, murky world. It’s not as black-and-white as it was under George W. Bush, when massive ICE raids often coincided with union campaigns—such as the 2008 raid at Agriprocessors, a meatpacking plant in Postville, Iowa that the United Food and Commercial Workers was trying to organize, where 389 people were arrested and 270 jailed for using Social Security numbers that weren’t their own.

The Obama administration doesn’t do that kind of raid. Instead, it has preferred what some call “silent raids” or “desktop raids.” It has quadrupled the number of audits of workplaces’ I-9 “employment eligibility verification” forms, to about 2,000 a year, according to a 2013 report by the National Employment Law Project.

“It’s not guys in black fatigues now,” says Mike Henneberry of UFCW Local 5 in California. “It’s bureaucrats on computers getting people fired.”

“The buildup of immigration enforcement provides unscrupulous employers with additional tools to retaliate against immigrant workers who seek to exercise their rights,” the NELP report said. More than 2 million undocumented immigrants were deported in Barack Obama’s first five years in office—more than in the Bush administration’s full eight—and employers are still finding ways to use immigration laws against workers complaining about conditions or trying to organize unions.

One common tactic is ordering workers to “reverify” their I-9 forms, as businesses are required to fire employees who can’t prove they’re legally allowed to work. “It’s very convenient for employers,” says an immigration specialist at one national union, who asked for anonymity because he is not authorized to speak on the record. “An I-9 audit gets rid of the complainers. It’s really damaging when you have organizing going on.”

When workers at Mi Pueblo Food Center, a Northern California supermarket chain, began picketing and leafleting in 2012, the stores “all of a sudden” volunteered to use ICE’s E-Verify database to check workers’ Social Security numbers, even though it had never enrolled before, says Henneberry. That was “pretty bizarre” given that the chain caters mainly to Mexican and other Latino immigrants, he adds.

I-9 forms are supposed to be checked only for new hires, “not for people who’ve been here five-six-seven-eight years,” says Pete Maturino, president of United Latinos of UFCW and head of Local 5’s agricultural division. The result at Mi Pueblo, where the owner “would only hire people who are undocumented because they won’t speak up,” was that about 750 workers, 70 percent of the stores’ staff, were terminated.

 This does not directly lead to deportation, but “ICE goes to people’s homes,” says Nelson Motto, an organizer with the National Guestworker Alliance in New Orleans. “The biggest challenge is that it’s extremely difficult to get ICE to admit that they were tipped off by the employer.” In one case, when construction workers in Washington, DC, were trying to form a union, the house where some of them were staying was raided. “We haven’t been able to prove that the employer tipped ICE, but if you ask the workers, they’re 100 percent sure,” he says.

Employers also ask to reverify I-9s when they want to avoid responsibility for an accident, Motto adds.

Workers have some protection, says Henneberry, from a 1998 memorandum of understanding between the Department of Homeland Security and the Department of Labor that ICE will hold off on raids if there’s a union-organizing campaign underway. Last year, says Motto, Jamaican guest workers cleaning hotels in Panama City and Dustin, Florida were able to use this to wage a strike when their employer threatened to deport them after they complained about not getting enough hours and receiving paychecks for $0. The key tactic, he explains, was immediately notifying ICE that there was a labor dispute going on and getting the agency to issue a written neutrality agreement. “That provided the workers a bit of relief,” he says.

Paradoxically, says the immigration specialist, ICE is more likely to initiate audits of better-paying employers, as they are more likely to “have their papers in order” and are thus easier to investigate than low-end employers. Employers who pay cash, who classify workers as independent contractors to escape wage and safety regulations, or are franchises technically not connected to the brand-name corporation, are harder to track. These employers are more likely to initiate audits on their own, and their workers have fewer protections when they try to organize or make complaints.

“If we have any kind of smoking gun that the employer did that, we can go after them,” he says, but if not, they can’t prove anything—although in one case, an employer left a voicemail message telling the union, “I’m going to have to call ICE if you don’t back down.”

Immigrant construction workers are particularly vulnerable, says Cliff Smith of the Roofers, because their work is intermittent, temporary or day labor. He calls Los Angeles “the wage-theft capital of the country.”

In 2012, according to the NELP report, two Brazilian construction workers from Massachusetts were deported after they tried to collect $6,500 a subcontractor owed them for a summer’s work installing plaster and sheetrock in Boston. When they went to the subcontractor’s home in the New Hampshire suburbs, he called police, who stopped them and turned them over to ICE.

This article originally appeared on Dissent NewsWire.

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