Winning in Court Often Does Little for the Opponents of Immigration Abuse

By David North, March 7, 2017

While it is good that some citizens and corporations are hauled into court for immigration violations, all too often — despite the nature of their actions — the violators get off with slaps on the wrist.

While there are countless cases of this kind, let me touch on just one recent criminal case and one recent civil case, both in the federal courts, and the unfortunate decision pattern of an obscure agency with an interesting name, the Office of the Chief Administrative Hearing Officer (OCAHO) in the Department of Justice.

The good guys, in my eyes, in these cases are: 1) prosecutors of immigration fraud; 2) farm workers hurt economically by an H-2A employer; and 3) prosecutors of employment sanctions violations. The good guys won all their cases, but with too minor consequences.

A Recent Criminal Case. The criminal in this instance, who ran multiple fraudulent H-2B operations, pled guilty to a single count of "conspiracy to commit visa fraud" a year and a half ago, and was finally sentenced on March 1 in the U.S. District Court for Massachusetts. (H-2B is a foreign worker program for unskilled, non-agricultural workers, often restaurant and hotel workers, as in this case.)

She is Mavadene Thomas, 42, of Myrtle Beach, S.C., an immigrant from Jamaica and a naturalized citizen. She played the role of a crooked labor broker, dealing in hotel, laundry, and restaurant jobs. She probably made a lot of money out of her activities, presumably from fees charged to employers and illicit shakedowns of the workers, but the court filings I saw did not specify a dollar total.

Having caused the admission of scores of aliens illegally through multiple illicit maneuvers and through half a dozen paper corporations, you might expect a punishment consisting of a jail term, a substantial fine, a substantial forfeiture, and maybe even the start of a denaturalization process that could lead to deportation.

But no. She was put on probation for three years, one year of which is to include home confinement, had to pay a piddling $4,000 fine, and make a forfeiture of $37,000. That's all.

While in home confinement one can work either from one's home, or in an office or shop, though there is a home confinement fee based on 25 percent of gross income. This penalty sounds like what parents do to a momentarily wayward teenager – "You are grounded for the weekend and we are going to reduce your allowance!"

I blame these slaps on the wrist on both the sitting district court judge, Patti B. Saris, a Clinton appointee, and, to a lesser extent, on the U.S. Attorney's office, The latter urged a forfeiture of $174,007.73, picking up a number from the profits of one of her multiple schemes, when they should have argued that the forfeiture should have been based on all of her conspiracies. (The government might also have tallied all the extra workers she introduced into the country and pointed out that every one of them took a job from a legal resident, but it did not do so.)

Thomas's lawyers argued that her profits from just one of her criminal activities, cited as $20,413.72, should be the basis for the forfeiture. They defined away the others.

They also argued, in effect, that Ms. Thomas was only a part-time criminal and, besides, the nasty old government's regulations made her do it.

This is a quotation from the defendant's forfeiture memo:

This case is not like a heroin distribution prosecution where every aspect of the defendant's conduct was illegal. Ms. Thomas was actively engaged in a business where she worked long hours. ... The essence of her criminality was that she used shortcuts to get around regulations that were so onerous.

You would think those would be losing arguments, but they were not. I do not know where the judge got the $37,000 figure, but it is much closer to the defendant's proposal than that of the government. Users of the court's PACER system of trial documents can find this case at 1:16-cr-10135-BPS.

A Recent Civil Case. During the 2013 grape harvest season in Washington State's Yakima Valley, an ag industry giant, Mercer Canyons, applied for and received permission to hire an unknown, but large number of foreign farm workers under the H-2A program. Among the things that the firm promised was that it would inform the H-2A workers and U.S. workers in less well-paying jobs that there were $12/hour jobs available.

Mercer Canyon failed to tell the workers of these jobs, and the farm workers continued work at the rate of $9.88/hour.

Columbia Legal Services and allied law firms filed a class action suit, initially on behalf of 600 workers (though this number has apparently dwindled), and fought Mercer Canyons in federal district court, in the 9th Circuit, and back in the district court again, winning all the way in a case with more than 250 specific items in the file record by PACER, the courts electronic documents system. The case number is 1:14-cv-03032-SAB. Mercer Canyons, having lost in the various court rooms, and facing a substantial (but unknown) court order against them, settled with the workers last month.

Mercer Canyons is privately held, so there are no financial reports for the firm, but its economic heft is reflected in its website that proclaims that it provides "roughly 365 million pounds fresh produce [each year] that equates to almost 1 pound of veggies for every American."

So what were the terms when this ag Goliath settled with the Davids, the workers and their attorneys? The agreement carries the inevitable language about the company admitting no faults in the matter, and that it paid $545,000 to the workers and $650,000 to their lawyers, who had been working on spec for the previous three years.

The exact amount of money for each of the workers is not known, as the exact number of them is not clear, but the settlement called for the payment of $1,500 to all "inaccurate information class members" and perhaps a little more.

The two named plaintiffs, Bacilio Ruiz and Jose Amador, will get a princely $7,500 each. (In their case there is a clause that I am sure was written by the Mercer Canyon lawyers: "Defendant will issue an IRS Form 1099-MISC to [the] Plaintiffs." This will make certain that Ruiz and Amador pay the appropriate taxes on their respective windfalls.

In short, much huffing and puffing but minimal proceeds for the workers.

The Office of the Chief Administrative Hearing Officer. An organization with a name like that would seem to be a large one; it is not. The last time I looked there was just the CAHO herself and two administrative law judges; it is part of the Justice Department's Executive Office of Immigration Review.

Its main role in life is to review the fines imposed on erring employers, who have been charged with violating the employer sanctions law, by either hiring illegal aliens or by failing to keep appropriate records on the people they hire. Everyone in OCAHO is a civil servant. Cases against employers are brought to it by Immigration and Customs Enforcement (ICE).

Back in 2013, I wrote a blog post on OCAHO and its long record of lowering the fines that had been proposed by ICE on law-breaking employers; the blog post was based on the little headlines on OCAHO in Interpreter Releases, the ultra-careful, somber trade paper for the immigration bar, and found the publication virtually always reported that ICE's proposed fines had been reduced, often substantially.

Using the same methodology for the last three months I found these items in the same periodical:

  • "OCAHO Imposes Substantially Reduced Penalty for Small Trucking Company"
  • "OCAHO Imposes Substantially Reduced Penalty for Small Packaging Company"
  • "OCAHO Again Reduces Penalties Assessed Small Business for I-9 Violations"
  • "OCAHO Assess Penalties for Family Restaurant's I-9 Violations, Reducing Them
    Somewhat from What ICE Sought"

These are from the front pages of the December 5, December 12, January 9, and February 13 issues; the publication is not available on the internet.

In other words, OCAHO is still approaching the same question in the same regrettable way.

What, if anything will the Trump people do about that, given the president's comments on illegal aliens? There are two predictions:

Short-term, i.e., in the next several months, nothing.

It is likely that the so-far tiny cadre of political appointees may not yet know about this obscure agency, and if they do, they have, at least initially, much bigger fish to fry.

Longer-term, probably not much.

The Trump administration is favorable to small business, and may be unduly tolerant of small businesses that break the immigration law. Further, and perhaps more importantly, these administrative law judges are career officials and, at least in the past, their independence of judgment has not been challenged.

So in six months, maybe a year from now, the copy desk at Interpreter Releases will still be writing "OCAHO Imposes Substantially Reduced …" just as it has done for so many years in the past.