Going after the Employers of Illegal Aliens

By Mark Krikorian on August 10, 2020

National Review, August 10, 2020

One year ago, ICE raided multiple chicken plants in Mississippi, arresting hundreds of illegal aliens. Dozens of them have been convicted of various federal crimes, such as identity theft and document fraud.

But what about their employers? Simply arresting a bunch of illegals, and leaving it at that, is both unjust and ineffective. Unjust because it lets the other participant in the criminal transaction off the hook, and ineffective because employers can just hire another batch of illegal aliens and essentially write off the disruption as a cost of doing business.

That's why it was so encouraging that ICE has just announced the first indictments against managers at some of the Mississippi chicken plants. Four people at two of the plants have been charged with a variety of crimes, including harboring illegal aliens, wire fraud, identity theft, and more. All four could potentially spend the rest of their lives in prison.

The reason it took a year to see these indictments (more of which will be forthcoming, I hope) is that, while knowingly employing illegal aliens is illegal, it's hard to prove because of the word "knowingly." It takes a long time to build a case that can stick, because there's a lot of nudge-nudge, wink-wink, say-no-more in the hiring of illegals, providing legal deniability to the companies that employ them. Tysons was acquitted in a 2003 case because, while the lower-level managers were indisputably guilty, top corporate management had enough buffers between it and the button men in the field that it was able to beat the rap.

But by arresting and charging the illegals themselves, prosecutors gain leverage, and are able to offer leniency if the illegal workers rat out their managers. It's similar to going after a narcotics organization — you want to get the dealers off the street, of course, but you also want to work your way up the chain. We'll have to see whether this week's indictments lead to charges against more senior management as well.

We saw this process at work at the Agriprocessors beef plant in Iowa, which was raided by ICE in 2008. Prior to that, state and federal regulators had persistent reports of abuses — related not only to immigration but also to wages, safety, animal cruelty, etc. — but never had enough evidence to act. Only when the ICE raid arrested nearly 400 illegal aliens, about 300 of whom ended up sentenced on felony charges, did the evidence start pouring in. Much of the management was charged with a variety of crimes, including harboring illegal aliens, child labor, ID theft, document fraud, bank fraud, mail fraud, money laundering, and more. Sholom Rubashkin, son of the owner and the plant's day-to-day boss, was sentenced to 27 years in prison (though, appallingly, a bipartisan push in Congress persuaded President Trump to commute his sentence after serving only about eight years).

There's also a bureaucratic reason for the relative lack of effective worksite enforcement. As its name suggests, ICE has two divisions, roughly corresponding to immigration and customs. The first is Enforcement and Removal Operations, which detains and deports illegal aliens. The other is Homeland Security Investigations, which focuses on customs matters, such as counterfeit Gucci handbags and smuggling of exotic animals. Unfortunately, HSI is also in charge of worksite immigration enforcement, in which it has little interest. In fact, the Gucci handbag crowd wrote to then Secretary Nielsen in 2018 asking to be separated from ICE and freed of icky immigration responsibilities. So it's essential that the bureaucratic structure itself be modified to reflect a commitment to worksite enforcement.

But even a few criminal convictions serve as an example. The fact that HR managers are facing decades in prison is sure to be featured prominently in HR newsletters, seminars, training materials, and the like. And, in fact, some meatpackers have taken steps to distance themselves from illegal labor. For example, Tysons (perhaps motivated by its close call in 2003) has been investing heavily in automation.

Other meatpackers have opted to continue labor-intensive operations but sourced legal labor elsewhere, specifically from federally funded refugee-resettlement contractors — including Catholic Charities, the Lutheran Immigration and Refugee Service, and the Hebrew Immigrant Aid Society — that direct desperate Congolese, Burmese, and Somalis into their factories. That's why Big Meat, which wouldn't at first blush seem to be an obvious stakeholder in refugee policy, has objected to Trump administration reductions in resettlement.

The single most important step in ensuring that legal status becomes a broadly accepted labor standard (like child labor rules, for instance) is mandatory E-Verify, backed by routine audits and stiff penalties for non-compliance. Backsliding is always possible (as we've seen with the lamentable history of worksite immigration enforcement), but the more routinized and embedded it becomes, the harder it will be for some future administration to give the green light to employers to return to hiring illegal aliens.