Shipley Immigration Raid raises hiring, workplace concerns

Houston's iconic Shipley Do-Nuts is known to generations of loyal customers for its sweet glazed pastries.

But Wednesday, the family-owned chain found itself in the spotlight of an emotional national issue when federal agents raided the company's Houston headquarters and arrested 20 suspected illegal immigrants employed at the facility.

Immigration and Customs Enforcement agents — in a caravan of 50 vehicles, detention vans and an ambulance — swarmed Shipley's office and warehouse complex on North Main Street at 5 a.m. A government helicopter circled overhead as the Shipley workers were led away in handcuffs to face civil charges of being in the country illegally.

The Houston bust took place at the same time ICE agents conducted raids of chicken processing plants in East Texas, Arkansas, Florida, West Virginia and Tennessee.

In all, 290 workers were arrested during raids at Texas-based Pilgrims Pride plants on suspicion of identify theft, document fraud and immigration violations, the agency said.

ICE officials released few details of the Shipley investigation, saying only that it would continue.

Employers who knowingly hire unauthorized workers can face criminal charges and fines. The workers arrested Wednesday face deportation.

"It's a worksite enforcement operation," said Robert Rutt, agent in charge of Houston's ICE office. "Our main focus is identifying the employers who hire illegal aliens."

Shipley officials, who could be seen meeting with ICE agents at the plant, declined to comment.

"Shipley Do-Nuts is a family-owned and operated business with a 72-year history in the Houston area," read a statement released Wednesday by the company, which has 190 stores in several states. "It makes every effort to comply with very complicated immigration laws, and is currently cooperating with authorities in an ongoing investigation. Shipley is deeply concerned for the well-being of its employees that are being detained and their families."

The Shipley raid centered on its 140,000-square-foot warehouse, processing plants and office complex. It is part of a four-block compound the company has at 5200 North Main, where doughnut mix and other fillings are made for many of the 86 Houston-area locations.

The site includes at least five trailers and 14 small homes. The neatly maintained properties sit behind cyclone and barbed-wire fencing used by some Shipley employees.

Many in the neighborhood were surprised by the raid, and some expressed outrage.

"That's just people trying to work, they come into the country to try and feed their family," said Derek Shumake, who lives across the street. "They work hard, and they do jobs most people won't."

The raid sparked questions about hiring practices at Shipley and trained a spotlight on working conditions at its compound.

Fifteen workers filed a discrimination lawsuit against the company in 2006, seeking damages for allegedly enduring daily slurs, such as "wetback" and "mojado" while working at the company's warehouse. Most of the allegations were filed against a former plant manager, Jimmy Rivera, and two supervisors.

Some workers, however, suggested that the Shipley family could have done more to protect them. Filberto Alvarado Robles, who worked for the company starting in 1997, said in an Equal Employment Opportunity Commission complaint that "the company knew what was going on, or should know" because workers had complained about Rivera to another supervisor.

The company settled the lawsuit with the workers in February. The settlement terms are confidential.

Another worker, Joel Sixtos Salvador, of Michoacan, Mexico, testified in his deposition that Rivera threatened him with deportation if he complained.

"He would call me a wetback. He would tell us that killing me was like killing a dog. He told me that I was Mexican, I like to eat a lot of tacos, that I also like chile. He would, well, humiliate me," Sixtos said.

"He told me he had some police friends and that he could tell them to arrest me and deport me," he testified.

In his deposition for the civil lawsuit, Rivera, a Shipley employee for 30 years, denied ever knowingly hiring an undocumented worker. He denied telling workers to go to a flea market to get fake documents, including Social Security cards.

"I don't look at it as nothing ugly, you know," Rivera said, but would not confirm or deny calling workers "wetbacks."

The depositions in the civil lawsuit include allegations that workers who complained about their treatment at the warehouse were evicted from company housing.

The housing was free to workers and their families, company president Lawrence Shipley III told investigators in the civil suit. But the workers testified that Rivera, the plant manager, charged them a fee — in some cases as much as $550 — to move into the home.

There was no indication in Shipley's deposition that he knew anyone was charging the workers to move into the homes. In the deposition, Shipley denied evicting workers for making complaints about work conditions.

The workers also alleged that Rivera would charge them money to enter a raffle to work overtime on weekends, and $50 to see the company doctor. One worker said he had to pay $100 to Rivera to avoid being fired after refusing to give him a massage.

Katrina S. Patrick, the attorney who represented the 15 workers in the civil lawsuit, said Wednesday: "We certainly intend to remain fully cooperative with the ensuing criminal investigation at the Shipley plant, to the extent that we have information relevant to the investigation."

Wednesday's Shipley raid, meanwhile, racheted up fears among immigrant advocates that widespread crackdowns at local job sites are imminent.

Maria Jimenez, a longtime Houston immigrant rights activist, led a noon protest of the raid outside the Mickey Leland Federal Building. Jimenez said the raid follows recent ICE arrests at local apartment complexes and the detention of undocumented day laborers.

"In the (immigrant) community there is a great deal of caution by all members about being as open as people used to be," she said.

"I know of immigrant families who are putting emergency plans together just in case they are picked up," Jimenez said. "It has all sorts of implications for immigrant families."

Curtis Collier, head of the locally based U.S. Border Watch, described the Shipley raid as a small prick in the overall picture of workplace violations by illegal immigrants.

"ICE could do this same raid multiple times a day, multiple times a week, and make very little impact on workplace violations by illegal immigrants," Collier said. "We do welcome the raids and hope they continue, and hope employers who choose to violate federal immigration law will be a target of illegal immigrant raids."

Federal Immigration and Nationality Act

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) Recruitment and Employment of Illegal Aliens Encouraging and Harboring Illegal Aliens Enforcement RICO —Citizen Recourse Tax Crimes Comment

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) "Any person who . . . encourages or induces an illegal 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 illegal 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 illegal 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 illegal 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 illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work.

It is unlawful to hire any 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 verification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the illegal 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 illegal 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 illegal 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 illegal 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 addition 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.

Comment:

A comment and a published quote by Robert Gaffney, Attorney and County Executive of Suffolk County, LI, NY:

The statutory foundation of United States immigration law has always been the jurisdiction of the federal government, Congress and the federal courts. The preeminent laws concerning the employment of illegal aliens are found in the Immigration and Nationality Act (8 U.S.C. §~ 1101-1503), as amended by the Immigration Reform and Control Act of 1986 CIRCA).

The law states it is a crime to assist an illegal alien who lacks employment authorization by referring him to an employer, or by acting as his or her employer, or as an agent for an employer. 8 U.S.C.S. § 1324a(a)(1)(A) (Lexis 1997). Furthermore, it is unlawful to hire an individual for employment without complying with the employment eligibility requirements for every person hired. 8 U.S.C.S. § 1324a(a)(l)(B) (Lexis 1997). Moreover, conduct tending substantially to facilitate illegal aliens remaining in the United States illegally, where there is knowledge or a reckless disregard of an illegal alien s unlawful status, is a crime, with escalating penalties, encompassed within the provisions of 1324. 8 U.S.C.S. § 1324(a)(l)(A)(iii) (Lexis 1997); United States v. Kim. 193 F-3d 567 (2d Cir. 1999), are considered employees for purposes of immigration law.

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