Just over a month ago, federal agents surrounded several different Mississippi poultry-processing plants, including Koch Foods in Morton. Ultimately, law enforcement officers arrested approximately 680 people who had no legal status to be in the United States, but nonetheless were working at the plants. The operation amounted to the largest single state workplace immigration raid in American history. Among those detained was a breastfeeding mother who was separated from her four-month old baby.
Prior to entering legal academia, I served as a United States Magistrate Judge in Corpus Christi for the United States District Court for the Southern District of Texas for eight years. Within the Corpus Christi division, there are three Border Patrol checkpoints that provide leads to prosecutions of many people for narcotics and immigration charges. Federal magistrate judges in south Texas regularly handle criminal proceedings with defendants charged with illegal entry, illegal reentry into the country, and smuggling of undocumented aliens. The first one is a misdemeanor, and the latter two are felonies. I presided over prosecutions of these types of offenses in thousands of cases.
Noticeably absent from this list is unlawful employment of undocumented immigrants, which also is a felony. Thinking back on my eight years in the job, I cannot recall handling any prosecutions for this offense. That fact still amazes even though it shouldn’t. Undocumented immigrants are a large component of the American labor force involving everything from the construction industry, restaurant and hotel services, companies that provide contract labor for cleaning buildings, childcare, and, of course, the domestic food-production industries. Indeed, it would be very difficult to eat American-produced agricultural products without indirectly supporting the undocumented immigrant labor force. In light of how integral immigrant labor is to the American economy, my amazement smacks of naivety.
While United States Immigration and Customs Enforcement agents arrested almost 700 people who have no legal status to work in the United States, there were no criminal charges against the employer or anyone in management for hiring so many undocumented people. Neither the employer nor the managers could have possibly been unaware of their workers’ immigration status. Indeed, some reports indicate that plant managers knew that employees came to work wearing ankle monitors because they were pending immigration hearings. Employees also used fraudulent Social Security numbers with management’s knowledge. The affidavits that accompanied the search warrant applications for these raids indicated that Koch Foods managers knew that the company was hiring and employing undocumented immigrants. Moreover, within a few days of the raid, when employees who were not arrested in the raid returned to work, they were fired based on their immigration status. In other words, the employer had enough information to limit its liability immediately following the raid. Still, Koch Foods is denying it knew its workers immigration status in a lawsuit against the government.
However, last month’s story is not unique. I have conducted research that shows since 2014, across the country, there have been no more than 200 prosecutions for alleged violations of 8 U.S.C. § 1324a, the law that makes hiring undocumented immigrants illegal.
That is a paltry number compared to the rate of prosecutions against illegal entry and reentry. When I served on the bench, I assisted in the McAllen Division and handled more than 200 prosecutions for illegal reentry in less than two weeks.
Moreover, those 200 federal prosecutions are often clustered in specific federal districts. Over 20 of these prosecutions occurred in the United States District Court for the Western District of Michigan, which means that one district accounts for about 10 percent of such prosecutions across the country. It is not that employers in Kalamazoo are hiring undocumented workers at a much more prodigious rate than others across the country. For whatever reason, that district and its leadership has created a culture in which this offense is investigated and charged with some regularity.
In other words, although it has been a little over a month since the raid, it is highly unlikely that the employer or its management will be charged federally. If there are any such changes, it will likely happen because of the relatively high-profile nature of this raid.
What happened in Mississippi reveals the hypocrisy of how the law is being applied today. Prosecutors exercise their discretion to charge undocumented immigrants while ignoring a significant component of the issue. The problem is that if one believes that the presence of undocumented immigrants in the United States poses a national security threat, then one should be approaching the problem with holistic solutions. To the extent that we have such a problem, it is important to see it for what it is: a class economic situation of supply and demand. American consumers and corporations are demanding that this inexpensive source of labor be harnessed to ensure an inexpensive supply of goods, products, and services, as well as maximizing corporate profits.
The statute makes it illegal “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” If there was probable cause to obtain a search warrant based in part on the information about employers’ knowledge, then there is likely probable cause now to issue arrest warrants for individuals who violated the law.
Unfortunately, my research and experience establishes that few if any individuals or companies will be charged with these types of violations. If the Trump administration is actually serious about the national security concerns that undocumented immigrants present, then it would be taking greater measures to reduce the significant demand that is generating the supply. Indeed, if employers, especially higher management officials were prosecuted on a larger scale, I believe that there would be a push to find a bipartisan solution to this issue. Otherwise, it appears that the Trump administration is not actually concerned about undocumented immigrant labor for national security reasons, but is instead using it as a political scapegoat.