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In what I think is a somewhat surprising decision, Judge Linda Reade today agreed to release Sholom Rubashkin on a $500,000.00 bail pending his trial in September 2009.  Reade granted the bail despite the prosecution's evidence that Rubashkin is alleged to have previously committed federal bank fraud while on release from arrest on prior immigration charges.   The prosecution also argued against the granting of bail by pointing out that Rubashkin had made a trip to Canada almost immediately before the government brought the current charges against him.  Finally, Reade granted Rubashkin's bail despite the fact that two former Agriprocessors managers are alleged to have already absconded to Israel.  As to the terms of the bail: 

Defense lawyers offered to have a private security firm use cameras and around-the-clock guards to confine Rubashkin to his Postville home. But Judge Reade did not require house arrest. She ordered that Rubashkin remain in Allamakee County unless he receives special permission to travel elsewhere. She also ordered that he have no contact with any potential witnesses in the case, and that he stay away from Agriprocessors.

The federal prosecutors will have until Thursday morning to decide whether or not to appeal Reade's decision to the 8th Circuit Court of Appeals.  The full text of the Register's article can be found here. 

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At yesterday's confirmation hearing Janet Napolitano signaled what some in the media are calling a "clear break" with the outgoing Bush administration's worksite enforcement protocol and priorities.  I'm not sure I would term it a clear break, but her comments do portend a shift in emphasis.  This much seems clear:  the stepped-up level of worksite enforcement employers around the U.S. have been experiencing over the last 2-3 years will continue.  In that way Napolitano isn't at all changing the agency's direction.  However, Napolitano stated clearly that DHS' emphasis under her watch would shift away from the prosecution of illegal workers and will double-down, instead, on the prosecution of the employers who hire the illegal workers.  So that, apparently, is where the new administration's policy change will most manifest itself.  

In short, employers beware.  My best advice to employers is to get in touch with your attorney and arrange to get yourself a serious worksite immigration and hiring practices compliance program.  Spending a little bit of your resources right now on compliance training will save you many nights of sleep and, in some cases, may even prevent the prosecution of you and your staff. 

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As we all know, Immigration & Customs Enforcement (ICE) raided the Agriprocessors kosher slaughterhouse in Postville, IA, in May 2008 and in the process arrested 389 allegedly undocumented workers.  Since that time details have emerged concerning the alleged criminal and immigration violations commited by the Agriprocessors' mid and upper level leadership.  Employees being targeted include the former CEO Sholom Rubashkin, former operations manager Brent Beebe and former human resources employee Karina Freund.  Two other former Agriprocessor supervisors have been indicted but are currently on the lam.  For various practice-related reasons I've made the editorial decision to largely stay away from this story, but I think it's time to now dive in as the pleas come rolling in and the trial dates move closer and closer. 

With indictments being brought against mid level HR employees and supervisors, this case serves as a perfect example of the treacherous web of immigration-related liability that can spread throughout a company.  As an HR employee or a supervisor of any level of a company operating with a high-risk workforce, you're simply deluding yourself if you believe that federal authorities are only interested in prosecuting the Big Bosses and CEO Muckety Mucks. 

To recap, the charges to date against the Agriprocessor workers include:  conspiracy to harbor undocumented workers for profit, harboring and aiding and abetting document fraud, aiding and abetting aggravated identity theft and bank fraud. 

In order to prove the conspiracy to harbor undocumented workers charge, the government will have to prove the following:  1) an agreement with at least one other person; 2) the harboring of at least one unauthorized alien; and 3) simply one act furthering the goal of the conspiracy.  The maximum period of imprisonment is 10 years, while the maximum fine on this charge is the greater of $250,000.00 or 2x the financial gain achieved through the conspiracy. 

As for the aiding and abetting aggravated identity theft charge, the government will have to provide proof of the knowing transfer, possession or use of a means of personal identification of another without lawful authority during the commission of specified felonies, including false presentation of citizenship, fraud, etc. 

Presumably none of these charges will be an easy lift for the government, but I think it's safe to say that the discovery process will shed some light on the direction this trial is headed.  Both sides are currently combing through an abundance of documents, including:  all Agriprocessors' personnel office files, 10 binders containing I-9 forms, 12 binders of grand jury testimony, electronic discovery that would equal 100 banker boxes if in paper form and at least 10 boxes of records on the bank fraud charges.  As a slightly modified version of the saying goes, the proof will likely be in the paper. 

Today news sources are telling us to expect Karina Freund, the former HR employee, to plead guilty.  Originally she was chaged with conspiracy to harbor undocumented immigrants and haboring, aiding and abetting the harboring of undocumenteds for profit.  I'll keep you posted on the specifics of Freund's plea, but I'm willing to bet we see some limited leniency from the government toward Freund in exchange for Freund's cooperation with the ongoing investigation and subsequent prosecution. 

As for the remaining defendants, U.S. District Chief Judge Linda Reade has indicated that the trial will start Sept. 14, 2009.  With that said, the prosecuting U.S. Attorney, Peter Deegan, has recently intimated that the investigation is ongoing and that there will likely be a superseding indictment with additional charges filed in January 2009. 

Whether you're an immigration lawyer, criminal lawyer, human resources employee or manager of any level, this impending litigation will serve as a case study in the potential modern day pratfalls and liabilities involved with the combination of an employment environment and a high-risk workforce.  Stay tuned...

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The U.S. Census Bureau recently released its figures from the 2007 American Community Survey.  The annual ACS survey has replaced the more commonly-known census, which was only administered once every 10 years.  As you might imagine, the ACS provides reams of frequently-updated social, economic and demographic data about our nation. 

One of the headline-grabbing bits of information to emerge from this year's ACS is that the number of immigrants entering the United States decreased dramatically from 2006 to 2007.  In 2006 we attracted 1.8 million immigrants.  In 2007, the number was approximately 500,000 (Ed. note:  the ACS claims that its estimates for immigrants include those in the country legally and illegally because the agency does not ask about legal status--official figures put the number of illegal immigrants in the U.S. at approximately 12 million.).   

According to the new data, 14 states showed declines in the estimated number of immigrants from 2006 to 2007, including:  New Jersey, New Mexico, Vermont and South Dakota.  I'm searching for Iowa-specific data and will update when and if I find it. 

So, the logical question is, what's going on here?  Why is this happening? Are we no longer the beacon of light, attracting the huddled masses, yearning to breathe free? 

In my view there are a number of factors that correlate with this downturn in immigration.  Now mind you, I'm not claiming that there is a direct causal connection between the events, but I think its fairly safe to say that they are partially interconnected. 

Factor #1--The Fee Hike:  As a starting point, the downturn in the number of people immigrating to the United States needs to be viewed in the context of The GREAT PROCESSING FEE SPIKE of 2007.  For those of you who might not follow these issues on a daily basis, in January of 2007 USCIS announced that it would soon dramatically increase the fees applicants and petitioners had to pay in order to have their paperwork reviewed and processed by the USCIS.  In many cases this amounted to an increase of hundreds or thousands of dollars of extra costs for families and companies.  As a result,  families and companies alike rushed to file any and every case that possibly could be filed before the fee hike took effect.   This, in turn, caused a huge swell in the number of people attempting to immigrate to the United States.  One figure indicated that more than 460,000 people applied for their citizenship during the month of June 2007 alone.  It's probably safe to say that numbers were also likely inflated a fair bit during April and May.  In sum, there clearly has been a precipitious fall off since last year in the number of people immigrating to the U.S., but last year's numbers were also inflated due to the swell caused by USCIS' processing fee hike.  As we move a couple of years into this newly-inflated processing fee regime we'll be able to judge more accurately whether the costs imposed by the government are serving as a deterrent to legal immigration.  Stay posted. 

Factor #2--Downturn in the Economy:  Economic opportunity has always been the engine that drives immigrants to the U.S.  With the jobless rate passing 6% (the highest rate since 2003) it makes a fair bit of sense that immigration rates have correspondingly slowed a bit.  In particular, the slump in the housing and construction sectors has been one of the largest factors stemming the flow of immigrants into the country. 

Factor #3--Increased Enforcement (ie., ICE Raids): Postville, Iowa.  Laurel, Mississippi.  These are just a few examples of the ICE raids that have rocked virtually every region of our country over the course of the past twelve months.  By design these raids have generated gobs of news headlines and, in turn, caused families and employers all over the country to wait and worry in a state of suspended anxiety.  A recent Pew Hispanic Center survey detailed the extent to which the raids have taken a psychological toll on the Latino community in particular.  No doubt these ICE raids have caused plenty of otherwise likely immigrants to stay the heck away, while causing some who are already here to conclude that this environment simply isn't worth the trouble.   

Most of my readers have probably by now figured out that I view healthy immigration numbers as an integral part of our country's on-going success.  But I'm not particularly worried about the dip we've seen from last year to this.  As I've explained above, the governement's fee hike, our current economic plight and the increased ICE raids have all contibuted to cause this year's numbers to fall somewhat dramatically.  But, in my view, there's hope.  At least two of the deleterious factors should be temporary.  Maybe as I write this Congress is getting their act together enough to pass a reasonable bailout (er, economic stabilization) bill.  And maybe after November 4, 2008 we'll have the congressional and presidential leadership necessary to achieve pragmatic immigration reform.  One can always hope...

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