April 27, 2003
Immigration crackdown falters in a key court test
Tyson Foods case ended in acquittal
By JOE CANTLUPE
COPLEY NEWS SERVICE
WASHINGTON – Dozens of Mexicans were smuggled across the Southwest border, given some of the best fake IDs money could buy, and sent to the largest chicken-processing plants in the United States to work.
The "smugglers" were U.S. agents.
But the much-ballyhooed, multimillion-dollar undercover investigation against Tyson Foods Inc. fizzled; a federal jury in Tennessee cleared Tyson of wrongdoing last month. And instead of sending a signal the government has the unfettered ability to crack down on companies that hire illegal workers, immigration experts said the case may have made some employers feel even more sure they are safe from prosecution.
The Tyson case also exposed the possible role of temporary employment agencies as a funnel for illegal immigration – an industry often ignored by law-enforcement officials.
"I think the acquittal sends a signal to employers who get often-illegal workers via temp firms that they do not have to change their practices to avoid (immigration) sanctions," said Phil Martin, an immigration expert at the University of California Davis. "It is a blow in the quest for effective sanctions enforcement."
Overall, the government has a spotty record in work-site enforcement of immigration laws, in part because of a general tolerance for illegal immigration in low-skilled jobs and the difficulty in prosecuting cases that fall under conflicting laws, experts said.
Under the 1986 Immigration Reform and Control Act, U.S. employers were banned from hiring illegal immigrants. The act requires employers to examine at least two forms of identification for all new workers and ensure they "reasonably appear to be genuine."
Yet legal experts say it's difficult for prosecutors to determine whether employers are violating that standard. Too often, observed one immigration lawyer, companies mask illegal hiring practices behind temporary employment agencies who sign contracts with workers. The system, said the lawyer, "revolves on a wink and a nod."
Lax enforcement of laws barring the hiring of illegal immigrants "has really led to an environment where corporations feel free to use illegal aliens as a tool for cutting costs," said Dave Ray, an associate director for the Federation for American Immigration Reform, which seeks to restrict immigration.
After the acquittal, some Justice Department officials were stunned to learn that several jurors believed Tyson needed to hire the illegal immigrants to maintain their factories.
Several mid-level Tyson managers pleaded guilty in the four-year undercover probe, but government efforts to tie Tyson as a corporation to a broader conspiracy failed.
Tyson, with headquarters in Springdale, Ark., produces one-third of the nation's processed chickens and employs 120,000 people.
Critics suggest such flaws in the investigation reflect the government's poor record in cracking down on illegal immigration in the workplace.
A key part of the investigation focused on the role of federal agents who helped transport at least 150 illegal immigrants across the border and helped them land jobs at the food company's plants, court records show.
But the agents lost track of most of the workers, who never testified against Tyson when the case went to trial.
"For a long time, the general emphasis for law-enforcement has been targeting immigrants themselves, and this Tyson case was considered a real breakthrough because they went after a corporation," said Angela Kelley, deputy director of the National Immigration Forum.
"But it seems (prosecutors) dropped the ball and lost the game. And it speaks to the greater question: How do you enforce the immigration laws when you have . . . agreement between willing employers and willing employees?"
The Tyson verdict "is a symptom of the contradiction of our immigration law – where we as a society benefit by having undocumented immigrants," said Josh Bernstein, an immigration and labor policy analyst.
Some immigration advocates say the Tyson case underscores the need for a guest-worker program supported by President Bush and Mexican President Vicente Fox. If enacted, the "legalization" plan would bring foreign workers to fill low-skill jobs that Tyson and many other companies seek to fill, experts said. Despite Fox's efforts, momentum for the guest-worker plan stalled after the Sept. 11, 2001 attacks.
Tyson officials also distanced themselves from temporary employment agencies that prosecutors said played a role in hiring illegal immigrants.
Sometimes, Tyson rejected would-be workers for having "bad documents," a company manager testified. But that didn't mean these workers wouldn't get jobs somewhere, the manager said.
"We're putting them back through our system with different names and different (Social Security numbers)," the manager testified. "It actually became a joke in our office."
The Tyson case also raised questions about the adequacy of a government database used voluntarily by some companies – including Tyson – to determine the authenticity of employee ID cards, according to immigration experts.
"It's unfortunate this investigation ended the way it did," said Ray, of the Federation for American Immigration Reform. "We believe the Department of Justice has other possible cases in the pipeline; perhaps this was an unfortunate choice."
Prosecutors and Homeland Security officials say they are evaluating the lessons offered by the Tyson case.
"We lost the case, but there were a number of people – plant managers – who entered into plea bargains, and that was a success; it showed there was wrongdoing," said Greg Palmore, a spokesman for the Bureau of Immigration and Customs Enforcement.
Still, one of the government's own agents suggested in court testimony that the probe may have been a waste of money.
A defense lawyer asked the agent: Could the government have opted to spend "two quarters" to phone Tyson to settle some of the illegal immigration problems instead of carrying out a lengthy investigation that cost millions of dollars?
"Yes," the agent replied.