Mr. Lee's Article " Stiff Charges To Owners Of Chinese Employment Agencies That Supply And Restaurants Using Their Services to Obtain Undocumented Workers Part of New Obama Enforcement Plan. " as published in World Journal on June 29, 2010

By Alan Lee, Esq.

USICE and the FBI now appear to be targeting the Chinese restaurant industry's employment agencies which provide illegal workers and their client restaurants which employ them as part of a new push by the Obama administration to use immigration prosecutions to intimidate and criminally punish employers hiring undocumented workers.  Criminal charges are being filed against the owners/operators of such employment agencies and Chinese restaurants.  The government no longer appears to be satisfied with just going after the corporations or handing out fines for hiring illegal workers.  It is raising the stakes to higher levels against owner/operators of these businesses. 

The Transactional Records Access Clearinghouse (TRAC) reported on June 15, 2010, that immigration prosecutions have returned to the high levels of last summer, and that there were 8,287 immigration prosecutions in March 2010, up 30% from February and more than in any month since July 2009.  According to the Texas Tribune's article of June 16, 2010, "The New ICE Age," the paper obtained a copy of ICE's strategic plan, "Strategic Priorities for Fiscal Years 2010-2014," which has been sent to ICE employees but has yet to be released to the public; that part of ICE's objective is to "create a culture of employer compliance," which involves "aggressive criminal and civil enforcement against those employers who knowingly violate the law," with an emphasis on employers who exploit and abuse workers and "engage in egregious conduct. "

USICE announced in early June that five persons were indicted by a federal grand jury in three separate indictments on charges of conspiring to induce undocumented aliens to enter and remain in the United States by providing them with employment, predominantly at Chinese restaurants, all for commercial gain.  Also that three additional individuals had been arrested on criminal complaints. 

Three of those indicted, Lin, Fu, and Chen owned three employment agencies, all in Chamblee, Ga., and were alleged in the indictments to have conspired with others to transport and provide jobs to the illegal aliens, primarily in restaurants in South Carolina, Pennsylvania, Tennessee, Mississippi and Georgia.  According to USICE, the employment agencies advertised in Asian language newspapers and on the Internet, charging undocumented aliens a commission and transportation fee to place them in a restaurant or other job site and to drive them there.  In some cases, they charged the restaurant owners, who deducted the fees from the workers' pay. 

Two restaurant owners, Ke and Jiang, were the owners and operators of Chinese restaurants in Gainesville, Ga. and Lawrenceville Ga., where they used undocumented aliens brokered by the employment agencies.  USICE alleged that the restaurant owners often provided housing, sometimes in their own homes, to the workers to better monitor them and shield them from detection, and paid the workers in cash to avoid paying unemployment taxes. 

The conspiracy charges carry a maximum sentence of up to 10 years in federal prison and a fine of up to $250,000. 

USICE stated that a sixth individual, Xu, who was recently arrested, faced the same charges as the other employment agency defendants, and that two owners of another restaurant in Duluth, Ga., Cheng and Chen, were charged with conspiracy to encourage and induce aliens to reside illegally in the United States.  (USICE apparently did not believe them to have as much connection with the employment agencies as the other restaurant owners). 

One of the agency owners,  Fu, was said to face additional charges of transporting aliens for the purpose of commercial advantage and private financial gain, in reckless disregard of the fact that the aliens were in the United States and remained here in violation of the law.  USICE stated that the transportation charge carried a maximum sentence of up to 10 years in federal prison and a fine of up to $250,000. 

U.S. Attorney Sally Quillian Yates characterized those indicted as exploiting undocumented workers by subjecting them to long shifts, six days a week, often with substandard pay and living conditions taking large deductions from the workers' pay to reimburse themselves for the cost of the employment agencies' illegal services.  FBI Atlanta special agent in charge Brian D. Lamkin said that the joint operation should serve as notice to individuals and businesses that traffic and exploit undocumented immigrants. 

Discounting the benevolent concern over the fate of undocumented workers exhibited by the agencies (careful reading of the news release reveals nothing that would remotely qualify the cases as involuntary servitude) , readers should understand that there is now a crackdown on employment agencies and the restaurants that use them to obtain undocumented workers.  While the standard of law in criminal cases for conviction requires that the government prove its charges beyond a reasonable doubt, the charges themselves are very stiff and designed to induce most of those charged with pleading guilty to lesser charges.  The ratcheting up of charges is reminiscent of the government's strategy in the notorious Agriprocessor meatpacking plant raid of May 12, 2008, in Postville, Iowa, where the slew of criminal charges (where there would normally be civil immigration violation charges) against the undocumented workers ranged from aggravated identity theft (later declared invalid by the courts) to falsely using a Social Security number, illegally re-entering the United States after being deported, and fraudulently using a green card. Faced with such a large number of criminal charges, most in Postville pleaded guilty and were sentenced to five months in prison.  The best suggestion (and probably one of the main reasons for which USICE released the news in such detail) is for restaurant owners to stop using employment agencies which cater to undocumented workers.

The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2010 Alan Lee, Esq.


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