When Hiring Undocumented Workers Goes Criminal
Jul 18, 2011
By Attorney Erich C. Straub
You are a responsible business owner who makes every effort to follow the law, so you always fill out your I-9 forms when hiring a new employee. You check the identification documents of a new hire, but you are not a document fraud expert. You have heard that many undocumented workers use identification numbers and documents that are real, but actually belong to someone else. The first language of your new hire is not English, but you are careful not to question the worker about his or her immigration background lest you open yourself up to a discrimination claim.
This is the dilemma faced by thousands of dairy producers across the county. In the absence of immigration reform, most do their best to follow the law but are uncomfortably aware that they remain vulnerable to legal sanctions. Under federal law, it is unlawful to hire, recruit or refer for a fee, a person who is not authorized to work in the U.S. In most instances the legal sanction is civil and results in a fine, but there are circumstances that rise to the level of criminal liability. Two dairy producers who recently were criminally prosecuted provide cautionary tales.
In U.S. v. Barney, an owner of a large commercial dairy farm in upstate New York was charged in March of 2011 with harboring illegal aliens. The case is still pending before the Northern District of New York, and therefore the defendant is presumed innocent until proven guilty. According to the criminal complaint, a county sheriff‘s deputy visited the defendant’s dairy farm due to the accidental death of an employee. During the course of the deputy’s investigation, the defendant allegedly admitted to the deputy that he employed several undocumented workers. The deceased employee was also an undocumented worker.
Based upon these admissions, the county deputy contacted Immigration and Customs Enforcement (“ICE”). An ICE officer met the deputy at the farm, and proceeded to ask the defendant for consent to search the property “for people.” The ICE officer further told the defendant that if he did not give consent a search warrant would be obtained.
In response, the defendant allegedly stated “Why don’t I just show you where they are” and escorted the ICE officer to trailers where undocumented workers were residing on his farm. The undocumented workers were arrested and interviewed by ICE. The criminal complaint alleges that the employees provided statements that the defendant knew they were in the U.S. illegally but hired them anyway.
The elements of the offense of alien harboring include the following: (1) an alien entered or remained in the U.S. in violation of the law; (2) the defendant knowingly concealed, harbored, or shielded from detection the alien within the U.S.; and (3) the defendant either knew or acted in reckless disregard of the fact that the alien entered or remained in the U.S. in violation of the law.
If the defendant is convicted of harboring illegal aliens, then he could face both a fine as well as a prison sentence. Because the government is alleging that the defendant harbored illegal aliens for “commercial advantage or private financial gain,” the maximum sentence in this case is 10 years imprisonment.
In U.S. v. Verhaar, the defendants pleaded guilty in June of 2011 to knowingly hiring unauthorized aliens at their Michigan dairy farm in violation of 8 U.S.C. §1324a(a)(1)(A). Although it is only a misdemeanor punishable to up to six months imprisonment, the defendants agreed to pay a staggering $2.7 million fine for employing 78 unauthorized workers from 2000 to 2007. The government asserted that a substantial fine was warranted because the defendants disregarded repeated warnings that some of their employees were unauthorized to work under immigration law.
What are the lessons from these two cases? In Barney, the defendant may very well have turned what could have been a civil sanction into much more serious criminal matter by allowing law enforcement officers to access his property without a search warrant and making statements without the advice of counsel. Any visit by law enforcement to a business is a serious matter, and producers should insist that the officer or agent have a search warrant. Statements regarding the business and employees should only be made after consultation with an attorney. Everyone has the right to remain silent and consult with an attorney under the U.S. Constitution. In Verhaar, the matter turned criminal because the defendants disregarded prior warnings. Again, when a law enforcement officer or government agency has become involved, it has become serious and a business owner needs to seek appropriate legal counsel. As the defendants in Barney and Verhaar learned, taking a lackadaisical or “bury your head in the sand” approach could very well land you in prison instead of paying a fine.
Erich C. Straub is an immigration lawyer who practices in Wisconsin and is listed in The Best Lawyers in America, SuperLawyers, and U.S. News and World Report’s Best Law Firms. Mr. Straub has spoken to audiences throughout the U.S. on immigration, and frequently advises Wisconsin Dairy Farmers on the topic. He has traveled Washington DC to meet with elected officials regarding immigration reform, and in 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.”