FJ Blog

Friday, 07 August 2015

H-2 Guestworker News

BuzzFeed News published a must-read article on abuses of H-2 guestworkers, “The New American Slavery: Invited to the US, Foreign Workers Find a Nightmare.” The article highlights how the structure of the H-2A temporary agricultural guestworker program and the H-2B temporary nonagricultural guestworker program create extremely poor living and working conditions allowing for wage theft, sexual harassment and in the worst cases, allow for modern day slavery. We have heard that Buzzfeed is interested in additional reporting on the H-2A and H-2A programs.

The problems start for H-2 workers when they pay illegal recruitment fees for the opportunity to work in the United States and therefore arrive indebted and desperate to work to repay their debt. As a result, workers will often work to the limits of human endurance to keep their employers happy with their performance. They are tied to an employer for an entire season, and must leave the country when the job ends, factors which make workers extremely vulnerable to abuse. Workers also fear being blacklisted the following year, which makes them unlikely to complain about working conditions or labor violations. H-2A agricultural workers also are excluded from the principal federal employment law for farmworkers, the Agricultural Worker Protection Act. The isolation of H-2A and many H-2B workers, who live in employer-provided housing in rural communities, exacerbate these problems.

When Congress turns back to working on comprehensive immigration reform, it must provide opportunities for foreign agricultural and other lesser-skilled workers who perform jobs vital to our economy to obtain legal permanent residence status and eventually citizenship.

In other H-2 worker news, the Southern Poverty Law Center reached a $20 million settlement on behalf of 200 Indian H-2B workers recruited to work for Signal International on the gulf coast after Hurricane Katrina. The workers paid tens of thousands of dollars in recruitment fees, were subject to wage theft and squalid living conditions, and were illegally detained by company security guards. The settlement came after a New Orleans jury awarded $14 million to five of the workers finding that Signal had engaged in labor trafficking, fraud, racketeering and discrimination. As part of the settlement, Signal also agreed to apologize to the workers. Congratulations to the workers, SPLC and its co-counsel on the case!

Congressional Attacks on Community Trust Policies

Much of the immigration news in recent weeks has focused on immigration enforcement. The murder of a woman in San Francisco by an undocumented immigrant who had recently been released from jail prompted Congress to hold hearings and work on legislation addressing the issue of local law enforcement cooperating with federal immigration enforcement officials. Federal immigration authorities had issued a detainer for the man, but a local ordinance prevents San Francisco authorities from detaining non-violent offenders on immigration detainers when they are otherwise eligible for release. Such policies, referred to as community trust policies, seek to encourage immigrant crime victims and witnesses to come forward without fear of immigration enforcement. Several recent proposals in Congress attack local jurisdictions’ community trust policies through legislation that would strip localities of federal money if they fail to enforce immigration laws. 

Many local law enforcement agencies have community trust policies that include guidelines for police officers’ conduct when interacting with immigrant community members. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members. Many local law enforcement agencies also argue that their limited resources should be focused on enforcing criminal laws and keeping communities safe. 

Some courts have found that local law enforcement agencies have violated people’s Fourth Amendment rights by detaining immigrants without probable cause in order to turn them over to federal immigration authorities. This prompted many local law enforcement agencies to create limited detainer policies that limit the circumstances in which they will detain immigrants with convictions in order to turn them over to Immigration and Customs Enforcement (ICE).

Community trust policies and limited detainer policies conflicted with the federal government’s Secure Communities program, which was heavily criticized for contributing to racial profiling, eroding trust of local law enforcement by immigrant communities and resulting in Fourth Amendment rights violations. In response to these critiques by law enforcement agencies, community members and immigrants’ rights groups, the Department of Homeland Security (DHS) terminated the Secure Communities program at the end of 2014 and announced the Priority Enforcement Program (PEP) to replace it. PEP aims to focus on the detention and deportation of immigrants convicted of felonies and certain other serious crimes, and those who pose a danger to the community or a threat to national security. PEP attempts to remedy the high probability of Fourth Amendment violations by requiring ICE to present probable cause that the person is removable and issue a request for notification rather than an immigration detainer unless there are special circumstances that would make a detainer preferable.

In July, the Migration Policy Institute released a report, “Understanding the Potential Impact of Executive Action on Immigration Enforcement” analyzing the potential effects of DHS’s shift in enforcement priorities and the change from the Secure Communities Program to the Priority Enforcement Program. The report states that under DHS 2014 enforcement priorities, 87% of undocumented immigrants would not fall into one of the deportation priorities outlined by the Department of Homeland Security. The MPI report also addresses DHS’s attempt to promote collaboration between ICE and local jurisdictions in a way that gives local jurisdictions more autonomy in how they manage ICE detainers. However, advocates remain skeptical about how PEP will be implemented.

Despite repeated assertions by ICE Director Sarah Saldaña and Secretary of DHS Jeh Johnson that DHS does not want to use a mandatory approach when dealing with local jurisdictions, the House Appropriations Committee voted to prevent jurisdictions that do not comply with DHS immigration mandates from receiving DHS grants, including FEMA funds. 

On July 23, 2015, the House passed H.R. 3009, the Enforce the Law for Sanctuary Cities Act, which would penalize jurisdictions that have community trust policies. The bill passed by a vote of 241-179 mainly along party lines with only six Democrats voting for the bill and five Republicans voting against it. HR 3009 would make state and local jurisdictions ineligible to receive “State Criminal Alien Assistance Program” funds if the local authorities follow any law, policy, or procedure that prohibits or restricts communication with DHS or other government entities regarding an individual’s citizenship or immigration status. The bill, authored by Representative Duncan Hunter (R-CA) also targets jurisdictions that prohibit state or local authorities from gathering information on an individual’s citizenship or immigration status. The Act would affect over 300 jurisdictions, including many localities that do not have community trust policies, but have policies aimed at protecting the Fourth Amendment rights of their community members. 

There are several similar bills being drafted by Senators. For example, Senator Vitter’s (R-TN) bill, the Stop Sanctuary Cities Act (S.1814), would make it unlawful for state and local jurisdictions to fail to comply with federal immigration detainer requests. Violation of the law would make jurisdictions ineligible to receive State Criminal Alien Assistance Program funds and chronic offenders would be ineligible to receive Byrne Memorial Justice Assistance Grant Program funds. The Senate Judiciary Committee was scheduled to mark-up his bill on Thursday but has postponed the markup until September. 

Senator Feinstein (D-CA) has also outlined a bill that would make compliance with ICE requests for notification mandatory for state and local jurisdictions. Senator Boxer (D-CA) is considering joining Feinstein on the bill. More than 50 California organizations wrote a letter to the Senators opposing the bill.

The proposed laws are problematic for the same reasons the Secure Communities program was considered controversial. Extended detention based on foreign birth or speculation of immigration status results in violations of the Fourth Amendment rights of individuals. Mandatory compliance erodes trust and goodwill between federal agencies and state and local jurisdictions as well as between community members and local law enforcement agents, eroding the safety of local communities. Farmworker Justice signed a letter by the American Civil Liberties Union signed by 139 organizations opposing the Stop the Sanctuary Cities Act.  

by Megan Horn
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Monday, 20 July 2015

Updates on Administrative Relief: Oral Arguments in the Texas v. United States case and Post-Injunction 3-year Employment Authorization Documents under 2012 DACA

On July 10, the United States Court of Appeals for the Fifth Circuit listened to oral arguments regarding President Obama’s DAPA and expanded DACA deferred action programs. The arguments are available here. If the Obama administration prevails and these programs are implemented, they would provide temporary, but renewable, relief from deportation for approximately 4.4 million undocumented immigrants currently living in the U.S. Roughly 700,000 undocumented farmworkers and their spouses are estimated to be eligible for DAPA or expanded DACA.1

Having heard the arguments, the three judge panel will now have to decide whether to keep in place the injunction issued by the district court in Texas or whether to lift the injunction and allow the programs to be implemented. The issues before the court are whether the state of Texas has standing for its lawsuit against the federal government and whether the claims presented by Texas and the other states are matters than can be decided by the federal courts. Alternatively, the Court can consider on constitutional grounds whether the president overstepped his authority when he created DAPA and expanded DACA programs. If the court finds that the President did overstep his authority, it would affirm the February injunction of the District Court that prevented President Obama’s plan from moving forward.

As to whether Texas and the states even have the power to challenge the federal executive branch's authority to regulate immigration (the “standing” issue), the arguments on that issue largely have centered on the costs Texas would incur by having to issue driver’s licenses to DAPA beneficiaries. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Texas is arguing that the driver’s license costs are an injury that gives them the right to sue. Texas Solicitor General Scott Keller told the panel that the suing states will be harmed if the president’s policies are allowed to take effect, as they’d result in undocumented immigrants gaining lawful presence in the U.S and becoming eligible certain health-care benefits. 

On the other side of the arguments, the US Government’s lawyer (Benjamin C. Mizer, a principal deputy assistant attorney general) asked the panel to lift the injunction and clear the way for President Obama’s DAPA and expanded DACA programs. He noted that these programs are meant to protect qualifying immigrants from deportation and allow them to work in the country legally. Judges Smith and Elrod questionned the US government about its contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States. Assistant Attorney General Mizer argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound. Judge Elrod’s question in response underscored her skepticism - “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”

Two of the judges on Friday's panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on the panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal of the injunction. In that prior opinion, they disagreed with the US Government’s contention that Texas had no standing. They also previously ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act (in other words, that the Obama Administration should have engaged in notice and comment rule-making to create the DAPA and expanded DACA programs), which the Justice Department disputes.

The July 10 oral arguments lasted for more than three hours. The judges did not say when a decision will be issued. Whoever the losing party is, it is likely they will appeal the decision. The losing party could seek “en banc” review by the 5th Circuit Court of Appeals; however, it is not clear that this would be advantageous for the US government to do. The next step would be a request for the Supreme Court to review the issue. The timing of the 5th Circuit’s ruling is important because of the limited intake of cases and calendar of the Supreme Court’s oral argument sessions as well as the upcoming presidential campaign. A decision from the nation’s highest court could come during the intensity of the 2016 presidential campaign. The last time around, after the appeals court considered the emergency request to stay the injunction, that ruling wasn’t handed down until more than a month after the oral arguments in April. It’s conceivable a final decision on the constitutionality of President Obama’s immigration executive order may not come until the summer of 2016.

DACA Post-Injunction 3-Year EADs

As we mentioned in our last update, the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been impacted is the issuance by DHS of 3-year employment authorization documents (EADs) after the issuance of the injunction on February 16, 2015. The Judge has ordered DHS to show compliance with the injunction by July 31, 2015 and DHS is replacing the 3-year EADs issued or mailed after the injunction with 2-year EADs. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction must be returned to DHS. If DHS does not recover the 3-year EAD, it may call recipients and possibly conduct home visits to recover the 3-year EADs. It is very important that individuals who fall in this category return their 3-year EADs. DHS is threatening to take adverse action against those DACA recipients who fail to return their 3-year EADs, including the possible termination of DACA employment authorization, with possible negative future implications.

This recall does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

For those who would like assistance knowing whether the recall applies to their EADS, United We Dream has developed a tool for people to "screen" themselves: www.unitedwedream.org/uscisalert

Additional resources are available on USCIS’s webpage in English or Spanish

On CLINIC’s webpage in English and Spanish

And from NILC: http://nilc.org/nr071515.html.

 


1Ed Kissam and Jo Ann Intili, Number, Distribution, and Profile of Farmworkers Eligible for DAPA or DACA, (Revised/Expanded analysis), Werner-Kohnstamm Family Fund, Dec. 12, 2014, at p. 3, available at http://www.wkfamilyfund.org/docs/Profile-Farmworkers-Eligible-for-DAPA-or-DACA.pdf.

by Adrienne DerVartanian
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Friday, 10 July 2015

Status of legal challenge to executive action on immigration

Yet another 4th of July passed without immigration reform, depriving millions of aspiring Americans of an opportunity to come forward and obtain protection from deportation and the ability to live and work in the United States without fear. Unfortunately, the road to relief may continue to be a long one.

The injunction preventing the implementation of President Obama’s immigration relief programs remains in place. Oral arguments on the appeal of the injunction were held today in the 5th Circuit Court of Appeals. The arguments are available here. Because two of the 5th Circuit Court of Appeals’ judges who ruled against the Obama Administration’s earlier request for an emergency stay of the injunction are on the panel that is hearing this appeal,the prospects for a favorable outcome are considered low. We cannot predict the timing of the 5th Circuit’s ruling. We do know, however, that the fight is not yet over. It is likely that either losing side will appeal the decision, possibly to the entire 5th Circuit Court of Appeals (called an en banc decision) and eventually to the Supreme Court. Unfortunately, the lawsuit has caused significant delays and is impeding the ability of eligible individuals to enroll in the DAPA and expanded DACA programs. Once we have had an opportunity to listen to the oral argument we will share any relevant observations with you. 

Remember that the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been affected is the issuance of 3 year employment authorization documents (EADs) following the injunction in February. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction will be replaced with 2 year EADs and the 3 year EADs must be returned to DHS. There are roughly 2000 of these post-injunction EADs. Roughly 100,000 3 year EADs were issued prior to the injunction and those DACA recipients are not affected by this recall.

Actions in support of immigration relief and against family separation took place today in New Orleans and across the country. Farmworkers traveled to New Orleans with the UFW and UFW Foundation to join the actions. The actions are sending the message that we will continue fighting for immigration reform and that we will hold elected officials accountable for their actions and statements. More information is available at http://www.stopseparatingfamilies.org/events/.

What’s going on with Congress’s continued failure to pass immigration reform…

H-2A agricultural guestworker program

In June/early July, the U.S. State Department reported a glitch on their computer system to process visas, including H-2A visas. Several hundred H-2A guestworkers waited along the borders for days as the computer system was being repaired. Impacted employers protested loudly, pointing to a loss of profits. Of course H-2A workers were also suffering from these delays as they incurred costs for hotel and sustenance while waiting for the ability to travel to the United States and begin work (the employer is ultimately supposed to pay the costs but until that happens, workers carry the burden of the debt).

The back-up demonstrates what we already know: the H-2A program is not a solution to our nation’s broken immigration system. Congress must take action to enact comprehensive immigration legislation that provides a path to legalization for the roughly 11 million aspiring Americans, including farmworkers and their families. Immigration reform should also address the flawed H-2A program and should ensure that any future guestworker program includes a roadmap to citizenship, strong and equal labor protections, true economic freedom and mobility, and sensible limits.

State Legislation

While we would love for Congress to wake up to the realities on the ground and pass immigration reform legislation, it’s unlikely in the near future. We are already seeing Presidential candidates using the immigration issue to build their campaigns, most notably in the downright racist comments of Donald Trump, of which we are sure many of you are all too aware.

Some states have tried to take matters into their owns hands (remember Utah?) and now there is legislation in California that seeks to do just that-- Assembly Bill 20, authored by Assembly Member Alejo. Unfortunately, as currently framed, AB 20 is actually more like a grower-sought guestworker program than a legalization program that respects the contributions of agricultural workers. The legislation adopts grower critiques of the H-2A program, requires potentially eligible workers to meet a past and future agricultural work requirement (with none of the modest protections found in the H-2A program), and does not ensure that farmworkers have equal representation in process. As the symbolic legislation that it is (since it’s a state acting in a federally preempted sphere, which the bill acknowledges), the legislation and its symbolism should be based on immigration status and economic freedom, not a narrow “work permit” along the lines of a guestworker program that primarily serves the benefit of agricultural employers. 

Unionization and Litigation Successes Help Address Broken and Discriminatory System

The undocumented status of the majority of farmworkers is widely recognized as a major contributing factor to the low wages, poor conditions and extensive illegal practices in agriculture. Recent settlements and cases highlight the rampant abuses in agriculture but also point to successes in the courts. The U.S. Equal Employment Opportunities Commission (EEOC) settled for $330,000 a sexual harassment and retaliation lawsuit on behalf of 10 farmworkers against Zoria farms (which previously operated a dried-fruit processing company that was sold to Z Foods). The case alleges that at least four female workers were sexually harassed by two supervisors. Along with their coworkers, the women reported the issue; however, their complaints were not addressed by the company. Instead, the victims and coworkers who reported the harassment were not rehired when Zoria Farms was sold to Z-Foods. The case against Z Foods is still pending.

In a victory for farmworkers, the United Farm Workers and five workers settled lawsuits against the California Division of Occupational Safety and Health (Cal-OSHA) for neglecting its duty to enforce the Heat Illness Prevention regulations. The settlement will result in better enforcement of the heat protection regulations and better coordination with the UFW to ensure that farmworkers and other outdoor workers are protected from heat illness and death. More information, including an informational video featuring Secretary of Labor Perez and UFW President Rodriguez, is available on the UFW’s website.

In New Mexico, years of advocacy by the New Mexico Center on Law and Poverty has resulted in a decision by the state Court of Appeals that the exclusion of farm and ranch laborers from the Workers’ Compensation Act violates farmworkers’ rights to equal protection under the state Constitution. In reaching its decision, the court noted “[w]e fail to see any real differences between farm and ranch laborers and all other workers in New Mexico that would justify the exclusion.”

In Vermont, dairy workers with Migrant Justice are organizing for justice through the launch of a new campaign, Dairy for Dignity. The campaign seeks to improve living and working conditions for workers through a five-point plan that would include a farmworker authored code-of-conduct, farmworker education, and economic relief. Ben and Jerry’s has committed to working with Vermont dairy workers to adopt the Milk with Dignity campaign in its supply chain. Migrant Justice’s also recently released a survey of living and working conditions for dairy workers. The survey found that roughly 40% of Vermont’s dairy workers are paid under the Vermont minimum wage and have no day off per week. On average, the dairy workers surveyed worked between 60-80 hours per week.

Farmworker Movement in DC

Finally, we wanted to share that on July 3rd, the Smithsonian’s National Portrait Gallery opened their exhibit “One Life: Dolores Huerta,” focusing on Dolores Huerta’s work and role in the farmworker movement of the 1960s and 70s. If visiting with your Members of Congress is not reason enough for you to come to DC, this exhibit provides you another purpose for a trip to DC! As you may know, Farmworker Justice earlier this year created an annual Dolores Huerta Award.

Stay tuned for our next update, in which we plan to share more information and analysis about the DHS’s enforcement priorities. 

by Adrienne DerVartanian
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