Posted on 06/28/2006 9:17:43 AM PDT by Kimberly GG
"Businesses that knowingly hire illegal aliens may find themselves on the wrong end of a lawsuit as early as this summer. David Klehm, an Orange County attorney, says he will represent law-abiding firms which have suffered economic damage as a result of their competitors using cheap labor. He says the first suits could be filed this summer. “This has never been done before. This is the first time anyone in the country has actually used state civil law to prosecute employers of illegal aliens,” Mr. Klehm says. “We’re hoping … this will be a model for other states across the country.”
(Excerpt) Read more at centralvalleybusinesstimes.com ...
http://www.illegalemployers.org/1431.html
It's my understanding that David Klehm is affilliated with Howard Foster, the attorney handling the RICO suit sagainst Mohawk Carpets and Tyson. They will first be filing suits (RICO) against employers in California and moving on from there. Hopefully they will get the ball rolling quickly, before any bill containing employer amnesty is passed (which, imo, is the reason for both Bush's refusal to separate employer amnesty from border security and his rush to get employer amnesty passed ASAP). Here's to hoping that one or more of these suits also name the City of Los Angeles.
Additional information on RICO: A New Tool for Immigration Law Enforcement http://www.cis.org/articles/2003/back1103.html
(there are many other applications for RICO claims besides those against employers of illegals)
ping
AWESOME!!!
Looks like the RICO tactic against illegal employers is starting to take hold.
Good.
If there's a ping list that watches these suits, please put me on it. I'm very interested in this.
I ain't holding my breath. Just wait until the ACLU steps in.
It might be quite difficult to prove economic damages as a result of one company's illegal hiring practices if you also have many other companies who are your competitors.
I wonder if the ACLU Cal chapter hires illegal aliens?
sw
Is there any way you could have this put in breaking news? It seems news worthy enough at least for Californians.
However now I am picturing the illegal worker saying "Hey Mister if you hire me, not only will I work for you, but if you get sued, I'll represent you in court too -- at the same hourly rate!"
Yeah. Let's see if California has the GUTS to follow through...
As much as I can't stand the inordinant amount of litigation these days, this is one area where I hope the legal community jumps in with both feet. In this new Bush/NAU banana republic paradigm, numerous law abiding - tax paying companies are being damaged to no end by having to compete in a business environment that allows their competitors to openly flaunt laws and evade payroll taxes. If there's ever been a recipe for a slow march to national suicide this is it.
Yes, it might. There are a whole host of possible scenarios and difficulties, a few of which examples can be found at the Center for Immigration Studies link posted #1.
The key word is "knowingly". It's absurd to hold employers responsible when the illegals hold fake ids that are perfect. This is just another bullet the Democrats will try to use against businesses.
This could be fantastic news for legal law abiding employers all over the country.
"The key word is "knowingly". It's absurd to hold employers responsible when the illegals hold fake ids that are perfect. This is just another bullet the Democrats will try to use against businesses."
And what about the employers who DO know? You don't think it's absurd to hold accountable employers who break the law by KNOWINGLY hiring illegals, do you?
Federal Immigration and Nationality Act
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
Recruitment and Employment of Illegal Aliens
Encouraging and Harboring Illegal Aliens
Enforcement
RICO —Citizen Recourse
Tax Crimes
Comment
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
"Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."
Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):
A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:
assists an illegal alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or
knowingly assists illegal aliens due to personal convictions.
Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.
Recruitment and Employment of Illegal Aliens
It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work.
It is unlawful to hire any individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. "Day laborers" or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the illegal alien labor.
The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.
An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.
Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.
It is illegal for nonprofit or religious organizations to knowingly assist an employer to violate employment sanctions, regardless of claims that their convictions require them to assist illegal aliens. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.
Encouraging and Harboring Illegal Aliens
It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any illegal alien who is in the United States in violation of law. Harboring means any conduct that tends to substantially facilitate an alien to remain in the U.S. illegally. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.
An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.
The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the illegal alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.
Enforcement
A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.
State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.
RICO —Citizen Recourse
Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, and can include nonprofit associations.
Tax Crimes
Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In addition to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.
Comment:
A comment and a published quote by Robert Gaffney, Attorney and County Executive of Suffolk County, LI, NY:
The statutory foundation of United States immigration law has always been the jurisdiction of the federal government, Congress and the federal courts. The preeminent laws concerning the employment of illegal aliens are found in the Immigration and Nationality Act (8 U.S.C. §~ 1101-1503), as amended by the Immigration Reform and Control Act of 1986 CIRCA).
The law states it is a crime to assist an illegal alien who lacks employment authorization by referring him to an employer, or by acting as his or her employer, or as an agent for an employer. 8 U.S.C.S. § 1324a(a)(1)(A) (Lexis 1997). Furthermore, it is unlawful to hire an individual for employment without complying with the employment eligibility requirements for every person hired. 8 U.S.C.S. § 1324a(a)(l)(B) (Lexis 1997). Moreover, conduct tending substantially to facilitate illegal aliens remaining in the United States illegally, where there is knowledge or a reckless disregard of an illegal alien s unlawful status, is a crime, with escalating penalties, encompassed within the provisions of 1324. 8 U.S.C.S. § 1324(a)(l)(A)(iii) (Lexis 1997); United States v. Kim. 193 F-3d 567 (2d Cir. 1999), are considered employees for purposes of immigration law.
Some union carpenters are already hanging around the local 'Home Depot' writing down contractor License numbers and license plates and turning the SOBs into the contractor licensing boards.
Nothing is ever done. But a paper trail is building.
Nice find bump.
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