An Iowa Immigration Raid Leads to Unprecedented Criminal Consequences: Why ICE Should Rethink the Postville Model
| Author | Cassie L. Peterson |
| Position | J. D. Candidate, The University of Iowa College of Law, 2010 |
| Pages | 03 |
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J. D. Candidate, The University of Iowa College of Law, 2010; B.A., Luther College, Decorah, Iowa, 2006. I thank the editors and writers of Volumes 94 and 95 of the Iowa Law Review for all of their editorial assistance. A very special thanks to my parents, Marty and Charlotte Peterson, my sisters, Jessie and Anna, and my fiance, Drew, for their unending support of all my endeavors.
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On May 12, 2008, federal immigration authorities conducted one of "the largest single-site raid[s]" in U.S. history.1 Immigration and Customs Enforcement ("ICE") executed the raid on Agriprocessors Incorporated's ("Agriprocessors") meatpacking plant in Postville, Iowa.2 ICE detained 3893 employees under civil and criminal arrest warrants.4 All 389 employees allegedly did not have authorization to work in the United States.5
The raid signaled a change in ICE's enforcement tactics. Prior to the Postville raid, ICE generally removed unauthorized workers from the country through administrative proceedings—commonly known as "deportation" or "removal proceedings"—and criminally prosecuted only those workers who committed additional crimes.6 The Postville raid marked the first time in U.S. history that officials criminally charged and prosecuted such a large number of detainees.7 Of the 389 detained employees, ICEPage 326 arrested 3058 on criminal charges that included using false documents and unlawfully reentering the United States.9 ICE's shift in enforcement tactics imposed significant consequences not only on the detainees and their employers, but also, more abstractly, on all persons living within the United States.10
This Note focuses on the Postville raid's impact on the intersection between criminal and immigration law. Part II describes the relevant factors that led to the Postville raid. These factors include: myriad pieces of immigration legislation, spirited political discourse regarding immigration policy, the George W. Bush administration's restructuring of immigration enforcement and services under the Department of Homeland Security ("DHS"), and ICE's 2006 directive to increase compliance with immigration laws through worksite enforcement. Part III analyzes problems with the Postville model. Specifically, Part III discusses ICE's shift toward criminalizing behavior that it previously treated as an administrative violation, and the due-process concerns that accompany that criminalization. Part III also considers the social and economic costs of the raid to all persons living within the United States. Part IV discusses the future of worksite-enforcement raids and concludes that ICE should abandon the Postville model.
The Postville raid signaled a significant shift in immigration-enforcement policies. Rather than removing unauthorized workers through administrative immigration proceedings, ICE criminalized the act of working with a false Social Security number or other false papers.11 The remarkable aspect of the Postville raid was not that ICE charged and prosecuted undocumented workers with crimes like aggravated identity theft, but rather it was the sheer magnitude of prosecutions and hurried pleas that ICE executed within four days under its new "fast-tracking" system.12 Still, the circumstances at the time show that the Postville raid wasPage 327 no accident; many years of immigration history and politics set the stage for the May 12, 2008 raid.13
President Lyndon B. Johnson laid the foundation for modern-day immigration law.14 In 1965, he signed the Immigration and Nationality Act ("INA"), which made several major changes to immigration law.15 For the purposes of this Note, the most relevant change is that, for the first time in immigration history, Congress capped the number of immigrants entering from the Western Hemisphere at 120,000 per year.16 With this new ceiling, legal immigration became more difficult for North, Central, and South Americans, and illegal immigration increased.17 Toward the end of the twentieth century, many Americans feared that too many people were entering the country unlawfully, which prompted several restrictionist immigration laws.18 The Immigration Reform and Control Act of 1986 ("IRCA") imposed new sanctions on employers who knowingly employed undocumented workers.19 The Anti-Drug Abuse Act20 created a new category of offenses called aggravated felonies.21 These new offenses carried considerable immigration consequences for persons convicted of committing an "aggravated felony."22 For example, an aggravated felon mayPage 328 not receive voluntary departure,23 is ineligible for asylum24 or withholding of removal,25 and can never become a U.S. citizen.26
In 1996, Congress passed its most restrictive reform in recent immigration history—the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA").27 The IIRIRA specifically addressed apprehending and removing undocumented immigrants.28 The changes Congress made in the IIRIRA included "expand [ing] the substantive criteria for removing noncitizens, further restricting] discretionary relief, [and] introducing] a number of 'expedited' procedures for noncitizens facing removal from the United States."29 Additionally, the IIRIRA expanded the list of crimes classified as aggravated felonies, which increased penalties on removable offenses.30 The plea bargain that many of the Postville detainees accepted included a guilty plea to using false employment documents, which Congress classifies as an aggravated felony.31 Although Congress passed restrictive reforms throughout the 1990s, the present-day backlash toward immigrants stems, in large part, from the politics and rhetoric that permeate immigration discussions.32
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The immigration debate sprung into the political forefront in the summer of 2007 when both houses of Congress debated variations of a comprehensive immigration reform ("CIR") bill.33 The CIR bill demonstrated that restricting or increasing immigration is not a single-party issue.34 Market-economy conservatives wanted to increase the number of guest workers, while social conservatives, more nativist in sentiment, wanted to limit the number of new arrivals.35 Liberals in the labor camp did not want an influx of immigrants to drive down the cost of labor, while social liberals demanded the admission of more immigrants for family-reunification and human-rights purposes.36 The subdivisions' restrictionist or expansionist philosophies shaped their immigration views in ways too different to reconcile.37 Neither party could convince the other to compromise and, ultimately, the CIR bill failed.38 The debate on immigration continued, however, and its intensity amplified when ICE raided Agriprocessors one year later in the face of an oncoming national economic depression.
Historically, restrictionist periods in immigration policy parallel or immediately follow economic recessions and depressions,39 situations whenPage 330 Americans perceive an outside threat to national security,40 or after substantial increases in the number of foreign nationals settling in the United States.41 Economic hardships cause citizens to worry about job security, which can generate animosity when American citizens believe that unlawfully present immigrants take jobs that citizens would otherwise fill.42 These nativist sentiments precipitate negative discourse about immigrants living in the United States.43 Similarly, immigration discourse shifts to become more restrictionist when American citizens feel that outsiders are a threat to national security.44 The September 11, 2001 terrorist attacks caused many Americans to feel that the immigration system had failed them by allowing some of the foreign-born attackers to overstay their visas.45 Congress promptly responded to Americans' fears by restructuring immigration enforcement.
In 2002, Congress enacted the Homeland Security Act ("HSA").46 One immigration scholar described the HSA as "the most significant bureaucratic overhaul in at least a half-century."47 The HSA eliminated the Immigration and Naturalization Service and divided its functions into three departments under the newly created, cabinet-level DHS.48 The three departments are: United States Citizenship and Immigration Services (which provides servicesPage 331 to immigrants); Customs and Border Patrol (which inspects people and goods at the exterior borders of the country); and ICE (which enforces immigration laws).49
ICE runs most of the immigration-enforcement operations within the interior of the country.50 Like all government agencies, ICE has its priorities. In 2006, the DHS Secretary, Michael Chertoff, announced worksite enforcement as one of ICE's priorities with plans to "aggressively target employers who knowingly or recklessly hire undocumented workers."51 Congress supported Chertoff s directive by providing ICE with $322.1 million of funding between fiscal years 2008 and 2009 to create approximately 5550 new detention beds in immigration-detention centers.52 Additionally, funding for worksite enforcement more than doubled between fiscal years 2008 and 2009, increasing from $15 million to $34 million.53 This increase in funding, coupled with Chertoffs directive, led to three significant immigration raids that...
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