Psst! Wanna Join A Class Action Suit Against Employers of Illegal Immigrants?


Enforcement of immigration laws
has always been a problem, and in recent years has
been getting laxer. The New York Times reported
in 2000 that the INS had stopped making raids on
illegal immigrants. (This story is

archived
on the website of the University of
California`s

Agricultural Personnel Management Program.
)


Salvador Silva often used to worry that immigration
agents would raid the commercial laundry where he works.
If they did, he had a plan. He would jump onto a table,
hoist himself into an air-conditioning duct, and hide
there until the agents left. He practiced this more than
once.

"We
lived with the uncertainty of raids," said Mr. Silva,
who is 26 and has worked illegally in this country for
10 years, ever since he walked across a bridge from
Juárez in Mexico to El Paso and flew to Chicago to join
a brother. Only now is he beginning to relax. "For
the first time," he said, "I don`t fear the raids."

Under Clinton, the INS cut back on
deporting suppliers of cheap labor, and potential
Democratic voters.

Such
raids have all but stopped around the country over the
last year. In a booming economy running short of labor,
hundreds of thousands of illegal immigrants are
increasingly tolerated in the nation`s workplaces. The
Immigration and Naturalization Service has made crossing
the border harder than ever, stepping up patrols and
prosecuting companies that smuggle in aliens or
blatantly recruit them. But once inside the country,
illegal immigrants are now largely left alone. Even when
these people are discovered, arrests for the purpose of
deportation are much less frequent; such arrests dropped
to about 8,600 last year from 22,000 just two
years earlier, the I.N.S. reports.

[VDARE.COM note:
Compare this figure with the

estimated
  8 million illegals resident in the
US. According to the latest

budget figures
, there are 35,000

more-or-less useless
employees in the INS. That
means that in FY2000, they each deported less than a
quarter of an illegal alien per year, leaving 99.9 %
still in country.]

The INS was willing to deport
those illegals who had committed

serious crimes:

The
agency now concentrates on picking up aliens who have
committed a crime. The rest are in effect allowed to
help American employers fill jobs. "It is just the
market at work, drawing people to jobs, and the I.N.S.
has chosen to concentrate its actions on aliens who are
a danger to the community," said Robert L. Bach, the
agency`s associate commissioner for policy and planning.

The story also acknowledged that
the immigrants were depressing wage rates, thus harming
native American workers:

The
new lenience helps explain why overall wage increases
have been less than many economists
and policy
makers had expected
, given an unemployment rate of
only 4 percent and a strong demand for people to fill
jobs that pay $8 an hour or less, which is 25 percent of
all jobs. Immigrants—legal and illegal—have fed
the pool of people available to take these lower-paying
jobs.

But there`s another aspect of the
situation that`s overlooked by many commentators: the
plight of honest employers. An employer who doesn`t
employ illegals may be unable to compete with one who
does, because the competitor can offer an unmatchably
low price. This crime doesn`t only affect the worker,
but the company he works for.

Recently some employers have
decided to take action. A lawsuit

backed
by FAIR has been launched against a large
cleaning company which has apparently been employing
illegal immigrants on a grand scale. In 1996 they paid a

record fine
for hiring illegal aliens. Their
competitors lost money and contracts because they were
hiring illegals, and while bureaucrats aren`t fighting
this very hard, because they get paid whether the law is
broken or not, private companies have an incentive to
sue.

The heroic

Howard Foster
of

Johnson & Bell, Limited
,
writes:

At
last, justice has been done in that a federal court has
held that a law-abiding business can sue a competitor
for unfair competition in the form of the mass
employment of illegal immigrants.  The decision of the
U.S. Court of Appeals for the Second Circuit in the case
of Commercial Cleaning Services, LLC v. Colin Service
Systems, Inc. set up a modern day David /Goliath
dispute, with small office cleaning company Commercial
of suburban Hartford, CT suing industry leader Colin (send
them mail
)
for taking its business
through underbidding for cleaning contracts.  The
dispute arose after Colin lured away Commercial`s client
Pratt & Whitney, one of whose factories Commercial had
been cleaning for over a year, with a bid Commercial
simply could not match, and the promise of a virtually
"limitless pool" of workers available on short notice. 
Commercial`s weapon in this risky fight was not a
slingshot but RICO–the

Racketeer Influenced and Corrupt Organizations Act

which had been amended in 1996 by the Republican
congress to make the employment of illegal immigrants an
additional

"predicate offense"
subjecting violators to stiff
fines, attorney`s fees and possible criminal
prosecution.


Commercial was the first party to test RICO`s new
anti-illegal immigration provisions.  I filed the suit
in the U.S. District Court in Hartford, CT, and suffered
the slings and arrows of outrageous fortune when Judge
Christopher Droney,

Clinton appointee,
threw out the case on the theory
that Commercial could never prove that Colin`s
employment of hundreds of illegal workers at

depressed wages
was the "proximate cause" of its
loss of the Pratt & Whitney contract, as opposed to
other economic factors.  This was a fate shared by many
other RICO plaintiff`s lawyers.  However, I know the
statute quite well, and even teach a class on the
subject at one of the law schools here in Chicago, and
was willing to risk an appeal to the influential Second
Circuit in New York, where a affirmance would
effectively doom any prospects for future cases by other
victims of illegal immigrant hiring under this theory.

On
November 15, a year after I argued

the appeal
, the Second Circuit issued a sweeping
decision holding that Judge Droney was dead wrong, and
that Commercial`s case was to go forward.  Its injury
was "proximately caused" by Colin`s "illegal immigrant
hiring scheme" and was precisely the type of injury for
which RICO was enacted to remedy.

So
back to Judge Droney we now go to proceed with the case
against Colin. Step number one will be the attempt to
proceed as a class action–that is on behalf of all
competing cleaning companies, not just Commercial, who
have lost contracts to Colin during the last 5 years. 
Since Colin does business up and down the eastern
seaboard, such "class certification" would pose the
possibility of ruinous damages, which are automatically
tripled under RICO, if we can prevail at trial. However,
win or lose, the Second Circuit`s precedent in this case
opens the door for thousands of American businesses to
sue rivals who hire illegal immigrant workers to
unfairly compete.  Expect to see many such cases brought
under RICO in the near future.

A
heartfelt thanks must go to former

Senator Alan Simpson
and his colleagues who, in
1996, passed the legislation, that made this
possible.   


[Vdare.com note:
Employers who want to join in this class action suit
should e-mail



Howard Foster

at


Fosterh@jbltd.com
,
or phone him at 312-372-0770.]

It will take years to change the
culture of the Immigration and Naturalization Service to
one that`s more constructive. But if the American
passion for

litigation
can be harnessed in the cause of
immigration reform, private enterprise may accomplish
what bureaucracy won`t.

December 05, 2001