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Psst! Wanna Join A Class Action Suit Against Employers of Illegal Immigrants?
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December 05, 2001, 04:00 AM
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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