DHS Stepping Back? I don't think so

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Raid's Outcome May Signal a Retreat In Immigration Strategy, Critics Say

By Spencer S. Hsu
Washington Post Staff Writer
Tuesday, September 2, 2008; A13

The federal government's handling of a massive immigration raid at a Mississippi manufacturing plant last week has led critics to suggest that the Bush administration is backpedaling from its aggressive use of criminal charges and fast-tracked trials against illegal immigrants caught at workplaces.

U.S. officials reject any suggestion of a retreat or a shift in strategy in the Aug. 25 raid at a Howard Industries transformer plant in Laurel, Miss. In the nation's largest immigration enforcement operation at a single work site, federal agents arrested nearly 600 illegal immigrants there but charged only eight criminally, turning over the rest for civil deportation proceedings, as they have in the past.

The U.S. Immigration and Customs Enforcement agency "continues to target egregious employers . . . to identify individuals engaging in identity theft, and we seek criminal charges where appropriate," spokeswoman Kelly A. Nantel said.

Nonetheless, it was a stark departure from the way authorities conducted the previous record-setting sweep 15 weeks earlier.

On May 12, immigration agents apprehended 389 illegal immigrants at an Agriprocessors meatpacking plant in Postville, Iowa. Nearly 300 were charged, convicted and sentenced within 10 days in group trials in temporary courts set up at a fairground. Most pleaded guilty to document fraud, receiving five-month prison sentences.

Criminal defense and immigration lawyers led criticism of the proceedings, saying the extraordinary speed with which pleas were obtained raised the risk of error. A federal court interpreter reported that many defendants were poor, uneducated Spanish speakers who did not understand the charges.

The American Civil Liberties Union said close coordination before the raid between the prosecutor and the chief judge to structure plea agreements that hastened the process was highly irregular, raising due-process concerns.

"I think Postville left a bitter taste for a lot of people," said Robert R. Rigg, director of the criminal defense program at Drake University Law School in Des Moines, who has criticized the case. "It paints a pretty bleak picture of American criminal justice, and I don't think it's the type of thing the judiciary or main Justice wants to replicate."

Charles H. Kuck, president of the American Immigration Lawyers Association, agreed, saying he thinks the Justice Department is changing course.

"They clearly did not enjoy the press they got after Postville. . . . It may be a shift in strategy from how bad Postville made them look as they eviscerated the Constitution, doing everything in one fell swoop with the involvement of the federal court."

But Nantel rejected such speculation. "It certainly is not an indication of a change in strategies," she said.

Investigators are working with prosecutors to determine if there is enough evidence to pursue additional criminal charges related to both raids, Nantel said. Prosecutors have not made public an affidavit or other documents laying out the case against suspects in the Mississippi raids, she added.

She acknowledged, however, that "prosecutorial discretion is certainly a key issue." Individual U.S. attorneys are free to set "different thresholds and different bars based on different . . . priorities or degrees of interest in pursuing those sorts of cases."

Carrie Nelson, a spokeswoman for Stan Harris, the acting U.S. attorney for the Southern District of Mississippi in the Howard Industries case, said that the Justice Department "has not changed policies or procedures regarding immigration enforcement actions." Decisions in Iowa and Mississippi "were made by prosecutors in the field based on the facts and circumstances of each case," she said.

But several people familiar with interactions between the Justice Department and Immigration and Customs Enforcement cite interagency disagreements over what one side views as overaggressive investigators and the other regards as balky prosecutors.

"There are some districts where they do not want to do these cases," one U.S. official said.

Lawyers who have worked closely with Attorney General Michael B. Mukasey's office said federal prosecutors are generally very cautious about immigration raids. They have raised humanitarian concerns about rounding up hundreds of illegal immigrants and splitting families.

"Processing hundreds of illegals in the criminal court system like that in a cattle-call arena creates a huge burden on the system, and things tend to slip," said one former Justice Department official familiar with deliberations between ICE and the domestic security section of Justice's criminal division. "That's where they get criticism."

Whether illegal immigrants are charged criminally obviously means a great deal to the individuals involved. It raises the prospect of prison sentences and criminal records, as well as much harsher penalties if they are caught inside the United States again.

But for employers, the public and the immigration debate in general, any shift by immigration authorities may have relatively little impact. The same tough message can be sent whether illegal immigrants are simply caught and deported, or instead caught, criminally sentenced, imprisoned and then deported.

The roundup strategy is limited by resources and the United States' vast population of illegal immigrants, estimated at 12 million.

"I don't think it's a shift away from what they ultimately want to do, which is to punish and deter people from using fraudulent identities to obtain work. It's a different path to the same goal," Kuck said.

But he added: "They could do one of these raids a day for the next six years and still not deter people from doing it." 

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