NW Arkansas Focus : Springdale alien roundup raises questions (Arkansas Democrat Gazette)

NW Arkansas Focus : Springdale alien roundup raises questions

BY ADAM WALLWORTH

Posted on Monday, April 13, 2009

Deportation cases against two dozen illegal aliens apprehended in a recent raid at two Springdale houses highlight an inconsistency in how such cases are handled.

The cases also reveal a continuing problem with some business owners who hire aliens but then don't pay them, law enforcement and immigration experts said. That happens frequently because the owners know the illegal workers likely will not report them to authorities, they said.

The Springdale raid occurred after a local immigrant advocate tipped police about the squalid conditions where the workers were living after having been promised money to help lay underground cable. More than 30 people had worked for up to a month but had not been paid, according to a federal affidavit.

Five left the area after not being paid, but 26 others couldn't afford to leave and continued to live in the two small houses on East Allen Street.

When members of the local immigration task force arrived at one of the houses at 9:05 a.m. March 26, they found dozens of mattresses spread on the floors. There was no furniture or food in the house, and the heater was not working. The temperature that morning was 45 degrees, according to the affidavit.

The workers had not eaten for more than two days, Ana Hart, executive director of Just Communities, told police after a lawyer contacted her about the situation.

"Where there would be normally a small living room, dining area, all of that was mattresses. Very few blankets or bedding of any kind," Hart said. "To the right, another small room was the same - bedding, mattresses, no furniture. There were probably 15 to 17 people that called that place home. The situation was very inhumane."

The houses had been rented by Marcio De Oliveira for a total of $800 a month, according to the affidavit. De Oliveira owns Molink Underground Construction Services of Ooltewah, Tenn.

DIFFERENT CASES

After arresting the 26 workers, police learned that two were in the country legally but that the rest had come from Honduras, Guatemala and Mexico. The two legal workers were released, and removal proceedings were initiated on 20 others. Most have been deported, said Chris Plumlee, assistant U.S. attorney for the Western District of Arkansas.

The other four are being held as material witnesses to testify against De Oliveira, 41, a Brazilian-born legal permanent resident, Plumlee said.

De Oliveira was arrested on charges of harboring illegal aliens. The four material witnesses were deposed last week and soon will be transferred to the custody of Immigration Customs Enforcement to begin removal proceedings, he said.

De Oliveira rented the two houses from Jimani Rentals of Springdale, court records show. A company representative told police the two houses were intended to house a total of 10 people. The water and electric utility accounts were in the names of the two legal workers, Noel Alvarad and Leonel Benavides, according to the affidavit.

De Oliveira told police that Alvarad and Benavides were subcontractors responsible for hiring the rest of the workers, although his contract with Allwire Communications required explicit approval to hire subcontractors. De Oliveira did not have that approval, according to the affidavit. He said he knew the workers didn't have money for food and that he had sent $1,000 for a month of food, court records show.

The employees had been working 13-hour days for up to four weeks, Plumlee said. According to the affidavit, the workers were told they would be paid $100 to $150 per day.

De Oliveira was arrested March 30 by the Immigration Criminal Apprehension task force. He was held for four days and released on $15,000 bond and allowed to return to Tennessee. He has not been charged on the complaints by the workers that he did not pay them, but the investigation is ongoing, Plumlee said.

The deportations of the Springdale workers are a different result than a case in Bellingham, Wash. In a February raid on an engine manufacturing plant, authorities arrested 28 illegal workers. Soon after, Homeland Security Secretary Janet Napolitano ordered a review of the case, and the workers were given the option of staying in the United States with legal work permits for the duration of the case, or returning home, according to The Associated Press. Two opted to be deported, the report said, with the rest staying in the United States on work visas.

The Springdale workers weren't offered an option to stay, Plumlee said.

Acting U.S. Attorney Debbie Groom said that she was unfamiliar with the Washington case and could not compare it to the case in Springdale.

"Our office makes the criminal prosecutorial decisions, and decisions whether to seek deportation of illegal aliens through the administrative process is a function of Immigration and Customs Enforcement," she said.

An option for the workers could have been a "U visa," said Elizabeth Young, assistant law professor and director of the Immigration Clinic at the University of Arkansas School of Law in Fayetteville.

Such a visa allows victims to remain in the country to help prosecute suspects. Keeping illegal aliens in the country can aid prosecutors, Young said, because witnesses testifying in court are given more weight than depositions.

Young said that in larger cities, such as the nation's capital, it is common for police to try to keep illegal aliens in the country to aid their case.

There are cases across the country where people use immigration status to essentially hold people captive, Young said.

The Springdale case is a worst-case example of that, she said.

"Whether they had documentation or not, they were essentially enslaved, it sounds like," she said. "We have laws against that."

NOT A CRIME

Plumlee said prosecutors will be looking at the nonpayment of wages, along with the claims that De Oliveira was providing housing and transportation. The fact that the workers hadn't been paid is a factor to consider in building the case, Plumlee said, but it will not add any criminal charges.

"Not paying is a factor," he said. "But it's really not a crime to not pay employees."

Nonpayment of wages is a civil matter and just one way in which illegal aliens are exploited, Plumlee said. He said they are targeted because they won't go to authorities to file a lawsuit for wages and won't file a claim if they get hurt on the job.

"I think it's kind of a myth in some cases that illegal aliens work for lower wages," Plumlee said. "A lot of times they work for the same wages that citizens do, but in reality are less likely to claim benefits."

Not paying illegal aliens for work is not new to the area, said Rachel Townsend, executive director of the Northwest Arkansas Workers Justice Center.

"This happens in Northwest Arkansas every day, and it's getting worse and worse. We're seeing bigger numbers of people coming in with larger amounts of money owed," Townsend said. "It's a form of human trafficking, but employers don't see it that way."

Officials on the other side of the immigration debate said the original crime of illegally entering the country should not be overlooked.

"I support retention of those needed as material witness, but certainly don't think we need to give them all a green card," said Dan Stein, president of the Federation for American Immigration Reform.

In cases such as the one against De Oliveira, deportation seems a favorable resolution, Stein said. Those aliens came to the United States, presumably, to improve their situation, and that didn't happen, he said.

"[Those] aliens were brought here under false pretense," Stein said. "They didn't find what they expected when they got here. I would think they would be glad to be back in their home country at the end of this ordeal, where they can apply their skills in a more profitable way."

Stein said too often, people try to separate the crime of being in the country illegally with the ancillary crimes committed. Predatory labor practices, fraud and indentured servitude all occur because people are breaking the law by entering the U.S. illegally, he said.

GETTING INVOLVED

The Springdale case also is unusual because the criminal investigation began after Hart, a longtime area advocate for members of minority groups and immigrants, asked police for help.

The workers were starving, Hart told authorities. Aside from the immediate need for food, they needed help getting the money owed to them, she said.

Hart said she contacted the workers using a phone number provided by an attorney who the workers had contacted at random. Upset by the conditions in which the workers were living, she began calling everyone she could - including Immigration Customs Enforcement.

"My call was for collaboration so I could get them the help they needed," Hart said. "Whether that is a mistake, I think I'm about to find out."

The situation highlights the dilemma faced by advocates fighting for what they see as a moral right, regardless of whether a person is in the country legally. Often, activists will avoid seeking help directly from law enforcement. Instead they will work with churches or other nongovernment agencies to help.

Townsend said her staff will not call authorities unless the worker asks them to do so because the worker often is deported before any action can be taken.

"We know that if we contact ICE, the person who's going to get punished is not the subcontractor. It's not the person that's not paying them," Townsend said.

"We're not punishing the people for not paying the employees. When you call in ICE, the subcontractor actually gets the benefit of undocumented labor for free, or close to free, and getting away scot free. There's not justice in that."

Hart, praised by fellow activists and local and federal law enforcement for her work with immigrants, said the Springdale case was dire, requiring her to contact police.

After learning that her name was included in the federal affidavit, Hart declined further comment.

Springdale Police Chief Kathy O'Kelley also was hesitant to discuss the case, but did express support for Hart, who she considers an asset to the community.

O'Kelley said she respects the work of such activists who are trying to help a segment of the population that is difficult to reach.

"I think those people are being used as slave labor. On a humanitarian level, we need to go in and help them," O'Kelley said.

O'Kelley said there are many more people in situations similar to the Allen Street workers. The challenge for anyone trying to help, she said, is forming a relationship.

"Our interest truly is ensuring these people are not being taken advantage of," the police chief said.

O'Kelley remains hopeful that victims of crimes as serious as human trafficking, slave labor and exploiting illegal workers for personal gain will come forward so the perpetrators can be held responsible. The task force, in which local officers receive federal training on immigration enforcement, was created to investigate crimes such as these, she said.

Whether O'Kelley agrees with the arrests of the Allen Street workers is not something she was willing to go on record about.

"[The] issue is something beyond my pay grade," O'Kelley said. "That's a federal task force issue, and I'm local law enforcement."

Plumlee said he experienced the difficulty of gaining the trust of illegal immigrants in his previous job with the Benton County prosecuting attorney's office. He said he's worked on homicide cases where witnesses would not come forward for fear of being deported.

"If it gets to the point you think it's life and death, you've got no choice but to call the police or ICE. If you call the police, they're going to call ICE," Plumlee said. "It's better for them to be deported and alive and healthy than for them to be here suffering."

Groom said Friday that she will ask a judge to remove Hart's name from the affidavit, acknowledging a concern that Hart's contact may affect the willingness of people to speak with her office. However, the affidavit has been available publicly since March 30.

Jim Miranda, a local Hispanic rights activist, said he has worked with Hart for several years and that he is sure she was only trying to help. He's glad the government is prosecuting De Oliveira, but said it is unfortunate that immigration officers were so quick to deport the workers.

"I'm not that suspicious to think ICE is trying to be malicious," Miranda said. "It's just this mindset of enforcing the law at all costs." Miranda said such action reinforces the fear of law enforcement. "Something like this sends ripples through the community," he said. "Those people living in the shadows - those people end up being silent and they don't speak out."