Photo Credit: Rabbi Hanoch Teller

The Feds were certain that they had their case all tied up in a neat ribbon when they struck at 10:00 in the morning on May 12, 2008. The blitz appeared like an Action Movie of a Super Power invading a Banana Republic, sans only the heavy bass and snare drum audio track. With a Black Hawk attack helicopter hovering above, Rifle-toting, flak-vested agents clad in heavy riot gear stormed open the meatpacking plant’s doors shanghaiing the employees, seizing documents and impounding evidence that could be used regarding alleged methamphetamine production (!), sexual harassment, weapon manufacturing (!) and unsafe working conditions, et al.

In previous raids, ICE would sweep in and those charged with administrative immigration violations[i] would be deported without ceremony and their employers given a slap on the wrist. Not this time. For the first time the U.S. Attorney’s Office was more concerned in criminalizing the aliens than deporting them.


Apparently, the reason for the policy switch was the hope that upon their return home the jailed violators would relate their travails and thereby discourage others from seeking unlawful entry and employment[ii] in the United States. The U.S. Attorney was also interested in going after anyone involved in the illegal immigrants’ employment and the documents which they seized in the blitz would assist them. Agri’s management personnel were not (initially) affected.

Within three hours, 389 unsuspecting and terror-stricken arrestees were shackled at rifle point and forced onto ICE buses that would bring them to the Cattle Congress field prison in Waterloo, Iowa. There they had to choose between two felony convictions[iii]. And they surely did not fully comprehend all that had happened to them – even with Spanish interpreters.

But they did understand that their dream of crawling out of debt by working at a difficult job with low wage – that would yield them more in a few days than what they would earn in a month back home in rural Guatemala – had turned into a nightmare. Deciding between a crime carrying a maximum 10-year prison sentence plus $250,000 fine at trial, or a lesser charge, was an absolute no-brainer.

The prosecutors offer was to either plead guilty to aggravated identity theft which would send them to jail for five months before they were deported; or refuse the plea and go to trial for Social Security fraud. With the latter option, the detainees could wait up to six months in jail without bail and face the possibility of a two-year mandatory sentence. Ultimately, they still faced deportation whether they were found guilty or not.

“Needless to say, the scheme left little room for the fundamental protections offered by the Constitution,” David Leopold, the national vice president of the American Immigration Lawyers Association, lamented. “The spectacle was a national disgrace.”

Nearly 300 illegal aliens were railroaded into a plea bargain, but as the authors of Postville U.S.A.[iv] and others have pointed out, these plea bargains were obtained under false pretenses and one is stymied to find any bargain in the deal. The lesser of the two crimes they were confronted with, using a false social security number, carries a discretionary sentence of zero to six months[v]. In reality, and historically, defendants of this crime receive probation and are deported. In this instance, they committed to a sentence one-month shy of the maximum which affords judges no discretionary authority.

Some of the timorous immigrants, desperate to avoid expulsion, would be asked to assist the government’s case through corroborative testimony. Their cooperation would be rewarded with a U-Visa which would free them from deportation – even if they had entered the country illegally.

Rep. Zoe Lofgren (D-CA) chairwoman of the House Judiciary Committee’s Immigration Panel complained that, “Hundreds of people were convinced to plead guilty to a crime without really an adequate opportunity to see if they had any remedy under immigration law. But now that they’ve pled guilty to a crime, they have no remedies that they might otherwise have had.”

She also complained that the government[vi] “Employed heavy-handed tactics, destroyed the economy and social fabric of a tiny town, and left a small Catholic church to care for hundreds of people robbed of their primary breadwinner.”

Critics outside of Washington also blasted the government’s so-called “fast tracking” of detainees, alleging that defendants were provided inadequate access to lawyers, some of whom were assigned to represent more than a dozen individuals.

Chodesh Tov – Have a pleasant month!

(To be continued)


[i] Postville, U.S.A. p 64

[ii] Postville U.S.A. p 68

[iii] It was unprecedented to charge these immigrant workers with aggravated identity theft (which only became a criminal offense in 2004). Congress’ intention for the law was to protect one from identity theft (using credit cards in your name, ruining your credit, or employing your name to commit crimes).

[iv] Ibid p 66

[v] The immigrants were advised by the Sate appointed lawyers to plead guilty to the charge of falsely using a social security number. Yet one year later in 2009, the Supreme Court ruled that an illegal worker and resident of the United States cannot face an additional two years in prison for aggravated identity theft unless he knew his fake ID belonged to a real person. This decision would shut out federal prosecutors from using the aggravated identity theft statute to boost prison sentences in undocumented immigrant cases.

[vi] Reported on the JTA website, July 29, 2008