The ALRA, Immigration Law and Worker Protection in the 21st Century

The ALRA, ImmigraLon Law and
Worker ProtecLon in the 21st
Century
LeLcia Saucedo
U.C. Davis School of Law
April 17, 2015
PresentaLon Outline
1.  ImmigraLon Relief for Agricultural Workers
2.  Threats to Deport as ViolaLons of ALRA AND
as basis for ImmigraLon Relief
3.  ALRB as ImmigraLon Lawyers
ImmigraLon Relief for Agricultural
Workers
-­‐-­‐ Family-­‐Based Relief
Family PeLLons
DAPA
-­‐-­‐VicLms of Workplace Crimes
U and T nonimmigrant visas
Family-­‐Based Relief
Family based peLLons – less useful today;
inadmissibility grounds
DAPA – Deferred AcLon for Parents of
Americans and LPR’s
-­‐-­‐esLmated 25-­‐45% of current ag. worker
populaLon eligible
VicLms of Workplace Crime – U Visas
Nonimmigrant visa available for vicLms who
cooperate with law enforcement officials in
the invesLgaLon/prosecuLon of 28 crimes,
including:
ExtorLon
Sexual assault/rape
ObstrucLon of JusLce
Fraud in Foreign Labor ContracLng
Qualifying Criminal AcLviLes
AbducCon
Incest Abusive sexual Involuntary contact
servitude
Being held Kidnapping
hostage
Manslaughter
Blackmail
Murder
DomesCc ObstrucCon of violence jusCce ExtorCon Peonage False
Perjury
imprisonment ProsCtuCon
Felonious assault Rape
Fraud in foreign Sexual assault
labor
Sexual contracCng exploitaCon
Slave trade
Stalking
Torture Trafficking
Unlawful criminal
restraint
Witness tampering Involuntary Servitude
A condi5on of servitude induced by means of—
(A) any scheme, plan, or pa6ern intended to cause
a person to believe that, if the person did not enter into or con5nue in such condi5on, that person or another person would suffer serious harm or physical restraint; or
(B) the abuse or threatened abuse of the legal
process
-­‐-­‐22 U.S.C. § 7102(5).
IS Examples
Threats of physical, psychological, financial restraint or harm
Threats to contact law enforcement/immigraLon to
compel work
– ConfiscaLon of idenLty documents, passports,
travel documents
– SupporLng facts: wage violaLons, inadequate
food, housing, medical care, clothing; verbal/
physical abuse, restricted contact, use of locks/
fences to restrict mobility
Blackmail/ExtorLon –
•  Generally—use of a threat or fear to coerce
someone to give up something of value
– Did employer threaten violence or to report immigraLon status to obtain property or
money or force employees to take a posiLon
or to keep employees from taking a posiLon?
Fraud in Foreign Labor ContracLng
solicit, or hire a person outside the United States …
for purposes of employmen in the United States by
means of materially false or fraudulent pretenses,
representaLons or promises regarding that
employment shall be fined … or imprisoned … or
both.”
-­‐-­‐-­‐-­‐1
18 U.S.C. § 1351
Fraud in Foreign Labor ContracLng
representaLons
housing,
fees to on:
labor brokers, food and
transportaLon,
ability toofwork
for other
– Terms and condiLons
employment,
to laboraspects
of foo
work
employers,
d and
housing, fees
material
brokers,
transportaLon,
angement ability to work for other
arr
employers,
material
aspects
work
– Broader than
trafficking
or of
involuntary
serangement
arr
vitude
– Broader than trafficking or involuntary
servitude
ObstrucLon of JusLce, Witness
ObstrucLon
Tampering
of JusLce, Witness
Tampering
-­‐-­‐ANempts to influence, obstruct, or impede any
-­‐-­‐ANempts to influence, obstruct, or impede any
pending proceeding through use of threats or force;
pending proceeding through use of threats or force;
-­‐-­‐DestrucLon, alteraLon, or falsificaLon of records,
including labor cerLficaLon, wage/hour records,
birth cerLficates
Sec. 1151.6. Any person who shall willfully resist,
prevent, impede, or interfere with any member
of the board or any of its agents or agencies in
the performance of duLes pursuant to this part shall be guilty of a misdemeanor…
Law Enforcement CerLficaLon
• Judges
ALRA and concerted acLviLes
Sec. 1152: EE’s shall have the right . . . to engage
Sec.
EE’s shallacLviLes
have thefor
the. purpose
. . to engage
of
in
other
1152:
concerted
right
or otherfor
the purpo
aid or
se of
in other concerted
collecLve
bargaining
acLviLes
mutual
collecLve bargaining or other mutual aid or
protecLon.
protecLon.
Sec. 1153: It shall be an ULP for an agricultural
interfere
with,for
restrain,
or coerce
employer
Sec. 1153:…It to
shall
be an ULP
an agricultural
employe
…employee
to interfere
s inwith
the, exercise
restrain,ofr
o the
coerce
agriculturral
agricultural
in secLon
in the1152.
rights
guaranteed
employees
exercise of the
rights guaranteed in secLon 1152.
Threats to Deport Violate Sec. 1152
P& Vanderpoel Dairy, 40 ALRB 8: aNorney asks
about immigraLon status and idenLty the=
P&
Vanderpoel
Dairy,1240ALRB
ALRB248: aNorney
asks
Sam Andrews
v. UFW,
discriminatory
applicaLon
abou immigraLon
of undocumented
status and worker
the= policy
idenLtyhiring
consLtutes
unlawful
refusal
to rehire.
Sam Andrews
v. UFW,
12 ALRB
24 discriminatory
applicaLon
of undocumented
hiring
Rigi Agricultural
Svcs v. UFW, worker
9 ALRB 31:
ER policy
fires
undocumented
consLtutes unlawful
workers
refusal
a=ertoconcerted
rehire. acLvity
Rigi
Bertucci
Agriocultural
v. UFWSvcs
, 4 ALRB
v. UFW,
91 9promises
ALRB 31:of
ERhelp
fires
with
undocu
imm
mented
igraLon
workers
maNersa=er
considere
conc erted
d foracLvity
their
Bertuccio v. UFW, 4 ALRB 91 promises of help
with immigraLon maNers considered for their
Policies that imply deportaLon
Policies thatthreats?
imply deportaLon
Do policies that perpetuate an environment of
Do poflici
fear
de
eportaLon
s that perpetuate
amount an
to interference
environmentwith
of
emplooyee
fear
f d eportaL
s’ secLoon amount
1152 rights
to interference
to engage inwith
Threats to Deport as ObstrucLon of
Threats
JusLce,
to DWitness
eport asTampering
ObstrucLon of
NLRB has cerLfied threats based on immigraLon
NLRB as
statush
asobstrucLon
cerLfied threats
of jusLce
based
oron
witness
immigraLon
status as obstrucLon of jusLce or witness
tampering
tampering
Threats to deport are examples of chilling effect
employee
concerted
acLvity of chilling effect
on
Threats
to deport
are examples
ALRB ANorneys as ImmigraLon
ALRB ANorneys
ANorneys
as ImmigraLon
InvesLgaLons of ALRA violaLons will reveal
InvesLgaLof
f ALRA violaLons
crimes will reveal
onswo
orkplace
examples
examples
of workplace
Few aNorneys
availablecrimes
in rural areas
Le
Fegalized
w aNorneys
workers
availabl
havee more
in rural
leverage
areas in the
workplace
Legalized workers have more leverage in the
workplace
To the extent immigraLon-­‐based threats chill
acLvity,
within ALRB mission
concerted
To
the extent
immigraLon-­‐based
threats chill
concerted
acLvity,model
within– ALRB
mission
Public Defenders
hire immigraLon
aNorneys