Is ‘illegal’ a crime?

The recent raid at McDonald’s split families and raises some fundamental questions about immigration

Illustration By Terry Biddle

On the morning of Sept. 27, 2007, Jorge woke up at 4 a.m. to prepare for his 5 a.m. shift at the McDonald’s on 5000 S. Virginia St., where he worked as a cashier and manager for $10.65 an hour.

The day began like any other, but by 9:30 a.m., he began to suspect something was not right. Unmarked white vans circled the building several times, and the men driving them watched the store suspiciously through dark sunglasses.

Jorge’s uneasiness increased. Things just weren’t right. Around 10 a.m., two well-dressed men entered the store but didn’t approach the counter to order. Within 15 minutes, fully armed officers from the U.S. Immigration and Customs Enforcement agency burst into the store wearing bulletproof vests. Immediately in control of the property, they closed the doors and escorted the customers off the premises.

The officers then demanded that all the employees show proof of their legal right to work in the United States. Jorge was questioned by the well-dressed men about his health, family, country of origin and criminal record for two hours before being taken into custody with several others. Afraid that he would not see his wife or three children again, he was handcuffed and delivered in the unmarked white van to an immigration processing center near the Reno airport.

This scene was repeated in five McDonald’s restaurants owned by Luther Mack in Reno, Carson City and Fernley. Fifty-four people were unable to provide adequate proof and were taken into custody under suspicion of being illegal aliens, technically the administrative crime “out of legal status.”

Eleven of those arrested were sent to one of two processing centers in Arizona to determine if they were to be criminally charged or to be immediately deported. Twenty-nine of those arrested were released by 8 p.m. that day, with the last 14 people released the following day.

The raids made national news and temporarily thrust Reno into the forefront of the political debate regarding immigration in the United States. Protests against the ICE raids were held at the Parr Boulevard jail that day because families and the public weren’t told the whereabouts of those arrested.

The Progressive Leadership Alliance of Nevada, a non-profit organization that deals with local advocacy or social issues, as well as Nevada Hispanic Services were notified and placed in contact with those arrested on the day of the raid. These two organizations provided legal representation and assistance with basic needs—such as calling cards and food—for the people arrested. The two groups also assisted in securing interviews with three of the arrested.

Left without alternative
Because of pending legal action, which is now before the courts, we’re only identifying the alleged illegal aliens by their first name. Each mentioned the difficult decision to leave behind his or her home and family to come to the United States, and all said that a life in Reno is better than the one they left.

Marta lost everything after the arrest. She is now out of work and can’t get a new job until her immigration case has gone to court, presumably within the next two months. Unable to pay rent or even buy supplies for her two infant children, she is forced to live with friends and rely on services provided by NHS. Marta says her hardships don’t change the fact that living in Reno gives her the opportunity to improve her circumstances. If she had stayed in her hometown, Mexico City, there was hardly a chance to earn a decent living.

Jorge left his home in Michoacán more than 19 years ago to come to the United States because of the enormous difference in wages. The wages for seven days at a manual labor job in his hometown totaled about $24. Here, he doubles that amount every day with a low-paying job.

Elena has family in Reno, who have helped since her arrest. She has also been unable to work until her legal status is clarified. Left with no alternative, she has sold most of her belongings in order to pay her bills and feed her three children. She will have to remain unemployed until her case can be heard by an immigration judge. The judge will determine if she can acquire a work permit. Though nervous, she says she hopes she can stay in the United States because living here provides better opportunities for her children than in Jalisco.

They all understand that it is illegal to come to the United States without Uncle Sam’s permission, but none feel that they are criminals.

“We’re all good people,” Elena said. She felt they had no alternative but to come here without acquiring a visa. She isn’t against the deportation of drunkards or criminals, “but we came to work. Everyone has to work to survive.”

Is ‘illegal’ the right word?
That none of these three people are “criminals” is accurate, since they are all arguing for permission to work in the United States in an administrative (article 2) court, as opposed to a criminal court. A person entering the United States illegally is not typically charged as a criminal. In the event that anyone was charged as a criminal, they would be afforded rights as non-U.S. citizens, such as due process and the right to an attorney in a criminal trial. This is according to the U.S. Constitution—regardless of the practices of this administration.

The U.S. Immigration and Customs Enforcement Agency raided five local McDonald’s restaurants in September 2007 searching for illegal aliens. (This photo, from an anonymous source, was submitted with the license plate number crossed out.)

Since being “out of status” is a civil crime, there is no public attorney assigned to any of these cases. An alleged illegal immigrant must provide his or her own legal representation for an immigration hearing, though NHS has provided legal services to anyone who came forward for legal help in the McDonald’s arrests.

The process of acquiring a visa has left many people with little viable alternative than to come into this country illegally. Sixty-five thousand to 100,000 non-immigrant temporary work visas are issued yearly by the United States. On the day these visas are made available, they are quickly claimed. There are roughly 400,000 family immigrant visas available a year, which doesn’t meet the demand for the number of people who want to live here. Visas can take up to 25 years before they are granted.

Those who have entered the United States illegally but have established residency for 10 years may apply for “relief from deportation” or for a green card, provided they can prove “extraordinary and unusual hardship” to their immediate families (e.g. wife or children). This policy became effective under the Clinton administration in 1997. Prior to 1997, the amount of time that someone had to prove residency was seven years. Also, that individual had only to prove personal hardship, which had been the policy since 1972.

An amnesty was granted during Ronald Reagan’s presidency between the years of 1982-86 for the “special agricultural worker.” It is unlikely that this Congress will grant a similar amnesty for the undocumented worker. One bill before Congress was called “the Dream Act,” which would give a pathway to citizenship for the immigrant through higher education or military service. It was halted by a filibuster in the Senate in October.

Biggest little immigration issue
What is the weight of the out-of-status immigrant on the legal system in Reno?

According to Reno Chief of Police Michael Poehlman, only a small percentage of crimes are committed by illegal aliens in the city, although he provided no statistics.

“RPD doesn’t have the manpower or the training to deal with this issue, since it would require cross deputation with immigration,” he said.

Chief Poehlman stated that property crimes are Reno’s primary concern at the moment. He believes these are the result of widespread meth addiction in the city.

“The Reno Police Department is concerned with upholding the Constitution,” he said. “Typically, if an illegal alien is caught committing a crime, they are deported, unless they have been caught more than once, and then they are charged with a felony.”

Poelhman wants to “maintain a trust factor” with the people of the city, including immigrants, until “Congress can get its act together.” That means Reno police don’t unnecessarily harass people of dubious status.

The Reno City Council is impotent on most issues of immigration. The City Council deals almost strictly with city maintenance issues, such as repairing streetlights and sidewalks, and rarely passes laws to clarify the city’s position on topics of national scope. “Any law passed would be a Pyrrhic victory, like the No Nuclear City bill that we have but are unable to enforce,” City Councilman Dave Aiazzi said.

Aiazzi has received calls from citizens on both sides of this issue. Some people want specific laws against illegal aliens, while others would like to declare Reno a “haven city” for immigrants. Aiazzi would not give his personal opinion on this issue, saying he believes that being an elected official denies him the right to voice his private position, saying, “I represent the people, not myself.”

There is nothing scheduled in the immediate future for the councilman to vote on regarding this matter. “This is not a local issue,” he said.

Federally, however, there is an enormous amount of activity regarding immigration.

Homeland insecurity
According to ICE public affairs officer Laurie Haley, more raids, or “worksite enforcements,” can be expected. They are “critical and the highest priority for ICE,” she said during a telephone interview from Washington, D.C. She refused to disclose the names of those deported, saying the identities are not a matter of public record. The ICE building, 1351 Corporate Ave., is also closed to the public.

ICE was created as an arm of the Department of Homeland Security in 2003 to protect “critical infrastructure and ensure fair labor practices,” with the intent to deter unauthorized employees from working in sensitive facilities that could be a “serious homeland security threat.”

F. Woodside “Woody” Wright has been working with Nevada Hispanic Services representing some of the people caught up in the ICE raids.

Photo By David Robert

With the creation of the ICE Mutual Agreement between Government and Employers (the IMAGE program) in 2006, ICE has the ability to track all of the new hiring across the nation. The IMAGE program obligated U.S. employers to send all new hire information to the Department of Homeland Security. The result has increased astronomically the amount of criminal and administrative arrests or fines for immigration offenses in the past two years.

In 2005, the year prior to the IMAGE program, there were 1,292 criminal and administrative arrests, which resulted in a total of $6,500 in fines, restitutions and civil judgments. Three-quarters into the 2007 fiscal year, there were 5,970 arrests and more than $30 million paid to the government, according to the ICE webpage.

“The goal is to go after employers that knowingly higher illegal immigrants,” Haley said.

The agency’s intent is to initiate criminal prosecutions and cause asset forfeitures, according to ICE’s website. Whether Luther Mack, the owner of all of the stores in this most recent raid, is under this threat is unclear. Mack declined to be interviewed for this article.

The worksite enforcement was sparked by “tip offs” and an “identity theft complaint that caused a five-month investigation, which is still ongoing,” Haley said, though she would offer no further information about the inquiry. There were also anonymous allegations made about illegal immigrants working at a specific store in Fernley. This could explain why Mack’s businesses were targeted, particularly if the businessman was suspected of regularly hiring illegal aliens.

The issue of immigration can become clouded with the idea of ethnicity, due to the fact that recently the larger portion of illegal immigrants has come from Mexico or South America. According to Haley, race has nothing to do with the reason immigration laws exist, nor does the agency track statistics regarding the ethnicity of those deported. However, all 54 arrested in the McDonald’s sting were from Mexico.

The arrests led to various community reactions, including a series of local protests at the Thompson federal building on the corner of South Virginia and Liberty streets, where protesters brought signs and banners proclaiming the injustice of immigration laws. PLAN ran pro-immigration ads on the radio and conducted classes to teach immigrants their rights inside the United States. PLAN is offering this information to the public because ICE has begun to go door to door in certain areas of town to question the people who live there.

PLAN of action
Rosa Molina is a part-time employee for PLAN and Nevada Hispanic Services. She coordinated the interviews with three of the 54 people who were swept up in the ICE raids. She is hesitant to be quoted directly for fear of becoming a target of anti-immigration zealots, since there have been threatening messages left at PLAN. She did say that it is important for people to know their rights and that the public should know about immigrants’ contributions in Reno.

F. Woodside “Woody” Wright is an NHS lawyer, and he will represent many of the immigrants arrested on Sept. 27 at their court hearings. Twenty-seven of the 45 who were released after the raids came to NHS for help with their cases. Four have gone to court and received work permits for the next two years. The other cases have yet to be resolved.

Wright is hopeful, though realistic, about the rest of the cases.

“I expect that most will qualify for ‘cancellation of deportation,’ due to their family,” he said. “The court will grant one or two ‘adjusted statuses,’ and they will receive an ‘EOIR 42b,’ which will make them a non-permanent resident. There will also more than likely be some that submit to voluntary departure, as well as a couple [who are] deported because of a past criminal record or because they had been arrested by Immigration before.”

Jorge and the two women interviewed expressed gratitude to PLAN and NHS for the help they provided on the day of the raids.

“I know that the reason we were released as early as we were was because NHS gave us the help of great lawyers,” Jorge said. He said that the issue is difficult for everyone; his children are now afraid for his safety. As he recently left the house, his 8-year-old son said, “Don’t go outside, Papa, I don’t want you to get arrested again.”

He tried to laugh off his child’s concern, but he admits that “it is hard to know what the right thing to do is.” Ultimately, he has not developed a fear of the local police, since they are not ICE, and he still feels that he can rely on justice here in Reno.

Jorge’s case is complicated, though. Nine years ago, he was caught crossing the border after going to visit his family, and it is uncertain if this will affect the outcome of his hearing. Though his children were born in the United States, it is no guarantee that this will sway the judge to rule in favor of him receiving a work visa or even prevent his deportation. He will simply have to wait for the decision of the court.

The fate of any immigrant is uncertain. Will Congress pass a bill to solve the immigration crisis, or will a wall continue to be built to separate two nations? It’s hard to imagine that anything substantial will happen on Capitol Hill in an election year.

Marta doesn’t know what to expect when her case goes before the immigration court, “I would like to stay here, but if I have to go back, then that is just the way it is. This is in God’s hands.”