ITíS UNLIKELY Mwgeno and the remaining Logan 19 would have faced criminal charges for their alleged infractions just nine months ago. Before September 11, the US Justice Department rarely threw its prosecutorial weight behind cases involving immigrants caught without legal papers. Itís not that the potential for such prosecutions didnít exist, according to Susan Akram, a Boston University professor and lawyer who teaches immigration law. Federal prosecutors have charged the Logan defendants under the Immigration Reform and Control Act (IRCA), which dates back to 1986. That law made it a federal crime for immigrants to work illegally in the US.
But despite that legislation, Akram says, "criminal penalties have rarely been brought into the employment context." On occasion, authorities have brought civil complaints for document fraud against immigrants who used fake identification to secure jobs; aside from facing deportation, workers pay a civil fine. Yet criminal prosecution has long been viewed as overkill. Explains Akram, who has represented countless illegal immigrants, "These people were never worth federal prosecutorsí time before September 11."
One reason for prosecutorsí prior lack of interest comes down to practicality. According to the Boston College Immigration and Asylum Project (BCIAP), which helps area refugees, approximately eight to 10 million people living in this country are classified as "undocumented" or "temporary" and lack full legal status. So, says BCIAP director Daniel Kanstroom, millions of people who donít have proper work authorization "do exactly what the Logan workers allegedly did." He suspects the 1986 law is violated on a massive scale because "people are here and will starve if they donít work." For prosecutors to go after illegal aliens who have done nothing more than commit what immigration experts refer to as "minor paper violations," he adds, "would be impractical."
Yet thatís exactly whatís happened to the Logan workers, whoíve essentially been accused of lying on an employment application. Daniel Kesselbrenner, a Boston attorney who heads the National Immigration Project, which offers legal aid to immigrants, equates what the Logan 19 did with what scores of taxpayers do. The law may forbid fudging information on tax forms, he says, "but that doesnít stop some from exaggerating charitable donations." Such indiscretions, he says, are "victimless offenses" that should result in civil fines, not criminal prosecution.
The criminal charges have raised the stakes considerably for the defendants. Theyíve already lost their jobs and must grapple with possible prison sentences. Also, they face deportation. Because the INS classifies fraud-related offenses as "crimes of moral turpitude," placing them alongside such felonies as drug possession and murder, the accused, if convicted, would not be allowed to come back to this country for years ó not even to visit family. For immigrants like Gonzalez, whose wife has permanent residency, the consequences may be devastating. Says Boston attorney Catherine Byrne, who represents Gonzalez, "The repercussions are huge for people who have been here for years and have legal status."
Of course, the proceedings have already taken a toll. Jabri Moushine, 21, a chubby, shy Moroccan immigrant who speaks impeccable English, has yet to shake the fear he felt when he was awakened by a dozen federal agents who descended on his two-bedroom apartment in Revere. Some 10 weeks after his February 27 arrest, he cannot sleep at night. Noises haunt his imagination, keeping him alert, causing him to dart to his bedroom window. "Iím afraid theyíll come back again to get me," he says.
His paranoia is easily understood. Like Mgweno, Moushine is charged with making one false statement on Form UA-1 ó allegedly answering "yes" to the same question about citizenship status. He, too, had never brushed up against law enforcement. An only son, he grew up in a close-knit, prosperous home in Casablanca. He came to Boston in July 1999 out of family loyalty; indeed, he was sent here by his father to help his sister, a single mother, care for her newborn baby. According to the criminal complaint against him, he allegedly used his travel visa to get a job with Argenbright, where he says he worked from September to December 2000.
Those four months have cost Moushine his liberty. He was handcuffed, shackled, and detained at the Wyatt Detention Center for eight days. When he was released March 7, he experienced a different kind of confinement. Unlike most of the Logan 19, Moushine had to wear an electronic bracelet for seven weeks. The gadget, which resembles a black beeper strapped to the ankle, would have alerted authorities if Moushine had ventured beyond a 100-yard radius of his home. Although he could walk outside his apartment, he could not step outside the buildingís entrance. He could not buy groceries, wash clothes, or take out trash. About all he could do was read, watch TV, sleep ó and show up for court appearances. After nearly two months of house arrest, Moushineís court-appointed lawyer, Leo Sorokin, of the Federal Public Defenderís Office, filed an April 24 motion to remove the electronic bracelet ó and won. The experience has altered Moushineís vision of America. "I didnít do anything to warrant this treatment," he says.
US ATTORNEY SULLIVAN acknowledges that his office has found no evidence linking the immigrants to terrorism. He admits that most have no criminal record. Still, he describes the charges as "absolutely appropriate." Although federal prosecutors used to shy away from these cases, they have focused on illegal aliens since the attacks because, he argues, "we cannot ignore the potential risks" that come with a wink-and-nod attitude toward immigration violations. "If people can obtain false documents and use them to get jobs," he says, "itís just a matter of time before the wrong people do the same." (It should be noted that all the September 11 terrorists had valid US immigration visas.)
Sullivan maintains that his critics fail to recognize one crucial thing about the Logan workers ó that they allegedly broke the law. "Some people might not like it, but I wonít be apologetic for our decision to pursue prosecution," he says. In his estimation, prosecuting the Logan 19 can protect the public from future terrorism. The airport sweeps send what he calls a "valuable and consistent" message to anyone looking to come here and do harm. "Ignoring the alleged criminal activity of illegal immigrants sends the wrong message to the rest of the world," he says, although six of those charged are in this country legally.
Clearly, Sullivanís rationale has some appeal. But if weíre really interested in sending a consistent message by punishing people who violate immigration law, then why arenít the employers who hired the Logan 19 being charged as well? At the time of the high-profile arrests, Sullivan announced that none of the companies that had employed the Logan 19 ó Argenbright, Precision Cleaning, Host Marriott Corporation, Hudson General Corporation, One Source, and Service Master ó is under investigation by his office. Nor would any of them face criminal charges.
This inconsistency strikes many observers as unfair. After all, the 1986 IRCA legislation under which the Logan defendants are charged requires businesses to complete an employment-authorization form, known as the "I-9," for each employee. Employers must verify documentation, including green cards, Social Security numbers, and work permits. Companies found to have violated the law can be fined up to $10,000 per employee. Supervisors who knowingly hire undocumented workers can face up to six months in prison.
But the law hasnít always translated into common practice. In industries like agriculture and services ó which rely on low-wage, immigrant labor ó companies often neglect to verify documentation or conduct thorough investigations. "They want to hire the first qualified worker and get on with things," says BUís Akram. So if the government is now prosecuting document fraud, she adds, "Itís unfair to simply go after the employees and scapegoat them."
Kesselbrenner, of the NIP, agrees: "If this was evenhanded, you would investigate both." Officialsí failure to scrutinize employers, he says, "underscores the fact that their main goal is political."
At Logan, some companies might have done more than simply fail to verify documentation. Take Precision Cleaning, a Malden company providing janitorial services to Loganís Terminal E. At the April 23 protest, one member of the Service Employees International Union (SEIU) Local 254, which represents the four former Precision workers among the Logan 19, charged that the company has encouraged immigrants to use false documentation. One current Precision employee claims that she has worked 35 hours per week yet received paychecks under two names ó one using a fake Social Security number. The employee says her manager proposed the scheme to avoid having to pay her full-time health benefits and the $10 hourly wage. She went along with the plot because she needed the extra hours to feed her family. According to Sylvia Panfil, of SEIU Local 254, several workers corroborate those allegations. Precision employees, she explains, did not come forward to tell union representatives about the practice until after the February arrests. The union has since tried to meet with Precision executives ó to no avail.
Richard Casey, who owns the company, did not return a phone call from the Phoenix seeking comment.
And then thereís Argenbright, which, until recently, employed 40 percent of the nationís airport screeners. In May 2000, a federal judge ordered the firm to pay $1.2 million after it pled guilty to felony charges for falsifying records and performing shoddy background checks on 1300 employees at Philadelphia International Airport. Last October, Argenbright wound up in the same court for failing to re-verify employee records at some 34 airports, including Logan.
While this questionable track record caught Massportís attention, the agency did not evict Argenbright from Logan until last December, when two guards, on separate occasions, left terminal doors unchecked. (Argenbright has been kicked out of all American airports now that the US Department of Transportation is seizing control of security.) Given its history in Philadelphia, itís not a stretch to think Argenbright skirted the rules at Logan. As one Boston attorney whoís been following these cases puts it, "It seems to me the people who are ultimately responsible for security breaches may not be the poor Argenbright workers, but rather the company executives."
Sullivan, for his part, had not heard about the charges against Precision. "Iím not going to speculate in terms of investigation," he stresses. "But if union officials have information, they should provide it." As for any plans to investigate Argenbright ó or, for that matter, other Logan companies ó he keeps his cards close to his vest. "I would not comment on ongoing investigations."
For now, then, the Logan 19 must await their trials. Prosecutors in other cities have either dismissed or reduced the charges against immigrants arrested in Operation Tarmac, but Sullivan has promised to pursue these cases to the end. "The policy," he explains, "is to charge people regardless of the offense for the highest penalty possible."
This hard-line approach has left immigrants like Gonzalez in "pain and confusion," he says. He has lost his livelihood and, in many ways, his future. "I am very depressed," he confides, his eyes focused on the floor. At times, when heís shuttling to the courthouse twice weekly, his life seems as fictional as television ó except, he says, "on TV thereís always a happy ending." But for him? "Iím not so sure."
Kristen Lombardi can be reached at email@example.com