May 5, 2010

VIII. Vulnerability of Child Workers Due to Immigration Status

Labor and workplace violations—including wage exploitation, pressure to do dangerous work, and sexual abuse—are risks for all child farmworkers. However, for undocumented immigrant child farmworkers (who lack permission to work) and lawfully present or US citizen children with undocumented parents, the threat of deportation by US Immigration and Customs and Enforcement (ICE) exacerbates an already exploitative and degrading workplace.

Over half—53 percent—of all (adult and child) crop workers lacked work authorization in 2005-2006, according to the National Agricultural Workers Survey (NAWS).[260] By comparison, 2006 data from the US Census Bureau indicate that only about 40 percent of all farmworkers (crops and livestock) were foreign born and lack US citizenship, and do not indicate how many farmworkers without citizenship were still working lawfully.[261] Based on these numbers, Human Rights Watch estimates that it is likely that the majority of child farmworkers are documented, given that many farmworker parents without US citizenship would have had children born in the US, making them US citizens.[262]

In some states visited by Human Rights Watch, service providers perceived a trend towards employing undocumented youth—some even as young as 12—who were not accompanied by family members. Gregory Schell, a public interest lawyer, said that in Florida, “Most of the underage workers we see are unaccompanied, and tend to be older—15 or more.”[263] Advocates working directly with farmworkers also described the growing presence of indigenous children from Mexico and Central America for whom Spanish was not a native language. “We’ve seen more and more younger farmworkers,” said Carol Brooke, migrant worker attorney with the North Carolina Justice Center. “Sixteen, seventeen years old. Typically in male crews, maybe with a relative. Mostly undocumented, often speaking indigenous languages, although they also speak Spanish.”[264] For this report, Human Rights Watch interviewed child farmworkers who were US citizens, who were green card holders with permission to work in the US, and who were undocumented.

While this report’s main focus is on improving child labor protections and health and safety protections for all child farmworkers, the ways in which immigration law—most tangibly felt as the threat of deportation—exacerbate problems for children in agriculture cannot be ignored. The vulnerability of immigrant workers to exploitation creates dangerous and unfair work conditions for all workers. Some employers’ willingness to take advantage of immigrants who are too afraid to complain hurts all workers in the fields, including the hundreds of thousands of US citizens who work alongside immigrant workers.

Undocumented child farmworkers, or children who are working together with undocumented parents, live in fear of at least two scenarios. One is that their employers will turn them or their parents over to immigration authorities, and that they or their parents will be deported. This means that children are terrified of complaining about abusive conditions in the fields, and any steps they might take towards vindicating their rights can be thwarted by an employer who threatens to call ICE. The second scenario that children fear is that their employers will be subject to a raid by immigration authorities.[265]

Recognizing that employers have an almost unfettered ability to exploit undocumented workers, ICE (and its predecessor agency, INS) and the US Department of Labor (DOL) have entered into a Memorandum of Understanding (MOU) to try to de-link immigration and labor law enforcement.[266] First established in 1998, this DOL MOU states that the two agencies must avoid situations where their co-involvement in a particular labor setting will have the purpose or effect of placing raids on undocumented workers above labor law enforcement, because the Department of Labor has recognized that immigrant workers will be reluctant to bring complaints if employers are able to call in ICE under any circumstance.[267] Since 1996, the INS (now ICE) has had in place internal guidance to its staff on how to avoid immigration enforcement involvement in labor disputes.[268] Despite the existence of these tools, perhaps partly because they are not consistently followed by ICE, undocumented workers continue to live in fear of exercising their rights as workers. As one service provider said, “Undocumented victims or victims whose family members or other people in their social network are undocumented won’t report because they are afraid that they or someone they love will be deported.”[269]

Undocumented farmworkers live in fear not only of ICE, but increasingly of their local police officers as well. This is due to so-called “287(g) agreements” under which local or state police enter into an agreement with ICE to enforce federal immigration law.[270] As of April 2010, ICE reported having enrolled 71 agencies in 26 states and trained 1,120 officers under the program.[271] In the course of our research for this report, Human Rights Watch heard from service providers about local police in North Carolina setting up roadblocks to check people’s immigration status, including near a Spanish-language day care.

The involvement of local police in enforcing federal immigration laws, which often is accompanied by intense racial profiling, has a chilling effect on all immigrant farmworkers’ willingness to report workplace abuses.[272] “The 287(g) agreements definitely affect people’s willingness to report sexual violence,” one service provider told Human Rights Watch. “In some cases when people do file a report, law enforcement officials question the credibility of victims because of their immigration status, language, and nationality.”[273] According to the Southern Poverty Law Center, there are several cases in which police have turned female victims of crimes over to ICE and they have been deported.[274]

Even though undocumented workers have violated US immigration law, the fact of their employment in the United States means that they are protected by, and their employers must follow, minimum wage, child labor, and health and safety rules.[275] In addition, human rights law is clear that both undocumented and documented workers must benefit from protection of their basic rights as workers.[276]

Despite these protections in US and human rights law, the reality of immigration law enforcement in the United States and workers’ unwillingness to draw attention to themselves mean that the fear of deportation often trumps all else. “You can seize on child labor or alleged slavery but these things only exist as extreme examples of th[e] type of extreme lawlessness [that all farmworkers live under] . . . . In a world where everyone is in a precarious employment situation and the system relies on employee testimony, there’s not good enforcement,” explained Gregory Schell of Florida Legal Services Migrant Farmworker Justice Project.[277] A migrant health project director in Michigan told Human Rights Watch: “Even people who are documented have family members who are undocumented so they are afraid to speak up.”[278] Similarly, a nurse at a rural health clinic said: “We hear over and over again from our patients that they are willing to put up with a lot because they are undocumented and afraid. One really can’t talk about health if you’re worried about getting paid. If you can’t afford to buy food.”[279]

[260]US Department of Labor, “The National Agricultural Workers Survey: Public Access Documentation,” http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010).

[261]USDA Economic Research Service, “Rural Labor and Education: Farm Labor.”

[262] See US Constitution, amendment 14 (1) (“All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”)

[263] Email from Schell, Florida Legal Services Migrant Farmworker Justice Project, April7, 2010.

[264] Human Rights Watch telephone interview with Carol Brooke, North Carolina Justice Center, Raleigh, North Carolina, February 3, 2009.

[265]From 2006 to 2008, workplace immigration raids were on the rise. The Obama administration has distanced itself from such raids, suggesting that the focus should be on employers who hire undocumented workers, and not solely on deporting workers. Lornet Turnbull, “Napolitano demands review of ICE raid at Bellingham plant,” Seattle Times, February 26, 2009. Nevertheless, ICE made 6,287 arrests for immigration offenses at workplaces in 2008; only 135 were owners, managers, supervisors, or human resources employees charged with harboring or knowingly hiring undocumented workers—the remainder were the workers themselves. US Immigration and Customs Enforcement, “Worksite Enforcement,” April 30 2009, http://www.ice.gov/pi/news/factsheets/worksite.htm (accessed April 22, 2010). Such raids chill workers’ willingness to come forward about wage or conditions violations in the workplace. That chilling effect is only heightened by the fact that some such enforcement actions have come even in the midst of actions by workers to exercise their labor rights.

[266] “Memorandum of Understanding Between the Immigration and Naturalization Service Department of Justice and the Employment Standards Administration Department of Labor,” November 23, 1998, http://www.dol.gov/esa/whd/whatsnew/mou/nov98mou.htm (accessed April 22, 2010).

[267] Government Accountability Office, “Better Use of Available Resources and Consistent Reporting Could Improve Compliance,” no. GAO-08-962T, July 15, 2008.

[268] This guidance, which appears as an ICE “Operating Instruction” on labor disputes, provides that ICE agents should consider whether tips about alleged employment of undocumented workers are being provided to the agency in order to interfere with labor rights. ICE Operating Instruction 287.3(a), http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-53663/0-0-0-61045/0-0-0-61070.html#0-0-0-31745 (accessed April 22, 2010).

[269] Human Rights Watch telephone interview with Ramírez, Southern Poverty Law Center, December 30, 2009.

[270] Section 287(g) of the Immigration and Nationality Act “authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.” Delegation of Immigration Authority Section 287(g): Immigration and Nationality Act, Immigration and Customs Enforcement, 1996, http://www.ice.gov/partners/287g/Section287_g.htm, 287(g).

[271] US Immigration and Customs Enforcement, “Updated Facts on ICE's 287(g) Program,” April 12, 2010, http://www.ice.gov/pi/news/factsheets/section287_g-reform.htm (accessed April 22, 2010).

[272] Southern Poverty Law Center, “Racial Profiling by Law Enforcement is Constant Threat,” April 2009, http://www.splcenter.org/publications/under-siege-life-low-income-latinos-south/2-racial-profiling (accessed April 7, 2010); see also Southern Poverty Law Center, “Close to Slavery: Guestworker Programs in the United States,” pp. 1-2.

[273] Human Rights Watch telephone interview with Ramírez, Southern Poverty Law Center, December 30, 2009. In areas with 287(g) agreements, “both documented and undocumented immigrants as well as Latino US citizens told surveyors that the program made them fearful of the police and reluctant to call the police if victimized.” Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in the South,” p. 27.

[274] Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in the South,” p. 31. For example, the organization describes contacting a local prosecutor about the sexual assault of a 13-year-old Latino girl and the prosecutor saying that if the girl came forward and he discovered she was undocumented, he would contact ICE. The family decided not to report the case and the rapist went unpunished. Ibid., p. 27.

[275] For US law indicating that core labor standards apply to all workers, regardless of immigration status, see Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984) (undocumented immigrants are “employees” under the National Labor Relations Act); Patel v. Quality Inn South, 846 F.2d 700 (1988), cert denied, 489 U.S. 1011 (1989) (declining to review lower court’s decision that the Fair Labor Standards Act’s coverage of undocumented aliens is fully consistent with US immigration law); and EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) (nondiscrimination laws apply to undocumented workers).

[276] Regarding international law that protects the rights of all workers, irrespective of immigration status, see International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003, art. 25; ILO Convention No. 97 concerning Migration for Employment Convention (Revised), adopted July 1, 1949, entered into force January 22, 1952, art. 6. The Inter-American Court of Human Rights (IACHR) said that despite their irregular status, “If undocumented workers are contracted to work, they immediately are entitled to the same rights as all workers . . . . This is of maximum importance, since one of the major problems that comes from lack of immigration status is that workers without work permits are hired in unfavorable conditions, compared to other workers.” See Inter-American Court of Human Rights, “Legal Condition and Rights of Undocumented Migrant Workers,” Consultative Opinion OC-18/03 (September 17, 2003). The IACHR specifically mentioned several workplace rights that it held must be guaranteed to migrant workers, regardless of their immigration status:

In the case of migrant workers, there are certain rights that assume a fundamental importance and that nevertheless are frequently violated, including: the prohibition against forced labor, the prohibition and abolition of child labor, special attentions for women who work, rights that correspond to association and union freedom, collective bargaining, a just salary for work performed, social security, administrative and judicial guarantees, a reasonable workday length and in adequate labor conditions (safety and hygiene), rest, and back pay.

[277] Human Rights Watch telephone interview with Schell, managing attorney, Florida Legal Services Migrant Farmworker Justice Project, February 2, 2009.

[278] Human Rights Watch interview with Phillis Engelbert, Migrant Health Promotion, Saline, Michigan, August 24, 2009.

[279] Human Rights Watch interview with Josie Ellis, registered nurse and director of Vecinos Inc. Farmworker Health Program, Sylva, North Carolina, August 4, 2009.