ICE Continues To Build Criminal Cases Against Supervisors and Managers, Not Only Business Owners, fo
An all-too familiar storyline has recently played out for an Arizona car wash chain owner and its managers. Daniel “Danny” Hendon, the owner of Danny’s Family Car Wash, and the managers of his stores plead guilty and were sentenced to jail time for charges related to business immigration violations.
Moral of the Story: Criminal indictments for immigration regulation violations do not stop with the business owners; they flow through to anyone involved in the company’s hiring process.
Danny’s Family Car Wash has dealt with Immigration and Customs Enforcement (“ICE”) a few times. We reported on the company’s most recent encounter with ICE back in 2013, Arizona Car Wash Chain Hit with ICE Raid. This raid resulted in criminal indictments for the owner and managers.
Original ICE Investigation. ICE originally investigated the company in 2011 with an I-9 audit. I-9 audits are a tactic used by ICE to determine whether a company is complying with the Immigration Reform and Control Act (“IRCA”) and “serve as an important step in the criminal investigation and prosecution of employers.” In an April 2009 Worksite Enforcement Memo, ICE stressed its priority of seeking criminal punishments for employers and defined an “employer” as “someone involved in hiring or management of employees…includes owners, CEOs, supervisors, managers…” April 2009 Worksite Enforcement Memo.
Danny’s Family Car Wash Wanted to Comply. Danny’s Family Car Wash’s I-9s for its 1,900 or so employees were seized and ICE found that about half of the employees were unauthorized to work in the United States. The business was ordered to fire these workers and implement plans, policies, and procedures to correct the company’s immigration violations. The workers were fired, but, as the ICE News Release reports, the new hires were “ineffective and/or too expensive.” ICE News Release.
Danny’s Family Car Wash Failed to Comply. After a few months without the unauthorized workforce, Mr. Hendon allegedly instructed Danny’s Family Car Wash managers to “bring back” the employees that were fired. According to the ICE News Release, some of the management “expressed discomfort with this instruction…[but] they were threatened with the loss of their jobs if they refused to comply.” For the next couple of years, management rehired the unauthorized workers, sometimes assisting the workers in using their relatives’ information to get around the E-Verify part of the process, while Mr. Hendon “turned a blind eye” to what was occurring.
Mr. Hendon and his Managers Go to Jail. This brings us to the 2013 raid by ICE on the multi-location company. The managers of Danny’s Family Car Wash and thirty workers were arrested. Thirteen of the managers pleaded guilty to partaking in the rehiring scheme and conspiracy to commit identity theft and received sentences ranging from probation to three months in prison.
Mr. Hendon, however, was not indicted until months later, when he entered into a plea agreement, and was sentenced to 12 months in prison followed by a year of house arrest. Additionally, Mr. Hendon had to forfeit, and promise not to regain any ownership in, the businesses he spent decades building.
ICE and the DOJ are Taking Employers to School on How Not to Conduct Business
In response to the sentencing of Mr. Hendon and his managers, a U.S. Attorney stated, “Today’s sentences should send a strong message to the Arizona business community – companies that knowingly employ unauthorized aliens will be punished severely.” It is clear the Department of Justice (“DOJ”) is actively prosecuting all individuals involved with immigration violations.
Instead of complying with IRCA by implementing immigration plans, policies, and procedures, many employers believe a few myths for peace of mind:
1. “My company is not the type of company ICE is investigating.” Most business owners tend to think since they are not conducting business within the traditional targeted industries, such as the construction or restaurant industries, they are not on ICE’s radar. This is false. Ask yourself, “Am I an employer?” If yes, then you are on the radar.
2. “ICE has already visited our company; they will not be back.” In fact, the opposite is typically true. If ICE has visited your company before, they will be back to make sure you are in compliance. This happened in this case. ICE asked Danny’s Family Car Wash to terminate their unauthorized workers and returned to make sure the company kept its promise. It did not, and now the owner and managers are going to jail.
3. “My company is too small for ICE to care about who I hire.” This is also false. ICE targets any and all employers, regardless of size. In fact, we wrote about ICE investigations that have nearly crippled some small companies due to fines and jail time for the employers. See Small New York Business Could Have Been Shut Down Due to ICE Form I-9 Penalties.
4. “I am just the human resources (HR) manager doing what I was told. I cannot get into trouble.” Middle Management/Supervisors are just as accountable as the owner of the business for immigration violations! Prosecutors do not discriminate between pay grades when handing out criminal indictments; responsibility is distributed evenly, and sometimes, more heavily onto middle management.
In the case of Danny’s Family Car Wash, the managers were allegedly hesitant to rehire the workers and Mr. Hendon pressured them, but they were still prosecuted. HR and other hiring personnel are usually not equipped with the right tools and knowledge to handle potential immigration violations, so it is not always obvious to them that their neck is on the line just like the owner’s. We wrote about this interesting phenomenon in Grand America Hotel ICE investigation.
5. “Only companies who are hiring a bunch of unauthorized workers will get in trouble. Not me; I only hire one or two a year.” Hiring one unauthorized worker is a violation of the regulations and is enough to trigger an investigation. Having just one unauthorized worker might not equal jail time for the employer, but it can mean the company will be fined.
6. “I did not know they were undocumented…I cannot be held liable.” Most employers say this when confronted with the issue of hiring undocumented workers, and most of the time they are telling the truth. However, ICE’s response to this is the employer would have known about their undocumented employees had they been following IRCA’s employment verification system. The employer is held liable regardless of whether or not they actually knew the employee truly lacked work authorization.
These debunked myths lead us to one tried and true piece of advice to employers: Comply before an investigation starts against your company. Implement immigration plans, policies, and procedures to ensure your company is in compliance and that no one will be going to jail.
Danielle Atchison, Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM 7007 College Blvd., # 460, Overland Park, KS 66211 USA Phone :: 913.317.6200 Email :: DAtchison@uslegalimmigration.com