Undocumented

The state of illegal immigration in Hawaii.

Illegal immigration has long been a controversial issue on the mainland. Hawaii hasn’t been as affected, thanks to our geographic isolation, but even these islands in the middle of the Pacific Ocean haven’t been left completely untouched. The past year has seen a string of high-profile jobsite busts on both Oahu and Maui, with more than 150 workers arrested for violations at restaurants, construction sites and farms. Prosecutions and investigations are still ongoing on most of these busts, but here’s a roundup of what’s happened where:

• December 2007: 19 alien workers arrested, nine of them at The Pinnacle luxury condo project at the top of Bishop Street, 11 at a Halawa warehouse.

• April 2008: three arrested at Tenryoan Inc., a food vendor at Shirokiya at Ala Moana Center.

• May 2008: 22 arrested in one night at three different Maui restaurants: Cheeseburger Island Style, Cheeseburger in Paradise and Bubba Gump Shrimp Co.

• July 2008: 43 employees of agriculture company The Farms Inc. arrested at the Oasis apartment complex in Waipahu. Farms Inc. managers David Kato and Glen Kelley McCaig were later arrested, on Dec. 4.

• August 2008: 41 arrested at the Honua Kai Resort construction site in Kaanapali, Maui, 21 more arrested at the same site in September.

Ron Johnson, an assistant U.S. attorney, says the recent string of busts has been a result of a coordinated, deliberate focus between ICE (Immigration and Customs Enforcement) and the U.S. attorney’s office to deal with the problem of undocumented aliens in Hawaii. “We have seen an increase in the number of persons we’re running across, and that also probably prompted an increase in the attention paid to these kinds of cases, both locally and nationally,” he says.

Local labor unions have been galvanized by the issue. The use of undocumented workers is a phenomenon that exploded at the height of the development boom, when everyone in the construction industry was up to their hard hats in work and the biggest challenge was finding enough qualified laborers to cover the demand. But with the economy tanking and everyone scrabbling for a rapidly shrinking pool of jobs, the unions have become acutely concerned about any threat to their memberships’ livelihoods.

The undocumented workers hanging drywall on the Pinnacle worksite, for example, are alleged to have been making just $6 to $8 an hour, paid in cash, with no benefits. Compare that to the $18 an hour a union carpenter’s apprentice doing similar work would have been making, in addition to benefits such as medical, vacation and 401k funding, and the unions’ motivation becomes clear.

“The Pinnacle bust was a wake-up call for us,” says Kyle Chock, executive director of Pacific Resource Partnership (PRP), the marketing, lobbying and research arm of the Hawaii Carpenters Union. “If something like this could happen on Bishop Street in downtown Honolulu, a block away from the state Capitol, it’s got to be happening other places.”

RP launched a public awareness campaign called “Play Fair in Hawaii”. “Play by the rules, or don’t play at all,” goes the tagline. You may have seen the television commercials, featuring former investigative reporter Matt Levi.

Unions also started checking out construction sites, looking for evidence of workers who didn’t speak English, and might not be working in Hawaii legally.

Lynn Kinney, business manager and secretary treasurer of the International Union of Painters and Allied Trades, District Council 50, even hired Peruvian-born Fernando Ramos as an agent last year to help investigate job sites. “If they’re approached by a haole guy or a local guy, it’s immediately, oh, no speak English,” says Kinney. “But our guy is able to get on there and talk to them about maybe getting their paperwork in order, whatever they need.”

“We’re just trying to see what’s going on, and trying to get enough probable cause to bring it to Ed Kubo’s office,” Kinney says.
 

Union interest in uncovering undocumented workers has even led to overlapping surveillance. Kinney recounts: “We were scoping out one hotel on Kauai, and it had probably 30 to 40 guys working on site. We went over there and the agents went on the job and were getting all this information. As soon as they left, [Hawaii Carpenters Union financial secretary] Ron Taketa calls me up and goes, Lynn, you’re breaking my balls! We’ve been watching that job for three weeks now; we’re working with Ed Kubo to get a bust on this thing, and now they’re all gone! I said, sorry. You got to let me know what you’re working on.”

Agriculture hasn’t responded so intensely. Dean Okimoto, president of the Hawaii Farm Bureau Federation, and owner of Nalo Farms, says the issue of undocumented farm laborers is a bit different than having aliens working higher paying, skilled construction jobs. The real challenge for farmers is simply finding enough warm bodies to work the fields. “I’m not saying it’s right, but I do understand the motivation,” he says. “People in the general public that think that these workers are taking jobs from our locals. But it’s not easy to find ag labor. No one wants to work out in the sun for eight hours a day, for $8 to $12 an hour.”

There is a federal agency dedicated to investigating workplace violations involving aliens—U.S. Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security.

Wayne Wills, the special agent in charge of investigations at the Honolulu bureau, wouldn’t comment specifically about any of the union’s informal investigations, but said that ICE welcomes information from the public about potential immigration-related violations—the more substantiated, the better. “We take in a lot of leads, some of them more reliable than others, and so we have to prioritize and make decisions about which cases to pursue,” he says.

State lawmakers have also waded into the fray. House Bill 643, introduced by state Rep. Michael Magaoay, would create a state law that would authorize the state Contractors Licensing Board to suspend or revoke a contractor’s license for knowingly or intentionally employing an undocumented worker. Says Magaoay, “It’s intended to preserve the jobs that we have here, specifically in the construction industry. It’s not to be discriminatory; we’re just adding another tool for enforcement.”

Robin Kobayashi, executive director at Hawaii Immigrant Justice Center, says it’s a completely unnecessary measure. “It’s preempted by federal law,” she points out. “Basically, they’re trying to impose federal immigration law on the state level. It’s so redundant that it just reeks of anti-immigrant sentiment.”

Proponents of the bill, however, argue that it couldn’t hurt. Chock says that in the past, businesses caught employing undocumented workers have been able to get off with a slap on the wrist. “The fine just becomes a cost of doing business,” he says. “If you get a $5,000 fine, but you saved $500,000 by cheating, you’re going to keep cheating, because it pays.”

If the U.S. attorney’s office decides to prosecute a case, however, it’s likely that criminal felony charges will be brought against the company or individuals within it. Fines for felony charges can be as much as $250,000 per violation for individuals, and $500,000 for businesses.
 

Putting Numbers on It

So who’s coming into Hawaii? Where are they coming from? It’s tough to pin down—undocumented aliens are, by definition, an invisible population. No agency or organization we spoke with had a good idea about just how many undocumented foreign nationals currently live in the state. The closest thing to a recent estimate appears to be a 2006 study by the Pew Hispanic Center, which found that Hawaii is home to 20,000 to 35,000 undocumented migrant workers. Many we interviewed said that was probably a conservative figure.

By looking at data from the Hawaii Immigrant Court, it’s possible to get a sense of how Hawaii’s immigrant population breaks down by nationality. Thirty-two percent of Hawaii’s cases in 2007 (the most recent year for which data is available) involved immigrants from Mexico. The next highest percentages were China, with 17 percent, and the Philippines, with 16 percent. Hawaii turns out to be a popular destination around the world—our immigration court handled cases from 56 different countries, from Canada to Kenya.

In all, Hawaii’s immigration court completed 574 cases in 2007—a jump of 46 percent over the previous year.

Like anybody else, undocumented immigrants fly in, on domestic flights from the Mainland, using either a legitimate visa or forged identification.

Jim Kosciuk, spokesman for the U.S. Customs and Border Protection office in Honolulu, says, “We’ll encounter two or three cases of forged documents a week, and that’s not counting the instances when we refuse entry to people for other reasons, such as previous criminal records.”

Hawaii’s position in the middle of the Pacific Ocean rules out a lot of other options for anyone hoping to slip into the Islands. “I don’t recall any instances of people sneaking in via a boat, and I’ve been here for 12 years,” Kosciuk says. “We do routine harbor sweeps, from Ko Olina to Haleiwa, for any unannounced arrivals, but we just don’t get many private vessels showing up in Hawaii.”

Many foreign nationals come in on legitimate visas, and simply don’t leave when their visas expire. U.S. Citizenship and Immigration Services maintains records on all visa holders, but there’s no big red alarm that goes off when someone overstays their visit. Because of limited resources, Immigration and Customs Enforcement officers concentrate on larger-scale violations and criminal activity that poses a threat to the general public. It’s easy for a well-behaved foreign national to fade into the woodwork.

Of course, fading might be easy, but trying to live a normal life without the legal identification U.S. citizens take for granted can be frustrating. It’s hard to put down roots and become a productive, contributing member of society when any brush with law enforcement, down to a simple traffic stop, can easily lead to deportation. Calleen Ching, an attorney from the Hawaii Immigrant Justice Center, says, “Without a Social Security number, you’re part of the permanent underclass. You can’t get a driver’s license, you can’t get a legitimate job, you can’t even get into the federal building without proper documentation.”

Traveling, in particular, is difficult and risky for those without valid identification—not only to the Mainland and to foreign destinations, but even interisland. Immigration attorney Clare Hanusz says, “I get a lot of calls from people who get arrested flying Neighbor Island. It used to be that the only requirement to board a plane was some form of valid identification that identifies you as the person with the ticket. Under the Real ID Act, TSA (Transportation Security Administration) is now playing immigration police. If I’m a Mexican national and I present a Mexican passport, which a year ago would have been fine, TSA is going to ask for my visa, and if I don’t have one, they’re going to call ICE or Customs and Border Patrol.”

One of Hanusz’s clients was picked up last year in just this way, while trying to fly back to Honduras to visit his ailing grandfather. Louis (not his real name) had been in Hawaii for just under 10 years, married a local girl and had two children (now 5 and 6 years old). But suddenly he was sitting in a federal detention center, facing a removal hearing.

Cases heard in immigration court are civil proceedings, not criminal, but the stakes are high and the odds terrible. Two out of three judgments result in removal from the U.S., either by deportation or voluntary departure.

Detainees don’t even get the opportunity to appear before a judge in person. They appear via a closed-circuit television setup. Because it’s a civil trial, aliens are not entitled to a public defender to help argue their cases. Local nonprofit Hawaii Immigrant Justice Center (formerly Na Loio) offers free legal representation to undocumented aliens, but it’s only able to take on a tiny percentage of the cases. In 2007, almost half of detainees went unrepresented by a lawyer in immigration court.

With the help of Hanusz, Louis was granted bond and a voluntary departure, and flew back to Honduras in October. He’s now living with family there, trying to figure out a way to return to Hawaii.

He and his wife, Stacy (not her real name either), have applied for an I-130 visa, which is available for immediate relatives of U.S. citizens, but there’s an additional obstacle. Because he had been out of status in Hawaii for more than a year, federal immigration regulations bar him from returning to the U.S. for 10 years. It’s possible to apply for an exemption due to extreme hardship, but a favorable ruling is by no means guaranteed, and even in a best case scenario, Hanusz estimates it will likely be one to two years before Louis steps foot in Hawaii again.

“It’s been hard, big time,” says Stacy. “I have the kids and he’s not here to help me out with them. I lost my job last year, and we were struggling financially, and our home went into foreclosure. I don’t know what’s going to happen.”

Why risk all this? Why not enter the United States via legitimate channels?

It turns out to be a long, difficult process, and there are only two main ways to get on the path to legal status: family-based and employment-based. The latter generally requires an applicant to have a profession with a high level of skill, a high-level academic degree or a large chunk of cash to invest.

Many foreign nationals don’t qualify for either method, and will never be able to legitimately come to the U.S. “What people don’t understand is that if you’re poor and you have no immediate family members who are U.S. citizens or permanent residents, for most people there is no legal way to come to the U.S.,” says Hanusz. “It’s not just a question of them deciding to cut the line. There’s no line for them.”

One thing that everyone seems to agree on is that the current state of affairs isn’t satisfying anyone. Local workers are being undercut on jobs, undocumented immigrants are being underpaid and exploited. The rest of Hawaii is picking up an estimated $9 million annual tab for social services to undocumented residents.

America was built by generations of immigrants, long before anyone started distinguishing between legal and illegal immigration. America was a better country for them than their old country, we were richer for accepting them and they were enriched by moving here. A lot of people confronting this issue today think there has got to be a way to get back to this ideal. As Chock says, “We’d like these workers to become members of our union, because I think these people are the future of our workforce.”