U.S. v. Correa-Gomez: Federal Court Finds INS Selectively Prosecuted Latino Employer

IMMIGRANTS & EMPLOYMENT

INS Workplace Enforcement

United States of America v. Correa-Gomez: Federal court finds INS selectively prosecuted Latino employer
Immigrants' Rights Update, Vol. 15, No. 6, Oct. 8, 2001

A federal court in the Eastern District of Kentucky has dismissed with prejudice the criminal indictment against the Latino owner of a chain of restaurants who the government accused of smuggling and harboring undocumented workers in violation of 8 U.S.C. section 1324(a)(1)(A). The Immigration and Naturalization Service brought criminal charges against Mr. Correa-Gomez after it raided two of his restaurants, where the INS detained fourteen undocumented workers, nine of whom had presented false documents at the time they were hired. The others claimed someone other than the defendant had hired them or that they lied to the defendant about their immigration status. Correa-Gomez moved to dismiss the indictment, alleging that the government had engaged in selective prosecution against him in violation of his due process rights because it brought criminal charges against him while not against similarly situated non-Latino employers.

In deciding whether Correa-Gomez had been selectively prosecuted, the court followed the guidance in United States v. Armstrong, 517 U.S. 456, 465 (1966), in which the Supreme Court held that there is a presumption that prosecutors carry out their broad discretion in a regular and proper fashion unless a defendant presents "clear evidence to the contrary" that the prosecutor has made his or her decision based on "an unjustifiable standard such as race, religion, or other arbitrary classification" in violation of the defendant's due process rights. The court relied on the two-prong test set forth in Armstrong that requires the defendant to show (1) that the federal prosecutory policy had a discriminatory effect and (2) that it was motivated by a discriminatory purpose. The court held that "discriminatory effect" can be established by showing that "similarly situated" individuals of a different race or national origin were not prosecuted although they engaged in the same conduct and committed the same basic crime. "Discriminatory purpose," on the other hand, can be established through a practical inquiry as to whether the prosecutor made the decision to prosecute in part "because of," not "in spite of," the adverse effects it would have on a specific group of people.

Finally, the court noted that the Sixth Circuit had adopted a three-prong test to analyze whether a defendant has been unconstitutionally singled out for prosecution. Specifically, a defendant is selectively prosecuted when (1) he is singled out for prosecution as a person belonging to an identifiable group, even though similarly situated individuals have not been prosecuted; (2) the prosecution was started with a discriminatory purpose; and (3) the prosecution of the defendant will have a discriminatory effect on the group he belongs to.

In holding that the government had singled out Correa-Gomez for prosecution, the court found the evidence established that between 1996 to 2000, the INS had conducted 17 raids against employers in the Eastern District of Kentucky that resulted in the apprehension of 218 undocumented workers and six fines, six warnings, and no criminal prosecutions of employers. Of the 218 workers detained, 199 had presented false documents and the remainder had no paperwork at all. Over 82 percent of the owners whose businesses were raided were non-Latino, and none of them was criminally prosecuted, whereas Correa-Gomez was prosecuted. The court further noted that in order to convict an individual of a crime under section 1324(a), the government has to prove beyond a reasonable doubt that the defendant acted with the required mental state, and it noted that employers can assert the affirmative defense that they complied with the employment eligibility verification process by asking workers to present their documents and completing the required I-9 form for each worker. The completion of the form creates a rebuttable presumption that the employer acted in good faith when it accepted documents that appeared to be genuine on their face. While the INS gave all other business owners the benefit of that presumption, the court held that the INS had not provided the defendant with the same benefit.

The court therefore found that Correa-Gomez had established that the prosecution's decision to bring charges against him but not against others who were similarly situated was discriminatory. Moreover, the court found that while prosecuting this defendant would have a deterrent effect on other business owners, it would have a chilling impact on Latino business owners. The court stated that the prosecution of Correa-Gomez was particularly suspect, since the INS was not willing to proceed against him administratively. The court said it was convinced that Correa-Gomez should never have been prosecuted.

United States of America v. Correa-Gomez, No. 5:01-CR-32, 2001 U.S. Dist. LEXIS 13757 (E.D. Ky. Aug. 31, 2001) .