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National Day Laborers Organizing Network: How It Supports Illegal Immigration

National Day Laborers Organizing Network: How It Supports Illegal Immigration

By David Hogberg (Foundation Watch, September 2010 PDF here)

Summary: The National Day Laborers Organizing Network (NDLON) has an unusual strategy for helping illegal immigrants achieve legal status. It tries to make every aspect of their work lives legal except their immigration status. Foundation grants assist NDLON efforts. NDLON reasons that if illegal immigrants are increasingly open and unremarkable in their day-to-day activities, then American citizens are more likely to approve efforts by lawmakers to give them amnesty.

Any group of day laborers is bound to include some who are in the U.S. illegally. On most every weekday one to two dozen day laborers gather on one corner of 15th and P Streets in the Northwest quadrant of Washington, D.C. But travel south about two miles to the corner of 12th and E Streets in the Southwest quadrant of D.C. That’s where you will find the national office of the federal government’s Immigrations and Customs Enforcement (ICE). According to its website, ICE is responsible for protecting “the integrity of the U.S. borders through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration.”

What explains the discrepancy?

No one denies the presence of illegal immigrants in the U.S., or where they can be found. An estimated 11 million illegal immigrants are in the U.S. and barely 349,000 were deported in 2008. And no one denies that there are good reasons why so many immigrants come to this country illegally. Those reasons often reflect favorably on the U.S. The U.S. is an exceptional country. Its liberty is a beacon to many who want a better life. The prosperity that is the result of that liberty produces so much work that many are willing to travel here to get it, even if it means crossing the border illegally. Those aspects of the U.S. are something to be proud of.

But other aspects such as inadequate border control, lax law enforcement, and toleration of illegal immigration do not reflect well on the U.S. This leads to the question, Why are our immigration laws so poorly enforced? That brings us to the role of special interest groups, particularly those that are intent on seeing that our laws against illegal immigration receive lax enforcement. Among the many groups with this special interest, the National Day Laborers Organizing Network (NDLON) is unique.

Although there are larger and better known “immigrant” groups, such as the Mexican American Legal Defense and Education Fund (MALDEF) and the National Council of La Raza, it is worthwhile to examine the tactics of NDLON. They offer far more insight into how the immigration mess has developed in this country.

NDLON, like other groups dubbed the “open borders lobby,” insists on amnesty for the million of immigrants who live in the U.S. illegally. But, surprisingly, NDLON’s activist campaigns are seldom about amnesty. Instead, the group’s strategy is to make legal everything about the illegal immigrant except his immigration status.

So, for example, NDLON lobbies cities to set up “day laborer centers” to make finding work easier, and it opposes city loitering ordinances that interfere with seeking work. It partners with labor unions to unionize day laborers and it urges lawmakers to apply U.S. labor law to illegal immigrants. It also finds reasons to hamper the effective enforcement of U.S. immigration laws.

NDLON’s strategy is a shrewd one. By making everything about illegal immigrants legal except their immigration status, illegal immigrants are less likely to be arrested and deported. If illegal immigrants can become an unremarkable part of the American landscape—living more or less like anyone else here—perhaps public opinion about illegal immigration will become more favorable over time. Furthermore, changes in law and policy can weaken the intellectual argument against illegal immigration—after all, if everything these people do is legal, why shouldn’t their residency status be legal too? By weakening diverse aspects of the case against illegal immigration, NDLON hopes that public opinion will eventually favor a general amnesty for illegal immigrants.

Foundation Support

According to its website, NDLON was founded in Northridge, California in July 2001 at the first ever national gathering of day laborer organizations. Now headquartered in Los Angeles, NDLON is an umbrella organization that has grown to include 37 member organizations in 15 states (see Table). With 11 staff members, NDLON had 2008 revenues of just over $2.7 million, expenditures of just less than $1.3 million and assets of about $1.4 million. The executive director of NDLON is Pablo Alvarado, a legal immigrant from El Salvador.

Given the limited income of day laborers, NDLON could not survive on the voluntary contributions of the workers it purports to represent. Rather, its revenue comes from left-leaning foundations. Between 2004- 2008 NDLON received grants of $50,000 from the Discount Foundation, $100,000 from the Evelyn & Walter Haas, Jr. Fund, $325,000 from the Ford Foundation, $90,000 from the Hill Snowdon Foundation, $50,000 from the J.M. Kaplan Fund, $675,000 from the Public Welfare Foundation, $330,000 from the Rosenberg Foundation, and $25,000 from the Sirad Foundation.

This funding does not include contributions to NDLON’s 37 member organizations. For example, when NDLON organizes a demonstration, it looks to its member groups for assistance. The table of member groups on page 6 shows that their revenues totaled over $26 million in 2007-2008. It is unclear how much of that went to NDLON. (NDLON did not respond to requests for an interview.)

Who is a Day Laborer?

A day laborer is hired for work and is paid on a daily basis, without any promise of future employment. Studies suggest that the majority of day laborers in this country are Hispanic.

In 2004, UCLA’s Center for the Study of Urban Poverty conducted a National Day Labor Survey that surveyed 2,660 day laborers “randomly selected at 264 hiring sites in 139 municipalities in 20 states and the District of Columbia.” It found that:

-About 75% of day laborers are illegal immigrants or, as the studies usually put it, “undocumented workers.”

-On any given day about 117,600 workers are looking for day-labor jobs or working as day laborers.

-Day laborers search for work at different kinds of hiring sites. 79% of hiring sites are informal (e.g., day laborers solicit work in front of businesses (24%), home improvement stores (22%), gas stations (10%) and on busy streets (8%). Most sites are near residential neighborhoods. About 21% day laborers look for work at day-labor worker centers.

-The top five day-laborer occupations are construction, gardening and landscaping, roofing, painting, and installing drywall.

-Work is often unstable, and even under the best conditions few day laborers earn more than $15,000 annually.

 “Amnesty” and Other Words

The NDLON mission statement contains a curious omission. NDLON claims that it “fosters safer more humane environments for day laborers…” and that it “aspires to live in a world of diverse communities where day laborers live with full rights and responsibilities…” However, nowhere is there mentioned that NDLON’s purpose is to obtain legal residency status for day laborers who are in the U.S. illegally.

Indeed, NDLON seems to tiptoe around the issues of day laborers’ immigration status. The term “amnesty” does not appear on its website, perhaps because amnesty is associated with giving legal residency status to people who have come here illegally. That’s what happened under the Immigration Control and Reform Act of 1986. Illegal immigrants who could prove they had been in the U.S. before 1982 received amnesty. In 1986 there were an estimated 3.2 million illegal immigrants in the U.S.; today there are over 11 million.

Sometimes NDLON uses the term “legalization,” but it prefers the phrase “comprehensive immigration reform.” As the economist Thomas Sowell notes, what comprehensive immigration reform “amounts to is some form of amnesty up front, combined with a promise to strengthen the border later.”

NDLON believes it can win the battle for public opinion by avoiding words like amnesty, which implies the prior occurrence of something illegal. It is better to refer instead to securing workers’ ability to “earn a living,” “contribute to society” and “integrate into the community.” No one can object to that rhetoric.

Day Labor Centers and City Laws

What are called “day labor centers” are areas that municipal governments designate to allow day laborers to gather. Supporters argue that the centers make it easier for prospective employers to seek out and hire day labor at the same time that they prevent a “race to the bottom” in offers of working conditions and pay. Opponents counter that day labor centers become magnets for illegal immigrants. No one knows how many centers currently exist.

* In 2008, the Los Angeles City Council unanimously approved an ordinance requiring large home improvement stores like Home Depot to develop plans for assisting day laborers who congregate in their parking lots. Under the new law, stores like Home Depot could be forced to build shelters for day laborers that included bathrooms, provide drinking water and supply garbage cans.

 “We welcome it,” NDLON’s Alvarado told the Los Angeles Times. “We need it. The workers deserve it.”

Home Depot did not agree that it deserved to accommodate loiterers in its parking lots —including some who violated U.S. law to be here. “This is a broader social issue that goes beyond Home Depot, and the solution is certainly more complicated than placing mandates on businesses,” company spokeswoman Kathryn Gallagher told the Times.

* In August 2005, the city council of Herndon, a town in Northern Virginia, voted 5 to 2 to appropriate $175,000 to help fund a day labor center. According to the Washington Post, “council members said they were helpless in the face of what they called a federal failure to police U.S. borders. They said it was their responsibility to bring order to a neighborhood nuisance that had become the town’s most divisive issue in recent history.”

This time the municipal decision did not receive public support. In 2006 Herndon voters tossed out three council members who approved the funding and the following year the city council shut the center down.

NDLON responded by locating a new site for day laborers to gather, a 13-foot-long strip of public land along a park close to the city center. That may have violated a city zoning ordinance, although an NDLON official said his group’s attorneys were ready to challenge the ordinance on constitutional grounds.

That is NDLON’s modus operandi. It encourages cities to support day labor centers. If they don’t, NDLON looks for an informal site and threatens legal action.

* Not all cities tolerate illegal immigration. In October 2007, the City Council of Orange, California, required day laborers who showed up at a city-run resource center to provide identification and fill out federal compliance forms. That sharply reduced the number of day laborers who came to at the center. The following month the city passed an ordinance preventing day laborers from soliciting work from private property without permission and from city sidewalks next to streets without parking lanes. It also prohibited drivers from offering work while stopped in a traffic lane. NDLON protested and called for “community dialogue.”

* When police in Costa Mesa, California, tried to enforce an anti-solicitation in September 2009, NDLON, MALDEF and the ACLU sued the city for violating the First Amendment right to freedom of speech.

 “Day laborers have contributed to the Costa Mesa economy for decades,” said NDLON’s Alvarado. “Particularly during these tough times, the hard work they provide the community should be rewarded and not the target of destructive law enforcement practices.” Under pressure, Costa Mesa agreed to suspend enforcement of the law in February 2010 until a court case involving a similar law in Redondo Beach, California, is settled.

Because federal courts often agree with NDLON that such laws violate day laborer First Amendment rights, cities like Baldwin Park, California, have repealed their ordinances.

* But courts don’t always side with the open borders lobby. In 2004, NDLON sued Redondo Beach over its anti-solicitation ordinance. After six years, in June of this year, the Ninth Circuit Court of Appeals ruled 2-1 in favor of the city. The Court found that Redondo Beach’s ordinance did not regulate the content of the day laborers’ speech but only its location. The Court said the ban on soliciting work from sidewalks next to streets or from traffic medians addressed safety concerns.

 “This is definitely a departure from every other federal court decision in the Ninth Circuit that has examined similar ordinances and found them unconstitutional,” said NDLON counsel Chris Newman. “We feel it is likely not the last word.” That is undoubtedly true.

Labor Unions and Labor Laws

In August 2006, NDLON reached an agreement with the AFL-CIO to organize day laborers into labor unions. Under the agreement day labor centers can apply for union membership with AFL-CIO local and state affiliates. The first center to join the AFLCIO was Centro Legal de la Raza, a NDLON member organization in Oakland, California, which signed up in June 2007. Thus far, 11 centers have joined the AFL-CIO.

NDLON’s Seattle organization, CASA Latina, joined in 2010. Earlier, CASA Latina executive director Hilary Stern explained, “Organized labor saw there’s a lot of power in immigrant workers.” Not surprisingly, Stern admitted to the Seattle Post-Intelligencer that workers are not asked if they are in the U.S. legally when they come to CASA Latina.

One might wonder why the AFL-CIO has focused on organizing day laborers. There are only an estimated 120,000 day laborers nationwide—and many of them are illegal immigrants. Perhaps organized labor is desperate to boost its membership, which has fallen from 36% of workers in the mid-1950s to about 12% today. But what is to be gained by pandering to lawbreakers?

According to the Seattle Post-Intelligencer, the NDLON/ AFL-CIO agreement enables the AFL-CIO to assist NDLON in pursuing “minimum wage campaigns, safety at construction sites and legislation to criminalize employers who stiff day laborers.” (Emphasis added). Because cheating employees out of earned wages is already criminal under state and federal law, it’s likely that what’s really meant is “legislation to criminalize employers who stiff day laborers who are in the U.S. illegally.”

NDLON says its “Labor Rights” program “improves the wages, working conditions, health and safety of day laborers.” That includes illegal immigrants. As NDLON counsel Chris Newman has said, “Workplace protections, labor rights, civil rights…should be de-linked from immigration enforcement. People should have full workplace protections regardless of their immigration status.”

Should illegal immigrants enjoy the protection of U.S. labor laws? Some experts argue that a “worker is a worker” regardless of immigration status, and lower federal courts often rule that all workers have a right to sue employers for discrimination.

However, in 2002 the U.S. Supreme Court suggested otherwise. In the case Hoffman Plastics Compounds v. NLRB the Court ruled 5-4 that immigration law supersedes labor law. The Hoffman company had refused to give back pay to an illegal immigrant that it illegally fired for participating in a union organizing drive. Chief Justice William Rehnquist’s opinion held that awarding back pay to the worker would “encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”

That seems to be precisely what NDLON wants. By urging courts to have U.S. labor law cover illegal immigrants, NDLON creates an environment inviting to more illegal immigration. On the other hand, an employer who would hire illegal immigrants is perhaps more likely to cheat them as well as to threaten deportation if they call the authorities. In effect, NDLON’s position, albeit unintentionally, makes it easier for employers to cheat day laborers.

But don’t expect NDLON to discontinue its campaign to have U.S. labor law protect day laborers who are here illegally. After all, that’s an important component in NDLON’s efforts to normalize illegal immigration.

Arizona, Arpaio and Section 287(g)

Last April the state of Arizona passed S.B. 1070, arguably the toughest immigration enforcement law passed by any state. All hell broke loose.

 “Arizona has become the test ground for the most draconian and anti-immigrant legislation in the country,” warned NDLON’s Alvardo, who, like many of the law’s opponents, was not above distorting its content. “Arizona’s S.B. 1070 would force police officers to arrest and detain people based on a ‘reasonable suspicion’ that they are undocumented,” he wrote on NDLON’s blog. That suggests the police can walk up to any person and ask for his immigration papers.

S.B. 1070 does not permit police arrests on this suspicion. Police must first stop a person for another legal infraction, such as a robbery or a traffic violation. Only then, if police have a “reasonable suspicion” that a person is not here legally, can they check on a person’s immigration status.

In May, NDLON helped organize a large demonstration against S.B. 1070 at the Arizona state capitol. It joined MALDEF, the ACLU, National Immigration Law Center, and other members of the open borders lobby in filing a lawsuit against S.B. 1070, challenging its constitutionality. In early July, the Justice Department filed suit against S.B. 1070 as well, and in late July, a federal judge granted a preliminary injunction stopping most of law from going forward until legal challenges are resolved.

The open borders lobby cheered the Obama Justice Department decision to sue Arizona. The federal lawsuit was necessary “not just to protect civil rights in Arizona but also to defend the federal government’s exclusive authority to define and implement United States immigration policy,” said NDLON counsel Chris Newman.

That statement is laughable since NDLON opposes federal efforts to enforce immigration law. In fact, Section 287(g) of the Immigration and Nationality Act of 1995 allows the federal government to partner with state and local law enforcement officials to enforce immigration law. Naturally, NDLON is opposed to it.

From 2006 to 2009, jurisdictions in 287(g) programs secured the arrest of 143,185 illegal aliens and 2,681 fugitive aliens who had escaped from law enforcement. Despite some compliance problems with the program, a Department of Homeland Security inspector general’s report stated, “287(g) officers identified 33,831 aliens who were removed from the United States by ICE in FY 2008, which represents 9.5% of all ICE removals during that fiscal year.”

One of the most effective partners under 287(g) is Sheriff Joe Arpaio of Maricopa County, Arizona. According to the Associated Press, Arpaio’s office is responsible for rounding up 26,146 illegal immigrants who were deported since 2007, about 19% of the total deportations under 287(g) during that time.

Naturally, Arpaio’s effectiveness has made him a target of shrill NDLON attacks.

Arpaio is no shrinking violet. Uncompromising and at times flamboyant, Arpaio gained notoriety for the ways he treated Maricopa County Jail prisoners, from reinstating chain gangs to requiring an inmate to wear pink underwear. He set up a “Tent City” to house overcrowded jail inmates who complained about temperatures that exceeded 110 degrees in the summer of 2003. Arpaio reportedly replied, “It’s 120 degrees in Iraq and the soldiers are living in tents, have to wear full body armor, and they didn’t commit any crimes, so shut your mouths.”

Last January NDLON helped organize a march in Phoenix against Arpaio, whom it compared to Bull Connor, the notorious Selma, Alabama police official who used attack dogs and fire hoses against civil rights protesters. This is typical of the smear campaign NDLON has waged against Arpaio.

NDLON’s biggest success against Arpaio occurred this February. Since 2008 NDLON has organized protests against Wells Fargo, which since 1998 has rented office space in Phoenix to the Sheriff’s office. NDLON wanted Wells Fargo to evict Arpaio from its building. In February, Wells Fargo caved in. It sent a letter to the Maricopa County Board of Supervisors requesting the return of the office space Arpaio occupies.

With its petty treatment of Arpaio NDLON is sending a loud and clear message: Deal with illegal immigration effectively and you will be harassed and vilified.

The Cost of Open Borders

By working to make the U.S. an inviting environment for illegal immigrants, NDLON encourages more and more people to cross the U.S.-Mexico border illegally. That makes it all the more difficult to police the border. And the heavy price of a porous border is increasingly paid by others, not by NDLON.

* LakeFalcon is partially in Zapata County, Texas, because the U.S.-Mexico border runs right through its center. Buoys mark the international boundary, and sports fishermen on the American side are warned not to take their boats past the floating markers. Pirates working for the Zeta drug cartel operate on the Mexican side of the lake, their machine guns in hand, and they have not hesitated to rob at least three American boats, one of which may have been inside the American border.

* In April, the Wall Street Journal reported that Arizona rancher Rob Krentz who lived near the Arizona-Mexico border was shot and killed by a drug smuggler. His wife Sue had written to politicians and the media for years detailing the worsening drug smuggling in the area. Home robberies are common in the area as drug smugglers often break in looking for food, water, cash or guns.

Of course, most illegal immigrants do not commit violent crimes. But the great number of illegal immigrants in the U.S. should be a signal of the ineffectiveness of law enforcement along our southern border. Criminals in Mexico know that. Little wonder, then, that drug smuggling and human trafficking are major problems in the American Southwest.

Surely American citizens have a right to expect that their taxes pay for effective law enforcement and adequate protection against criminal behavior. But groups like NDLON are facilitating the failures of law enforcement by making it hard to clamp down on illegal immigration.

Inadequate immigration enforcement is a slap in the face to legal immigrants who follow the rules. Perhaps guest worker programs should be developed to help immigrant workers who want seasonal or temporary work in the U.S.

Let’s also not forget the risk that terrorism will seep through the porous borders that separate the U.S. from Mexico. Critics note that the September 11 terrorists entered the U.S. legally and none entered along our southern borders. But lax law enforcement is yet another signal to our enemies that we do not take seriously threats to American border security. How long before the terrorists who were sophisticated enough to pull off attacks on the Twin Towers and Pentagon figure out how to exploit our Southern border?

Groups like NDLON make these tasks more difficult. By fighting for rights for illegal immigrants, they make it easier for illegal immigrants to remain in the U.S., which only encourages more people to enter the U.S. illegally.

David Hogberg is a Washington, D.C.-based journalist. He is also a former executive director of Capital Research Center’s Green- Watch project.

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