Life after an I-9 audit
ELLISFORDE, Wash. — A Washington orchardist says he’s behind in critical work and his company is in jeopardy after losing 65 of his 66 employees from an I-9 audit by U.S. Immigration and Custom Enforcement.
Ernie del Rosario is two months behind in pruning 650 acres of apple and pear trees and he’s afraid spring pesticide applications will also slip, affecting the quality of his fruit.
He says he’s never been in such a bind in his 28 years of owning and operating Northwestern Orchards, which include four sites scattered across northern Okanogan County.
As Congress and the administration of President Barack Obama ponder immigration reform, farmers and other employers face increasing scrutiny from ICE, the agency that enforces federal immigration laws. When illegal immigrants are found on a payroll, they must be fired, often putting the company’s well-being in jeopardy.
Del Rosario’s surprise audit began Nov. 5. Eight days later, ICE notified him that he had 10 days to fire 65 employees for mis-matching Social Security, green card and driver’s license numbers, indicating they were probably in the U.S. illegally.
He had no choice. In a matter of days, his only remaining employee was his foreman, George Churape, who had been with him for more than 15 years.
“It left me lonely and helpless,” said del Rosario, 78, himself an immigrant from the Philippines and no stranger to adversity.
He came to the U.S. in 1986 after dictator Imelda Marcos confiscated his saw mills, a medium density fiberboard plant — the first in Southeast Asia — and his 250,000 acres of timber land, all of which, he said, totaled $300 million in value. He said he is still involved in a lawsuit there trying to recover his property.
The I-9 audit has reinforced his decision of a year ago to sell his orchards. They are listed with Chelan Realty for $12.9 million, including a private 9-hole golf course. His undeveloped waterfront land on Lake Osoyoos is listed for $4 million.
“We have nothing against ICE. They are doing their job,” he said, “but to fire everybody it’s like shooting you under, for you to fall. What I think is unreasonable is the effect on my business.”
Del Rosario was relieved to avoid fines, which can add up quickly at as much as $3,200 per employee for the first violation, and set about rebuilding his workforce. He finds it ironic that the people he fired were not deported and found jobs elsewhere.
‘Struggling for pruners’
He hired five new workers from California, others through the Okanogan County WorkSource office of the state Department of Employment Security and some by word-of-mouth.
By Feb. 8 he was up to 23. By March 11 he was up to 28 and waiting for 30 H-2A guestworkers from Mexico to arrive March 25. He said he may hire more guestworkers using the H-2A visa program later, depending on how local recruiting goes.
“We’re struggling for pruners,” he said. “It’s a lonely feeling when you see your few guys and wonder when are we going to finish.”
Normally, his pruning runs from Nov. 15 to March 10, but he estimates it will go to May 17 this year. By then spring bloom will almost be over. Horticulturally, it’s not a big problem for apple trees but pruning after bloom can cause fire blight in pears, he said.
His greater fear is falling behind on spring pesticide applications for lack of qualified tractor operators who know the peculiarities of each orchard.
He had just one experienced tractor driver for spraying on March 14 with spraying due to start March 19. Two others needed training and he was still short one.
“Once it starts, we’ll be running like headless chickens,” he said, “and with weather alone it can be hard to keep up.”
A fateful day
Del Rosario was doing paperwork in the cluttered office in his orchard home near Ellisforde the morning of Nov. 5, 2013, when two ICE agents came to the door.
“They handed me an authorization to secure my I-9 forms. They told me I had three days to prepare. But I had nothing to hide so I gave them to them,” he said.
The I-9 is a federal employment eligibility form required by all U.S. employers for each employee they hire to verify identification and citizen or immigration status. Job applicants pick which documents they want to use to show eligibility, and employers can’t reject them on mere suspicion without risking violation of anti-discrimination laws.
“I asked who ordered the audit and they said the order came from the top. I asked who at the top and they said they could not tell me,” del Rosario said.
Photographs of former President George W. Bush and First Lady Laura Bush hang on the walls in del Rosario’s office. They came in “thank you” letters for campaign contributions. Del Rosario said he gives thousands of dollars annually to the Republican Party and enlisted the help of prominent Republicans in trying to recover his wealth from the Philippines during the Bush years. He said he doesn’t know if that had anything to do with him being audited.
Asked why del Rosario was audited, Andrew Munoz, ICE spokesman in Seattle, said the agency does not confirm an investigation or comment on it unless it results in fines or criminal charges.
In fiscal year 2013, there were 3,122 I-9 audits resulting in 651 orders to employers requiring them to stop violating laws and directing them to pay fines totaling nearly $16.7 million, according to ICE.
After the ICE agents left, del Rosario called Dan Fazio, director of the Washington Farm Labor Association in Olympia. He said Fazio told him he should have used the three days to go over the forms and make sure there were no errors.
Del Rosario hired Fazio and, at Fazio’s suggestion, Pasco labor attorney Tom Roach. Without them, del Rosario said, he believes he may not have fared as well as he did.
Fazio, talking of an Okanogan case but not del Rosario by name, said ICE was “extremely professional.” He said the case illustrates the need for immigration reform so employers don’t lose employees in I-9 audits. Employers have to accept employee documents — like green cards and Social Security cards — at face value or face possible charges of discrimination, Fazio said.
Del Rosario said he was sued a decade or more ago for alleged discrimination in firing employees who weren’t working. The case went to arbitration and he ended up paying a month or two in wages to each of the eight or so employees who sued him, he said.
“Being in business almost 30 years, you kind of get a feeling about people,” he said. “But because of our experience, we accept documents on face value and hire them. Most of our people had been with us 12 to 17 years.”
ICE alleged some of his workers were involved in drug and human trafficking but there was no proof, del Rosario said.
An orchard fence runs the U.S.-Canadian border for close to a mile separating one of his orchards from a Canadian vineyard on the east side of Lake Osoyoos.
“One time a Korean group crossed through the fence and mingled with our workers,” he said. “Our workers collared them and called authorities and they were arrested.”
In October, a hole was cut in the fence and a vehicle went through and del Rosario reported that, he said.
In November, Capital Press reported Fazio saying a large tree fruit company in Wenatchee and a smaller one in the Okanogan were being audited. Fazio did not reveal names.
Capital Press learned of del Rosario by asking around but has been unable to learn of any Wenatchee company that’s been audited. Few people want to talk about it.
Del Rosario said he thinks it was a Yakima grower, not a Wenatchee company, who was audited about the same time he was. He said the grower, like him, was accused by ICE of drug and human trafficking and also had to fire employees. That grower denied being audited to Capital Press.
Fazio said he was initially consulted but not hired in that case and doesn’t know the outcome.
He said most I-9 audits he’s worked on or heard about take five months or more, but that ICE has hired more people and now looks at I-9s of current workers versus all past workers, which speeds up the process. Smaller cases usually go faster, he said.
Del Rosario and his wife, Madeline, raised their eight children in Ellisforde. All of them are grown and have good jobs elsewhere, he said.
A year ago, they decided to sell because they believe it’s time to retire and because they think they see the same things happening in the United States, like gun control and loss of privacy and freedom, that they saw in the Philippines before it became a dictatorship.
“The best years of my life were lost in that take-over,” del Rosario said. “We came from a country that had a dictator, and with a finger pointed at us we were done.”
They figure it’s better not to own anything if that happens again.
They first listed the orchards at $22 million, then reduced the asking price to $17 million and then to $12.9 million. But that’s as low as he wants to go, del Rosario said, because he’s invested a lot in them. They’re all high density plantings that have been well cared for to produce high-quality fruit.
He said he is talking with potential buyers. But until a deal occurs, he needs to keep the orchards in operation with whatever workers he can find.