Immigrants

HOW DO YOU SAY JUSTICE IN MIXTECO?
By David Bacon
TruthOut 6/10/08

FRESNO, CA (6/15/08) -- Erasto Vasquez was surprised to see a forklift appear one morning outside his trailer near the corner of East and Springfield, two small rural roads deep in the grapevines ten miles southwest of Fresno. He and his neighbors pleaded with the driver, but to no avail. The machine uprooted the fence Vasquez had built around his home, and left it smashed in the dirt. Then the forklift's metal tines lifted the side of one trailer high into the air. It groaned and tipped over, with a family's possessions still inside.

"We were scared," Vasquez remembers. "I felt it shouldn't be happening, that it showed a complete lack of respect. But who was there to speak for us?"

Eight farm worker families lived in this tiny "colonia," or settlement, on the ranch of Marjorie Bowen. Their rented trailers weren't in great shape. Cracks around the windows let in rain and constant dust, which carried with it all the fertilizer and chemicals used to kill insects on the nearby vines. Some trailers had holes in the floors. None had heat in the winter or air conditioning in the summer.

Still, they were home. Vasquez had lived in his trailer for 17 years. His youngest daughter, Edith, was born while the family lived there. By the time the forklift appeared she had started middle school, while her brother Jaime was in high school and her sister Soila had graduated. "Señora Bowen was a nice lady, and even though we had to make whatever repairs the trailers needed ourselves, sometimes she'd wait 3 or 4 months for the rent, if we hadn't been working," Vasquez says. The families had labored in her vines for years.

But Marjorie Bowen died in 2005. Her daughter, Patricia Mechling, inherited the ranch and wanted the trailers removed before selling it. That September, she sent the families letters, giving them 60 days to clear out. It was the picking season, however, when there are many more workers in the San Joaquin Valley than places for them all to live. Vasquez' family couldn't immediately find another home, nor could the others. They asked for an extension. Mechling refused.

At the last moment, the farm workers actually did find someone to speak for them - Irma Luna, a community outreach worker at California Rural Legal Assistance. They had their first meeting at CRLA's Fresno office that November, before the forklift arrived. Luna and De La Cruz informed their clients and Mechling's attorney, James Vallis, of the legal requirements that must be followed before carrying out evictions. Vallis denies that Luna had notified him she had met with Vasquez. On the following Monday, however, November 14, 2005, the forklift cut short the legal process.

"Destroying the trailers in front of the families that lived in them wasn't a reasonable or legal way to evict them," Luna says. "The families didn't really understand their rights in the legal process. Many speak only Mixteco [an indigenous language in Oaxaca, a state in southern Mexico]."

CRLA eventually won a settlement providing some compensation for destroyed belongings, rent abatement, withheld security deposits, and emotional suffering. The incident illustrates the ongoing need for legal services for some of the state's poorest families. However the case also highlights the challenges facing legal service providers as demographics change in a new generation of California farm workers. CRLA has created an innovative program to meet some of these challenges. But the agency's staff and indigenous community leaders agree that a broader reality check and a rethinking of U.S. immigration policy are also needed. In the meantime, CRLA itself, never the growers' darling, is in yet another battle to protect its farm worker clients and assure its own survival.

De La Cruz and the Fresno law firm Wagner & Jones, who provided pro
bono co-counseling, filed suit against Mechling in August of 2006, alleging she'd violated section 789.3 of the Civil Code, by committing prohibited acts to get the families to move out, and section 1940.2, by making threats. De La Cruz also alleged that the eviction was in retaliation for complaints the families had made over substandard living conditions in the trailers. Attorney Vallis called the suit "a shakedown." It was settled the day before trial for $55,500, and Mechling has since sold the property.

Seven of the eight families come from the same tiny town, San Miguel Cuevas, in the mountains of Oaxaca, an area they poetically call the "land of the clouds." And while speaking only Mixteco created great difficulty for many in understanding the proceedings, their strong cultural traditions also gave them a sense of responsibility towards each other. During the period before the case was settled, Vasquez was elected in absentia as San Miguel's "sindico," a position responsible for taking care of injured people, and making funeral arrangements for those who die. Election meant he had to return to Mexico for a year to fulfill this duty, called a "tequio."

When Vasquez was required to give a deposition, however, Luna (who hails from the same town) appealed to his sense of collective responsibility. Vasquez paid $600, at a time when he wasn't working, to travel back to Fresno. "I wanted the landlord and lawyer to pay for what they'd done, so that they'd feel what we felt," he explains. "I was also the one who convinced the other families that we had to do something. When it was my turn to give a deposition, I felt responsible to them, and to the case."

An increasing number of farm workers in California share those traditions. Rufino Dominguez, coordinator of the Binational Front of Indigenous Organizations, says there are about 500,000 indigenous people from Oaxaca living in the U.S., 300,000 in California alone. The FIOB, with chapters in both Mexico and the U.S., defines indigenous communities as those sharing common languages and cultures that existed in the Americas before the Spanish conquest. Indigenous communities exist throughout the Americas - Oaxaca alone is home to 23.

While farm workers 20 and 30 years ago came from parts of Mexico with a larger Spanish presence, migrants today come increasingly from indigenous communities. "There are no jobs, and NAFTA [the North American Free Trade Agreement] made the price of corn so low that it's not economically possible to plant a crop anymore," Dominguez asserts. "We come to the U.S. to work because we can't get a price for our product at home. There's no alternative." Economic changes like NAFTA are now uprooting and displacing Mexicans in Mexico's most remote areas, where people still speak languages that were old when Columbus arrived in the Americas.

In 2006 spreading poverty, and the lack of a program to create jobs and raise living standards, ignited months of civil conflict in Oaxaca, in which strikes and demonstrations were met with repression by an unpopular government. According to Leoncio Vasquez, an FIOB activist in Fresno (and a distant relative of Erasto), "the lack of human rights itself is a factor contributing to migration from Oaxaca and Mexico, since it closes off our ability to call for any change."

Dominguez estimates that 75% of the indigenous migrants from Oaxaca and other states in southern Mexico arrive in California with no immigration visas, an increase from 50% a decade ago. "A few of us benefited from the immigration amnesty in 1986, but not many," he explains. "The reality is there are no visas available in Mexico to come here, so even though it's harder, more expensive and more dangerous than ever to cross the border, many people still come because their need is so great. Neither the U.S. nor the Mexican government will look at the root cause of migration."

Providing legal services to communities of indigenous farm workers in California is complicated by the large number of people who lack legal immigration status, and by restrictions on some $7.2 million it receives from the Legal Services Corporation in Washington, DC. "Immigration status has always been a criteria for eligibility," says Jose Padilla, CRLA's executive director, "but until 1996 the law didn't restrict the use of other funds for that purpose. In 96, however, Congress said that so long as we receive even $1 in Federal funding, we can't represent undocumented people. The same legislation also prohibited us from collecting attorney fees, and filing class actions."

CRLA was particularly affected by the 1996 legislation because it had started reaching out to indigenous communities just a few years before. In the late 1980s the agency opened an office in Oceanside, just north of San Diego. "We found people living in the bushes, in open country, ravines and canyons," Padilla recalls. "We began to understand that the people living in these extreme conditions came from a different part of Mexico. Although we've always had bilingual outreach workers who speak English and Spanish, here we found people with an indigenous language and culture we weren't prepared to serve."

At the same time indigenous migrants were critical of CRLA for not responding to their needs. A network of Mixtec and Zapotec organizations, that eventually came together to form the FIOB in 1992, met with Claudia Smith, who headed the Oceanside office, and eventually with Padilla and other CRLA staff. As a result of those meetings, CRLA decided to hire its first indigenous staff member, Rufino Dominguez.

"We began to work on the basic problems of our communities," Dominguez recalls. "When we went out to the fields we often found no bathrooms or drinking water. Some were working with the short-handled hoe [prohibited by state law], or weren't getting paid and had no rest breaks. Many people were living outside, or in unclean housing in bad condition. So we held workshops in homes and fields, and got on the radio."

At first Dominguez, and a second Mixtec-speaking outreach worker, Arturo Gonzalez, traveled all over the state educating people about their rights in Mixteco, the language spoken by the largest number of indigenous farm workers. As word spread, complaints began to surface. At the Griffith Ives Ranch in Ventura County, two Mixtecos tunneled under fences that held laborers in virtual peonage, going first to the Mexican consulate, and then to CRLA. With the assistance of Munger, Tolles & Olson in Los Angeles, CRLA lawyers filed suit in federal court alleging enslavement as well as violations of the Agricultural Worker Protection Act and the RICO Act. Eventually Edwin Ives pleaded guilty to RICO charges in a related criminal prosecution, in the first federal organized crime conviction in a civil rights case. Some 300 workers shared $1.5 million in back wages.

Outside of Fresno, a group of 32 Mixtec families were found living in a trailer park located on an old toxic waste disposal site. Dominguez began the investigation of their situation, which was completed by Irma Luna when she was also hired as indigenous outreach workers. Following negotiations between CRLA, Chevron Corp. and the Environmental Protection Agency, the area was declared a superfund site and Chevron paid to relocate the families in new homes in a community called Casa San Miguel-named after their hometown in Oaxaca.

In October of 2003, another indigenous outreach worker, Fausto Sanchez, investigated the case of families exposed to chloropicrin, a toxic pesticide, as an onion field was sprayed near Weedpatch in October, 2003. The subsequent case and settlement required Sanchez to give 167 separate clients an ongoing understanding of a complex legal case in Mixteco for three years.

"Relations between CRLA and the FIOB were difficult at first, and some people said they didn't need us, or complained about our work," Dominguez says. "But we have a very close relationship now, and each of use recognizes the importance of the other." Dominguez left CRLA to become the FIOB's binational coordinator in 2001, and today CRLA has six Mixtec-speaking outreach workers, based in offices around the state. In addition to Luna and Sanchez, Jesus Estrada works in Santa Maria, Mario Herrera in Oceanside, and Lorenzo Oropeza in Santa Rosa. Some are active in the FIOB, and others aren't. Antonio Flores started a separate organization in Oxnard, the Mixteco/Indigena Community Organizing Project. And last year CRLA hired Mariano Alvarez, the first worker from another important community, the Triquis.

"We respect our differences," Dominguez emphasizes, "because it's good for us. When we work together we have a greater impact." Alegria De La Cruz and Jeff Ponting, CRLA attorney in Oxnard, are co-coordinators of CRLA's Indigenous Farmworker Project. "We've become an example to other legal aid organizations," Ponting says. "We employ more indigenous people than the state and federal governments combined, which indicates their lack of commitment to providing services to a growing and important community."

Predictably, cases generated by this work get CRLA into trouble with growers. "There are always employers who will not respect the basic labor rights of their workforce to minimum wage, overtime, or rest periods," Padilla says. "We do more employment work-about 16 to 20 percent of our cases-than 99 percent of legal service organizations, where the average is 2 percent."

In 1996, the Republican-led Congress imposed new restrictions on legal services providers funded by the nonprofit Legal Services Corporation (LSC) in Washington, D.C. Recipients could not initiate or participate in class actions, collect attorneys' fees from adverse parties, or represent undocumented people. CRLA found private counsel to take over more than 100 active cases, including a significant number of class actions. CRLA now cooperates much more extensively with private lawyers-far beyond the legal requirement to use 12.5 percent of its resources to do so. Because private attorneys may collect fees, cooperation means that opponents face serious financial penalties, while the poorest workers don't have to pay for legal representation with a percentage of recovered wages. And private lawyers, unlike CRLA, are not barred from representing undocumented clients.

"Our relationships with private counsel are critical," says Padilla. "Not only can they represent individuals where we are barred, they also can ensure that farm workers and the poor continue to have access to quality litigation. So long as CRLA doesn't directly represent any ineligible immigrants, it can participate in litigation that might benefit both eligible and ineligible case members."

By keeping strictly to the letter of the regulations, CRLA held its critics at bay for more than a decade. Early in 2000, however, CRLA began filing complaints against powerful dairy interests in the Central Valley, settling one of many cases on behalf of dairy workers for $475,000. According to Padilla, in late 2000 the first of several federal investigations of CRLA began, requested by Congressmen from rural California.

In 2006 the LSC issued a report, requested by Rep. Devin Nunes (R-Visalia), finding "substantial evidence that CRLA has violated federal law" by engaging in conduct prohibited by funding restrictions. A year later Kirt West, outgoing LSC inspector general, issued a subpoena demanding 33 months of data on 39,000 clients to determine if CRLA "disproportionately focuses its resources on farm worker and Latino work." CRLA refused to comply with the subpoena, Padilla says, "because California law protects clients and their confidentiality." The case has been fully briefed and awaits either the scheduling of a hearing or a decision.

"The Office of Inspector General can make no conceivable use of the 39,000 client names and their spouse names it is seeking," says Marty Glick, a partner at San Francisco's Howard Rice Nemerovski Canady Falk & Rabkin who represents CRLA. "It refuses to say why it wants or needs them. It is also demanding access to privileged and work-product memoranda and documents. One has to wonder what the purpose is. Why is the effort to give people redress for the failure to pay legal wages or overtime so controversial?"

Last year the LSC put CRLA's funding on a month-to-month basis, but in 2008 relaxed restrictions to a six-month cycle. "But there's no end in sight," Padilla says. "The message we get is that CRLA should change the way it advocates for low-wage and Latino workers. We're being punished for protecting our clients."

To indigenous communities, however, the prohibition on representing undocumented people is a greater problem than the fight with the dairies. "That prohibition doesn't change the conditions that uproot our communities and turn us into migrants," Dominguez says. "But ranchers know there's no one to defend us. People decide not to file complaints because they're afraid, and bosses sometimes use undocumented status to threaten people if they try. In some places, just walking on the streets is dangerous if you have no papers."

Some members of Congress argue that more enforcement of employer sanctions (the provision of the 1986 Immigration Reform and Control Act that bars employers from hiring workers without valid immigration status) would stop the abuse. Workers without documents would be forced to leave the country, the logic goes, and growers would be forced to hire other, less vulnerable workers. "That won't stop migration either," Dominguez says, "since it doesn't deal with why people come."

"We know the law," Padilla says, "but whatever workforce is in the fields should have basic rights." CRLA and most labor unions today say it would be better to devote more resources to enforcing labor standards for all workers. "Otherwise, wages will be depressed in a race to the bottom, since if one grower has an advantage, others will seek the same thing."

Others in Congress-and some California growers-call for relaxing the requirements on guest worker visas. Under the current H2-A program for agriculture, growers can recruit workers on temporary visas for less than a year. These workers must remain employed by the contractor who recruits them. Although there are minimum wage and housing requirements, a recent report by the Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States, documents extensive abuses under the system.

"These workers don't have labor rights or benefits," Dominguez charges. "It's like slavery. If workers don't get paid or they're cheated, they can't do anything." The Department of Labor allows H2-A contractors to maintain lists of workers eligible and ineligible for rehire - in effect, blacklists.

"The governments of both Mexico and the U.S. are dependent on the cheap labor of Mexicans. They don't say so openly, but they are," Dominguez concludes. "What would improve our situation is legal status for the people already here, and greater availability of visas based on family reunification." The current immigration preference system set up by the 1965 Immigration Act places a priority on the ability of citizens and legal residents to petition for their family members abroad, rather than treating migrants simply as a low-priced labor supply. "Legalization and more visas would resolve a lot of problems - not all, but it would be a big step," he says. "Walls won't stop migration, but decent wages and investing money in creating jobs in our countries of origin would decrease the pressure forcing us to leave home."

Meanwhile, Erasto Vasquez says, "it's important to have someone like Irma."

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