An Ironic Turn of Events for Golden State Fence

The Golden State Fence Company was hired in the 1990s to build a stretch of fence along the California border. The purpose: to keep undocumented immigrants out. Now the president of the company faces jail time for knowingly hiring undocumented workers.

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The Golden State Fence Company helped build a stretch of fence along California's border with Mexico. That was back in the 1990s and it was designed to keep illegal immigrants out, which did not stop the company from allowing the immigrants into its own workforce.

Today, the president of Golden State is facing what could be an extraordinary jail sentence for knowingly hiring undocumented workers. He and his firm have already agreed to forfeit $5 million.

NPR's Scott Horsley has more.

SCOTT HORSLEY: When Melvin Kay raised his right hand to be sworn in during a court hearing in December, he was missing a finger, the result of a long ago industrial accident. His attorney, Richard Hirsch, describes Kay as a man who's known hard times. And if a judge decides today he should go to jail for his crime, Hirsch says Kay is resigned to his fate.

Mr. RICHARD HIRSCH (Melvin Kay's attorney): Mel Kay is someone who has started this company from scratch. He was a migrant worker himself, and he worked his way up the ladder and built a successful company and was fair to his employees and is a good guy.

HORSLEY: Federal prosecutors don't dispute that Kay was fair to his employees. Unlike some other immigration cases, there's no evidence Golden State ran a sweatshop or otherwise, mistreated its workers.

Mr. HIRSCH: The wages are the highest paid in the industry. All the employees received extensive benefits, including health insurance. So, no one has even been brought in because of low wages or cheap labor.

HORSLEY: But the company admits knowingly hiring workers who weren't supposed to be in this country. Ordinarily, that's hard to prove. But special agent Michael Carney(ph) says, when immigration agents checked Golden State's payroll in 2005, they found some of the same undocumented workers the company had been warned about six years earlier.

Mr. MICHAEL CARNEY (Special Agent): They were put on notice back in '99, and then again in 2004, and yet they continued to employ the same unauthorized aliens.

HORSLEY: Authorities say, at one time, as much as a third of Golden State's workforce, about 750 people, may have been in this country illegally. Carney says that's probably not uncommon among construction firms throughout Southern California.

Mr. CARNEY: It's the magnet of employment, which really drives illegal immigration. And so, we have to eliminate that magnet, I think, to really make an impact on, you know, the flow of illegal immigrants into the country.

HORSLEY: And yet, it's extremely rare for employers of illegal immigrants to face any kind of criminal charges, let alone jail time. According to Immigration and Customs Enforcement, there were about 700 employer arrests in the whole country last year. While that's a tiny fraction of the number of immigrants arrested, it marks a four-fold increase from the year before.

Golden State might never been caught had it not taken a fencing job at a San Diego Navy base. That put the company under a magnifying glass, thanks to an enforcement effort focused on military and other sensitive job sites. Although sentencing guidelines call for Kay to serve about six months in jail, he could get a more lenient sentence. Even if he does, Carney says the possibility he could have gone to jail should make other employers think twice.

Mr. COURNEY: Unless you are a career criminal, I think most people don't relish the idea of going to jail.

HORSLEY: Golden State's guilty plea was announced in December, seven days after San Diego's U.S. attorney learned she was being forced out by the Justice Department. Carol Lam had been criticized for not doing more to combat routine border violations. When she left office two months later, Lam cited the employer sanctions at Golden State as one of her signature accomplishments.

Scott Horsley, NPR News, San Diego.

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