Lawyers argue for Mexican worker to be spared prosecution

Lawyers for a worker from Mexico on Monday urged a judge to spare her criminal prosecution for allegedly using a stranger’s Social Security number to get jobs at two Roxboro restaurants.

Miriam Martinez Solais, 28, came to the United States from Mexico illegally eight years ago, seeking a job that could help provide security for the daughter she left behind.

Solais’ troubles began after she complained to state labor officials that her boss, Giovanni Scotti D’Abbusco, cheated her out of thousands of dollars in wages she should have earned working in the kitchen of his restaurant, Vesuvio’s. What happened next has sparked battles being fought in three separate court cases.

After Solais complained, D’Abbusco had her investigated. The investigator he hired soon discovered Solais had provided fraudulent identification to the restaurant when seeking employment. The investigator alerted Roxboro police.

Police arrested Solais on two counts of identity theft and more than 20 counts of obtaining property – her paychecks – under false pretenses. The U.S. Department of Labor, in turn, filed a complaint against D’Abbusco, saying he illegally retaliated against Solais after she complained about her paycheck.

Like many of the 5.5 million Mexican natives living in the United States without permission, Solais found work in a service industry heavily reliant on immigrants willing to work hard for low wages. Many work in the shadows, fearful that a complaint will jeopardize their stay in the country.

It’s at the intersection of those complexities that state and federal judges must sort questions of criminal, immigration and labor law.

Immigrants must have permission to work in the United States. But when immigrants without that authority to work do secure employment, they must be paid minimum wage and overtime pay. And, if the workers are cheated and then complain, federal labor laws protect them against harassment or intimidation.

Solais’ lawyers also argued that only federal authorities, not state, have the power to investigate her alleged immigration violation.

In 1986, Congress passed The Immigration Reform and Control Act, which bans the pursuit of criminal penalties against immigrants seeking to work illegally. The U.S. Supreme Court affirmed that element of the law in 2012, striking a provision of Arizona’s controversial immigration laws which would have made it a crime for immigrants not authorized for work in the United States to apply for jobs in Arizona.

The Supreme Court justices wrote that the 1986 immigration reform act “reflects a considered judgment that making criminals out of aliens engaged in unauthorized work – aliens who already face the possibility of employer exploitation because of their removable status – would be inconsistent with federal policy and objectives.”

Person County District Attorney William Bradsher urged Superior Court Judge Osmond Smith to allow him to push forward with Solais’ prosecution. Bradsher said she had committed serious crimes, including filing tax returns using the same Social Security number she used on documents she presented to get a job.

“That’s not the intention of Congress to take away the state’s power to protect victims and prosecute the law,” said Bradsher. “It opens up Pandora’s box. There will be no way for a state to enforce its laws.”

Bradsher said in court Monday that he would offer probation to Solais if the case moved forward. It is unclear when Smith will issue his decision.

Other issues involving Solais’ employment at Vesuvio’s are being litigated in federal court. An attorney for Solais has filed a civil lawsuit against the restaurant seeking to recover $164,000 in wages and damages for Solais, as well as for other workers she believes were cheated out of proper overtime pay.

In a separate case, federal labor officials are seeking sanctions against D’Abbusco for allegedly harassing Solais in violation of federal labor laws. Among their claims: the restaurant knowingly hired immigrants they knew would work for less and not complain.

Denise Smith Cline, an attorney for D’Abbusco, strongly denies that her client failed to pay Solais proper wages and said D’Abbusco did not retaliate against her.

This story was originally published January 4, 2016 at 5:21 PM with the headline "Lawyers argue for Mexican worker to be spared prosecution."