From Dallas Morning News: Many Illegal immigrants arrested in raid already out of custody

Many illegal immigrants arrested in raid already out of custody

BY ALLEN PUSEY
The Dallas Morning News

WASHINGTON - Ten days after a splashy 26-state immigration raid netted 1,187 arrests, about one in three of those apprehended are back on the streets, reflecting a fact of life that immigration officials say they live with every day.

"It's frustrating. It's complicated," said Dean Boyd, a spokesman for Immigration and Customs Enforcement. "But those are the cards we're dealt."

The complex, multi-agency raid April 19 on 52 worksites operated by IFCO Services, a Dutch-owned pallet service company, was the largest such investigation and operation ever undertaken by immigration agents, according to federal authorities.

But a look at what's happened to those taken into custody last week, say experts familiar with the system, reflect the problems of immigration enforcement as much as the operation's success. About 270 have already been deported voluntarily. Roughly 460 of those arrested are still behind bars - some awaiting immigration proceedings, some being held on prior warrants and some unable to make bond. Another 50 have been referred to other agencies, mostly in law enforcement, Boyd said.

For a variety of reasons, another 400 of the illegal workers arrested have already been processed and released - some because they have families living with them or no criminal records or they are needed for witnesses - often on a promise to appear in court when they are asked.

Tamara Jacoby, an immigration expert with the conservative Manhattan Institute, says the diverse outcomes as well as the raid itself shows the obstacles to effective immigration enforcement.

"They (immigration authorities) haven't done many big raids in years," Jacoby said. "They'd pretty much given up on workplace raids. They didn't find it very effective for exactly the reason that these numbers reflect. Some are jailed. Some go home. Some are back on the street."

T.J. Bonner, president of the National Border Patrol Council, the union representing Border Patrol agents, said the numbers pale in comparison to the problem.

"Break it down statistically, and it doesn't add up to much," Bonner said. "As impressive as it was, these raids are the result of very complex investigations and there are only a handful of them. There are an estimated 8 million undocumented workers on worksites in the U.S.; in the end, it's just a drop in the bucket."

In Dallas, 93 illegal workers were arrested, all from Mexico. Of those, 90 agreed to be deported.

In Houston, of 67 arrested, according to a Houston ICE spokeswoman, only 12 were actually deported. The rest were released.

"We want them around in case we need them as witnesses," said Luisa Aquino-Deason. "If we need them, we know where they are."

The fact that the agency has only 20,800 beds nationwide for detainees influences detention decisions, Boyd said. In the northeast, where illegal IFCO workers were arrested on worksites in Albany, Philadelphia and Boston, all those apprehended are likely to remain behind bars because space is available. In the Southwest, by contrast, voluntary deportation is more practical and effective, allowing ICE to incarcerate illegal immigrants who may pose a danger or be flight risks.

"We are required by law to detain illegal immigrants who have committed crimes or have criminal records, so sometimes we have no choice," Boyd said. "We'd much rather release someone who's been arrested for working illegally than someone who has committed a rape."

But even those who are voluntarily deported are likely positioning themselves for a return to the United States, Bonner said. By agreeing to deportation, rather than going through the time and expense of a hearing, the consequences will be less if they return and are caught.

"That's why they do it: so it won't count against them the next time they're arrested," Bonner said.

A previous deportation order carries additional penalties for a repeat offender.

Jacoby agreed.

"That's the bargain that they (ICE) have been forced to make. It's not worth the time to detain them for formal deportation proceedings, and by leaving voluntarily, the illegal immigrants make it easier to return," Jacoby said.

Federal prosecutor Tina Sciocchetti, in Albany, N.Y., where the ICE investigation originated, said that despite the large numbers of arrests, her office is more interested in prosecuting seven IFCO managers arrested in the sweep than those who happened to be working that day.

She said her office decided to let the illegal workers deal with the immigration consequences, rather than charge them with crimes.

"We thought that was the fair thing to do," Sciocchetti said.

But while 400 of those workers remain in jail, the seven managers who were arrested have been released from jail. Three who were arrested in Albany were allowed to post a $20,000 unsecured bond - requiring no upfront money. Those arrested outside Albany were released on their own recognizance with orders to report to a federal magistrate in Albany on May 4.

From SCOTUSblog:Supreme Court Argument in Mohawk

Wednesday’s argument in Mohawk.

Posted by Kevin Russell at 01:52 PM

The following was prepared by Stanford Law Student Eric Tuttle.

On Wednesday, the Supreme Court heard argument in Mohawk Industries v. Williams, a case regarding the application of the Racketeer Influenced and Corrupt Organizations Act (RICO). The facts and basic questions of the case are described here.

Based on argument, it was difficult to tell where a majority of the Court will come out on the RICO issues presented by this case -- namely, whether a corporation can ever be part of an association-in-fact enterprise and, if so, whether plaintiffs had alleged enough here to establish that the defendant corporation was participating in an enterprise with its outside recruiters when it hired illegal workers, rather than simply conducting its own affairs. Several of the Justices were clearly troubled that Mohawk had raised the first issue for the first time in its merits brief before the Court. And while some Justices were concerned that a broad reading of when a corporation could be part of an enterprise-in-fact would lead to total RICO-ization of corporate conspiracy law, they also worried that any categorical attempt to separate out a defendant's affairs from those of the alleged enterprise would be unworkable.

Mohawk began by characterizing the case as one in which there were two obvious choices for the RICO enterprise: Mohawk (but then Mohawk couldn't be sued as defendant ) or the outside recruiters (but Mohawk didn't conduct or participate in their business). Because plaintiffs wanted to sue Mohawk, they'd stretched to construct a very artificial enterprise consisting of Mohawk plus the recruiters.

Justice Scalia immediately turned to the question of whether Mohawk's first theory -- that corporations can't be part of an association-in-fact enterprise under the statute's plain text -- was properly before the Court. He'd love to reach the question, but he didn't see how the Court could because the question on which the Court granted cert didn't seem to encompass that theory. Plus, the Court likely wouldn't have granted cert if Mohawk had presented the question, since there is no circuit split (every circuit to address the question has ruled against Mohawk's theory). Justice Ginsburg found this especially problematic because there hadn't yet been a final judgment in the case and the 11th Circuit had only considered the case on certification for interlocutory appeal. Justice Breyer added that Mohawk's statements below seemed even to concede the point. Mohawk explained that it hadn't argued the point below because the 11th Circuit rule was so settled, but that the issue was properly before the Court now because it was "fairly subsumed" in the question presented, in that it was a logically prior question. The question had also been fully briefed for the Court, and it would be very artificial to ignore it because deciding the second question would be pointless if corporations couldn't be part of association-in-fact enterprises at all. He added that the uniform rule in the lower courts, while entrenched, had not been reached with much care.

Justice Breyer moved on to the merits of Mohawk's first theory, questioning whether it made sense to exclude groups of entities other than individuals from RICO coverage. Mohawk explained that these groups would still be covered as RICO enterprises, they just couldn't be defendants as part of a larger enterprise. In most cases, the wrongdoing could still be reached by repleading and going after individuals. Justice Alito asked why Congress would have used both "means" and "includes" when defining terms if "includes" was to be understood as introducing an exhaustive list as Mohawk contends. Mohawk responded that Congress must have thought the two words were synonymous in this context, as evidenced by its use of "includes" in other definitions that are clearly exhaustive and its use elsewhere of "includes, but is not limited to." This was consistent with Congress' intent not to create a general corporate conspiracy statute.

Mohawk then turned to its second theory: even if corporations could be part of an enterprise-in-fact, under Reves the plaintiff must show that the corporation participated in the enterprise's affairs, not just its own. Here, plaintiffs only alleged that Mohawk had engaged in illegal hiring (even if it did so jointly with outside recruiters, with a common purpose), conduct that is purely its own affair. To say that the company’s hiring activities were part of the affairs of a separate enterprise would greatly expand RICO into a general conspiracy statute. Justice Souter disagreed on the facts, pointing to respondents' allegation that Mohawk provided fake identification to the hires. That wasn't something corporations do as part of their affairs. Mohawk conceded that this single allegation came the closest to establishing participation, but maintained that this was still something Mohawk did internally with its own workers; at an appropriate level of abstraction it was still about hiring. The fact that it was illegal did not take it outside of Mohawk's own affairs, as established by Reves. And even if it were an activity outside of Mohawk's normal affairs, that doesn't it automatically make it the enterprise's affair. Justice Souter was skeptical, asking if the ID allegation didn't establish a joint scheme with the outside recruiters to recruit illegal workers, with each party contributing something to the scheme. Chief Justice Roberts then wanted to know what Mohawk could do that would be enough -- what if it sold fake IDs to employees, is that outside its own affairs? Mohawk answered that in that case, like this one, Mohawk could be the enterprise. The problem here is that plaintiffs are making up an imaginary enterprise in order to go after Mohawk as a defendant.

Justice Scalia was inclined to agree with that characterization, but didn't see how Mohawk's standard was workable, and why the Court should get the lower courts into the messy business of deciding when a corporation had somehow gone beyond its own affairs. Mohawk answered that this is exactly what Reves says to do. Further, the proper focus is first on the putative enterprise: ask what are the enterprise's functions, and then ask whether the defendant was doing those things. Justice Souter again thought Mohawk was doing what the enterprise does: provide cover for illegal workers in order to employ them.

Respondents began by emphasizing that even if Mohawk wanted to be the enterprise in this case and not the defendant, the plaintiff is master of its complaint. The Chief Justice, Justice Alito, Justice Scalia, and Justice Kennedy wanted to know how the text of the statute could permit corporations to be part of an enterprise-in-fact when the statutory definition of “enterprise” refers to “individuals” rather than “persons,” the term normally used to cover both individual people and corporations. Moreover, they suggested, the statutory definition appears to provide an exhaustive list in the first part of the where individuals were listed apart from corporations. Respondents tried a couple theories, including the presence of the word "union" in the definition, but the Justices were skeptical. Respondents then argued that by defining “enterprise” to “include” individuals, Congress did not mean to provide an exhaustive list in the definition, which could also include corporations. Respondents noted that the Court had relied on the difference between "requires" and "includes" in a previous case -- Sedima. Justice Ginsburg then suggested the Court shouldn't even be considering the issue because it was not properly before the Court because the question did not fall within the scope of the order permitting an interlocutory appeal, with which respondents agreed. Justice Kennedy, however, disputed that the interlocutory posture of the case changed anything, since appeals courts certify rulings and not questions like the Supreme Court does.

Chief Justice Roberts, eventually joined by Justices Souter and Scalia, wanted to understand why this was properly a RICO case and not simply a generic corporate conspiracy case to be handled under state law. Respondents emphasized that the relationship constituting the enterprise was long term and engaged in a pattern of racketeering acts. The Justices seem concerned that this simply meant that Mohawk had hired more than one person, and that any contractual relationship could trigger RICO, thus "RICO-izing" all of corporate conspiracy law. Respondents answered that the statute required at least 10 incidents per year for two years in the case of illegal hiring predicate activity.

Respondents then emphasized that Mohawk's proposed test was unworkable, because corporations would always characterize their racketeering activity as part of their usual business affairs, at least at some level of abstraction. All corporations hire workers, so corporations would seem to be immune from any RICO claim alleging that an enterprise to which the corporation belonged was committing crimes involving hiring, even though Congress intended for illegal hiring to be covered by RICO. There will always be overlap between what the enterprise does and what the defendant corporation does, because under the Court's ruling in Turkette, plaintiffs must show that members of the enterprise-in-fact have a common purpose. Thus, Mohawk's rule would turn the Turkette requirement into an immunity.

The government argued next as amicus, supporting the respondents. The Assistant Solicitor General began by conceding that the list used to define enterprise did not include associations composed of corporations. But, he argued, the definition does exclude such enterprises either because by using "includes," Congress meant the list only to be illustrative. Had Congress not defined enterprise, the term would clearly cover corporate associations-in-fact. So they are part of the background understanding, and the failure to list them in an illustrative list does not remove them from the definition.

Justice Alito asked if Congress hadn't really been using "includes" to mean "means" throughout the statute, and Justice Scalia wanted to know why Congress also used "includes but not limited to." The government answered that the Court has always assumed (and should continue to assume) that when Congress uses both "means" and "includes" in the same section, it does so advertently. Congress' use of "includes but not limited to" elsewhere does not change this, because that was in a different section where "means" was not also used, so Congress wanted to be extra careful there.

Justice Breyer suggested that it might make sense for Congress to limit association-in-fact enterprises to individuals, because Congress was worried about organized crime families, who operated through loose arrangements of individuals and not as corporations. Having RICO apply more broadly to associations involving corporations would “RICO-ize” a lot of conspiracy law. Congress defined “enterprise” broadly in some respects, in order to effectively reach its target -- the mafia. But it had no motivation to go further. Why read the statute to RICO-ize even more conspiracy law when there was no clear intent? The government conceded that Congress was thinking about the mob when it wrote the statute, and probably didn't have corporations in mind. But it also clearly didn't mean to exclude corporations, and so "enterprise" should be given its broad background meaning. Congressional Reports also indicate that Congress thought it would be reaching any informal group with the statute, although that doesn't show specifically that it meant to reach collections of corporations.

Justice Scalia wondered if Mohawk hadn't at least demonstrated that the statute was ambiguous on this point, and that the rule of lenity should then control. The government disagreed that the statute was ambiguous, because the "means"/"includes" dichotomy was so established in precedent and Congress should be able to rely on it. Justice Scalia suggested again that this was undercut by Congress' use of "includes" in other plainly comprehensive definitions. The government conceded that some other definitions using "includes" might be "exclusive" in the sense that Congress had listed all plausible choices. But they were not "legally exclusive" in the sense that if courts came across another example that seemed to fit it would be forced to throw it out. For example, "racketeering activity" is defined to "mean" a specified list of crimes. Courts can't add to that list any other crimes, even if they look like traditional mafia racketeering conduct. "Attorney general," on the other hand, is defined to "include" pretty much every plausible interpretation of that designation -- anyone who might make policy in the area for the US Attorney General. But that doesn't mean that if another officeholder came along that seemed to fit the definition that courts should feel compelled to exclude him.

Justice Scalia then wanted to know the best lower court opinion extending enterprise-in-fact to corporations. The government agreed with Mohawk that those opinions lacked great analysis, and stated that it also wasn't aware of any dissents on that issue.

Turning to the second issue, the government argued that there was no rule that a corporation couldn't be conducting both its own business affairs and the enterprise's affairs at the same time. For example, it cited HJ, Inc., in which a utility company bribed the utility commission to convince them to approve a rate increase. At a high enough level of abstraction, convincing the commission to approve a rate increase is the utility's business affair.

In rebuttal, Mohawk pointed out that HJ preceded Reves, and then sharply disputed the government's argument that there was some relevant, controlling "background" definition of "enterprise." Enterprise, Mohawk argued, was the lynchpin of the statute, and Congress had carefully defined it. It is not for the Court to amend that definition, and to further expand RICO to swallow corporate conspiracy law.

From Forbes.com: The Other Immigration Battle

The Other Immigration Battle
Lynda Zengerle 04.26.06, 6:00 AM ET

Washington, D.C. -

Immigrants and their supporters have filled the streets in past weeks, to express their dismay over proposed immigration laws in Congress. But a little-known case before the Supreme Court could also affect the millions of undocumented workers in the United States -- and the businesses that employ them.

When undocumented immigrants are underpaid or mistreated, they generally don't sue because they are afraid of deportation. In the last five years, however, documented workers may have found a way around that problem.

Legally employed workers are using the Racketeer Influenced and Corrupt Organizations Act (RICO), a law originally aimed at organized crime, to fight back against their employers. If the Supreme Court rules that RICO is a valid avenue for redress in these cases, businesses should take notice.

Enacted in 1970, RICO was originally designed to help the government eliminate organized crime. In 1996, however, a little-noticed amendment to the RICO Act opened the civil-action door for parties concerned about foreign labor and frustrated by the U.S. government’s inefficient enforcement of its immigration laws.

The case now at the Supreme Court began when former and current hourly employees of Mohawk Industries, one of the nation’s largest carpet and rug manufacturers, filed a civil RICO claim in a class-action lawsuit, alleging that Mohawk drove down wages by conspiring with recruiters and temporary agencies to recruit illegal aliens along the Mexican/U.S. border.

The workers alleged that Mohawk, in cooperation with recruiters, encouraged and aided illegal aliens to move to Northern Georgia, where Mohawk hired them, knowing that they did not have authorization to work in the United States.

But Mohawk says RICO shouldn't apply to its labor practices. Why? For a company to be found liable for RICO violations, there must be an "enterprise" distinct from the operations of the company. Originally, enterprise was commonly read as "Mafia family." In some cases, however, courts have found that a group of companies working together for a common purpose can also constitute an "enterprise" under RICO.

Mohawk filed a motion to dismiss, arguing that the complaint failed to allege the existence of an enterprise. The federal district court denied the motion, and the Eleventh Circuit Court of Appeals affirmed the denial.

Mohawk is not the first case of this kind, but it's the first to be taken up by the Supreme Court. The court agreed to hear the case partly to resolve conflicting rulings in the lower courts. In the last five years, more and more plaintiffs have sought to use civil RICO claims against companies allegedly hiring undocumented workers. Such claims have been brought in the Second, Ninth, Sixth, Seventh and Eleventh Circuits, but judges have split on the issue of whether RICO can be used to bring immigration claims.

In one recent case, Mendoza v. Zirkle Fruit Co., agricultural workers in Washington state's fruit industry filed a civil RICO suit, alleging that their employer had conspired with recruiters to hire illegal workers and depress wages.

Although the district court initially dismissed the case based on lack of standing, the Ninth Circuit remanded it, finding a sufficient connection between the defendants' conduct and the employees' damages to support a RICO claim. In January 2006, in a surprise move, Zirkle settled out of court with a $1.3 million payment as well as payment of plaintiffs' legal fees.

The stakes are high for corporations--and CEOs. The RICO threat is compounded by the fact that immigration officials are increasingly targeting executives for prosecution. Immigration agents recently arrested seven current and former executives of IFCO Systems, a manufacturer of wooden crates and pallets, and rounded up more than a thousand of the firm's allegedly undocumented employees.

Julie Myers, chief of U.S. Immigration and Customs Enforcement, said there would be "no tolerance for corporate officers who harbor illegal aliens for their work force.…We will use all our investigative tools to bring those individuals to justice, no matter how large or small their company."

IFCO Systems executives aren't alone. Earlier this month, the owners of Kawasaki Restaurants pleaded guilty to felony counts that carry a maximum penalty of 30 years in prison. They admitted to hiring illegal immigrants as low-wage employees at their Japanese restaurants, and agreed to surrender more than $1.1 million in cash, property and vehicles.

None of that money will be used to compensate former workers, who can pursue their own claims. Once again, Julie Myers noted that "targeting the profits of illegal alien employment scheming is a tactic [Immigration and Customs Enforcement] is adopting nationwide."

Between the increase in civil RICO suits, and the energized federal immigration service, the cost of doing business may have risen significantly. But there are ways of avoiding these costs. CEOs must establish a comprehensive immigration plan to ensure that they comply with current immigration and employment law. In today's increasingly litigious environment, employers can't afford to ignore this new risk.

 

Is a Social Security Mismatch Letter Probable Cause?

April 20, 2006

GovExec.com has reported that DHS Secretary Michael Chertoff wants Congress to pass legislation that would let ICE investigators access Social Security Administration databases. Gov Exec reports:

"According to ICE, millions of workers have given Social Security numbers to their employers that do not match their names, but ICE does not have access to data to investigate this activity. One of the key challenges that supports illegal migration is abuse of our Social Security system and the Social Security document," Chertoff said during a news conference. "We've been urging Congress to pass legislation, now before the Senate, that would grant the Department of Homeland Security some carefully crafted access to Social Security no-match data so we can detect those employers who are systematically employing workers, despite the fact that there's an obvious mismatch between the names and the Social Security numbers in question."

Immigration attorney Charles Miller, Studio City CA,  has criticized DHS desired reliance on Social Security mismatch letters as an unreliable source of unauthorized employment information.  Miller's comments are "The mismatch letters are an inherently unreliable source of probable cause. On the face of the letter SSA warns that adverse employment action by the employer should not be taken in reliance on the fact that an employee's number appears on the letter.  There are many sources of a mismatched number including clerical error, name change and data base corruption of files.  It will be interesting to see if ICE relied on a SSA mismatch letter to claim probable cause in the IFCO raids".

 

 

Company Raided in Nationwide Immigration Bust

Studio City, April 21, 2006

DHS has made this press release public concerning the IFCO nationwide immigration bust:

Homeland Security Secretary Michael Chertoff; Julie L. Myers, Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE); and Glenn T. Suddaby, United States Attorney for the Northern District of New York, today announced the results of a nationwide worksite enforcement operation targeting IFCO Systems North America, Inc. (“IFCO”), the largest pallet services company in the United States headquartered in Houston, Texas.

Yesterday, ICE agents arrested seven current and former manages of IFCO pursuant to criminal complaints issued in the Northern District of New York. All these individuals are charged with conspiring to transport, harbor, and encourage and induce illegal aliens to reside in the United States for commercial advantage and private financial gain, in violation of Title 8, USC Section 1324 (a). The conspiracy charge carries a penalty of up to 10 years in prison and a fine of up to $250,000 for each alien with respect to whom the violation takes place. Two other IFCO employees were arrested on criminal charges relating to fraudulent documents.

In addition to the criminal arrests, ICE agents yesterday conducted “consent” searches or executed criminal search warrants at more than 40 IFCO plants and related locations in 26 states that resulted in the apprehension of approximately 1,187 illegal alien IFCO employees. Three of the criminal search warrants were executed at residences in Guilderland, NY, where IFCO was allegedly housing illegal alien employees.

The consent searches and search warrants were conducted at locations in Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, South Carolina, Virginia and Utah.

The arrests and search warrants are part of an ongoing criminal investigation of IFCO’s Pallet Management Services division that began more than a year ago. The investigation is being conducted by ICE, New York State Police - Upstate New York Regional Intelligence Center, Social Security Administration Inspector General, Internal Revenue Service - Criminal Investigation, and the Department of Labor Inspector General. The Guilderland Town Police Department and Schenectady Police Department also provided assistance.

According to a government affidavit filed in the Northern District of New York, the investigation began in February 2005 when ICE agents received information that IFCO workers in Guilderland, NY, were witnessed ripping up their W-2 tax forms and that an IFCO assistant general manager had explained that these workers were illegal aliens, had fake Social Security cards and did not intend to file tax returns.

According to the affidavit, subsequent investigation indicated that IFCO officials transported illegal aliens to and from work; paid rent for the housing of illegal alien employees; and deducted money from the aliens’ monthly paychecks to cover these expenses. Former IFCO employees also said it was common practice for IFCO to hire workers who lacked social security cards or produced bogus identification cards.

The affidavit also alleges that IFCO officials knowingly hired an illegal alien who was an informant for ICE. In numerous recorded conversations, IFCO officials reimbursed this person for obtaining fraudulent identity documents for other illegal alien employees; used the person to recruit other illegal workers; and advised the person and other illegal alien employees on how to avoid law enforcement detection, the affidavit alleges.

The affidavit further alleges that approximately 53.4 percent of the Social Security numbers contained on the IFCO Systems North America Inc. payroll of roughly 5,800 workers during 2005 were either invalid, did not match the true name registered with the Social Security Administration for that number, or belonged to children or deceased persons. The Social Security Administration sent at least 13 written notifications to IFCO headquarters about such discrepancies on its payroll records in 2004 and 2005, the affidavit alleges.

Employers and workers alike should be on notice that the status quo has changed,” said Homeland Security Secretary Michael Chertoff. “These enforcement actions demonstrate that this department has no patience for employers who tolerate or perpetuate a shadow economy. We intend to find employers who knowingly or recklessly hire unauthorized workers and we will use every authority within our power to shut down businesses that exploit an illegal workforce to turn a profit.”

ICE Assistant Secretary Myers said, “ICE has no tolerance for corporate officers who harbor illegal aliens for their workforce. This nationwide enforcement action shows how we will use all our investigative tools to bring these individuals to justice, no matter how large or small their company.”

Glenn T. Suddaby, United States Attorney for the Northern District of New York said, "The IFCO case is an outstanding example of intense cooperation between prosecutors, federal investigators, and state and local police which has successfully concluded a 14 month conspiracy investigation."

Christian Science Monitor: Employers risk little in hiring illegal labor

from the April 18, 2006 edition - http://www.csmonitor.com/2006/0418/p01s01-usec.html By Faye Bowers Correspondent of The Christian Science Monitor PHOENIX - It's a topic often lost in the heated battle over whether to add more border patrol agents, build a bigger fence, or deploy the US military along the border with Mexico. But in the end, most analysts agree, the United States can't stem the flow of illegal immigrants until it resolves to do one thing: punish employers who hire them. Current law provides for sanctions against such employers, and legislation now under consideration in Congress would stiffen employer penalties. The tougher provisions are not lost on companies here in Arizona, which now has more illegal immigrants crossing its border than any other state and which owes its decades-long growth spurt in part to a huge workforce - at least 12 percent - of undocumented laborers. But federal enforcement has long been so weak, and employer fines so few and far between, that many here still laugh off the prospect of serious sanctions - though the laughs are a little more nervous now. "There's a pretty universal consensus that this is the single largest missing point of our enforcement regime," says Marc Rosenblum, a visiting scholar at the Migration Policy Institute, an independent think tank in Washington that tracks the worldwide movement of people. "But there's never been enough commitment or resources thrown at it. The bills being considered now would go a long way toward addressing that problem." Verification law hard to enforce The Immigration Reform and Control Act (IRCA), enacted in 1986, requires employers to verify that prospective employees are either US citizens or authorized to work here. But rather than mandate a national identity card - because of privacy reasons - the legislation gives employers wide latitude in determining eligibility. Workers can offer employers at least 25 different documents to prove they are authorized to work in the US. "The law has been so difficult to enforce that the number of cases brought against employers is about half what it was a decade ago even though the number of unauthorized workers has roughly doubled in that time," a Pew Research Center report concluded last month. One local businessman, who wishes to remain anonymous, knows firsthand the weaknesses in the enforcement regime. He owned a large landscape business for more than two decades in which he employed up to 300 people at a time, most of whom were Latino immigrants. His human resource department checked the documents of prospective employees and filled out the IRCA-required I-9 forms. "The quality of the documents varied quite a bit from being very, very good in terms of forgeries to the point of some pretty strange looking things, like misspelled names on social security cards," says the businessman. "The problem is where do you draw the line? And to what extent do we [employers] need to become experts in counterfeiting?" He says the then Immigration and Naturalization Service (INS) audited his business three times during the 1990s. Each time, he lost more than half his workforce, but never received a fine because "we did a good job of filling out all the paperwork." "It became almost humorous that every time they came in, we knew we'd lose a bunch of people, but gradually we'd hire other ones, and that was just the way of doing business," he says. The INS is now the US Citizenship and Immigration Services. "Everyone knew" some workers were illegal immigrants, says a young man who has supervised wait staffs at three Phoenix-area establishments. One had a bunkhouse where "no fewer than 10 illegal immigrants lived at a time." So when the INS raided that establishment in the mid-1990s, "we lost over half the workers that night and had to close early," he says. "But within a week, they hired a whole new staff of illegals." There was no fine. "The promise of IRCA was that with the penalization of employers there was an assumption the demand would dry up and that the pull factor would diminish," says Louis DeSipio, professor of Chicano/Latino studies at the University of California at Irvine. "But in practice it became evident by the late 1980s that the INS wasn't making interior enforcement too much of a priority, and employers frequently had a good excuse for violating the law because so many illegal documents became available." Enforcement has fallen since '80s In fact, the emphasis peaked in that period with the INS spending about 5 percent of its budget on work-site enforcement, says Mr. Rosenblum, then began to lag behind other priorities. Since the 9/11 attacks, there has been even less focus on interior investigations. The government formed the Department of Homeland Security, which took in INS and made Immigration and Customs Enforcement (ICE), responsible for interior investigations, but they've focused much more intently on border enforcement.) In fiscal 2004, ICE issued three notices of its intent to fine a business for hiring illegal immigrants - down from 417 five years earlier, according to a 2005 report by the Government Accountability Office. But the bills currently wending their way through the Senate, and the one passed by the House, are likely to beef up work-site enforcement. Any final version is likely to make mandatory today's voluntary employment-verification program. Moreover, the bills call for an increase from 50 to up to 5,000 ICE agents who monitor work sites and significant increases in the fines, and perhaps jail time, for employers who break the law. "I don't think employer enforcement alone will stop illegal immigration," says Dr. DeSipio. "But it will decrease the incentive for a new migrant who doesn't have family here. That person wouldn't take the risk if he/she didn't have the confidence that he/she could move directly into a job." Full HTML version of this story which may include photos, graphics, and related links

Washington Post: Immigrant Bill Fallout May Hurt House GOP

Strict Provisions Are Uniting Critics

By Jonathan Weisman
Washington Post Staff Writer
Wednesday, April 12, 2006; A01

In the wake of this week's massive demonstrations, many House Republicans are worried that a tough anti-illegal-immigration bill they thought would please their political base has earned them little benefit while becoming a lightning rod for the fast-growing national movement for immigrant rights.

House Republicans rushed through legislation just before Christmas that would build hundreds of miles of fence along the U.S.-Mexico border, require that businesses verify the legality of all employees' status through a national database, fortify border patrols, and declare illegal immigrants and those who help them to be felons. After more lenient legislation failed in the Senate last week, the House-passed version burst into the public consciousness this week, as hundreds of thousands of protesters across the country turned out to denounce the bill.

Yesterday, House Speaker J. Dennis Hastert (R-Ill.) and Senate Majority Leader Bill Frist (R-Tenn.) issued a joint statement seeking to deflect blame for the harshest provisions of the House bill toward the Democrats, who they said showed a lack of compassion. "It remains our intent to produce a strong border security bill that will not make unlawful presence in the United States a felony," Hastert and Frist said.

Sen. Edward M. Kennedy (D-Mass.) fired back that "there's no running away from the fact that the Republican House passed a bill and Senator Frist offered one that criminalizes immigrants."

House Democrats acknowledged they helped block Republican efforts on the floor in December to soften the Republican-crafted section declaring illegal immigrants to be felons, but they said ultimate responsibility for the bill rests with the Republicans, who voted overwhelmingly for its passage.

"The Democrats were not going to do anything to make it easier for Republicans to pass an atrocious bill," said Jennifer Crider, a spokeswoman for House Minority Leader Nancy Pelosi (D-Calif.).

Yesterday's maneuvering underscores how the immigration issue has mushroomed into a fierce political debate with potentially large stakes heading into the November congressional elections. The hundreds of thousands of protesters in the streets Monday vividly demonstrated the power of the issue, which some strategists say threatens to undercut President Bush's long-standing hope of making Hispanic voters a GOP constituency.

"There was political calculation that they could make this the wedge issue of 2006 and 2008, but it's not playing out that way," said Rep. Raul M. Grijalva (D-Ariz.). "This has galvanized and energized the Latino community like no other issue I have seen in two decades, and that's going to have electoral consequences."

Republicans say they could accept that sentiment if they believed they had won political points from the GOP's restive base. But for all the negatives, they don't have many positives to show for their efforts.

"From the standpoint of those who would applaud the House's stand, I'd say we have not gotten sufficient credit," said Rep. Phil Gingrey (R-Ga.), a reliable supporter of House leaders. "I'm somewhat distressed that they have not gotten word of what we've done."

The politics of the issue have shifted markedly since the House acted. Republican lawmakers are increasingly saying they will now consider some avenue to grant illegal immigrants access to lawful employment. And Democrats who voted for the House bill with an eye on their political futures or to preempt feared attacks from conservatives are rethinking their position.

Rep. Ted Strickland (D-Ohio), a supporter of the bill, was greeted by protesters and shouts of "Migration is not a crime" in February when he opened his Ohio gubernatorial campaign office in Cleveland. Now, he regrets his vote, campaign spokesman Jess Goode said.

The 36 Democrats who voted for passage included Rep. John T. Salazar (Colo.) -- whose brother, Sen. Ken Salazar (D-Colo.), has railed against the House measure -- and Rep. Harold E. Ford Jr. (Tenn.), who may find it difficult to tap into the mobilizing Latino vote in his run for the Senate this year.

Although much has been made of the failed efforts in the Senate last week to forge a bipartisan measure to toughen border security while creating a system to allow many of the 11 million to 12 million illegal immigrants here to achieve legal status or citizenship, the actions in the House late last year have received little attention until now.

House GOP leaders had rushed lawmakers back to Washington for a rare December session to vote on the immigration measure, hoping to give their members an accomplishment to brag about over the long winter recess. But it was the deft maneuvering of Democrats that preserved the bill's most infamous provision, declaring illegal immigrants felons, and that provision has helped turn the bill into a political albatross for some Republicans, Democrats say.

The bill, written by House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.), was passed in a matter of hours, nine days before Christmas. Just seven amendments were allowed to come to a vote, none of them fundamentally altering the legislation.

Sensenbrenner's committee bill included the felony provision, but when he took it to the House floor Dec. 16, he offered an amendment to downgrade the offense of being an undocumented worker from a felony to a misdemeanor.

The Democratic leadership pushed its members to vote against the amendment, and 191 Democrats did. Only eight Democrats voted with Sensenbrenner.

"It was an ugly bill in most respects, the felony stuff, the wall and no amendments," said Rep. Jeff Flake (R-Ariz.), who tried to add a guest-worker provision but was not allowed a vote. "The leadership saw this more as a statement than a policy, but I think in the end we would have been better off had we been more deliberative."

With so little debate, media coverage was minimal, and what coverage there was got little notice in the holiday bustle, Republicans say.

"We're victims of our own success," said Rep. Tom Price (R-Ga.).

Sensenbrenner's bill is getting attention now, not so much from Republican-base voters but from Spanish-language radio shows and Latino activists who have made it the focus of marches that have drawn more than a million protesters. One sign on the Mall Monday read "Sense, not Sensenbrenner."

In a letter to the U.S. Conference of Catholic Bishops last week, Sensenbrenner charged that all but eight Democrats "decided to play political game by voting to make all illegal immigrants felons."

But Democratic votes alone did not seal the defeat. Sixty-five Republicans voted against it, too, including anti-immigrant firebrands such as Rep. J.D. Hayworth (Ariz.) and moderates such as Rep. Thomas M. Davis III (Va.). Rep. John A. Boehner (Ohio) voted against the amendment and the bill just weeks before he was elected majority leader.

© 2006 The Washington Post Company

 

 

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12 Million Questions Left Unanswered

After hundreds of thousands of peaceful demonstrators marched for humane comprehensive immigration reform, the Senate will leave for Easter recess without its own bill.

A shaky, last minute compromise amendment from Senators Martinez and Hagel, both Republicans, that would have allowed a modified legalization based on years of residency, was stalled late Thursday night, amid parliamentary concerns about a flurry of GOP amendments.

Senators return home to answer questions concerning what they themselves have called our unsafe borders, lack of workplace employer sanctions for the employment of unauthorized workers and a rational, humane way to provide needed workers to US business. They leave for recess with 12 million questions left unanswered.

Charles Miller

Business Week: Immigration Reform: Why Business Could Get Burned

By Richard S. DunhamWed Apr 5, 8:08 AM ET

How important is immigration to the business community? Very. On Mar. 16, Bill Gates trekked to Capitol Hill to tell key leaders of both parties that immigration is Microsoft's No. 1 issue in Washington. "If we hope to maintain our economic and intellectual leadership in the U.S., we must renew this commitment," Gates said in an earlier letter to lawmakers. "Unless there is reform, American competitiveness will suffer as other countries benefit from the international talent that U.S. employers cannot hire or retain."

Both Sides Now

Gates and his fellow CEOs have good reason to be nervous. Politicians in both parties are seizing on public concern about 12 million illegal immigrants living in the U.S. to craft legislation limiting cross-border mobility for skilled and unskilled workers alike. And while corporations are accustomed to anti-business potshots from the Left, they are now fighting a defensive battle against angry populist Republicans who want to seal the border and punish companies that employ illegals. At the Conservative Political Action Conference in February, Representative Tom Tancredo (R-Colo.) won a standing ovation for skewering companies that profit from imported labor. "The conservative movement can either be the voice of principle or it can be the voice of the Chamber of Commerce," Tancredo roared. "But it cannot be both."

Facing rhetoric like that, many corporations feel pressured. By opposing the GOP's anti-immigrant faction business runs the risk of ushering in more Democrats in the 2006 elections. But Tancredo and his allies pose a more immediate threat to business' long-term need for a steady stream of foreign workers.

The immigration hardliners want serious penalties to make businesses think twice before hiring immigrants. Legislation approved by the House in late 2005 would make it a felony for businesses to hire illegal workers: Companies that incorrectly fill out certain paperwork on employees could be fined up to $25,000. "It doesn't take too many of those (fines) to drive a small business out of business," says John Gay of the National Restaurant Assn.

Business is doing better in the Senate. Corporate lobbyists believe they have the votes to water down the tough financial penalties and win their top priority, a guest-worker program that lets foreigners take jobs Americans don't fill.

But the prospect of a House-Senate negotiation has the business community on edge. A compromise is likely to include language requiring companies to confirm the legal status of all employees and prospective hires. Angelo I. Amador, the U.S. Chamber of Commerce's immigration policy director, says that plan would be a bureaucratic nightmare costing employers at least $12 billion for compliance. The current federal pilot program to confirm whether employees are legally in the U.S. has been unreliable, he adds.

Yet business must tread carefully to avoid angering GOP immigration foes. "I'm worried that the clearly harsh voices in the Republican Party are the loudest voices," says former House Majority Leader Dick Armey (R-Tex.), leader of a pro-business coalition. Business frets that populism could foster a GOP faction hostile to such corporate priorities as trade liberalization and tax breaks. Already, the political schism has sparked showdowns in Republican primaries between anti-immigrant candidates and business community favorites. Among the contests: the San Diego district long represented by convicted ex-congressman Randy "Duke" Cunningham and the districts of retiring Republican Representatives Butch Otter of Idaho and Jim Kolbe of Arizona. Business is digging in for a long battle. "

This is a long-term issue, because this is a workforce issue," says Bernadette Budde, senior vice-president of the Business Industry Political Action Committee. "We're going to have to find labor someplace." But corporate critics don't cut companies any slack. "The illegal immigration lobby in the U.S. is big business," says Tancredo spokesman Will Adams. "They have an addiction to cheap labor."

With struggling President Bush mired in an unpopular war, GOP discord over immigration is just one more threat to the party's grip on Congress this fall. Demo-crats, says independent political analyst Charlie Cook, "have settled into their seats with popcorn to enjoy the spectacle of Republicans ripping themselves apart." That's a lot easier than coming up with a solution to this divisive issue.

 

 

 

McCain: Senate Allies Lack 60 Votes to Block Fillibuster

Senator John McCain has told AP that moderate Senate Republicans and Democrats lack the 60 votes to end a threatened filibuster of earned legalization provisions.

 

There is still the chance that a measure allowing those persons who have lived in the US for 5 or more years a form of legalization will be an acceptable compromise to the Senators who object to any “amnesty” provision.