Last week, according to the NY Times, the Department of Homeland Security issued internal guidelines which put higher priority on enforcing immigration laws by targeting employers instead of workers. In effect, the large worker raids of the last few years – in New Bedford MA and Postville IA and against Swift – are not going to continue, in favor of catching executives who break the law.
The Bush Administration’s focus on round-ups actually made it more difficult to indict executives. Per the article, “Under the Bush administration, the officials said, most raids were conducted largely on the basis of tips that an employer was hiring illegal workers, rather than on information gleaned from audits of employer records or undercover investigations. As a result, agents rounded up thousands of illegal immigrants but rarely developed the evidence necessary to show whether businesses were knowingly using illegal labor.”
The times quotes the guidelines: “ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force.”
The article in full:
Immigration Agents to Turn Focus to Employers
By GINGER THOMPSON
Published: April 30, 2009
WASHINGTON — In an effort to crack down on illegal labor, the Department of Homeland Security intends to step up enforcement efforts against employers who knowingly hire such workers.
Under guidelines to be issued Thursday to Immigration and Customs Enforcement field offices, agents will be instructed to take aim at employers and supervisors for prosecution “through the use of carefully planned criminal investigations.”
Senior officials of the Homeland Security Department said Wednesday that illegal workers would continue to be detained in raids on workplaces. But the officials said they hoped to mark an abrupt departure from past practices by making those arrests as part of an effort to build criminal and civil cases against employers.
Under the Bush administration, the officials said, most raids were conducted largely on the basis of tips that an employer was hiring illegal workers, rather than on information gleaned from audits of employer records or undercover investigations. As a result, agents rounded up thousands of illegal immigrants but rarely developed the evidence necessary to show whether businesses were knowingly using illegal labor.
Last year, for example, nearly 6,000 people were arrested in workplace immigration raids across the country, but only 135 were employers or managers. The new guidelines, meant to provide a road map to agents who have been operating with little guidance and oversight from Washington, instruct them to pursue evidence against the employer before going after the workers.
“Enforcement efforts focused on employers better target the root causes of illegal immigration,” say the guidelines, a copy of which was obtained by The New York Times. “ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force.”
The rules could draw a storm of complaints from employers, who argue that they are easily duped by workers with bogus documents and that the government has not established a reliable system for verifying immigration status.
The rules are likely to win praise, though, from advocates who have long considered raids at work sites to be symbols of a crackdown that, they say, violates workers’ rights and divides immigrant families while ignoring employer abuses. Raising the bar on what is required to undertake such raids could result in fewer of them.
The guidelines are a significant step toward President Obama’s pledge to overhaul the nation’s immigration system. The president’s aides said recently that he would ask Congress this year to consider changes that among other things would give legal status to the estimated 12 million illegal immigrants now in the country.
But a worsening economy could weaken political support for such changes. In the meantime, the administration has begun a review of steps it can take without Congressional approval.
In his news conference Wednesday night, Mr. Obama restated his commitment to an immigration overhaul, saying the United States could not continue with a “broken” system. With regard specifically to workplace enforcement, he said he was looking for “a more thoughtful approach than just raids of a handful of workers, as opposed to, for example, taking seriously the violation of companies that sometimes are actively recruiting these workers to come in.”
“That’s something we can start doing administratively,” he added.
Among Janet Napolitano’s first acts as secretary of homeland security was to order reviews of many parts of the nation’s immigration system. Ms. Napolitano promised to stem the rising tide of illegal immigration by strengthening border enforcement and cracking down on employers who hire illegal immigrants.
Work on the guidelines that are to be issued Thursday began after a February raid against a mechanic shop in Bellingham, Wash., where 28 illegal workers were seized. Ms. Napolitano, angry in part that her office had not been notified about the raid, ordered a review, and a couple of weeks later ICE officials took possession of the employer’s files, released the immigrants from detention and gave them permission to work while they cooperated with an investigation of the company, Yamato Engine Specialists. That inquiry continues.
One senior official said ICE agents worked from a field manual offering a menu of strategies that can be used in pursuit of workplace enforcement. But the manual does not lay out the order in which the strategies should be employed, or explain the agency’s objectives. As a result, enforcement actions have been undertaken at the discretion of each field manager rather than Washington’s direction.
“That’s how you ended up with investigations that focused on low-hanging fruit,” the official said, “rather than on both the employers and the illegal workers that they intentionally hired.”
Among the most significant of the new guidelines is one in which agents are instructed to “obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. attorney’s office to prosecute the targeted employer, before arresting employees for civil immigration violations at a work site.”
The guidelines call on agents to seek civil penalties, including fines and disbarment from federal contracts, in cases where they do not have enough evidence to press criminal charges. And they require that at least 14 days before conducting a raid, the relevant field office notify ICE headquarters with information including a proposed strategy for prosecuting the employer.
They also require that rules involving humanitarian considerations be taken into account in raids on work sites that have at least 25 employees. Those rules, which previously applied to raids involving at least 150 workers, generally allow the authorities to release detainees who are sick or who are sole caregivers for small children.