By Marcelo Ballvé, New America Media
The Obama administration had long promised to shift the focus of
immigration enforcement from workers to employers.
In real terms, that means less of the high-profile raids like those at
electronics and meatpacking plants in Postville, Iowa and Laurel, Miss.
that characterized the last years of the Bush administration. Those led
to the arrests of hundreds of immigrant workers, but only a trickle of
employer prosecutions.
Instead, as John Morton, assistant secretary of Homeland Security under
President Obama, promised in a rare public speech earlier this year at
the Migration Policy Institute in Washington, D.C., his agency would “focus on the employer” and pursue “aggressive criminal and civil
enforcement against (employers) who knowingly violate the law.”
“But it hasn’t been done,” said Crystal Williams, executive director of
the American Immigration Lawyers Association (AILA).
Although Immigration and Customs Enforcement (ICE) worksite arrests
appear to be trending down, worksite raids continue. I-9 or Employment
Eligibility Verification audits designed to spot unauthorized workforces
have leapt in number. Meanwhile, ICE’s own statistics — which the
agency shared with New America Media — show that the agency’s efforts to
investigate employers have yet to yield an increase in prosecutions.
In fact, the opposite happened — ICE brought less charges against
employers in 2009 than it had the previous year.
In the 2008 fiscal year, still under President Bush, ICE brought
criminal charges against 135 business managers, supervisors and owners
as part of immigration investigations.
In the next fiscal year — which ended in September 2009 after President
Obama’s first eight months in office — ICE brought criminal charges
against 114 employers, a 16 percent decrease.
Clearly, “white-collar” cases against employers who profit from the
broken immigration system are harder to prove than run-of-the-mill
immigration arrests.
But the number of employer cases appears as a “miniscule proportion”
when set alongside the total prosecutions initiated by ICE, said
Williams of AILA.
Taken together, the total number of ICE cases referred to the federal
courts ballooned to 20,411 in fiscal year 2009 — a 12 percent increase
over the prior year — according to data from the Transactional Records
Clearinghouse (TRAC) at Syracuse University.
These prosecutions take in everything from counterfeit toothpaste to
drug trafficking, but the bulk of the cases were relatively minor
immigration charges. Just over half (10,346), according to TRAC, were
for entry or re-entry of undocumented immigrants.
The large number of lower-level immigration prosecutions has immigrant
advocates worried that the agency’s focus is still on quantity rather
than quality.
Of course, new priorities take a while to trickle through a
law-enforcement agency as large as ICE. The agency has more than 7,000
agents and is the federal government’s second-largest investigative
force after the FBI.
“They are trying to do what they say they’re trying to do,” said Donald
M. Kerwin, Jr., vice president for programs at the Migration Policy
Institute. “Give them a couple of years to turn the ship around.”
It may be well be that this fiscal year, which began Oct. 1, 2009, proves
a turning point for worksite enforcement.
In December 2009 ICE prosecuted 6 percent fewer total cases than in the
same month the prior year, a drop driven mainly by a decline in charges
for illegal entry, a charge for which those convicted are rarely sent to
prison, according to TRAC.
Kerwin of the Migration Policy Institute sees this decline in
prosecutions as a possible sign the agency is re-ordering its priorities
to focus on serious and flagrant violators of immigration laws such as
exploitative employers.
And so far this fiscal year, ICE has initiated 1,687 investigations
against employers, more than the entire previous year combined, said
Harold Ort, ICE spokesman in Newark.
These cases include an ongoing investigation in the Baltimore area that
last month led to raids on two Maryland restaurants, as well as several
homes and businesses.
The sweep was meant “to ensure that employers are held accountable for
maintaining a legal workforce,” William Winter, ICE special agent in
charge of Baltimore, said in a press release issued after the raid.
Yet no employers were charged in connection with the Maryland raids. The
only arrests were non-criminal administrative detentions of 29
immigrants in the country unlawfully.
The absence of immediate charges against business owners or managers is
not unusual. The lag-time between raids and charges against employers
can be years.
But when raids are not quickly followed by high-level charges or
indictments, it reinforces the perception that it’s still employees and
not their bosses who are bearing the brunt of enforcement. They are the
ones being scooped up by ICE and fired en masse.
“This is not an acceptable way to treat members of our community,” said
Gustavo Torres, executive director of the CASA de Maryland immigrant
rights group, after the Baltimore-area raids.
ICE has no choice but to enforce the law when encountering undocumented
immigrants in the course of employer-targeted investigations, said
agency spokesman Ort.
Ort also defended the audits of I-9 forms as a powerful tool in
detecting unscrupulous employers, immigration-related fraud, and
fineable employment offenses.
“We consider … employee records as important as tax or income records,”
he said.
As a federal agency in charge of the politically sensitive task of
immigration enforcement, ICE must endure criticism from both sides of
the immigration debate.
On the one hand, immigrant advocates castigate the agency as a callous
enforcer that terrorizes immigrant communities through raids such as
last week’s sweep of Arizona shuttle van installations or I-9 audits
(which advocates call “paper raids”).
On the other hand, activists and elected officials with more
uncompromising law-and-order views on immigration prod the agency to be
more aggressive and make as many arrests as possible.
On March 18 — just a week after the raids in nearby Maryland — ICE
assistant secretary John Morton testified on Capitol Hill before the
House Appropriations Homeland Security Subcommittee about his agency’s
budget request of $5.5 billion for the 2011 fiscal year.
Morton received a tongue-lashing from a Kentucky legislator.
Rep. Hal Rogers, a Republican, pointed out that while I-9 audits of
businesses had increased by 187 percent to more than 1,100 in fiscal
year 2009, at the same time there had been a drop in worksite arrests of
undocumented immigrants.
“When I look at the shift in ICE’s focus over the last year, I’m deeply
concerned,” said Rogers, according to a transcript of the hearing. “It
appears as though immigration enforcement is being shelved and the
administration is attempting to enact some sort of selective amnesty
under the cover of prioritization.”
For Frank Sharry, executive director of immigrant advocacy group
America’s Voice, only comprehensive immigration reform that modernizes
the system as a whole will free up immigration enforcement to balance
priorities and focus on illegal hiring and unfair labor practices.
In the current climate, federal immigration authorities certainly do
feel pressure to deliver politically expedient statistics.
This pressure was put on public view by the Washington Post’s March 27
publication of internal memos in which a top ICE official discussed
deportation quotas. In a written statement, Assistant Secretary Morton
said most of the memo obtained by the newspaper did not reflect ICE
policy, and added, “We definitively do not set quotas.”
Still, Morton himself was not above promising improved numbers as he was
grilled on the 2010 drop in worksite enforcement arrests during the
March 18 appropriations hearing.
“I am very focused on getting that up,” Morton replied.