Image has not been found. URL: /wp-content/uploads/2009/05/portraitnapolitanohires.jpgHomeland Security Secretary Janet Napolitano (dhs.gov)
When Immigration and Customs Enforcement officials raided the Yamato Engine manufacturing plant in Bellingham, Washington in February, it wasn’t just the 28 workers they arrested who were taken by surprise. The Department of Homeland Security in Washington — of which ICE is a part — didn’t know the raid was going to happen, either.
“I didn’t know about it beforehand,” DHS Secretary Janet Napolitano told the House Homeland Security Committee the next morning. “I want to get to the bottom of this as well.”
Napolitano quickly put a hold on the controversial workplace raids, promising to create a new policy.
Last week, she indicated that she’d done just that as DHS issued new guidelines designed to govern the worksite raids. In an accompanying public “fact sheet”, DHS promised to target employers who hire undocumented workers instead of the workers themselves. DHS did not, however, promise to stop raiding worksites or arresting the illegal workers found there, leaving many advocates to wonder if the shift is more than window-dressing for the same old policy.
After all, President Bush’s Homeland Security Department had similarly pledged to target employers who hire illegal workers. “The days of treating employers who violate these laws by giving them the equivalent of a corporate parking ticket – those days are gone,” said Homeland Security Secretary Michael Chertoff in November 2007. “It’s now felonies, jail time, fines, and forfeitures.”
So how different are the new guidelines, and what do they signal about the administration’s support for a significant change in immigration policy?
“They’re saying they’re going to shift the focus from employees to employers,” said Jennifer Gordon, a law professor at Fordham University. “But they’re also explicitly saying they’re going to continue to carry out raids. If I were looking for guidance, I wouldn’t really know how to read that policy. Does it mean we’re not really doing raids, but not giving them up? I have a hard time reading into that.”
Mark Krikorian, director of the Center for Immigration Studies which advocates cracking down on illegal immigration and opposes legalization, agrees that the guidelines don’t represent a major change. “The new enforcement guidelines weren’t as bad as the anti-enforcement advocates hoped they’d be,” he said. “It made clear that illegal immigrants caught up in an enforcement action directed against an employer would still be taken into custody and deported.” The emphasis on employers, he says, “is not that new. Previous management at ICE had pursued criminal prosecution of employers as well.”
The guidelines do expand the use of so-called humanitarian guidelines developed by the Bush administration — designed to prevent prolonged imprisonment or deportation of some undocumented immigrants who are sole caregivers for small children or sick relatives — by applying them to workplaces with 25 or more illegal workers, rather than using the previous threshold of 150 illegal workers. Still, it doesn’t say that even these workers won’t be arrested, imprisoned or deported.
Many critics argue that worksite raids should be abolished altogether. At a rally in March in Chicago, Cardinal Francis George, head of the archdiocese there, called on the government “to end immigration raids and the separation of families” and support an overhaul of immigration law. House Speaker Nancy Pelosi (D-Calif.) and the Congressional Hispanic Caucus made similar calls a week earlier.
Under the Bush administration, arrests of undocumented immigrants grew 750 percent between 2002 and 2006, from 485 arrests to 3,667.
In addition to the humanitarian concerns, DHS critics complain that the raids deter workers from reporting employer violations of the labor and wage laws because employers can threaten to call ICE. They say workplace raids are also a failure if their goal is to target employers because they lead to the arrest of many more workers than bosses. In 2008, for example, large-scale raids resulted in more than 6,000 arrests, only 135 of whom were employers, according to DHS.
Krikorian calls that “political spin.” “There’s always going to be more employees than employers caught up in enforcement actions just because there are more workers than employers at a worksite. Also, it’s harder to make those cases against employers.”
Indeed, the law requires that the employer knowingly hired illegal workers. So long as the worker presents work authorization documents that “reasonably appear to be genuine and relate to the individual,” the employer is protected. Employers must record that information on what’s called an I-9 form, and submit that to the government. If a worker presents fake documents that look real, or that list a false social security number, the employer wouldn’t necessarily know that. So generally, only employers who don’t submit I-9′s for their workers at all, or fill them out fraudulently, or supply workers with the fake documents can be caught violating the law.
“DHS says they will target employers involved in smuggling undocumented workers or creating fake documents,” said Michelle Waslin, Senior Policy Analyst at the Immigration Policy Center, noting that her organization has had off-the-record conversations with DHS officials about the issue and says they’ve been receptive to advocates’ concerns. “But without a functioning immigration system, trying to go worker by worker or employer by employer doesn’t make sense.”
In fact, DHS could get much of the information it needs about employers simply by auditing their I-9 forms. “They can also question employees without arresting them, or give employees immunity from immigration consequences if they agree to testify against the employer,” said Gordon. “Any of these approaches is preferable to using raids as an investigative tool.”
Although Krikorian says on the one hand that “you need to have raids, just as you need to have speed traps or IRS audits,” he doesn’t disagree that they’re costly and not very effective. “It’s a question of prioritizing your resources. It is at least plausible to say that if you put the same resources into audits and prosecutions, you’ll get the same or maybe even better results. As long as you follow through to do that kind of enforcement.”
The new DHS guidelines make clear that the Obama administration is not prepared to give up on workplace raids anytime soon. Because they tend to get local media coverage, raids are an easy way for the government to call attention to its immigration enforcement efforts. “For an administration that wants to seem tough on immigrants, raids provide good theater,” said Gordon.
How ICE uses those raids going forward will depend in part on how much DHS headquarters in Washington tries to control the actions of local ICE offices. In the past, local ICE offices responded primarily to tips about a particular factory. The new guidelines suggest, and DHS officials have said, that Napolitano wants to use raids as part of more comprehensive and targeted investigations of employers. The new guidelines require ICE offices to “obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office” to prosecute the employer before arresting employees for civil immigration violations, for instance.
Presumably, after the Bellingham incident, DHS will also require ICE to notify Secretary Napolitano’s office before raiding a workplace and arresting the dozens of undocumented workers they find there.