Interior Immigration Enforcement — Musical Chairs

December 2009

The Obama Administration has launched a new worksite enforcement policy that ostensibly is aimed at employers and avoids the arrests of illegal workers that was an integral aspect of previous enforcement efforts. As Department of Homeland Security (DHS) Secretary Napolitano described it in a November 13, 2009 policy address, "[W]e've transformed worksite enforcement to truly address the demand side of illegal immigration. We are auditing the books of thousands of employers suspected of relying on illegal labor to achieve an unfair advantage in the marketplace."

"Addressing the demand side" presumably means going after the employers who supply the jobs rather than the supply side, meaning the illegal workers. But, does the new policy really go after the employers? How does it differ from the interior enforcement policy inherited from the Bush Administration? As explained below, the new policy will likely have the effect of undermining any effective prosecution of employers for deliberately hiring illegal alien workers in order to hold down payroll costs and to have a more malleable and easily exploitable workforce. That is the antithesis of going after employers.

The new policy centers on an increase in audits of the I-9 forms that have been required of all employees since 1986. When discrepancies between the information on the I-9 form and Social Security Administration records and/or immigration records are found, employers are required to terminate those workers found to be using fake Social Security numbers, immigration documents or identity documents or face penalties. This action is only a form of penalty on the employer in that it means new workers will have to be hired to replace the illegal workers. Similarly, the cost to the illegal alien worker is not detention and deportation, but simply the need to find a new employer. In this new interior enforcement policy, the alien is free to reuse the same fake documents to apply for a job with another employer. In that sense, the policy is a form of musical chairs for the illegal alien worker.

According to Minnesota Public Radio News on November 9, 2009, Mark Cangemi, a retired DHS official, commented on the new Obama Administration policy; "Why give people an opportunity to leave the employment without taking any action against them as individuals? Put them into proceedings. Let them argue their case. If they have a case that allows them to remain in the United States under the law, so be it. If they don't, then the law stands to be enforced."

Despite the description by the Obama Administration of this new policy as tough on employers of illegal aliens, it is likely that prosecutions of employers will rapidly decrease. The reason for this is that the common use of fake work-related documents make it unlikely that an employer can be proven to have knowingly hired illegal workers without the cooperation of the workers themselves. In order to obtain that cooperation, DHS under the Bush Administration effectively used the leverage of deportation proceedings against apprehended illegal alien workers to obtain cooperation with an investigation. With the new Obama Administration policy of document audits and no detention of the illegal workers, it will be difficult to prosecute an employer without the cooperation of someone inside the company.

What is lost with the new interior enforcement policy is the demonstration effect for employers that they run a serious risk of prosecution if they continue to knowingly hire illegal aliens. As long as they believe they will not face the fines and possible prison sentences provided in the law, the current enforcement strategy constitutes a minor inconvenience at most.

The change in policies that occurred with the change in administration can be seen by comparing the prosecutions described in our issue brief Interior Immigration Enforcement — Breaking the Law Doesn't Pay with interior enforcement cases since then. In addition to the 13 employer prosecutions in 2007 and 26 in 2008, most of the 10 prosecutions listed in 2009 resulted from cases begun during 2008. The first test of the new Obama Administration stance arose shortly after the inauguration.

Bellingham — On February 24, 2009 DHS agents raided the Yamato Engine Specialists Company in Bellingham, Washington and detained 28 illegal alien workers. This action, which was the culmination of an investigation begun during the Bush Administration, took the Obama Administration by surprise. Testifying before Congress the next day, Secretary Napolitano told lawmakers that she had not been informed about the raid and launched an investigation.

According to a CNN account of April 17, 2009, "...shortly after Napolitano ordered a review of the Bellingham case the immigrant workers who were still in immigration detention were released. They were given temporary work permits and, according to a local immigrant rights advocate, the DHS agents "drove them to the place where they had to go to fill out the paperwork for the work permits. That is totally unheard of." The outcome of this investigation is still pending, but it seems probable that the career DHS employees who authorized the raid believed that sufficient information was available to prosecute the employer.

Los Angeles — In July 2009, Fox Business News reported that American Apparel was going to lay off 1,600 employees as a result of an audit by DHS of its employment records. The investigation of the firm, which was begun under the Bush Administration, resulted under the Obama Administration with a negotiated agreement for the firm to lay off up to one-fourth of its workforce with no fines or prosecutions. Unlike interior enforcement actions under the Bush Administration, none of the illegal Alien American Apparel workers were detained.

Minneapolis — In October 2009, an ICE investigation launched in June resulted in the firing of 1,200 illegal alien janitors for having false work-related documents. They were working for ABM, a San Francisco-based contract company that cleans office buildings.

The company apparently had little trouble replacing the illegal workers. Minnesota Public Radio (MPR) reported November 9, 2009 that ABM’s website stated that it was no longer hiring to fill those jobs. One of the fired ABM janitors told MPR that he had found a new employer and was working cleaning homes, albeit at a wage lower than the $13 per hour made working for ABM. The fired janitor also noted that three siblings who worked for the same company had left with their familes — including U.S.-born children — to return to Mexico.

These cases clearly document how the musical chairs strategy of the Obama Administration differs from the preceding detention, removal, and prosecution policy. Remember that in the game of musical chairs someone ends up without a chair and is eliminated from the game. A slow process of encouraging illegal alien workers to leave the country may result from this policy as long as new jobs are difficult to find. However, that is less likely if employment opportunities increase. As a spokesperson for an immigrant rights group in Minneapolis commented to MPR about the fired janitors, most of those who have no current chance to gain legal status will probably try to wait it out, hoping for the laws to change so they can work here legally.