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April 2011 Volume 18 Number 2
DHS: Border, Interior, USCIS, RICO
The Pew Hispanic Center estimated there were a peak 12 million unauthorized foreigners in the US in 2007 and 11.2 million in 2010; 58 percent were Mexicans and 23 percent were from other Latin American countries. California (2.6 million) and Texas (1.6 million) included almost 40 percent of the unauthorized.<< back
There were an estimated 8.4 million unauthorized foreigners in 2000, up from 3.5 million in 1990. The number of unauthorized foreigners more than doubled during the 1990s and rose by a third between 2000 and 2010. In 2010, there were 15 million naturalized US citizens, 12 million legal immigrants, and two million temporary migrants, such as foreign students and guest workers.
There were an estimated eight million unauthorized workers in 2010, down from a peak 8.4 million in 2007. Unauthorized foreigners were 3.7 percent of US residents and 5.2 percent of US workers in March 2010. States with the highest shares of unauthorized workers included Nevada (10 percent of all workers were unauthorized), California (9.7 percent), Texas (9 percent) and New Jersey (8.6 percent).
Border. President Obama hopes that "securing the Mexico-US border" will pave the way for comprehensive immigration reform that includes legalization for unauthorized foreigners. DHS Secretary Janet Napolitano in early 2011 asserted that crime and illegal crossings had dropped sharply along the Mexico-US border despite drug violence in Mexico, and that the Mexico-US border is "more secure than ever before."
Some House Republicans countered that the Obama administration has not "secured the border." Representative Duncan Hunter (R-CA) introduced the Unlawful Border Entry Prevention Act (HR 1091) to add 350 miles of fencing.
The US has erected fences and vehicle barriers on a third of the 2,000-mile Mexico-US border and hired 21,000 Border Patrol agents to deter illegal entries. Apprehensions of Mexicans and other foreigners just inside the Mexico-US border are falling. The Border Patrol apprehended 463,000 foreigners just inside US borders in FY10, down from 556,032 in FY09 and 1.7 million in FY00.
Both Mexican and US studies suggest that almost all migrants trying to enter the US from Mexico use smugglers. Smuggling charges are rising, from an average $1,000 in 2000 to $1,500 in 2007 (constant 2007 dollars), according to DHS estimates. Other studies estimate higher smuggling costs in 2000, but show a similar $500 rise in the cost of being smuggled into the US by 2007.
As land crossings become more difficult, more smugglers are using boats to bring Mexican and Latin American migrants onto San Diego beaches. About 856 migrants were apprehended at sea or on California beaches in 2010, double the number apprehended in 2009. Reports say that the smugglers can charge more, up to $6,000 a migrant, for the speed and relative ease of illegal entry by boat.
Interior-Criminals. DHS's Immigration and Customs Enforcement Agency is responsible for detecting and removing unauthorized foreigners from the US. For most of the past decade, ICE focused on detecting and removing unauthorized foreigners convicted of US crimes. A third of the 400,000 foreigners deported each year were convicted of non-immigration US crimes. ICE reported spending an average of $12,500 to arrest, detain and deport each unauthorized foreigner, a total of almost $5 billion in FY10.
ICE agents also detain and remove other unauthorized foreigners whom they encounter while seeking criminals. Migrant advocates complain that "innocent" unauthorized foreigners are swept up in enforcement sweeps aimed at foreigners convicted of US crimes. They also criticize the Secure Communities or 287(g) federal-state program that allows state and local police who receive special training on immigration laws to refer suspected unauthorized foreigners to ICE. Between 2008 and 2010, law enforcement agencies in 35 states referred 51,000 unauthorized foreigners to ICE. Most were detained and later removed from the US.
ICE plans to extend Secure Communities to all state and local governments by 2013; as of January 2011, 969 jurisdictions in 37 states were participating. The foreigners referred to ICE by state and local police vary widely in the type of crimes committed in the US. About 70 percent of those referred in Las Vegas had committed serious US crimes, compared with 20 percent in Cobb County, Georgia.
The 140,000-resident city of Escondido near San Diego has two ICE agents assigned to its police department. When Escondido police stop suspected unauthorized foreigners, they send information to these ICE agents, who can put immigration holds on, for instance, persons stopped for traffic violations. Escondido police say that only unauthorized foreigners with previous US criminal convictions are turned over to ICE. Local activists say that police target Hispanics who have committed "minor" crimes such as drunk driving.
Interior-Workplace. After comprehensive immigration reform failed in the Senate in 2007, ICE increased workplace raids, surrounding meatpacking and other workplaces and arresting unauthorized workers. Some of those arrested were charged with identity theft in addition to immigration violations. Workplace raids were denounced by employers who complained of disruptions, by unions for intimidating workers, and by migrant advocates who said that parents who lost jobs could not support their US-born children.
President Obama stopped workplace raids and increased audits of the I-9 forms that newly hired workers and their employers are required to complete to show that the worker is authorized to be employed in the US. ICE conducted 2,200 audits of employer I-9 forms in FY10, up from 1,400 in FY09, and filed 187 criminal charges against managers in FY10, up from 114 in FY09. Some $7 million in employer fines were collected in FY10, up from $1 million in FY09.
ICE says its audit strategy is based on "tips and intelligence" and that its 26 field offices in 2009-10 focused on auditing the I-9 forms of employers associated with "critical infrastructure." ICE had about 150 auditors to check I-9 forms at the beginning of 2011 and expects to have 200 by the end of 2011; it is opening a national support center to help audit large employers.
Migrant advocates complain that "silent raids" leave the parents of US citizen children unable to provide for them. Some attorneys complain that their employer clients are being fined for "minor" paperwork violations. Failure to complete I-9 forms properly can lead to civil fines of $1,100 for each "substantive" violation.
ICE bases fines on the share of an employer's I-9 forms that have problems. Abercrombie & Fitch paid $1 million for I-9 violations in September 2010 because its in-house software did not capture necessary information on new hires; no unauthorized workers were found. Lawyers warn employers that I-9 audits could lead to investigations by other agencies, including DOL and IRS, since ICE shares information with them.
After audits, employers may be sued by their employees. Former Chipotle workers in Minnesota sued in February 2011, alleging that Chipotle did not pay quickly enough the workers it terminated after an ICE audit in December 2010. Minnesota labor law requires terminated workers to be paid within 24 hours. Chipotle said it was hard to find some of the terminated workers to explain why they were not paid promptly.
A major risk for employers found to have hired unauthorized foreigners are RICO suits filed by legal workers who allege that the employer engaged in racketeering activity by hiring illegal workers in order to depress the wages of legal workers. Mohawk Industries in April 2010 agreed to pay $18 million to 48,000 current and former employees making such RICO allegations to settle their suit.
After I-9 audits, some employers enroll in E-Verify. In FY10, E-Verify handled 13.4 million queries, up from 8.7 million in FY09. In March 2011, USCIS reported that 225,000 US employers had submitted seven million queries in the first six months of FY11. Enrolling in E-Verify generally mitigates employer penalties in the event an I-9 audit finds unauthorized workers.
ICE acknowledges that the results of its I-9 audits are not guarantees that employees are legally present and authorized to work in the United States, since they are outputs of hiring actions, not outcomes of enforcement policies. ICE says that the goal of I-9 audits is to reduce the share of unauthorized workers in the US labor force.
ICE wants to expand IMAGE, the acronym for ICE Mutual Agreement between Government and Employers, a voluntary program that includes training to help a company avoid hiring illegal employees after undergoing an I-9 audit and enrolling in E-Verify. Tyson Foods, Inc., which has 100,000 employees, joined the 130 employers enrolled in IMAGE in January 2011, becoming the first major food processor to be IMAGE-certified. Tyson has participated in E-Verify to check new hires since 1998.
ICE agents raided Howard Industries of Laurel, Mississippi in August 2008, arresting 600 unauthorized workers at the maker of transformers and other industrial electrical equipment. In February 2011, Howard agreed to pay $2.5 million in fines for conspiring to employ illegal aliens. Howard's human resources manager pleaded guilty to conspiracy to violate immigration laws. He told workers "that they would be warned if immigration authorities were coming to the plant."
USCIS. USCIS, which operates the E-Verify system, in March 2011 announced E-Verify Self Check, which allows individuals to submit information to a web site to determine if they are authorized to work in the US (www.uscis.gov). Individuals provide identity and work eligibility information, and the self-check program crosschecks user-provided information against relevant Social Security and DHS databases and returns information on employment eligibility.
The purpose of Self Check is to allow individuals to correct mistakes in their records before applying for jobs. The results of Self Check are not shared with employers or DHS enforcement staff.
USCIS announced that 620,000 immigrants became naturalized US citizens in FY10. For the first time, USCIS issued the maximum 10,000 U-visas available to foreign victims of US crimes in FY10.
The US allowed Haitians in the US when the earthquake struck in January 2010 to apply for Temporary Protected Status, which allows foreigners to live and work in the US for 18 months. USCIS approved 46,000 of the 53,000 applications received during the year that Haitians could apply, and said that granting TPS to Haitians demonstrated the agency's ability to carry out a legalization program.
President Obama, in response to a question in March 2011, said that ICE cannot halt deportations of students who may be eligible for legalization under DREAM. A 2010 USCIS memo suggested that the Obama administration consider suspending removals of unauthorized foreigners who may qualify for legalization.
The US makes 40,000 immigrant visas a year available for foreigners and their families with "extraordinary ability." In recent years, fewer than 20,000 first-priority employment-based immigrant visas were issued to foreigners who satisfied the extraordinary ability criterion, and almost all went to foreigners already in the US. Canadian Nikolaos Skokos, the security consultant for Canadian singer Celine Dion, was turned down for an extraordinary ability visa and appealed in March 2011. USCIS argued that being in the entourage of an "alien of extraordinary ability" such as Dion did not qualify Skokos for an extraordinary ability visa.
Richard Marosi, "Border battle over illegal immigration shifts to beaches," Los Angeles Times, March 24, 2011. Passel, Jeffrey and D?Vera Cohn. 2011. Unauthorized Immigrant Population. National and State Trends, 2010. Pew Hispanic Center. February. http://pewhispanic.org/ Brian Bennett, "Republicans want a return to workplace immigration raids," Los Angeles Times, January 26, 2011. Miriam Jordan, "Crackdown on Illegal Workers Grows," Wall Street Journal, January 20, 2011.