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July 2011, Volume 17, Number 3

DHS: Border, Interior Enforcement

Apprehensions of unauthorized foreigners just inside the Mexico-US border dropped from 1.7 million in FY2000 to 463,000 in FY10. The number of apprehensions, which averaged about 1.1 million a year between 2004 and 2006, has been falling steadily. There were 877,000 apprehensions in FY07, 724,000 in FY08, and 556,000 in FY09. Over 95 percent of Border Patrol apprehensions occur on the Mexico-US border, and over 85 percent of those apprehended are Mexicans.

The number of Border Patrol agents increased from 9,200 in FY2000 to 20,600 in FY2010. More agents, fewer apprehensions, and an enforcement strategy that assigns agents to one spot, the so-called X-spot, to look for unauthorized entrants has led to complaints of boredom on the part of agents.

In June 2011, a Mexican throwing rocks at Border Patrol agents was shot and killed by the agents. Critics including the ACLU asked that Border Patrol policy be changed to prohibit shooting in response to rocks, which are often thrown on behalf of smugglers to distract Border Patrol agents.

Smugglers or coyotes are increasingly using cell phones to warn migrants trying to enter the US of the presence of Border Patrol agents. The expanding number of agents and fences make illegal entry more difficult. Most smugglers station lookouts with high-powered binoculars on hillsides in Mexico to guide groups of migrants past the Border Patrol. Many migrants carry cell phones to receive text messages from these guides and to let their relatives know of their progress through the desert. Cell phones are also sometimes used to call the Border Patrol for help.

Work Place. President Bush in summer 2007 encouraged DHS's Immigration and Customs Enforcement agency to increase workplace raids after the failure of comprehensive immigration reform in the Senate. President Obama stopped workplace raids and encouraged audits of employer hiring records. These so-called "silent raids" often lead to the dismissal of workers who provide false documents to get hired and sometimes result in criminal prosecutions of employers. They do not necessarily result in the removal of unauthorized workers.

In the first nine months of FY11, ICE began audits at over 2,300 businesses of the I-9 forms completed by newly hired workers and their employers. ICE charged over 155 employers with criminal violations of immigration laws, and levied over $7 million in fines.

ICE agents arrested the owners of the Arizona-based Chuy's Mesquite Broiler restaurants in April 20, 2011. Working with the IRS, ICE alleged that Chuy's owners and their accountants created two payrolls just before Arizona's law requiring state employers to use E-Verify to check new hires went into effect in January 2008. Chuy's paid unauthorized kitchen workers in cash and did not pay social security and other payroll taxes on their wages. The evasion of payroll taxes charges carry more severe penalties than the hiring of unauthorized workers.

Of the 42 Chuy's workers arrested, 13 were detained or deported. The others were allowed to remain in the US as witnesses or scheduled for hearings in immigration courts.

ICE launched a criminal inquiry of Denver-based Chipotle Mexican Grill, which had 1,084 US restaurants and sales of $1.8 billion in 2010, after I-9 audits resulted in the termination of 450 Chipotle workers at 50 restaurants in Minnesota that employ about 1,200 workers. ICE in January 2011 extended its investigation of Chipotle to 60 Washington-DC area restaurants, resulting in the termination of 60 workers and the launch of a criminal probe of the firm's hiring practices. Chipotle said that employment averages 27,000 workers and, given 100 percent turnover, makes 27,000 hires a year.

Expanded use of E-Verify, required of federal contractors and of all employers in an increasing number of states, is making it harder for unauthorized workers to get hired with false documents; some 250,000 US employers were using E-Verify in June 2011. Workers may self-check their right to work, but E-Verify is to be used by employers only after they offer a job to a worker. HR 2064, introduced in June 2011, would allow employers to check on the legal status of applicants before they are offered jobs.

The Social Security Administration in 2011 resumed sending no-match letters to employers who paid Social Security taxes in 2010 on behalf of workers for whom the name and SSN information submitted do not match SSA records. After immigration reform failed in the Senate in 2007, DHS proposed to use the receipt of a no-match letter as one indicator that an employer knew an employee might be unauthorized. An injunction prevented sending no-match letters with DHS notices, and SSA did not send any no-match letters for earnings in 2007, 2008 and 2009.

After employers advise employees of a no-match letter, many employees quit rather than correct the information, which can increase the circulation of unauthorized workers from one employer to another. Workers could return to their original employer with another set of false documents and work with little risk to the employer for at least a year.

Secure Communities. The Secure Communities program, launched in 2008 and operated in 42 states and over 1,300 local jurisdictions in June 2011, enables state and local police to send the fingerprints of persons they arrest to the FBI, which shares them with ICE, which can place immigration holds on suspected unauthorized foreigners and seek their removal. ICE says that Secure Communities helped to locate 72,000 foreigners convicted of US crimes, including 28,000 or 35 percent who had committed major violent offenses in the US. Critics say that between 2008 and 2011, 55 percent of foreigners identified via Secure Communities committed misdemeanors or were arrested but not convicted of US crimes.

Migrant advocates complain that Secure Communities is ensnaring unauthorized foreigners arrested for misdemeanors rather than criminals and reducing migrant cooperation with state and local police. Local governments in so-called sanctuary cities such as San Francisco want to restrict the access of ICE to foreigners arrested for violent crimes, so that those arrested for domestic violence and juveniles would not be targeted for removal.

ICE, which deports about 400,000 foreigners a year, says all states and counties must participate in Secure Communities by 2013. However, Illinois, Massachusetts, New York and Washington refused to join or withdrew from Secure Communities. The California Assembly in May 2011 approved a bill that would require counties that want to participate in Secure Communities to enact a local ordinance to do so, and seven members of California's congressional delegation in June 2011 called on Governor Brown to withdraw California, which has almost a quarter of the country's 11 million unauthorized foreigners, from Secure Communities.

DHS removed 387,200 foreigners in FY10, down slightly from FY09, including 44 percent convicted of US crimes. About 73 percent of those removed were Mexican, followed by eight percent Guatemalans, six percent Hondurans and five percent Salvadorans.

In June 2011, ICE announced that its agents would be given more authority to exercise "prosecutorial discretion" and focus on foreigners convicted of US crimes, that is, to defer or cancel removal proceedings for unauthorized foreigners who have been in the US a long time or could eventually be legalized under the DREAM Act. ICE is creating an advisory committee that includes migrant advocates to consider whether to allow unauthorized foreigners arrested for minor traffic offenses to avoid detention and removal.

DHS and DOL signed an MOU in March 2011 that bars joint DOL-DHS enforcement activities. The MOU also obliges ICE to refrain from worksite enforcement at firms that have active DOL investigations.

Julia Preston, "A Crackdown on Employing Illegal Workers," New York Times, May 30, 2011. Steve Raabe, "Chipotle Mexican Grill under scrutiny as federal immigration investigation expands," Denver Post, May 8, 2011. Lee Romney and Paloma Esquivel, "Noncriminals swept up in federal deportation program," Los Angeles Times, April 25, 2011.