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October 1997, Volume 4, Number 10

Enforcement and Databases

Border. The INS in June 1996 laid out the border-enforcement strategy exemplified by Gatekeeper and similar operations on the Mexican border. Concentrating many agents on the stretches where crossing is feasible aims to "make it so difficult and so costly to enter this country illegally that fewer individuals even try."

What is the probability of apprehension for an alien attempting entry? Sociologist Tom Espenshade in 1990 used Border Patrol data to estimate that the average probability of apprehension on any attempt between 1977 and 1988 was 32 percent, which means that two of three aliens attempting entry succeed in one try. Researchers using different data and models reached similar conclusions, so that the "30 percent" apprehension rule is widely quoted in immigration research.

Sociologist Doug Massey, using data from over 30 communities in west central Mexico that have long histories of sending migrants legally and illegally to the US, believes that the probability of apprehension has been falling, and is now closer to 20 percent. He believes that, as the Border Patrol assumes more responsibility for interdicting drugs, it has become less effective at preventing illegal immigration. The Binational Study of Migration emphasized that the probability of apprehension can fall despite stepped-up border control operations if more foreigners turn to smugglers to help them enter the US.

In San Diego, the number of INS inspectors increased from 127 in 1995 to 287 in 1997, and most of the bugs in the electronic fingerprint machines installed at the port and at Border Patrol stations in 1995 have reportedly been worked out. As one result, more foreigners who have been deported are being arrested and charged with "felony re-entry" to the US; some 400 were charged so far in FY97, compared with 50 per year in the past. Those arrested are detained, and the US attorney's office has prosecuted every one.

The US Coast Guard interdicted 287 Haitians, 1,147 Dominicans, 351 Cubans, and 240 Chinese during the first 11 months of FY97, including three boats carrying Chinese to the US, the M/V LAPAS No. 3 in August 1997, the M/V Captain Kevin in January 1997, and the M/V Xing Da in October 1996.

A couple operating a Houston-based van tour business was found guilty in federal court of transporting 23,000 unauthorized Mexican workers from Texas to the East Coast from mid-1995 to mid-1997, collecting $4 million per year from workers and labor contractors. Vans would drop off workers at tobacco and onion farms in the Carolinas and Virginia en route to New York City.

Operation Rio Grande plans to install 31 miles of floodlights along the border, prompting some environmentalists to complain that the lights will harm endangered wildlife. The INS announced that "There have been zero crossings by Mexicans" since the lights went up on August 26, 1997.

In El Paso, Operation Hold the Line is credited with sharply reducing illegal immigration through deterrence; some 286,000 aliens were apprehended in 1994; 146,000 in 1996; and 105,000 in the first nine months of FY97.

Employer Sanctions. The INS in Phoenix raided the 15-chain Filiberto's restaurants, as well as eight houses leased to employees by the restaurant. The INS apprehended 120 people in the restaurants and 71 in the houses. The restaurant chain was opened in 1993, and operated by Mexican immigrants; the INS is considering criminal charges. The raid is the culmination of a two-year old effort, Operation Restore, that aimed to open up jobs held by unauthorized workers for legal workers; 631 aliens were apprehended in the Phoenix area.

The INS warned the Omaha Packing Co to tighten its I-9 procedures after raids found 90 unauthorized workers; the INS also warned that some of the 600 I-9 forms on file were completed incorrectly.

Most employers do not seem to take sanctions enforcement seriously. The San Jose Mercury News on September 24, 1997 quoted a restaurant owner as saying: "These new laws won't have any effect on our supply of workers. When they deport a few, there are always more who take their places."

IIRIRA reduced from 29 to six the number of documents that newly hired workers could present to confirm their identity and work eligibility, and gave the INS until October 1, 1997 to establish a simplified list of acceptable verification, including a US passport, Social Security card, alien registration card, employment authorization document, driver's license, or state-issued identification card. The INS would like a 12-month extension of IIRIRA's for introducing the simplified system to educate employers.

Under IIRIRA, the INS by September 30, 1997 is supposed to introduce three four-year, voluntary pilot programs to test ways of providing effective and nondiscriminatory verification procedures, with a focus on electronic means of checking employment eligibility. INS expects 2,000 employers to participate. Employers participating in the pilot program cannot be penalized for hiring unauthorized workers if the confirmation system OK'd the hires.

INS is testing the so-called basic pilot, the citizen-attestation pilot, and the machine-readable document pilot. The basic pilot will use automated systems to verify the Social Security and alien registration numbers of newly hired workers in California, Texas, New York, Florida, and Illinois; the Social Security system can accommodate inquiries from only 2,000 employers at this time.

The citizen-attestation pilot is available to up to 1,000 employers in states that put photographs on driver's licenses and identification cards. The machine-readable pilot is limited to Iowa, because it has machine-readable Social Security numbers on driver licenses and identification cards.

Other Databases. Beginning October 1, 1997, the federal government will require states to provide information on the 60 million workers hired and re-hired in the US each year in the US to a new national database, the National Directory of New Hires. The purpose of the database is to expedite the enforcement of child-support payments. About 30 percent of the 19 million child-support cases involve parents who do not live in the same state with their children, and the database is expected to help states collect child support across state lines. About $12 billion in child support was collected in 1996.

Employers are expected to report to state agencies within 20 days information on all new hires, and the states then have eight days to send the information to Washington; employers can be fined $25 per worker for not reporting or for late reporting. States will determine what information employers must provide. Employers must also report their employees' wages quarterly; HHS will maintain a list of parents who owe child support and check its list against the list of newly hired workers.

Access to the new database is to be limited to welfare officials, plus IRS and SSA. A mother with a child will be able to determine the father's address, employer and earnings, and she can then use this information to adjust the amount of child support.

The Social Security Administration on September 21, 1997 issued a report that estimated that it would cost $10 billion and take 10 years to issue tamper-proof Social Security cards with pictures. For $10 billion, SSA would issue new cards to all Americans that include pictures, fingerprints, and work history and earnings; for $4 billion, new SSA cards that resemble credit cards could be issued. There are 277 million SSA accounts, and 268 million residents, reflecting the fact that some card holders have died, and SSA has not yet been notified, and some people with Social Security numbers have emigrated.

Union Rights. The US. Court of Appeals for the Second Circuit in September 1997 decided that an unauthorized worker who was reported by her employer to the INS in retaliation for union organizing activities could be deported (Montero v. Immigration and Naturalization Service, CA 2, No. 96-4130, 8/28/97). An Ecuadorian woman who was active in a Union of Needletrades, Industrial and Textile Employees campaign to organize workers at STC Knitting Inc in Long Island City, was reported by her employer to the INS. UNITE won an election to represent STC employees.

The employer asked the INS to check its workers' identification, which it did, and decided that several of the workers were unauthorized. The INS moved to deport the unauthorized workers, and an immigration judge and the Board of Immigration Appeals agreed that the unauthorized workers should be removed from the US.

On behalf of the unauthorized workers, UNITE argued that, because the INS only learned of their status through the employer's violation of the NLRA, the unauthorized workers should not be deported. The court said that it does not matter how the INS learns that a worker is in the US unlawfully; once located, unauthorized aliens can be deported.

According to the court, in drafting Section 274A of IRCA, the employer sanctions provisions, Congress did not intend to diminish existing labor protections. Thus, unauthorized workers, like most US workers, are protected from employer retaliation for union activities, but "prospective labor law remedies to undocumented aliens consistently has been dependent upon whether the alien is permitted by the INS to remain in the United States."

Asylum. IIRIRA changed the process of applying for asylum in the US, permitting immigration officials beginning April 1, 1997 to return persons arriving in the US without documents or with false documents to their countries of origin if they cannot demonstrate a "credible fear" of persecution. The New York Times on September 20, 1997 profiled an Albanian woman who became a plaintiff in a federal lawsuit challenging the IIRIRA's expedited removal procedures.

In 1996, some 3,600 foreigners with no documents or false documents asked for asylum at ports of entry to the United States. Since April 1, 1997, about 1,000 foreigners requested asylum at US airports, and about 80 percent were found to have a credible fear of persecution and permitted to remain in the US while their asylum applications were adjudicated; the other 20 percent were returned. Before 1994, when the US gave asylum applicants work authorization, there were about 15,000 requests per year; since then, the number has dropped.

Foreigners can be granted asylum in the US if they have a well-founded fear of persecution on grounds of race, religion, nationality, political opinion or membership in a social group. The Albanian woman claimed that she had been gang-raped because her husband refused to go south and fight during Albania's civil war in spring 1997. Her husband hid and the woman reported that she was gang raped by men seeking to recruit her husband in May 1997. Her brother-in-law provided $7,000 for a false passport and ticket to Boston, and the woman requested asylum upon arrival.

Neither the asylum officer nor the immigration judge found that the woman had a credible fear of persecution. The asylum officer wrote that there was no evidence that men were recruited to fight and that, in any event, "the avoidance of military service does not ordinarily form the basis for a valid political asylum claim."

Other. The Justice Department Inspector General released a report September 15, 1997 that concluded the Krome detention center near Miami was releasing criminal aliens with insufficient checks. INS managers deceived a congressional task force during a June 1995 visit to Miami to look into the overcrowding at Krome by releasing or transferring foreigners detained there.

Jennifer Mena and Marian Hinestrosa, "Time runs out for immigrants here illegally," San Jose Mercury News, September 24, 1997.