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April 2010, Volume 17, Number 2

DHS: Border, Interior, Services

Mexico-US Border. The US is continuing to build fences to deter migrants and vehicles on the Mexico-US border; about 650 miles of fencing along the 2,000-mile border are completed. The fence has cost an average of $4 million a mile.

Fences in easy-to-cross border areas have pushed migrants seeking to enter the US illegally into more difficult terrain. The Border Patrol's San Diego sector, for example, has vehicle or pedestrian barriers on 40 of the sector's 60 miles. With DHS under Congressional pressure to fence the Mexico-US border, more fencing is being constructed in areas that critics contend do not need fencing, such as 3.6 miles of fencing that cost almost $60 million to build on the Otay Mountain east of San Diego.

DHS is abandoning the "virtual fence" of cameras, ground sensors and radar on the Mexico-US border. The planned $7 billion virtual fence, to be built by Boeing, was supposed to allow Border Patrol monitors to quickly detect unauthorized foreigners and help agents to apprehend them. After spending almost $700 million, DHS in winter 2010 concluded that the monitors could not easily distinguish wildlife from people and said that only a 23-mile stretch of virtual fence near Sasabe, Arizona would remain.

Western Union, accused by Arizona's Attorney General of facilitating smuggling and trafficking by wiring money from US relatives of migrants to smugglers, agreed in February 2010 to pay $94 million to settle the case. Arizona seized $17 million in wired funds between 2002 and 2006, forcing those making legitimate transfers to go to court to get their money back (their suit alleging that the AG's action was overbroad is pending). The Arizona Supreme Court ruled in June 2009 that the state had no authority to seize money going to Mexico, but did not rule out seizing money wired to Arizona-based smugglers, prompting the settlement.

The US Customs and Border Protection agency estimates that an average 22 million travelers enter the US each month, including US citizens and foreigners. In July 2008, CBP issued a memo to agents asserting that they may search the electronic devices of citizens and foreigners arriving in the US without first establishing any suspicion of wrongdoing. The three leading items searched by CBP agents at ports of entry are cell phones, laptop computers and digital cameras.

Arizona rancher Robert Krentz Jr. was killed on his 35,000-acre ranch in March 2010 near the Mexico-US border, prompting DHS to offer a $25,000 reward for information on his killers. Some speculated that Mexican drug-related violence was spilling into the US.

Interior. The Immigration and Customs Enforcement agency is auditing the I-9 forms of employers "suspected of cultivating illegal workplaces by knowingly employing illegal workers." In July 2009, ICE announced that it was auditing 652 employers and in November 2009 announced the audit of another 1,000 employers. In March 2010, ICE targeted 180 employers in southern states.

American Apparel, one of the employers audited in 2009, reported that it laid off "1,500 experienced manufacturing employees in the third and fourth quarters of 2009 following the completion of the previously-disclosed I-9" audit. The firm announced in March 2010 that the layoff of a third of its workers reduced the firm's output of brightly colored basic clothing; the price of its stock fell 20 percent. CEO Dov Charney has called for legalization and used "Legalize LA" as a slogan on billboards and T-shirts.

Gebbers Farms in Brewster, Washington, a 5,000-acre apple and cherry operation north of Wenatchee, was another US employer whose records were audited by ICE. After the audit, Gebbers sent letters to hundreds of field and warehouse workers just after Christmas 2009 advising them to clear up discrepancies in their records or be fired? 550 workers were eventually fired. Gebbers, considered a model farm employer, gave the fired workers until April 1, 2010 to vacate company housing.

The Yakima Herald-Republic reported than many of the fired Gebbers' workers plan to return to Mexico because they believe their unauthorized status will make it hard to find another US job. The paper also reported that word of the mass firing spread rapidly, and that new workers arrived in Brewster seeking to fill the vacant jobs at Gebbers.

Since January 1, 2008, Arizona employers have been required to participate in E-Verify. Under the Legal Arizona Workers Act, business licenses can be suspended or revoked if employers knowingly hire unauthorized workers. In December 2009, a now defunct firm, northeast Phoenix's Waterworld, became the first business to lose its business license for 10 days for violating Arizona's employer sanctions law.

Utah enacted legislation (SB 251) in March 2010 that provides liability protection from mistakes in the E-Verify database for private employers who participate in E-Verify; about 2,100 Utah employers participated in E-Verify when the bill was signed. The law, which goes into effect July 1, 2010, does not mandate that Utah employers participate in E-Verify. In states such as Tennessee, where employers who have state contracts can lose their business licenses if they knowingly employ unauthorized workers, employers are protected from losing their business licenses if they enroll in E-Verify.

In February 2010, ICE agents raided 14 van and bus firms in Houston that moved unauthorized migrants throughout the US at the behest of smugglers. The vans of one firm, Super Express Van Tours, were stopped by the police and the Border Patrol seven times between 2004 and 2009, and each time the driver was arrested for transporting illegal immigrants.

ICE often uses informants to build cases against smugglers and drug dealers; ICE reported spending $9.5 million on 2,800 informants in FY09. Many ICE informants are unauthorized foreigners who expect S-immigration visas that law enforcement agencies can recommend in exchange for assistance. Since 1994, a maximum 200 S-visas can be issued each year to criminal informants and 50 more to terrorism informants. These annual caps have never been reached, in part because law enforcement agencies do not have the final say whether an S-visa will be awarded? they can only recommend issuance of an S-visa.

ICE removed 387,000 foreigners in FY09, and set a target to remove 400,000 in FY10, including 150,000 criminals. A February 2010 memo suggested that ICE would continue to arrest any unauthorized foreigners it encounters while searching for foreign criminals, and try to deport those it apprehends even if they were not the target of an ICE search. ICE says that an average of 45 days are required to deport criminals, compared with 11 days for non-criminals. ICE agents in some districts were told to process 40 to 60 foreigners for deportation a month to earn "excellent" evaluations.

Under current immigration law, criminal sanctions can be imposed on US employers only if they engage in a "pattern or practice" of hiring unauthorized workers. A bill introduced in February 2010 (HR 4627) would allow employers to be imprisoned up to one year and be fined up to $2,500 each time an unauthorized worker is hired, with penalties rising for repeat violations.

The federal Racketeer Influenced and Corrupt Organizations Act (RICO) law is being used by some US workers seeking treble damages from employers who hired unauthorized workers to hold down wages. When US workers file RICO suits, employers often seek to have them dismissed, arguing that the hiring of a few unauthorized workers does not constitute a criminal conspiracy.

In April 2010, the 11th US Court of Appeals ruled that seven US workers may seek to prove that a Ruth's Chris Steak House franchise in Birmingham, Alabama engaged in a criminal conspiracy by asking current unauthorized workers to refer at least 10 unauthorized friends and relatives to fill vacant jobs within a year; they alleged that the purpose of this network hiring of unauthorized workers was to hold down wages. The Court of Appeals emphasized that Ruth's provided newly hired workers with Social Security Numbers if they did not have valid SSNs.

Lawyers in April 2010 were reportedly preparing a RICO suit against poultry processor Perdue Farms, alleging that Perdue hired unauthorized workers at 16 processing plants to hold down the wages of legal workers.

USCIS-E-Verify. USCIS operates the E-Verify program to check the work eligibility of newly hired workers. It had 182,000 participating employers early in 2010? employers submitted data on 8.7 million new hires in FY09. USCIS reported that 1,000 employers a week were enrolling in E-Verify.

A December 2009 Westat review of E-Verify concluded that E-Verify accurately screened 96 percent of workers for whom employers submitted data, correctly identifying people allowed to work in the US in 93 percent of cases and detecting three percent as unauthorized. In 3.3 percent of cases, illegal workers were mistaken for legal workers, and in 0.7 percent of cases individuals legally authorized to work in the US were not initially identified that way. However, Westat noted that E-Verify cannot determine whether a newly hired worker is presenting documents that belong to him/her, so "many unauthorized workers might obtain employment by committing identity fraud."

All federal contractors are required to enroll in E-Verify within 30 days of being awarded a government contract, 10 states use E-Verify to check the work-eligibility of newly hired state workers, and Arizona and Mississippi require all employers to use E-Verify.

The US Court of Appeals for the Tenth Circuit on February 2, 2010 ruled 2-1 that Oklahoma's law requiring contractors doing business with the state to use E-Verify to check new hires was lawful. Section 7(B) of the Oklahoma Taxpayer and Citizen Protection Act of 2007, which went into effect in 2008, requires state and local government agencies and private firms with state contractors to enroll in E-Verify.

The US Chamber of Commerce sued, arguing that the Immigration Reform and Control Act of 1986 made the federal government solely responsible for enforcing immigration laws. However, the Court of Appeals concluded that, since E-Verify was approved by Congress, it cannot be a violation of federal law to require employers to participate. IRCA expressly preempts state or local laws that impose civil or criminal sanctions on employers for hiring unauthorized workers, voiding Section 7(C) of the Oklahoma law, which allowed legal workers to sue their employer for discrimination if they are fired or laid off while unauthorized workers remain employed.

The US Court of Appeals for the Ninth Circuit upheld a similar Arizona law that requires all employers in Arizona to use E-Verify. The US Supreme Court is considering a challenge to this Ninth Circuit decision (US Chamber of Commerce v. Candelaria).

Spencer S. Hsu and Andrew Becker, "ICE officials set quotas to deport more illegal immigrants," Washington Post, March 27, 2010. Melisss Sanchez, "ICE audit in Brewster spreads worry in state ag industry," Yakima Herald-Republic, February 14, 2010.