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January 2012, Volume 19, Number 1

DHS: Border, Interior, USCIS

Border. Apprehensions of foreigners just inside the 1,969-mile Mexico-US border fell to 327,600 in FY11, down from 1.6 million in FY00 and the lowest number since the early 1970s. In FY11, the federal government removed more unauthorized foreigners than were apprehended just inside US borders.

CBP director Alan Bersin left the 57,000 employee, $11 billion agency at the end of 2011, when the US had 649 miles of fencing and vehicle barriers on the Mexico-US border.

Smugglers say that some would-be crossers pay $500 to others to create diversions so that they can sneak past Border Patrol agents, while others pay $3,000 for smugglers who guide them through unfenced deserts. The usual price for renting a legitimate US visa from a look-alike is $5,000.

CBP has 18,500 of its 21,500 Border Patrol agents on the Mexico-US border, half of whom were hired since 2006. Indictments of these officers for corruption are rising, in part because the hiring of more than 10 new agents per work day has put pressure on the investigators who conduct background checks, allowing some CBP officers with ties to smuggling rings to be hired.

Interior. There were an estimated 11.3 million unauthorized foreigners in the US in 2010, including 1.1 million children.

Immigration and Customs Enforcement Director John Morton testified October 12, 2011 that ICE deported 396,906 foreigners in FY10, including 55 percent convicted of US crimes, up from 392,862 in FY10; the average cost of deporting a foreigner is $23,000. About 72 percent of those removed in FY10 were Mexicans, followed by almost 20 percent from Guatemala, Honduras and El Salvador.

Morton said that ICE can remove about 400,000 unauthorized foreigners a year with its $2.8 billion budget. Since June 17, 2011, ICE has emphasized the removal of "criminal aliens, recent and serial border crossers, and national security threats." Admissionists welcomed the new policy, but complained that ICE is unevenly exercising "prosecutorial discretion" in deciding who to deport. Restrictionists called the new ICE policy "administrative amnesty."

Immigration lawyers charge that some ICE agents continue to urge the deportation of all unauthorized foreigners they encounter. President Obama has been criticized by Latino activists for deporting a record number of illegal immigrants.

Some 300,000 deportation cases are pending before immigration judges in the 59 immigration courts that are part of the US Department of Justice. In November 2011, ICE began to review pending deportation cases with the aim of focusing on those involving foreigners who committed crimes in the US. A directive sent to ICE attorneys stopped short of calling for low-priority cases to be terminated, but instructed attorneys to request "administrative closure" of low-priority cases, a process that puts removal proceedings on hold and frees the foreigner to work but gives the government the right to reactivate the case for deportation.

Secure Communities, the program under which state and local police have been checking the fingerprints of persons they detain against DHS databases since 2008, remains controversial, with stories of foreigners who had flat tires or committed minor traffic infractions resulting in detention and removal for immigration violations. Sometimes ICE tells state and local police to hold US citizens because its databases suggest they are foreigners.

The Los Angeles Times profiled Luis Luna on January 8, 2012. Luna, brought to the US when he was three, was stopped by police in Washington because of a broken head light, arrested for driving without a license, and deported to Mexico a year later after marrying a US citizen. Luna returned to Mexico, but is barred from re-entry because of his long period of unauthorized residence. He made several attempts to enter the US illegally, but was apprehended each time. Without family and friends in Mexico, Luna plans to keep trying to return to the US.

The New York Times on December 14, 2011 profiled several US citizens born in the US and foreigners who were naturalized US citizens who were arrested by state and local police and detained on orders of ICE. In several cases, ICE refused to lift its "immigration hold" on particular foreigners until the ACLU faxed copies of US birth certificates or passports to ICE proving that the persons in question were US citizens. ICE acknowledges that it has no right to arrest or detain US citizens.

ICE says that state and local police participation in Secure Communities will become mandatory in 2013.

Interior: Jobs. ICE Director Morton said that the agency's worksite enforcement strategy aims to penalize and deter employers from hiring unauthorized workers while encouraging employers to use DHS compliance tools such as E-Verify. Between January 2009 and October 2011, ICE audited the I-9 forms of over 5,900 employers and levied $76 million in fines. As a result of ICE audits, janitorial services firm ABM Industries and American Apparel had to dismiss workers and pay fines. ICE began over 3,000 worksite investigations in FY10, arrested 200 employers, and levied $9 million in fines on employers.

I-9 audits have been decried by migrant advocates as "silent raids" that sometimes force unauthorized foreigners to leave employers after they have worked up the job ladder; such workers typically begin anew at the bottom of the job ladder with another employer. Those who favor tougher action against unauthorized foreigners complain that I-9 audits simply circulate unauthorized foreigners between employers rather than remove them from the US. There may also be rising self-employment among unauthorized foreigners.

Denver-based Chipotle, a fast-food chain with 30,000 employees, saw worker turnover rise after I-9 audits removed some workers and caused Chipotle to enroll in E-Verify. About half of Chipotle's employees are Hispanic, and the restaurant chain tries to promote from within. Since Chipotle enrolled in E-Verify, restaurant managers have had to interview more applicants to find new employees.

An I-9 audit in summer 2011 at the 130-acre Matsuda's nursery in Sacramento found that 60 percent of the 100 full-time employees were unauthorized, including a foreman who had been employed for two decades and was earning $2,400 a month. The foreman and his wife lost their jobs at Matsuda and went to work for lower wages elsewhere. After the audit, Matsuda received hundreds of applications from legal Hispanic workers with experience working in agriculture for jobs that pay the California minimum wage of $8 an hour.

La Jolla baker French Gourmet paid almost $400,000 after pleading guilty to hiring more than 10 unauthorized workers in a 12-month period. The owner and manager admitted that they rehired unauthorized workers even after receiving no-match letters from the Social Security Administration advising the company that several employees' names did not match the Social Security numbers reported by the company on its tax returns. In May 2008, ICE arrested 28 unauthorized workers at French Gourmet.

USCIS. USCIS operates the E-Verify system that allows employers to check the legal status of newly hired workers. Beginning January 1, 2012, state laws made the largest employers in Louisiana, Tennessee, South Carolina and Georgia enroll in E-Verify.

USCIS administers immigration benefits, including processing the applications for immigrant visas for foreigners in the US, naturalizing US citizens, and processing requests for temporary work visas. USCIS is funded primarily by fees paid by applicants for immigration benefits.

USCIS announced that it would make it easier for unauthorized foreigners who are in the US and sponsored by their US relatives for immigration visas to obtain them. Unauthorized foreigners must usually leave the US and apply for immigrant visas in their countries of origin. However, those who have been in the US illegally cannot return legally for three or 10 years, depending on how long the foreigner was illegally in the US.

To expedite the re-entry of unauthorized foreigners who may otherwise be barred, USCIS in January 2012 said it would issue provisional "extreme hardship" waivers that set aside the three- and 10-year re-entry bars for foreigners with close family ties, giving them assurance that they will be permitted to return as immigrants.

USCIS administers the immigrant investor program, which makes up to 10,000 EB-5 immigrant visas a year available to foreigners who invest at least $500,000 in an area of the US deemed "economically distressed" and that create or preserve 10 jobs; some 3,800 investor visas were issued in FY11. In many cases, US firms package and market investment projects to foreigners seeking to immigrate to the US.

Media reports suggest that some "economically distressed" areas of New York City were created to attract foreign investors seeking immigrant visas. If an area has an unemployment rate at least 50 percent above the US average, the minimum investment for an immigrant visa is $500,000 rather than $1 million.

The US offers 50,000 diversity visas a year to nationals of countries that sent fewer than 50,000 immigrants to the US during the previous five years. Applicants apply on-line in October, and winners are drawn at random the following spring. If selected, applicants must prove they completed secondary school and undergo a security check.

In FY10, over half of the 15 million applicants were Bangladeshis (8.6 million applied), followed by two million Nigerians; 1.1 million Ukrainians; and almost 800,000 Ethiopians and another 800,000 Egyptians. In FY11, only eight million foreigners applied for diversity immigrant visas, perhaps because Bangladesh was for the first time excluded by its previous success. Nigerians submitted 1.4 million entries in FY11, Ghanaians 910,000, and Ukrainians 850,000.

Nick Miroff, "New fencing doesn't stop illegal crossings," Washington Post, December 30, 2011. Miriam Jordan, "Chipotle CEO: Fix Immigration," Wall Street Journal, December 19, 2011. Brian Bennett, "Obama administration showing leniency in immigration cases," Los Angeles Times, November 17, 2011. Julia Preston, "Deportations Under New U.S. Policy Are Inconsistent," New York Times, November 13, 2011.