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October 2012, Volume 19, Number 4

DHS: Border, Interior

Border. The US Border Patrol apprehended 340,000 foreigners just inside US borders in FY11, including 96 percent apprehended on the Mexico-US border. The number of Border Patrol apprehensions has been declining from 1.6 million in FY00. There were 21,400 Border Patrol agents at the beginning of 2012, of whom 86 percent were on the Mexico-US border.

More unaccompanied minors from Mexico and Central America are being apprehended just inside the Mexico-US border, almost 2,000 a month in FY12. Many of those apprehended have parents living illegally in the US who pay smugglers up to $5,000 each to bring their children into the US. Children from Mexico are often returned without formal hearings, while those from Central America go before immigration judges.

Interior: Secure Communities. The Immigration and Customs Enforcement (ICE) agency, which enforces immigration laws inside the US, has been removing or deporting almost 400,000 foreigners a year, over half convicted of US crimes. Almost three-fourths of those deported are Mexicans.

Some 391,953 foreign-born people were removed in FY11, including 188,000 who were convicted of US crimes, and 400,000 in FY12, including almost half convicted of US crimes.

One reason that deportations are rising is that Secure Communities, a federal-state program that checks the fingerprints of persons arrested by state and local police against FBI and DHS databases, has identified more unauthorized foreigners. To quell the backlash against the deportation of unauthorized foreigners whose only offense was illegal presence in the US, President Obama in summer 2011 ordered ICE to review pending deportation cases to identify foreigners whom the government may elect not to deport, including those with close US relatives, those who arrived as children, and those who served in the US military.

After a year and review of 300,000 cases, fewer than 5,000 were closed, meaning that ICE is no longer seeking to deport the foreigner in question, although the government could reopen deportation proceedings at any time. Another 20,000 cases under review may result in a suspension of deportation.

Jose Antonio Vargas, an unauthorized Filipino and a former reporter at the Washington Post, was arrested in October 2012 in Minnesota for wearing headphones while driving. Police learned that his Washington state license had been revoked, but ICE removed its hold on Vargas after determining that he was not a "public-safety" threat. Vargas disclosed his unauthorized status in a June 2011 article in The New York Times Magazine that prompted the revocation of his driver's license.

The unauthorized foreigners detected by Secure Communities are not always detained by state or local police for ICE. A Congressional Research Service review of almost 160,000 suspected unauthorized foreigners who were arrested by state or local police but not taken into custody by ICE found that 1,800, a sixth, were arrested again for serious offenses. For comparison, 43 percent of all prisoners released in 2004 were returned to prison within three years.

Chicago Mayor Rahm Emanuel in July 2012 announced a new ordinance that would bar police officers from turning illegal migrants they arrest over to federal agents if they do not have serious criminal convictions or outstanding criminal warrants. Chicago's so-called sanctuary policy violates the Secure Communities program, which requires state and local police to submit the fingerprints of persons arrested to DHS to check their legal status. DHS can place 48-hour "holds" on unauthorized foreigners who are identified in this manner.

The California Legislature enacted a similar Trust Act (AB 1081) in August 2012, but it was vetoed by Governor Jerry Brown after opposition from some county sheriffs who said they would ignore the Trust Act because federal law pre-empts state law. However, the City of Los Angeles announced in October 2012 that it would stop honoring requests from ICE to detain unauthorized foreigners arrested for nonviolent offenses such as driving without a license. Earlier in 2012, Los Angeles police received discretion not to impound cars driven by unlicensed drivers.

Los Angeles Mayor Antonio Villaraigosa wants to issue city photo ID cards that could also serve as ATM cards for residents without bank accounts to obtain banking services; those seeking cards would pay $10 to $20 to cover the cost. San Francisco and Oakland issue photo ID cards to anyone who can prove residency.

Some Republicans urged DHS to sue Chicago and other state and local governments that enact sanctuary policies.

Interior: I-9 Audits. The Social Security Administration, which in 2011 resumed sending no-match letters to employers who paid Social Security taxes on behalf of workers for whom the name and SSN information submitted do not match SSA records, stopped sending no-match letters in 2012.

After immigration reform failed in the Senate in 2007, ICE proposed that employers who receive no-match letters should consider themselves to know that they may have an employee who is unauthorized. If employers took no action in response to no-match letters, ICE proposed to fine them for knowingly hiring unauthorized workers. An injunction prevented SSA sending no-match letters that included ICE notices warning employers of ICE's interpretation of no-match, and SSA did not send any no-match letters for earnings in 2007, 2008 and 2009.

Instead of no-match letters, ICE conducts audits of the I-9 forms completed by newly hired workers and their employers to identify suspected unauthorized workers. In FY12, ICE conducted almost 4,000 I-9 audits, more than double the number in 2009; ICE says that it often audits employers after it receives tips from competitors or ex-employees.

Some 400,000 US employers are enrolled in E-Verify, about seven percent of the 5.7 million US employers, including 31,000 California employers. About a seventh of the employers who sign up for E-Verify say they do so in order to avoid an I-9 audit. E-Verify was extended until September 30, 2015 by S 3245, signed into law in September 2012.

According to farmers, ICE has changed its policy on terminating workers after I-9 audits. Previously, ICE gave employers at least 60 days to notify workers identified in I-9 audits that their documents were suspect and have them contact SSA or DHS to clear up discrepancies. ICE in summer 2012 was reportedly giving employers just 10 days to have workers clear up discrepancies before terminating them.

The Mi Pueblo Food Center, a $300 million 21-unit Mexican-themed grocery chain in the Bay Area, was founded by Juvenal Chavez when he was an unauthorized migrant. Employees are bilingual and wear name tags that list their Mexican hometowns. Mi Pueblo in August 2012 announced that it was joining E-Verify, generating threats of a boycott from migrant rights groups.

Howard Industries, a Mississippi manufacturer raided by ICE in 2008, agreed to pay $1.3 million to settle a class action suit alleging that Howard unlawfully discriminated against non-Hispanic job applicants. Four plaintiffs who were not hired alleged that Howard preferred to hire Hispanics, mostly unauthorized Mexicans. Howard paid a $2.5 million fine in 2011 for conspiring to hire unauthorized workers, and will pay $350 to $2,000 each to applicants who were not hired.

The US Court of Appeals for the Third Circuit in August 2012 decided that unauthorized migrants who were not paid the minimum wage while employed by contractors cleaning stores cannot bring a class action suit under the Fair Labor Standards Act against Wal-Mart. The Court ruled that the workers were not "similarly situated" since they worked for 70 contractors in 33 states, and that Wal-Mart was not guilty of RICO violations for transporting and harboring illegal migrants. The suit was filed after ICE conducted workplace raids at Wal-Mart stores in 2003.

ICE operates SEVIS, the database that monitors foreign students while they are in the US. A GAO report released in July 2012 found that a third of the 434 US flight schools that admit foreign students were not certified by the states in which they operate to provide flight training, raising questions about their ability to train students. Tri-Valley University of Pleasanton, California was found to have admitted foreigners so they could obtain student visas and work part time. Tri-Valley did not provide classes for the admitted students, most of whom were Indians.

USCIS. All federal contractors and 18 states require some or all of their employers to use E-Verify to check the status of new hires against government data bases, while California and Illinois enacted legislation that limits the ability of local governments to require employers to use E-Verify. Six states require all employers to use E-Verify: Alabama, Arizona, Georgia, Mississippi, North Carolina and South Carolina, while five require only public employers and contractors to use E-Verify: Indiana, Missouri, Nebraska, Oklahoma and Virginia. Three states, Colorado, Tennessee and Utah, encourage but do not require usage of E-Verify.

DHS's US Citizenship and Immigration Services (USCIS) agency, which operates E-Verify, reported that 98.3 percent of the 15.6 million new-hire queries submitted in FY10 were confirmed as work-authorized in less than five seconds. The remaining 1.7 percent of queries generated tentative non-confirmations, which prompt employers to inform workers in writing and ask them to contact USCIS and clear up discrepancies. About 18 percent or 47,000 employees were later confirmed as work-authorized; almost all of the remaining 218,000 employees quit.

A major effect of E-Verify is to deter unauthorized foreigners without "good papers" from applying for jobs with employers who use E-Verify.

US Citizenship and Immigration Services in summer 2012 created an office to oversee the EB-5 immigrant investor program, which awards first probationary and then regular immigrant visas to foreigners who invest $500,000 and create or preserve at least 10 US jobs. USCIS approved an average of 500 I-526 petitions each month in FY12, the highest level ever, reflecting the success of the rising number of intermediaries who help foreigners to obtain EB-5 visas.