Seattle Immigration Lawyer Blog

In an earlier post, Prosecutorial Discretion: "Backdoor Amnesty"? 9 Myths Debunked, I discussed the latest announcement from the Department of Homeland Security (DHS), that it will work with the Immigration Courts to cull from its docket "low priority" cases. The August 18, 2011 announcement by Homeland Secretary, Janet Napolitano, makes reference to two June 17, 2011 memos from Immigration and Customs Enforcement (ICE) discussing the criteria ICE should be using to determine if and when it will exercise prosecutorial discretion. As mentioned in the earlier post, discretion comes into play when the agency decides, weighing the good facts with the bad for a particular individual believed to be in the U.S. without proper documents, whether to arrest, detain, place in removal proceedings, continue with removal proceedings, or carry out an order of removal. So, just what are the criteria ICE will consider, and what will the courts consider in deciding whether to keep a case on its docket? Keep in mind that there were actually two memos issued on June 17, 2011 addressing broader enforcement priorities and one devoted to victims and witnesses of crimes and plaintiffs in civil proceedings.

General Enforcement Memo

The broader, more general memo on civil immigration enforcement priorities, mentions these factors to consider in deciding whether to favorably exercise discretion:

• the person's length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person's pursuit of education in the United States, with particular consideration given
to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
• whether the person, or the person's immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
• the person's criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
• the person's immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person's ties and contributions to the community, including family relationships;
• the person's ties to the home country and conditions in the country;
• the person's age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative;
• whether the person or the person's spouse is pregnant or nursing;
• whether the person or the person's spouse suffers from severe mental or physical illness;
• whether the person's nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
• whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the
Department of Labor, or National Labor Relations Board, among others.

ICE states: "This list is not exhaustive and no one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

Continue reading "Prosecutorial Discretion Criteria: Questions Abound" »

On August 18, 2011, Secretary Janet Napolitano, announced that her office, the U.S. Department of Homeland Security (DHS), will work with the Immigration Courts in the Executive Office of Immigration Review (EOIR), to review over 300,000 pending court cases to determine which ones are "low priority" and can be closed or terminated. This will enable DHS and EOIR to focus scarce resources on dangerous criminals and terrorists. Locally, DHS has already been reviewing the detention status of immigrants currently locked up in immigration jails to determine who is low risk and can be released. This announcement follows two DHS memos issued on June 17, 2011 clarifying "prosecutorial discretion" criteria for victims and witnesses of crimes, and summarizing enforcement priorities for the field based on prior memos on the subject.

What is "prosecutorial discretion"? It is the agency's and individual law enforcement officer's decision making process, weighing the favorable facts with the unfavorable facts to determine whether to prosecute, in this case civilly, any individual who has broken the immigration laws. There are three main areas where prosecutorial discretion can be carried out in the immigration enforcement area: 1) before a person is placed in removal proceedings in Immigration Court (whether to arrest, detain and/or commence removal proceedings), 2) while in removal proceedings (whether to continue or terminate removal proceedings) and 3) after an order of removal has been issued (whether to carry out removal of the person, defer or withhold removal). Criminal law enforcement agencies and prosecutors use their discretion every day to decide who to prosecute or not. (A current example would be the Dominque Strauss-Kahn affair.) Similarly, immigration officers decide every day whether to put someone in removal proceedings, continue proceedings or carry out removal orders if there other other equities or already existing eligibility for immigration benefits. Therefore, prosecutorial discretion is not new.

However, a combination of recent factors have contributed to the most recent pronouncement dealing with court backlogs. Last year, DHS deported almost 400,000 people and is on target to do the same this fiscal year. As a result, the Immigration Courts are experiencing stunning backlogs with the average case taking 439 days for a merits hearing. In addition, the Administration has mandated that Secure Communities will be in every state along with the Criminal Alien Program in which DHS combs the jails for individuals without status, whether or not they have been charged or convicted of a crime.
Therefore, it makes obvious sense for the courts to prioritize cases based on the objectives mentioned above.

MYTH 1: DHS and the Courts can't do that!

Congress makes the laws and Courts interpret the laws. The administrative agencies of the Executive Branch (under President Obama) carry out the laws enacted by Congress. Inherent in each agency's authority is the discretion to determine how the agency will enforce the law within the bounds of the agency's legal authority to act. When Congress enacts a law, it is generally with broad strokes. Then, each agency involved implements regulations and policies about how the statute will be implemented. In this case, Congress has not enacted any new statutes. The agencies involved with immigration enforcement are taking a look at the way in which they carry out the regulations and polices with the resources they have. There is both agency-wide prosecutorial discretion as well as individual officer prosecutorial discretion out in the field. Where a particular action is mandatory in the law, the agency/officer must carry it out. In an era of limited resources, the agency must consider how and where to spend its resources. This applies to all agencies of the government. With severe budget cuts to look forward to, all federal agencies are prioritizing how they will spend limited funds within the bounds of their authority. In this case, DHS has announced that its priorities are to protect national security, public safety, border security and to proect the integrity of the immigration system. While it is arguable that every single person found to be in the U.S. without status should be prosecuted to the fullest, the fact is, the surge in arrests has clogged the jails and the courts. In additional, the states that now prohibit immigrants from getting drivers licenses are clogging their local courts with cases involving driving without a license or similar minor offenses. Secure Communities and the Criminal Alien Program route these individuals to ICE and the Immigration Courts, creating huge pressures on the system and lengthy backlogs in the Immigration Courts.

MYTH 2: Prosecutorial Discretion is "Backdoor Amnesty"

Congressman Rep. Lamar Smith (R-Tx), leader of the House immigration restrictionists, and others with his view, such as the Center for Immigration Studies, FAIR and other anti-immigrant groups, claim the exercise of prosecutorial discretion by DHS and the Courts is "backdoor amnesty.". This simply is not true! Because Congress has refused to enact meaningful immigration reform legislation, immigrants' rights organizations have asked the Obama administration to make use of already existing powers the agencies have to exercise discretion in order to provide some humanitarian relief to long term residents and to cut back on splitting up families. However, even among immigrants' advocates, the prosecutorial discretion memos do not solve what is broken about our immigration system. After three years of President Obama as the greatest "Deporter-in-Chief" in the nation's history, his office is exhibiting some common sense by having DHS concentrate its limited resources on "high priority" cases, depending upon how that is ultimately defined and actually carried out.

Continue reading "Prosecutorial Discretion: "Backdoor Amnesty"? 9 Myths Debunked" »

An article in the Wall Street Journal and another in Packer News report that "in an email" to an unknown source, Immigration Customs and Enforcement (ICE) said it will issue I-9 audit notices to over a 1000 employers as part of its national strategy to get more employers to stop hiring workers without legal employment status. Notices to Inspect will be issued across industries. This should come as no surprise to employers. In my post last month, ICE to Establish I-9 Center and Increase Audits, I mentioned that ICE set up a new I-9 Compliance Center. The Center is in Crystal City, Virginia and will house 15 auditors. It sounds like a drop in the bucket in terms of staffing. ICE reported on January 20, 2011, that "from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against 3,769 businesses across the nation." This still doesn't seem like many employers are audited, but fines can run into the millions of dollars for a single employer. With the new Compliance Center, ICE means business, and no doubt will seek to exceed the annual numbers of audits.

Employers are encouraged to conduct in-house audits with professional assistance BEFORE ICE comes knocking on the door with a three-day notice to turn over I-9s. If an employer has not been using I-9s at all, or lacks an efficient and compliant system, three days is very little time to become compliant. Moreover, an audit can be very stressful for staff, not to mention expensive if counsel is brought in when there is a crisis, given the short notice. In addition, costly mistakes can be made in the process of getting ready to turn documents over to ICE. For example, improperly editing I-9s or throwing out old ones could result in fines.

What's the worst that can happen to an employer in an ICE audit situation? Here is a non-exclusive list of what non-compliant employers can face:
-Employees stop showing up for work
-Some employees might be fired (correctly or wrongfully)
-Financial penalties per technical violation (forms filled out wrong)
-Financial penalties per substantive violation (forms not filled out at all, not signed, not completed, documents not verified, etc.)
-Financial penalties per unauthorized worker knowingly hired
-Criminal sanctions (jail or fines or conditions) for a pattern or practice of knowingly hiring unauthorized workers
-Criminal liability for a range of white collar crimes, document fraud, smuggling, conspiracy, etc., if there is a criminal enterprise involved
-Asset forfeiture
-Shareholder suits
-Bad publicity for the company and/or key executives or managers
-Reduced revenues or business closure
-Discrimination suits by the Department of Justice for improper firing of protected workers
-Lawsuits by competitors for unfair competition

ICE publishes information about past cases, some of which are strictly civil audits while others involve large, complicated criminal enterprises. In an earlier post, Employers Should be Aware of ICE I-9 Audit History, I recommended that employers take a look at ICE's penalty scheme and press releases about past audits and raids.

Many business organizations such as the U.S. Chamber of Commerce and major unions oppose massive audit schemes and mandated use of E-Verify, the government's online database, until at least two things happen: a legalization program and improved data reliability with biometrics in the E-Verify system. A legalization program would put millions of workers' information into the E-Verify database system as part of the legalization process. When coupled with biometrics, the numbers of false positives and negatives would be reduced. RIght now, identity theft and inconsistencies between Social Security information and immigration databases often result in tentative non-matches. Other reasons for inadequate data in the E-Verify system, having nothing to do with immigrants without status, include name changes, a glitch in Social Security having to do with recently naturalized citizens, similar names, and identity theft that isn't limited to immigrant populations. Presently, the number of employers using E-Verify voluntarily is under 15%. However, a number of states have enacted statutes to make E-verify mandatory. Arizona's statute is presently before the U.S. Supreme Court on federal preemption issues. Meanwhile, as ICE steps up its I-9 audits, employers need to be compliant regardless of whether E-Verify is used. The I-9 rules and audit authority have been around since 1986.

A Wall Street Journal article, Crackdown on Illegal Workers Grows, reports that Immigration Customs and Enforcement (ICE) will open a new "Employment Compliance Inspection Center" to handle an increase in I-9 audits of employers of all sizes, including large, major employers. Under the Bush administration, ICE focused on rounding up undocumented workers through surprise raids. By contrast, the Obama administration is conducting stealth, "silent" audits of employer documents. Where false documents or unverified documents are revealed, or no I-9s are prepared at all, employers are liable for paperwork violations as well as "knowingly" hiring unauthorized workers. Undocumented workers discovered during the process are often fired and may be pressured to become witnesses against the employer. Naturally, employers are thought to be the lure for illegal immigration.

Last fiscal year ending September 30, 2010, 2,740 companies were audited by ICE and $7 million in civil fines were levied on businesses that employed illegal workers. This represents a substantial increase than in past years. Now ICE really means business as it ramps up its operations even more.

To help employers, the government recently released a new version of its Guide for Employers (M-274) discussed in an earlier post. It is a good idea for employers to review ICE's range of and type penalties to better understand the potential for liabilities. ALL employers are required to complete form I-9s for employees hired, recruited or referred for a fee after November 4, 1986, including U.S. citizens.

Doing a self-audit of I-9s, such as by in-house H.R. professionals or company executives is probably not a good idea. It is recommended that employers use third party auditors or attorneys to conduct an in-house I-9 audit before ICE comes knocking on your door (or sends a three-day notice of inspection). Our firm has had calls by employers who simply want to put our name down as a third party auditor in a subcontract with the potential client's contracting firm in case of an ICE audit. We generally oppose this unless the company first hires us to do a complete private audit in order to get to know the company, the key personnel devoted to I-9 compliance, its operations and workforce with plenty of time to review all I-9s and related documents. We also provide training for the staff that will handle the I-9 process. This saves time if the client later gets a notice of audit or inspection. It would otherwise be too stressful to put together a plan, make corrections, if allowed, in only three days.

Continue reading "ICE to Establish I-9 Center and Increase Employer Audits" »

Immigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: "I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now." Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with "undocumented Americans."

Documentation burdens affecting American citizens include:

WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers' licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.

The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful "Know Before You Go" brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State's Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State's website.

Continue reading "U.S. Citizen Documentation Problems Stem from Immigration Enforcement" »

It still surprises me 24 years after enactment, how many employers still don't know about their I-9 obligations under the Immigration Reform and Control Act (IRCA) of 1986. Since then, employers are required to complete Form I-9s documenting the work permission status of employees hired after November 6, 1986, including U.S. citizens. Even among employers who know of their I-9 obligations, many still do not fully understand the scope of the I-9 process and record keeping requirements; nor the extent to which Immigration and Customs Enforcement (ICE) has substantially ratcheted up their audits, investigations and sanctions. (See my earlier post on I-9 Form Revisions Subject of USCIS Stakeholders Meeting.)

ICE is the agency responsible for employer audits and raids. Employers should review the ICE press releases to see the size and scope of fines, the mistakes made by employers and the severity of penalties, including criminal indictments. Employers can be fined for failure to complete I-9s at all, for failure to properly complete and retain I-9s, and for "knowingly" hiring unauthorized workers. There are criminal consequences for continuing to hire unauthorized workers, especially after an audit, for a pattern or practice of knowingly hiring unauthorized workers and for more serious offenses such as harboring, smuggling, dealing in or accepting fraudulent documents and related offenses. ICE has been known to indict not just owners and shareholders, but also individual employees, supervisors and managers engaged in such schemes.

A quick look at the ICE website list of press releases concerning workplace enforcement shows these recent examples of settlements or criminal investigations. Every employer should take note:

• Brownwood Furniture, California - criminal information filed charging president and primary shareholder with obstruction of justice and continuing to hire unauthorized workers;
• Timbuktu and By the Docks Restaurants, Maryland - owner sentenced to prison for harboring for private financial gain and competitive advantage 24 unauthorized workers some of which he housed. His sentence included $250,000+ fine and forfeiture of another $300,000 in property. He had continued to employ unauthorized workers, and accepted false documents despite a prior enforcement action. He had also received Social Security mismatch letters [a confusing subject and whole other can of worms] and failed to complete I-9 forms.
• Masters in Metal, California - owners criminally charged for continuing to hire unauthorized workers following I-9 audit three years earlier finding several employees had fake green cards. Although the company reported these people were later terminated, some were apparently in fact not terminated.
• Abercrombie and Fitch, Michigan - settled $1,047,110 fine for "technology deficiencies" in its I-9 verification system. (See an earlier post, Million Dollar Fine Imposed on Abercrombie & Fitch for I-9 Technology Deficiencies);
• IFCO Systems, Texas - five managers indicted for conspiring to hire unauthorized workers following a tip at its New York plant;
• Koch Foods, Ohio - settled a $500,000+ fine for administrative I-9 violations after 161 unauthorized workers were arrested pursuant to a search warrant;
• 180 Audit Notices issued March 2, 2010 in five southern states;
• Pilgrams Pride, Texas $4.5 settlement for hiring unauthorized workers at seven plants;
• 652 Notices of Inspection issued to employers in 2009.

Referring to the one page I-9 form as "an obscure federal document, NPR posted an Associated Press (AP) story about I-9s on November 1, 2010 in "Warnings Abound in Enforcing Immigration Job Rules", in which the Abercrombie and Fitch case was discussed. AP was able to obtain and analyze summaries of 430 ICE audits conducted between July 1, 2009, and January 31, 2010.

Continue reading "Employers Should Be Aware of ICE I-9 Audit History" »

As part of its efforts to be more transparent and engage the public, U.S. Citizenship and Immigration Services (USCIS) held a stakeholders meeting this week about making changes to the Form I-9 or the Employment Eligibility Verification form. Form I-9 is required to be used by all employers to document the work permission status of new hires. This has been the law since 1986. But, what should be a simple to use one-page form, continues to confound employers who are increasingly being warned, fined or indicted for violations in completing or using the form and/or for "knowingly" hiring or continuing to hire unauthorized workers.

I attended the teleconference and found the meeting to be very interesting for several reasons. USCIS has held a number of public engagement meetings and also posts the minutes or notes from meetings on its website. While USCIS creates the I-9 form that all employers must use to document the work permission status of new hires, including U.S. citizens, it is another agency, ICE (Immigration and Customs Enforcement), that conducts audits or raids of employers looking for evidence of satisfactory I-9 record keeping, or evidence of hiring unauthorized workers. ICE is far less transparent, given that it is an investigative agency, while USCIS is a benefits agency.

This particular public engagement meeting was very well attended by universities, employers, attorneys, and community based organizations from around the country. USCIS was most interested to learn from the audience what works and does not work for employers using the I-9 form. This form has been around since 1986 when Congress passed the Immigration Reform and Control Act (IRCA). It has taken on new importance in recent years as immigration enforcement actions have increasingly focused on employers as the magnets for illegal immigration. The Obama Administration has focused more efforts on penalizing employers than on the unauthorized workers, often using them as witnesses against the employer. But the I-9 verification process continues to be confusing for many employers, particularly as the program is linked to E-Verify, the government's online database for checking work permission status. E-Verify is not mandatory....yet .....except for federal contractors, and for use by certain employers previously audited. E-Verify is also required in those states that have passed legislation requiring E-Verify for state or local government contracting or where it is mandatory for the entire state. Nonetheless, E-Verify employers must still have their own manual or electronic I-9 verification procedures in addition to using E-Verify. (See an earlier post about a challenge to Arizona's mandatory E-Verify law in Chamber v. Whiting, "Arizona Cases Set for Argument."

The audience was asked to imagine what the "ideal I-9 form would look like" given that it is the law to have one and employers must use it. The audience provided many suggestions to make the form easier to understand, to accommodate a greater range of the more peculiar immigration statuses allowed in the law, and to make it easier for both employers and employees to understand their obligations and the various types of documents they are likely to see. Of course, what remains to be seen is how USCIS will use the comments to make the I-9 more user-friendly and less time consuming for employers, since the slightest inaccuracies can lead to fines.

The Ninth Circuit Court of Appeal heard oral argument today in USA v. Arizona, which was broadcast live on C-SPAN.

The three judge panel consisted of Judge Richard A. Paez, Judge Carlos T. Bea and Judge John T. Noonan, Jr. Representing the State of Arizona and Governor Jan Brewer was John J. Bouma. Representing the U.S. was U.S. Deputy Solicitor General Edwin Kneedler. Arizona Governor Jan Brewer was also present. There were protests and supporters outside the courthouse in San Francisco as well as in other jurisdictions. Numerous amici, or friends of the court, briefs were filed on both sides of the case by cities, counties, and states (including the City of Seattle, which signed on to the County of Santa Clara brief), federal legislators, and community, bar and foundation groups of all types. The briefs from each are posted on the Ninth Circuit Court of Appeals website.

USA v. Arizona involves only four of the provisions in the original Arizona statute, SB 1070. Arizona claims each provision is consistent with the objectives of Congress and federal legislation to enforce immigration laws. According to Arizona, the only issue where federal statutes preempt the Arizona law is the authority of the federal government to determine who stays or must leave the U.S. Arizona claims that violations of two of its statutory provisions are also violations of federal law. Judge Bea asked Mr. Bouma if Arizona was trying to suggest that where the federal government did not or would not enforce its laws, whether Arizona could enforce immigration laws for the federal government. As an example, Judge Bea asked whether if he didn't pay his income taxes could California come along and sue him for failure to pay income tax? Mr. Bouma responded that California would not be interested in suing for income taxes, but that Arizona is concerned about the disproportionate impact on the state by the federal government's failure to curb illegal immigration or Congressional failure to enact immigration reform.

One of the questions on appeal is whether Arizona law enforcement officers can legally be mandated to question people about their immigration status based on a "reasonable belief" that a person is in the U.S. illegally. Part of the provision states a person "shall not be released" until the person's status is determined. The judges asked how this would play out in the field. Mr. Bouma responded that police are trained in constitutional protections of search and seizure, including reasonable suspicion, probable cause and Terry stops, and that if someone produces a drivers license, that is a presumption of legal status. But Judge Bea noted the presumption can be rebutted.

The federal government contends that the Arizona scheme is unconstitutional and inappropriately interferes with federal immigration enforcement and foreign policy. The Arizona law, if replicated in other states, would create a patchwork of confusing and inconsistent immigration enforcement laws across the country that conflict with the national scheme in the federal Immigration and Nationality Act, as amended.

Continue reading "C-SPAN Broadcast of USA v. Arizona Today" »

An NPR story yesterday, Prison Economies Help Drive Ariz. Immigration Law, highlights the role of the private prison business in the development of Arizona's anti-immigrant bill, SB 1070, portions of which are currently being litigated in the federal court. Oral argument in the case is scheduled for Monday, November 1, 2010 as described in an earlier post, "Arizona Immigration Cases Set for Oral Argument."

Immigration practitioners have known for years about the rapid growth of the private prison business around the country. Two of the leading companies are The Geo Group Inc. and Corrections Corporation of America. Cornell Corporation recently merged with Geo Goup, and there are others. Here in Washington, for example, the Tacoma based Northwest Detention Center (NWDC) serves as the primary facility housing immigrants picked up for deportation throughout the northwest states. Persons with questionable status arriving at land, sea and airports are also brought to the NWDC. The Immigration and Nationality Act specifies the types of immigrants subject to mandatory detention without possibility of bond or release, including certain types of criminals, terrorism suspects and some applicants for asylum. Individuals not subject to mandatory detention who are entitled to relief from an Immigration Judge and are deemed not a flight risk are eventually released with or without supervision and posting of a bond. Individuals can spend days, weeks, months or years in detention, especially when cases are on appeal, travel documents cannot be obtained, or there is no country willing to accept the individual. Did your time and paid your fine? Not so if you get transferred from criminal jail or prison to immigration detention which could be in a county, state or federal facility or a privately run facility. A person with immigration issues, including some U.S. citizens, can be incarcerated long after completing a criminal sentence.

NWDC was recently expanded to house 1575 inmates in anticipation of increased enforcement activities by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Run by The GEO Group, the NWDC is a stark white, antiseptic looking facility, complete with full service medical center staffed 24/7 by the United States Division of Immigration Health Services (USDIHS). GEO Group provides the security, physical infrastructure, meals and "recreation", while ICE handles all aspects of the detention and removal process. GEO Group builds or manages several types of correctional and mental health facilities throughout the U.S., U.K., Canada, S. Africa and Australia. Its 2009 Annual Report makes for an interesting read as do its various contracts with ICE that show how the government pays for guaranteed minimum rates per filled bed. A May 2010 ICE report shows an average occupancy rate of 1232 per month.

The NWDC also houses an Immigration Court with several active judges and periodic roving judges to hear bond and removal cases. According to an October 2009 ICE report, "Immigration Detention Overview and Recommendations", nationwide "ICE operates the largest detention and supervised release program in the country. A total of 378,582 aliens from 221 countries were in custody or supervised by ICE in FY 2008; activities in 2009 remain at a similar level. On September 1, 2009, ICE had 31,075 aliens in detention at more than 300 facilities throughout the United States and territories, with an additional 19,169 aliens in Alternative to Detention programs. As of September 1 [2009], 66 percent were subject to mandatory detention and 51 percent were felons, of which, 11 percent had committed violent crimes. The majority of the population is characterized as low custody, or having a low propensity for violence." ICE characterizes its facilities as "jails and prisons to confine pre-trial and sentenced felons." In this report, ICE states "these standards impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population." ICE and its contractors have in fact been criticized by the ACLU, Human Rights Watch and other organizations for poor quality standards and mistreatment of inmates. In the last year, ICE has been subject to revised detention standards and review. See ICE Detention Policies.

The NPR story highlights the relationships between Corrections Corporation of America, lobbyists and Arizona legislators, among others. By following the money, one can understand at least one reason why Congress has yet to pass immigration reform legislation that goes beyond throwing more money at border enforcement. A "secure border" is a moving target, especially for politicians who want to see a "secure border', however defined, as a trigger before passing other immigration reforms. There is probably no way to measure or ever have a "secure border" for a variety of factors. In an earlier post, Gone Fishin' Got Deported, record-setting numbers of people deported by the Obama Administration was mentioned. More enforcement activity means more arrests and more bed space needed. There are big dollars to be made from enforcement-only policies by defense contractors who provide the various equipment, drones, sensors and technologies to monitor the border; by the software vendors to collect and massage all the data; and by prison builders, just to name a few impacted industries. (One would think private lawyers stand to gain, too, except for one important fact: the majority of immigrant detainees cannot afford a lawyer. Since the Immigration Courts are civil in nature, there is no constitutional right to government appointed counsel for indigent immigrants, as is the case for accused defendants in Criminal Court. In civil Immigration Court, there is only a right to counsel. That means counsel one can afford or no counsel at all. According to the Immigration Court (Executive Office of Immigration Review) FY2009 Statistical Year Book, 114,087(40%) of 290,233 immigrants in court had counsel while 176,146 (60%) lacked representation.)

Continue reading "NPR Story Highlights Role of Private Prisons Behind Arizona's SB1070" »

In an interesting case, U.S. Immigration and Customs Enforcement (ICE) and Abercrombie & Fitch agreed to a $1,047,110 settlement for I-9 technical violations at Abercrombie & Fitch's Michigan retail stores. The ICE audit began in 2008. The company was not found to have knowingly hired unauthorized immigrants, but its electronic I-9 system was apparently found to have many problems. An ICE representative said:

"We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants."

Every employer must complete Form I-9 for every worker hired after November 6, 1986 to document work permission status in the U.S. I-9s are required for U.S. citizen hires as well. Employers are liable both for "paperwork" violations, such as mistakes and technical violations, for failing to complete or maintain I-9s, as well as for "knowingly hiring unauthorized workers." There are a range of civil penalties per violation as well as criminal penalties for "pattern or practice" violations.

Abercrombie & Fitch had an electronic I-9 system which is allowed under interim final immigration regulations, though in this case, the audit started before the regulations came out. The fine seems high given the violations were technical rather than "knowing hire" violations. It appears the company failed to have in place various internal controls or compliance procedures that called into question the validity of the I-9s.

Given the government's focus on employers the last couple of years, a cottage industry of software companies has developed, all vying for employer dollars to be spent on IT devoted to I-9 compliance. LawLogix Group, Inc., one such I-9 compliance software vendor, has further comments on the case and due diligence. Allott Immigration Law Firm in Colorado has a good list of 25 due diligence questions to ask of potential I-9 software vendors.

The Obama Administration has increased enforcement efforts on employers through the audit process. On September 16, 2010, the American Immigration Lawyers Association announced it had received confirmation from ICE that the agency served "more than 500 Notices of Inspection (NOIs) to companies throughout the U.S. ... According to ICE, the audits flow in large part from leads about employers who allegedly are engaging in hiring unauthorized workers and paying employees unfair wages or otherwise exploiting workers." Employers generally have only three days to produce I-9s when a NOI is received. Every employer should at least consider doing a private internal I-9 compliance audit with immigration or employment counsel just in case ICE comes knocking at the door. Employers can expect to see more ICE audits and mandatory E-Verify as part of the enforcement component of any immigration reform legislation.

KnoxNews.com out of Tennessee reports an August 27, 2010 AP news item indicating that 27 of 820 people scooped up by the state wildlife department for fishing without a license, and who also lacked identification, turned out to be immigrants who were turned over to Davidson County Jail. The Jail then turned them over to US Immigration and Customs and Enforcement (ICE) for deportation. Davidson County is one of many jurisdictions across the country that has signed a "287(g)" agreement with ICE. "Secure Communities" is another program which allows ICE to comb local jails for undocumented immigrants and for local law enforcement to cooperate with and receive training from ICE.

Despite ICE's stated policy lately that they are focusing removal investigations on criminals, ICE's own statistics reveal that's not really what is happening on the ground. Notably, fishing without a license is not a deportable offense. So, presumably most of these deportees were removed for non-crime related reasons such as entry without inspection, visa overstay, or other deportable criminal offenses. Nonetheless, the result is lives ruined and families split over something as minor as fishing without a license. Everyone else caught without a license just paid a fine.

ICE recently released removal data from 2007 to 2010 broken down by criminal and non-criminal removals. (Scroll down the page at this link.) The 2010 data is through August 2010. (The government's fiscal year runs from October 1 to September 30). In 2007, during President Bush's term, there were 291,060 removals, of which 102,040 or 35% were criminals. In 2009, there were 389,834 removals, of which 136,323 or 35% were criminals. For 2010 so far, there have been 310,013 removals, of which 152,862 or 50% were criminals and 50% were not criminals. So, the 25% increase in deportations from 2007 is indicative that the Obama administration is hardly soft on enforcement.

Moreover, ICE's own statistics show that at least half of the removals are of non-criminals. The data on criminals alone who were removed do not distinguish between those people removed because of crimes that make them removable (not all crimes are a basis for deportation), versus those who committed non-removable crimes but still ended up in jails or had other encounters with state and local law enforcement agencies because of 287(g) agreements.

Meanwhile, ICE has a FY2010 budget of $5.2 billion of which $2.55 billion is for salaries and expenses for detention and removal and $200 million is for Secure Communities. See ICE Budget Fact Sheet for FY2010. This is excluding the recent $600 million appropriations enacted by Congress a few weeks ago.

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