Articles Posted in Border Enforcement

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Just a quick post before I head to San Francisco for the annual American Immigration Lawyers Association conference. S. 744 is on the way to a vote within the next few days, only now with a GOP peacemaking feature to keep the bill moving. It now contains provisions for 40,000 Border Patrol boots on the ground (anyone need a job?) and more fencing (700 miles) to the tune of $46 billion dollars (i.e., the full employment bill for government contractors providing border enforcement technology and services). The National Immigration Forum has a good summary of where things are at. Yesterday’s Corker-Hoeven amendment substitutes the entire bill with much tougher enforcement provisions as a trade off to keep the bill moving with the path to legal status provisions (“RPI”), amendments to the legal immigration system, and E-Verify and employer sanctions. The enforcement provisions would be paid by taxpayers and fees paid by immigrants using the legal immigration system. All of this would occur, of course, while illegal immigration is at the lowest in 40 years.

Many people question whether so many border agents (potentially standing 250-1000 feet apart) and so much fencing are worth the price. Ironically, the ACLU and the Border Patrol have reached a tentative deal in a northern border case involving racial profiling. While this case, brought by three US citizen plaintiffs, was pending, there were rumblings by northern Border Patrol agents about being bored stiff when the new Port Angeles, Washington station opened up and hiring tripled in the area. Indeed, some officers worked with local law enforcement agencies as back up in smaller northern border towns, and they also provided interpretation services. This was stopped by DHS directive in December 2012. The bottom line: Do we need this amount of resources thrown at the border? What will it accomplish and can we afford it? Who really pays for it and who really gains from it?

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584383_united_states_passport.jpgImmigration 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.
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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.
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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.
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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.)
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On November 1, 2010 at 9:00 a.m. the Ninth Circuit Court of Appeals will hear oral arguments in U.S.A. v. State of Arizona, Case No. 10-16645, at the James R. Browning U.S. Courthouse in San Francisco. This controversial case addresses the constitutionality of Arizona Senate Bill 1070, which requires state law enforcement officers to check a person’s immigration status under certain circumstances, and authorizes a warrantless arrest where there is probable cause to believe that the person has committed an offense making him/her removable from the United States. The U.S. government argues that federal statutes preempt SB 1070. The U.S. District Court for the District of Arizona previously issued a preliminary injunction in part and denied it in part. The State of Arizona and Governor Brewer appealed asking the Ninth Circuit to repeal the injunction imposed by the District Court. Parts of the law not subject to the injunction went into effect July 29, 2010. C-SPAN Channel 1 will broadcast the oral arguments live with remote viewing available in other federal courthouses.

The preemption issue is very important for several reasons. First, a number of states have enacted or are on the verge of enacting copycat legislation because Congress has simply failed to do its job to enact immigration reform legislation. In addition, many people feel the U.S. Department of Homeland Security (DHS) has not done enough to secure the borders and punish employers who hire workers without legal documents. Secondly, states and localities have tried to address perceived immigration problems by regulating who can rent housing, obtain business and professional licenses, seek social services and other activities. More commonly, states and localities have enacted employer verification obligations requiring employers in their jurisdictions to use the the federal government’s computerized E-Verify system to document work permission status of employees.

Meanwhile, all eyes are on the U.S. Supreme Court in the case of Chamber of Commerce v. Whiting, case 09-115 (formerly titled Chamber of Commerce v. Candelaria in the Ninth Circuit Court of Appeals). Oral arguments are scheduled for December 8. All of the briefs, which include several amicus briefs in support of the petitioner, U.S. Chamber of Commerce, and a plain description of the case can be found on SCOTUS Blog. See also the U.S. Supreme Court docket for all filings in the case. The Chamber case addresses the question of whether the Immigration Reform and Control Act of 1986 (IRCA), as amended, preempts federal law that makes use of E-Verify voluntary. Although many in Congress and at DHS would like to see mandatory E-Verify for all employers, right now under federal law, the use of E-Verify is voluntary nationwide except for federal contractors and some employers who have been audited by DHS. However, several states and localities require employers to use E-Verify if engaged in state or local contracting, and other states are just waiting to enact mandatory E-Verify for all employers. For employers conducting business in several states, the patchwork of E-Verify requirements as well as penalties outside the federal scheme found across the country can be very confusing. On the other hand, the federal requirements attempt to be a comprehensive scheme for all employers.

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On September 7, 2010, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the National Association of Criminal Defense Lawyers (NACDL), the National Press Photographers Association (NPPA), and Pascal Abidor, a dual French-American citizen, sued the U.S. Department of Homeland Security (DHS) challenging as unconstitutional DHS policy that allows border agents to search electronic media without suspicion or warrants. The case is Abidor, et al v. Napolitano, No. 1:2010cv0405, filed in the United States District Court for the Eastern District of New York. The Plaintiffs seek declaratory and injunctive relief.

Through the Freedom of Information Act (FOIA), the ACLU was able to obtain records from 2008 to 2010 showing over 6700 travelers had their electronic devices such as laptops, digital and video cameras, external drives, and PDAs searched by border officials. At least half were U.S. citizens. A summary of the disclosed DHS data can be found on the ACLU’s webpage. The majority of electronics searches conducted involved white U.S. Citizen males followed by Canadians, Mexicans, and the British. A substantial number of searches were not identified as to sex, race or nationality.

The ACLU’s complaint itself is an interesting read because it discusses the plight of two trade organizations and three individuals engaged in education/research, photojournalism, and international criminal defense work, and their need to preserve client and source confidences required by their professions. Access to laptops and other electronic gadgets is essential to their work, as it is in many professions. The complaint discusses the precautions they now have to take, which complicate their work and personal lives. The expectation and experience to date is that once in the government’s database system, they will continue to be harassed during future travel.

In the complaint, Mr. Abidor’s laptop and external drive were searched after he was taken off a train and handcuffed. He spent hours in a cell. Charges were never brought against him. He was never arrested. No warrant issued for his arrest or search of his electronic gear. He is an Islamic studies student in Canada who needed to travel internationally and frequently to work on his dissertation. His laptop and external gear were seized and not returned to him for weeks after he was admitted into the U.S. Mr. Abidor’s laptop and drive contained the only copies of his dissertation and supporting materials. Meanwhile, photojournalists have their gear frequently searched after covering wars, demonstrations, calamities, political interviews and events. Reporters and photojournalists are bound by their duty to protect the confidentiality of their sources. Likewise, criminal defense attorneys often travel abroad to interview witnesses, obtain evidence and participate in depositions or trials. Client confidentiality is essential, and there are penalties for certain types of international communications if made across the Internet. In addition, they need their gear all the time to do their work.

DHS takes the position that electronic devices are containers like suitcases at the border that can be searched without a warrant, with or without suspicion. They are like extensions of people. Current DHS policy and directives from August 2009 allow, among other things, for data searches away from the owner’s presence under the extended border exception to the warrant requirements under the Fourth Amendment to the Constitution. In addition, DHS policy allows for disclosure of this data to other government agencies. Earlier, Customs and Border Protection (CBP), a division of DHS, issued a press release about how rare laptop searches are. Specific forms to complete and CBP advisories are part of the ACLU’s FOIA response.
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Published on: 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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