In my last post, I discussed the predicate for an August 7, 2019, U.S. Immigration and Customs Enforcement (ICE) operation in which the agency executed criminal search warrants at seven agricultural processing plants owned by five employers in Mississippi. That operation elicited criticism from those opposed to immigration enforcement. That criticism is baseless political grandstanding.
The ICE Homeland Security Investigations (HSI) press release for that operation explains the reason for such actions:
Unauthorized workers often use stolen identities of legal U.S. workers, which can profoundly damage for years the identity-theft victim's credit, medical records and other aspects of their everyday life.
HSI's worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices. Worksite enforcement investigations often involve additional criminal activity, such as alien smuggling, human trafficking, money laundering, document fraud, worker exploitation and/or substandard wage and working conditions.
Oh yeah, they also protect the wages and working conditions of workers in the United States (both U.S. citizens and aliens who are authorized for employment), which is one of the fundamental bases for the grounds of inadmissibility in section 212 of the Immigration and Nationality Act (INA). Sometimes, you have to be reminded of why these laws exist in the first place.
With respect to criticisms of this operation, there were complaints about the "separation of parents from their children" that were a consequence of the operation. For example, there is the following excerpt from a letter signed by Chairman Elijah Cummings (D-Md.) of the House Oversight and Reform Committee, Chairman Jamie Raskin (D-Md.) of that committee's Subcommittee on Civil Rights and Civil Liberties, and Chairman Bennie Thompson (D-Miss.) of the House Homeland Security Committee that was addressed to Attorney General William Barr and Acting Homeland Security Secretary Kevin McAleenan:
We are investigating recent coordinated immigration enforcement actions by the U.S. Attorney's Office for the Southern District of Mississippi and [ICE], resulting in the arrest of 680 people.
We are concerned by reports that these enforcement actions on August 7, 2019, left many children — on their first day of school — separated from their parents and terrified because they did not know where their parents were taken and detained. Volunteers reportedly took in sobbing children at churches and schools to provide them food and comfort.
As an aside, I will note that the chairmen are investigating an investigation. Perhaps some other member of Congress or senator could ask the Government Accountability Office (GAO) to investigate possible political reasons for the investigation of the actions of ICE and the U.S. Attorney's Office by the House chairmen. Then, the Washington Post could investigate the GAO's activities. That would lead to an investigation of an investigation of an investigation of an investigation. Who says nothing gets done in Washington?
All of that said, with due respect to the chairmen, the ones who are to blame for that "separation" are the parents who entered the United States illegally and worked without authorization. As a parent myself, I always had a back-up plan in case I was not able to pick up my child from school. Family and friends were enlisted in this effort, as were potential babysitters. Such precautions were necessary not because I was an alien working illegally in the United States, but for the more prosaic reason: that I worked jobs in which the hours could be uncertain, including for Congress.
If I were facing the constant threat that I could have been arrested because I was here illegally, I would likely have redoubled those efforts. Or simply avoided the problem by not working illegally in the United States. Such arguments fall on deaf ears, however, when those ears belong to members of Congress who do not believe the immigration laws should be enforced at all, but who, despite the fact that they have the ability to actually change the law they don't like, instead conduct investigations of investigations.
Bryan Cox, Southern Region communications director for ICE, responded to such complaints. Without directly addressing the chairmen's letter, he noted that if two parents were arrested in the course of that operation, one parent was released within 24 hours for "humanitarian reasons", that the agency expedited its processing of adults who stated that they "had a child in need of care", and that the agency coordinated "extensively" through Mississippi school liaison officers to make sure that agents were able to identify parents and children who were impacted by the raids.
He was undaunted about those arrests, however:
There are countless children across Louisiana and Mississippi who have a parent currently incarcerated due to their parent being arrested for breaking the law. The reality is adults with children are arrested everyday — and every arrest by any law enforcement agency, by definition, "separates" a person from their family. The use of sensationalist language applied to ICE arrests — and only ICE arrests — only fuels misinformation and is an unfair double standard.
Echoing these statements, according to Bloomberg:
McAleenan said on NBC's "Meet the Press" [on August 11] that the operation "was done with sensitivity" — with caseworkers on hand, and agents from ... ICE, at local schools as liaisons.
"ICE took great pains to make sure there were no child-dependent care issues that were ignored," McAleenan said on NBC.
Speaking of children, Reuters reported that, according to ICE: "Among those released pending a hearing before an immigration judge were 18 'juveniles' who had been working in the plants, including one 14-year-old." (I am not sure why "juveniles" is in quotes in that sentence.) Oddly, nothing in the chairmen's eight-page letter (which includes a 22-line definition of "document") asks for any information about those claims, or offers any statement of concern for the well-being of those "juveniles".
That letter further states:
[I]t is unclear whether any of the owners or managers of these worksites will face charges or penalties in connection with these enforcement actions.
It appears that these DOJ and ICE enforcement actions are targeting only immigrant workers and not their employers. We are alarmed by the potential serious chilling effect of these enforcement actions close in time to these workers vindicating their rights to a safe working environment. [Emphasis added.]
I will note, as a preliminary matter, the inconsistency between the highlighted portions in these two statements. I will also return to explain the last sentence in the second paragraph in a separate post, but first I would like to explain how worksite investigations proceed, in order to inform the conversation and provide some edification to the chairmen.
This is a subject on which I have a level of expertise. As a law clerk at the Office of the Chief Administrative Hearing Officer (OCAHO), the component of the Executive Office for Immigration Review (EOIR) in the Department of Justice (DOJ) with jurisdiction over worksite enforcement actions, I drafted many precedential decisions dealing with civil money penalties against employers for violations of so-called "knowing hire" and "knowing continue to employ" violations of section 274A of the Immigration and Nationality Act (INA), which are similar to the criminal penalties therein, only with a lower standard of proof.
In addition, as an assistant district counsel with the former Immigration and Naturalization Service (INS), I served as the "sanctions counsel", with responsibility over worksite enforcement cases, in both the San Francisco and Baltimore INS district offices.
"Knowing hire" cases are not easy to prove, even in the civil context. Most employees, even aliens without work authorization, present documents to their employers to comply with the documentary provisions of the employment-verification system in section 274A of the INA. Only in the case of aliens without employment authorization, those documents are counterfeit, in whole or in part. Most aliens in the United States are not "undocumented" per se — rather, they are here illegally with bogus documents.
And the law does not help prosecutors in this regard. Section 274A(a)(3) of the INA provides that it is an affirmative defense to a "knowing hire" charge for an employer to show that he or she "complied in good faith with" the employment verification system. As I have previously explained, the employment verification system is extremely flawed, and underfunded. Those flaws are a feature, not a bug, as my colleague Jerry Kammer made clear in an August 12, 2019, post.
Here is the biggest flaw: The 1986 Immigration Reform and Control Act ("IRCA," also known as the "1986 amnesty", for good reasons), which made employment of unauthorized aliens illegal, included a separate section, now codified in section 274B of the INA, captioned "Unfair Immigration-Related Employment Practices". It bars discrimination based on national origin or citizenship status in hiring decisions. Again, at OCAHO, I drafted many precedent decisions interpreting that law as well.
Section 274B(a)(6) of the INA states that it is a violation of that law for an employer in the employment verification process in section 274A(b) of the INA to request "more or different documents than are required" under that provision or to refuse to accept documents presented by an employee "that on their face reasonably appear to be genuine."
My Social Security card was issued in 1981, is printed on paper that has become dirty and wrinkled over time, and contains the signature of a 15-year-old boy. It has no security features whatsoever, and could be easily counterfeited using any modern printer. But if an employer refuses to accept it, they will likely have to answer to DOJ's Civil Rights Division. If Chairman Raskin does not believe me, he has jurisdiction under Rule X of the House to ask them. Or he can just read the law himself.
In this case, two of the employers in question, Peco Foods and Koch Foods, claim that they use E-Verify to vet their workers, while Koch Foods also uses a third party to screen "temporary workers", and PH Foods uses a different company to recruit its workers. E-Verify is an effective tool to reduce illegal alien employment, but it can be subverted where an authorized worker allows his or her identity to be used for verification purposes, or if the authorized worker does not work or is not told that someone else is using his or her identity. It is effective, but not foolproof.
So how would the U.S. Attorney's Office for the Southern District of Mississippi ever get convictions against those employers? That is easy: It can ask the employees who presented bogus documents to begin with, or who were allowed to work without authorization, whether the employer knew they did not have authorization to work but hired them anyway. But first, prosecutors have to get access to those employees.
DOJ has a high conviction rate in the cases that it brings because its prosecutors have many advantages. The most significant advantage that those prosecutors have (and that I had at the former INS) was the discretion not to charge an individual or corporation with a crime that those prosecutors cannot prove "beyond a reasonable doubt". (My burden was slightly lower, but not significantly so.)
My adherence to this standard often earned me the enmity of the special agents who presented cases to me for review and sign-off. You can see a similar scenario all the time in "Law & Order" reruns. "Of course the employer knew that these employees were here illegally" was a constant refrain that I would hear. "Great," I would reply: "How do we know that? Did the employer admit it? Did the employee attest that he or she told the employer about their illegality, but the employer allowed employment anyway?" Let me give you an extreme example of how hard it is to prove a case absent such evidence.
If you are married, consider your spouse, who you believe is a U.S. citizen. Is he or she a United States citizen? If your spouse has a passport, and you've seen it, then you know your spouse is a citizen for purposes of the law. But otherwise, unless you were there when your spouse was born (a highly unlikely scenario), you likely just assume that he or she is, unless you know otherwise. "Assumptions" are not evidence to prove a criminal offense, however.
Will criminal prosecutions of the five companies involved in the Mississippi employer-sanctions operations by ICE and DOJ follow? Maybe, if the U.S. Attorney's Office can get evidence that those companies, or employees at those companies, knowingly violated the law by hiring aliens they knew were unauthorized. The press release issued by the U.S. Attorney's Office certainly suggests that they will try:
"HSI's worksite enforcement efforts are equally focused on aliens who unlawfully seek work in the U.S. as well as the employers who knowingly hire them," said HSI New Orleans Special Agent in Charge Miles.
This operation is part of multiple ongoing criminal investigations.
That office is now in a better position to do so.
As for the three chairmen who wrote the letter, one would expect that they would know the law and the burden of proof that is required for a criminal prosecution, as well as the process of an investigation. Think about the numerous scenarios that you see on television in which federal agents in raid jackets execute a search warrant and are seen carrying out boxes of documents and other items. Those documents (and other items, potentially described in the 22-line definition of "documents" and some that may have escaped the scrivener's imagination, but also tangible things) are potential evidence for an anticipated criminal prosecution.
Or, closer to home, they can remember when the FBI raided Rep. Bill Jefferson's office on Capitol Hill, or his home when they took $90,000 from "Jefferson's freezer, wrapped in tin foil and hidden inside packages of frozen food, including a box of Pillsbury pie crusts."
No one would demand that criminal charges be filed contemporaneously with the execution of any other warrant. You have to find the metaphorical cash in the freezer first. The Mississippi worksite enforcement criminal investigation is no different in any way. Read the ICE HSI press release on that operation:
In addition to executing federal search warrants and seizing business records pertaining to the ongoing federal criminal investigation, deportation officers with ICE Enforcement and Removal Operations (ERO) in partnership with HSI detained approximately 680 removable aliens who were unlawfully working at the plants.
This HSI-led operation was conducted in coordination with the U.S. Attorney's Office for the Southern District of Mississippi, of which U.S. Attorney D. Michael Hurst Jr. will prosecute any resulting federal criminal charges. [Emphasis added.]
Would the three chairman, or anyone else, expect ICE to leave known unauthorized workers in the worksites after those investigations? If so, please tell me why. Such arrests satisfied three goals: (1) They comply with the laws that Congress has written; (2) they give ICE and the U.S. Attorney's Office access to witnesses to "knowing hire" civil and criminal violations (respectively); and (3) they directly punish the employers who lose their workforces. Does Congress seriously not desire those three goals to be met? If not, it can change the law.
Those investigations are part of a process — as the HSI and U.S. Attorney's Office's press release clearly show. Demanding answers before that process is completed is either uninformed or irresponsible. Because I assume that congressmen are not uninformed, I can only assume it is grandstanding wrapped in fact-finding.
Anyone who has ever done target shooting knows that there are if three steps to success: ready the weapon, aim the weapon, and shoot the weapon. Switching steps two and three is a recipe for failure, assuming the point is actually hitting the target, and not merely the "boom" that follows the pulling of the trigger.
In my next post, I will discuss another irresponsible part of that congressional demand: the suggestion that ICE and DOJ are illogically targeting businesses where the workers have sought other employment protections.