DHS Secretary Markwayne Mullin appeared on Fox News’s “Ingraham Angle” this week and denied he’d been told to “lighten up” on removals. But immediately after — with his next breath — the secretary stated that “we’ve changed our priorities from doing ... job site raids to doing warrant raids”. Why does the head of the nation’s sole immigration enforcement department hate “worksite enforcement”, the best tool Congress has given the executive branch to control illegal immigration?
“Key to Effective Deterrence Is a Reduction in the Job Magnet”
As I explained in March, controlling the flow of immigrant labor to the United States and deterring unauthorized employment have been key to immigration enforcement for nearly as long as there have been immigration enforcement agencies.
It’s not for nothing that the federal government in 1903 shifted authority for enforcing the then-nascent immigration laws from the Department of the Treasury to what was then the Department of Commerce and Labor, and when the Labor was spun off as its own department (DOL) in 1913, the immigration remit went with it.
And when Congress consolidated the various alien-control statutes in the Immigration and Nationality Act (INA) of 1952, it specifically (with exceptions) barred the admission of aliens “seeking to enter the United States for the purpose of performing skilled or unskilled labor” if DOL had certified that there were:
sufficient workers in the United States who are able, willing, and qualified are available at the time (of application for a visa and for admission to the United States) and place (to which the alien is destined) to perform such skilled or unskilled labor or ... the employment of such aliens will adversely affect the wages and working conditions of the workers in the United States similarly employed.
That ground of inadmissibility still appears with only minor alterations in now-section 212(a)(5)(A)(i) of the INA today, while similar 1952 bars to the admission of the “feeble-minded”, “psychopath[s]”, “aliens who are paupers, professional beggars, or vagrants”, and foreign nationals “coming to the United States to engage in any immoral sexual act” have been refined to suit modern mores and sensibilities, proving it has stood the test of time.
As Barbara Jordan — former Democratic congresswoman, civil-rights icon, and then-chairwoman of the U.S. Commission on Immigration Reform — explained to the House Judiciary Committee more than three decades ago:
Unlawful immigration will not be curbed unless we have comprehensive strategies that will prevent the entry of those with no right to be here and remove those who somehow make it past our best efforts at border management.
…
Key to effective deterrence is a reduction in the job magnet. Employment continues to be the principal reason illegal aliens come to this country. As long as U.S. businesses benefit from the hiring of unauthorized workers, control of unlawful immigration will be impossible.
IRCA
That said, it wasn’t until the Immigration Reform and Control Act of 1986 (IRCA) that Congress made it illegal to hire aliens who don’t have work authorization.
That was the same Reagan-era law that granted a virtual blanket amnesty to millions of illegal aliens, and the “employer sanctions” provisions Congress in IRCA added at section 274A of the INA were the trade-off for that massive legalization.
That provision requires every employer in the United States to confirm that new workers are eligible to work in this country using the Form I-9, “Employment Eligibility Verification”.
Section 1 of the Form I-9 requires employees to attest that they have work authorization in the United States, either because they are U.S. citizens or nationals, or are lawful permanent residents (“LPRs”, i.e., “green card holders”), or because they have some other lawful employment status.
Section 2 of the form requires employers to verify they’ve reviewed documents evidencing employment-authorized status, and to identify and list the documents they have reviewed.
Those forms (and any copies of the documents workers have offered) are then placed into the workers’ employment files to be made available to DHS immigration officers who ask to review them.
The problem is that for the better part of two decades, DHS has only rarely and sporadically gone to employers to review those I-9s and related employment documents, and to question (and then arrest) suspected aliens whose documents don’t match up.
The Benefits of Worksite Enforcement
That is a missed opportunity, because as recently as FY 2008, worksite enforcement accounted for more than 6,000 immigration arrests a year, and in earlier years made up an even larger percentage of total civil arrests of aliens in the interior (as opposed to at the border).
Consider, for example, the Supreme Court’s 1984 opinion in INS v. Lopez-Mendoza, wherein a majority of the justices held that the exclusionary rule — a court-created prohibition against the government’s use of most evidence obtained in violation of the Fourth and Fifth Amendments — generally doesn’t apply to immigration arrests.
At issue in Lopez-Mendoza were the arrests of two separate aliens, Adan Lopez-Mendoza and Elias Sandoval-Sanchez, during worksite investigations.
Those worksite arrests occurred in 1976 and 1977, respectively — more than a decade before IRCA and the employer sanctions provisions in section 274A — and yet key to the majority’s reasoning was the fact that: “In the course of a year, the average [immigration] agent arrests almost 500 illegal aliens.”
If immigration officers and agents were working at that pace today, ICE would make more than 57,000 alien arrests per week, and daily removals would likely exceed 10,000. But there is no way to even come close to those lofty goals unless worksite enforcement is a priority. Here’s why.
When Mullin referred to “warrant raids”, he logically was talking about arrests of individual aliens with warrants under section 236(a) of the INA (and we should all give him a break when it comes to these terms because he’s new to immigration).
Generally, however, ICE must send two to four (and possibly more) officers each time it executes an arrest on warrant, and it’s highly unlikely that those two to four ICE officers are able to make more than three such arrests per day.
Even with “collateral” arrests of other aliens who are with the subject of the warrant the secretary also mentioned, that would mean that the average agent could arrest just one alien per day, or make 200 arrests per year — far (60 percent) below the average number of immigration arrests 42 years ago, when the Supreme Court issued Lopez-Mendoza, the unauthorized population was a fraction of what it is today, and “job raids” were in full swing.
Worksite arrests are also safer because the odds an alien will have a firearm or other deadly weapon (or will seek to flee in a vehicle) are lower, and more politically palatable because they generally take place far from “street demonstrators” in the employer’s office or another non-public area in the workplace.
But it’s okay even if an employer-sanctions investigation closes with just a few physical arrests, and the boss is handed a list of other aliens who must be fired because they lack work authorization.
Just a few such cases will neutralize the impact of the “job magnet” Jordan referenced and will send a message to the “undocumented” community that unauthorized employment is no longer the low-risk endeavor it had been in the past.
“Worksite Enforcement Plan Heads to DHS Chief”
Multiple news outlets reported in late October that “Border Czar” Tom Homan had sent a “worksite enforcement plan ... built on mass Form I-9 audits” to Mullin for review. Mullin should listen to a man with the most impressive immigration resume in the business, but based upon the secretary’s comments on the “Ingraham Angle”, that plan is probably going to be gathering dust for a while.
If so, it will be a missed opportunity.
My boss Mark Krikorian uses the term “briefcase enforcement” to refer to employer sanctions and a few other immigration enforcement options at the secretary’s disposal that don’t require the sort of high-profile and often confrontational “body armor” street arrests that became a hallmark of the first year of Trump’s second term.
Briefcase enforcement is admittedly dull, but as the foregoing demonstrates it’s also generally successful and has proven in the past to be the best tool available to immigration officers to drive down the unauthorized population.
Why does the DHS secretary hate worksite enforcement? Possibly because (again), he’s new to this field and doesn’t realize how effective it was in the past. Markwayne Mullin seems like a quick study, however, so maybe he should open up the worksite plan sitting on his desk and pull out his signing pen.