Data Mining: One Way to Jump-Start Worksite Enforcement and Preserve Jobs for Lawful Workers

By Dan Cadman on December 21, 2017

The Center for Immigration Studies (CIS) recently held a panel discussion on "How Immigration Reform Failed at the Worksite". The panel members included my colleague Jerry Kammer, who has recently published a book entitled "What Happened to Worksite Enforcement? A Cautionary Tale of Failed Immigration Reform" that is well worth the read.

It's no secret that worksite enforcement as envisioned by the Immigration Reform and Control Act of 1986 (IRCA) was a failure. Of course that's true of any interior enforcement program for decades, due in no small measure to a lack of political will and intense political meddling. Plus the tacit but clear decision to sacrifice it by serial presidential administrations of both parties because of its inherently controversial nature, in favor of the much more publicly palatable kind of enforcement directly at America's borders.

Of course, one of the many untoward consequences of the ongoing neglect is that we now have a population of give-or-take 11 million illegal aliens living in the interior, half of whom are visa overstayers.

The strangulation of interior enforcement was accomplished through the simple expedient of officer corps attrition combined with consistent submission of grossly inadequate manpower and budget requests for interior agents. For many years, there were significantly fewer than 1,000 special agents serving in the INS to do all of the interior enforcement work in the United States — including anti-smuggling, fraud interdiction, worksite, national security, and criminal alien and gang member identification and removal.

I know something about these matters because during the many months following passage of IRCA, and in fact for some number of years afterward, I managed a unit in the Central Office of the Immigration and Naturalization Service (INS) whose job was to flesh out the regulatory framework for worksite; to develop the I-9 form that employers and employees must prepare to establish a worker's right to work and the employer's verification of that right; and to oversee field implementation of the enforcement program once it began. And, because of continuing pressure from influential employers nationwide, the U.S. Chamber of Commerce, and other special interests groups, we were hobbled in our mandate from the very first day after passage.

But one thing that was consistent, up until the Obama administration, was the undisputed right of the agency (which by then was Immigration and Customs Enforcement (ICE), which superseded the defunct INS with passage of the Homeland Security Act of 2002) to show up at the workplace of suspected employers, to conduct an enforcement operation, to take into custody those illegal aliens working without authorization and subject them to removal proceedings, and to initiate fines or even criminal prosecutions against the employers.

That changed in April 2009, when the agency, urged on by the administration, shot itself in the foot by promulgation of the "Forman memorandum", a policy directive issued by ICE's then-Office of Investigations Director Marcy Forman, a legacy Customs manager. Although couched in the language of misdirection, Forman's memorandum in fact directed ICE agents to avoid worksite operations in favor of paperwork audits, ostensibly on the theory that this was a better way to prioritize their work and go after offending employers in lieu of low-level illegal aliens and status violators. In truth, the net effect was that, after receiving notice of an impending audit, an employer's unauthorized workers would slip away unhindered into the shadows, to find employment elsewhere, thus not really creating any vacuum into which citizens and lawful resident aliens might be updrafted. It was a foolish zero-sum game with the trappings of enforcement.

And, needless to say, through the years of the Obama administration the number of audits fell, the quantity and amounts of fines levied dropped, and the impact of this new "high priority" strategy became even more minimal than it had been before, which, in truth, wasn't all that significant to begin with.

The infamous Forman memo has, at least theoretically, finally been laid to rest in the home it always deserved — the round file — as a part of the Trump administration's avowal to take the handcuffs off of interior immigration enforcement. There is as yet, though, no discernible strategy or field operational effort to suggest to us that anything has, in fact, changed, where worksite enforcement is concerned.

How then to revivify the work and give it the jump start it deserves — especially in an administration that purports to put a priority on job creation for American workers? One relatively simple way is through data mining.

Both ICE and its sister agency at Customs and Border Protection already routinely collect a host of information on each alien that they apprehend, all of which is entered into a shared electronic system. One of the data points that they gather is where the alien was working. It would not take much effort for that information to be searched, sorted, collated, prioritized according to various criteria (such as workplaces that appear multiple times, which workplaces were employing aliens arrested using bogus identity documents, etc.), and then sent out to ICE field offices as leads to be followed up.

They don't seem to be doing it. I was just looking through the Department of Homeland Security "2016 Data Mining Report to Congress" (the most recent available), and I see nothing of the kind there.

This one seems like low-hanging fruit. Yes, I get it that criminal aliens are still a priority, but so are a lot of other things, too, just as they have always been — combating alien smugglers, counterfeiters, and fraudsters, ad infinitum.

If INS could do at least a little of all of these things, including worksite operations, with significantly fewer than 1,000 agents, then why can't ICE do it with 10 to 12 times that number, which is what you have when you combine the agent cadres of both the Investigations and Enforcement & Removal Operations divisions?