ICE Press Release: Portrait of a Triumph or a Confession?

By David North on October 19, 2011

The press release from Immigration and Customs Enforcement (ICE) caught my eye for two reasons: 1) because the bad guys had fraudulently filed an eye-popping 25,000 phony immigration documents, and because 2) Earl Seth David had such a memorable last name.

On deeper examination, however, this ICE- told tale "Head of New York law firm charged with immigration fraud" had some deeper and, for me, disturbing meanings.

Yes, it is good that the one-time rabbi (now being extradited from Toronto) and a batch of his fellow criminals had at last been indicted and, yes, ICE is to be commended for spending time and energy on this massive fraud operation (as opposed to spending the same amount of resources on one-off instances of criminal activity) but the cheerful press release hid a darker reality. (I should note, too, that I am grateful to activist Gene Nelson for the investigative work he has done on this case.)

The basic problem is that the fraud, aimed at producing phony labor certifications and thus phony adjustments of illegals to legal status, had taken so long, and so many thousands of aliens had taken advantage of it – for a price, of course – before ICE brought the matter to a head.

Here are the basic facts, as shown in the press release and in the underlying grand jury indictment (which can be seen by users of the court's electronic data system, PACER, at 1:11-cr-00424-NRB):

From "at least in or about 1996", according to the grand jury, Earl Seth David, operating as the David Firm, until "including in or about 2009" had been beating the immigration system by filing fraudulent immigration forms with government agencies. Thus, this wide-ranging conspiracy operated for 13 years, until 2009.

During that time "at least 25,000 immigration applications and petitions were filed by and through the David Firm," again, according to the indictment. These were often based on fictitious corporations filing labor certifications, or filings by shell companies with no intent of hiring anyone, doing the same. Individual illegals paid as much as $30,000 to the David Firm for this assistance.

In short, the illegal activities were both long-lived and massive, yet it was not until 2009 that the feds shut down the operation and it was not until a few days ago that they indicted David and his accomplices. That's 13 full years of conning the feds; and then another two years before the grand jury acted.

The grand jury did not tell us how many illegal aliens got amnestied by those activities, but at a rough average of five documents per alien, perhaps as many as 5,000 illegals were legalized – and the chances are that ICE will not lift a finger against any of the alien beneficiaries, as opposed to the 12 conspirators.

So should the ICE press release be seen as an ode to the agency's handiwork or as a confession? As an outsider and a non-attorney, I see it as both.

How could such a massive flow of bad documents flow through the Departments of Labor and Homeland Security for so long? Isn't there some sort of sampling system in which every tenth document, for example, is given close scrutiny to make sure that the filing employer has filed a corporate tax return that might support – or cast suspicion on – its financial ability to pay the worker sought in the application? Apparently not.

Does any agency concerned borrow the successful investigative technique that DHS uses in the once fraud-ridden Religious Worker (R-1) nonimmigrant program? It is simplicity itself and it breaks many a phony application – an investigator is sent around to see if there is, in fact, a church or other religious organization at the address listed. No religious institution on site, no approval.

Once the investigators were on to something, in case like that of the David Firm, there is a trade-off that is handled differently in immigration fraud than in terrorism cases.

In terrorism cases (not my field, BTW), we often read about how some perhaps unhinged person says threatening things about the U.S. to an undercover agent; the agent and his employers then offer to provide the individual with some (fake) explosives, and then they pounce before anything happens.

The law enforcement officials in these cases act so that there is no harm done to society, at the cost, sometimes, of not building as broad a case as they might have built, had they allowed the conspiracy to go a little further. I have no trouble with this model in these circumstances, and am told by my CIS lawyer colleague, Jon Feere, that this kind of activity is not entrapment.

On the other hand apparently ICE does not regard a massive and successful immigration fraud operation as something that should be nipped in the bud quickly. They, instead, leisurely build a hopefully water-tight case that will lead to indictments and convictions and apparently regard the massive flow of illegals that they are tolerating as a mild form of peripheral damage.

I am not sure that ICE has the right priorities in such matters.