Selective Immigration Enforcement: Discretion in the Service of President's Reelection

By Stanley Renshon and Stanley Renshon on June 25, 2013

Heading into his 2012 reelection campaign, the president had a large problem. He had managed to accrue only a mediocre record of accomplishment in the area that mattered most to most Americans — the economy. Moreover, the president's policies and, in some cases the lack of same, had diminished the enthusiasm of several groups that had been among his staunch supporters in his first presidential campaign.

One of these groups consisted of legal American residents with roots in Spanish-speaking countries. Hispanics, it was endlessly repeated, were America's fastest growing ethnic group and that their presence in large numbers in the so-called swing states made them an important constituency to engage, and a crucial one for the president to win.

The president however, had boxed himself into a corner with this important group. He had promised immigration reform would be a top priority in his first year of office, but had failed to deliver.

Worse, immigrants of Spanish-speaking descent were under the mistaken impression that his enforcement policies were responsible for the deportation of major numbers of non-criminal illegal aliens and that the president had done nothing in response.

What they didn't know, and what the president could not say publicly, was that he had already set in motion several administrative steps that would severely narrow and curtail immigration enforcement.

The first steps the administration took in this direction curtailed and narrowed the basis of immigration raids at businesses. The Washington Post reported in 2009 that "Homeland Security Secretary Janet Napolitano has delayed a series of proposed immigration raids and other enforcement actions at U.S. workplaces in recent weeks, asking agents in her department to apply more scrutiny to the selection and investigation of targets as well as the timing of raids, federal officials said."

And what would the basis of this new scrutiny be? The Post reported that "A senior department official said the delays signal a pending change in whom agents at U.S. Immigration and Customs Enforcement choose to prosecute — increasing the focus on businesses and executives instead of ordinary workers."

The Post also reported the political calculations behind this administrative review: "The raids have enraged Latino community and religious leaders, immigrant advocates, and civil liberties groups important to the Democratic base, who have stepped up pressure on Obama to stop them."

Shortly thereafter, the New York Times reported on that policy change in an article entitled "Illegal Workers Swept From Jobs in 'Silent Raids'". The adjective fit, in more ways than one.

The Times reported that "The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies' records for illegal immigrant workers." (emphasis added) The president of Border Management Strategies touted the strategy by noting that "there is no drama, no trauma, no families being torn apart, no handcuffs."

And no publicity to rile constituencies you are trying to woo.

Moreover, the Times reported that, "while the 'silent raids' … as employers call the audits, usually result in the workers being fired, but in many cases they are not deported."

The result? The Times reported that "Many immigrants purchased new false documents and went looking for jobs in more distant orchards."

John Morton, director of ICE at the time, was quoted as saying, "the goal of the audits is to create 'a culture of compliance' among employers, so that verifying new hires would be as routine as paying taxes" and that his agency is looking for "'egregious employers' who commit both labor abuses and immigration violations."

The only problem with this strategic vision was that already in 2009 the Department of Homeland Security had rescinded the 2007 Social Security No-Match Rule that compared Social Security numbers on submitted W-2 forms with a database of legal Social Security numbers. No-match letters would then be sent to employers who submitted 10 or more W-2 forms that could not be matched to Social Security Administration records or who had no-matches for more than one-half of 1 percent of their workforces. A fair inference was that the majority of the individuals named in the no-match letters sent to employers were aliens unauthorized to work in the United States.

If Mr. Morton was truly looking for "egregious employers", he could do much better by starting with a no-match letter strategy that would easily be able to pinpoint employers with large numbers of workers who had given Social Security numbers that did not match the Social Security number database.

Instead the administration decided to rely on E-verify, an effective screening platform, but one that is voluntary and in use by only a small number of businesses.

When it came to workplace immigration enforcement, the administration narrowed the conceptual lens that had guided immigration enforcement policy for over three decades, limited its focus, and then voluntarily put on a blindfold.

Next: President Obama's Deportation Dilemmas