- Last September, 29 law professors assured the University of California that “no federal law prohibits [it] from hiring undocumented students”, that the Immigration Reform and Control Act of 1986’s prohibition on the knowing hiring and employment of aliens not authorized to work under federal law “does not bind state government entities”. I have concluded that if the UC regents do authorize such employment and the federal government challenges it, that IRCA’s employer sanctions regime will likely be found to apply to UC and UC will likely not be found to have a constitutional right to hire unauthorized aliens as professors.
- Following the receipt of this assurance from the 29 law professors, the UC regents indicated their support in principle and voted to form a working group to examine the issue and complete a proposed implementation plan by November 2023. The regents have not yet publicly announced a plan.
- The professors failed to detail to UC the risks involved, not only to HR officers, but also to the UC regents themselves. For “employer sanctions” violations carry not only civil but also potential criminal liability, and penalties include (and have resulted in) imprisonment.
- Employer sanctions’ primary criminal offense involves “pattern or practice” violations: “Any person or entity which engages in a pattern or practice of violations ... shall be fined not more than $3,000 for each unauthorized alien .., imprisoned for not more than six months for the entire pattern or practice, or both”.
Other applicable criminal offenses include:
- “Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens” unauthorized to work who have been smuggled into the U.S. is subject to penalties including “fine[s] ... or imprison[ment] for not more than 5 years, or both.”
- “Any person who ... knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place ... or ... engages in any conspiracy to commit any [such] act, or ... aids or abets the commission of any ... [such] act” is subject to penalties including “for each alien in respect to whom ... a violation occurs ... fine[s] .., imprison[ment for] not more than 5 years, or both ... “or [if] the offense was done for the purpose of commercial advantage or private financial gain, ... fine[s] .., imprison[ment] not more than 10 years, or both”.
- “Any person who ... encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law ... or ... engages in any conspiracy to commit any [such] act, or ... aids or abets the commission of any ... [such] act” is subject to the same potential set of penalties as for harboring.
- The “harboring” and “encouraging/inducing” offenses are predicate offenses for purposes of civil and criminal application of RICO — the Racketeer Influenced and Corrupt Organizations Act.
- No administration has aggressively utilized employer sanctions’ criminal penalties. A principal cause of this failure is the difficulty in proving that an employer “knowingly” hired or employed unauthorized aliens, in large part the result of the easy availability to them of fraudulent documents. However, proof of knowledge should not be a difficulty in the case of an employer, potentially such as UC, that publicly proclaims that it will knowingly hire unauthorized aliens.
- While the Biden administration utilizing its power of prosecutorial discretion might very well refuse to enforce employer sanctions against UC, the statute of limitations for the federal crimes involved is five years. Thus, the next administration would be able to bring prosecutions for most or all UC’s hiring under a new policy, and certainly for the continuing employment of unauthorized aliens still employed at UC (as continuing employment is a continuing offence).
As I noted late last year, 29 law professors have assured the University of California (UC) that “no federal law prohibits [it] from hiring undocumented students” not authorized to work under federal law, that the Immigration Reform and Control Act of 1986’s (IRCA) prohibition on the knowing hiring and employment of unauthorized aliens “does not bind state government entities”.
Last October, Miriam Jordan reported in the New York Times that:
[A] coalition of undocumented student leaders and some of the nation’s top legal scholars is proposing that California ... begin employing undocumented students at the 10 University of California campuses.
The proposal ... calls for the state to defy current interpretations of a 1986 federal immigration law that prohibits U.S. employers from hiring undocumented immigrants. [A] new legal analysis ... argues that the law does not apply to states.
For those interested in taking a deep dive into the legal issues involved, I offer up the memo prepared by the professors themselves and the law review article I wrote for the Journal of College and University Law challenging their analysis and conclusions. I concluded in my article that “If the [UC] Regents ... do authorize the ... employ[ment] ... and the federal government challenges the decision, (1) IRCA’s employer sanctions regime will likely be found to apply to UC; and (2) UC will likely not be found to have a constitutional right to hire unauthorized aliens as professors.”
What was UC’s response to the professors’ memo? This May, Teresa Watanabe reported in the Los Angeles Times that “The regents, saying they support an equitable education for all, unanimously agreed ... to find a pathway to enact a bold policy to hire students who lack legal status and work permits.” She wrote further that:
The [UC] regents voted to form a working group to examine that legal issue, along with practical considerations about how to roll out a policy that is already igniting controversy. But they made clear they are committed to their immigrant students and said the working group would complete its proposed plan by November.
“Absolutely, it is our intention to find a way to allow employment opportunities for all our students, regardless of their immigration status,” said Regent John A. Pérez, one of the key leaders in the effort to push a new policy forward. But he added the university needs time to work through the complex issue.
“This is too important to get wrong,” he said.
UC President Michael V. Drake and Board of Regents Chair Rich Leib also affirmed UC’s commitment to equity. “The University is committed to ensuring that all students, regardless of their immigration status, can pursue and attain a world-class UC education. This should include providing enriching student employment opportunities to all students,” they said in a joint statement.
Well, November has arrived. What has transpired? In August, Christopher Buchanan reported in The Daily Bruin (the UC Los Angeles (UCLA) student newspaper) that:
Opportunity for All — a coalition between the Undocumented Student-led Network, the Center of Immigration Law and Policy at the UCLA School of Law and the UCLA Labor Center that advocates for equitable access to employment for students without legal documentation — hosted a summit to celebrate the UC Regents’ decision to remove hiring restrictions for students without legal status in May. At the summit, UC Regent Jose Hernandez, Student Regent Merhawi Tesfai and Student Regent Designate Josiah Beharry discussed their roles in implementing future employment policy.
Hernandez said he and Beharry drafted a policy to carry out Opportunity for All’s campaign goal. He added that he hopes to serve on the committee that will oversee the implementation of this policy to ensure that it meets the needs of the students it will impact.
[Ahilan] Arulanantham [co-director of the Center for Immigration Law and Policy and one of the 29 scholars] said other universities have expressed interest in the legal theory ... adding that the California State University system had seen rising interest in a similar program.
Also in August, Paul Basken reported in Times Higher Education that:
[N]o further details of how [the plan] will work have ... been released [since May].
[UC] leaders ... still have not put their promised programme in place, and are not guaranteeing they will. A team formed by the regents to study the idea “continues to receive direct student feedback as their work progresses to determine whether, how and when to implement next steps by the end of November”, the UC system said, reiterating its months-long position on the matter.
Dr [Miriam] Feldblum[, executive director of the Presidents’ Alliance on Higher Education and Immigration, which represents more than 550 U.S. college and university presidents and chancellors,] said she has not heard of university leaders in any other states considering embracing California’s attempt to hire undocumented students.
In September, Adolfo Guzman-Lopez reported in LAist that:
The [UC] regents are crafting a major shift in policy that would allow students who are undocumented to have campus jobs.
But the group of activists who pressed for that change want more collaboration. They say they’ve researched their own implementation plan, hoping the UC regents want to use the information.
The new policy will require navigation through human resources, employment law, and other aspects of the university bureaucracy. To sort through those issues, the regents created a working group after the May vote to draft a plan for campuses.
As to specifics?
“The working group’s operations have been opaque,” said Ahilan Arulanantham.
“I definitely feel like we'd be stronger ... the process would be more robust if we were actually having some dialogue and working through the implementation issues together. And thus far that has not happened,” Arulanantham said. “We tried.”
The university working group has met five times in closed session for one-hour meetings. At the August 9, 2023 meeting, members of the Opportunity for All campaign were invited to take part. One student in the meeting said she came away encouraged by the back and forth. But another said he expected more than listening from the regents.
“What my takeaway was from leaving the [August 9] meeting with the workgroup is that the regents weren't all that open to collaborating with our experts on the development of the implementation plan,” said Umaña Muñoz, who attended the working group meeting.
A university spokesman did not divulge whose input the official working group has considered so far, but did say that group has gathered input from “subject-matter experts, undocumented students, and legal counsel.”
What is the potential legal liability for UC hiring officials, and also for the UC regents themselves? Jordan reported last October that:
[C]ritics [of the plan] said it would most likely lead to legal challenges, as well as potential conflicts with the federal government. The Biden administration has tried to expand DACA protections and would be unlikely to take enforcement action, but a Republican administration could take a much stricter approach, said Josh Blackman, constitutional law professor at the South Texas College of Law Houston.
“It’s all fun and games with the Biden administration in town,” he said. “But in January 2025, if a Republican president takes office, California could be in for litigation and some ruinous fines.”
Watanabe noted in May that:
UC officials have also weighed the potential for litigation against the university, public backlash and possible legal exposure to faculty and staff who would hire the students. Leib said regents need to make sure they consider the effect on all university members, including campus leaders who will need to implement any new policy.
Finally, Basken reported in August that “The Biden administration has not publicly expressed its position on the University of California’s proposed interpretation of the federal law, and administration officials declined to answer questions about it.”
The “employer sanctions” regime put in place by IRCA provides that:
IN GENERAL.— It is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States—
(A) an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment, or
(B) an individual without complying with the requirements of subsection (b) [involving an employment eligibility verification process in which an employer certifies on an “I-9” form that it has reviewed specified documents demonstrating identity and employment eligibility provided by a new hire and that the documents reasonably appear to be genuine and relate to the individual].
CONTINUING EMPLOYMENT.— It is unlawful for a person or other entity, after hiring an alien for employment in accordance with [the above] paragraph ... to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment. [Emphasis added.]
[Subsection (h)(3) states:] DEFINITION OF UNAUTHORIZED ALIEN.— As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the [Secretary of Homeland Security].
IRCA put in place a civil penalty structure:
CEASE AND DESIST ORDER WITH CIVIL MONEY PENALTY FOR HIRING, RECRUITING, AND REFERRAL VIOLATIONS.— With respect to a violation of [the above] subsection[s], the order under this subsection—
(A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of—
(i) not less than $250 and not more than $2,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred,
(ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or
(ii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph; and
(B) may require the person or entity—
(i) to comply with the requirements of subsection (b)...with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years, and
(ii) to take such other remedial action as is appropriate.
As I have written, that “While different administrations have devoted various degrees of effort to enforcing employer sanctions and levying civil fines, employers have generally adapted to these fines as a “cost of doing business.”
Contrary to Professor Blackman, UC could be in for more than just some fines, ruinous or not. IRCA and subsequent legislation also put in place a criminal penalty structure that includes potential federal prison sentences. But first, why criminal penalties in the first place?
Why Criminal Penalties?
In February 1975, Acting Attorney General Laurence Silberman testified before the House Judiciary Committee’s immigration subcommittee that:
[W]hen [the Department of Justice (“DOJ”)] originally testified on this legislation ... [its] position was that it would be wiser to have a stiffer criminal penalty for the first violation [of employer sanctions]. If you really think about that ... the civil penalty, in our judgment, is more effective. A criminal penalty carries with it all sorts of procedural steps, and often, at least in the first instance, it would be less effective in deterring this than a swift civil penalty which would carry with it less of the procedural burden than a criminal process and, of course, for the repeated violator the criminal process is available.1
While Silberman’s analysis may be true in an ideal world, in the real world the ineffectiveness of civil fines quickly became apparent. In 2005, the Government Accountability Office (GAO) concluded that:
[The former Immigration and Naturalization Service] INS and [now U.S. Immigration and Customs Enforcement] ICE have faced difficulties in setting and collecting final fine amounts that meaningfully deter employers from knowingly hiring unauthorized workers. ... ICE officials told us that because fine amounts are so low, the fines do not provide a meaningful deterrent ... [and] that when agents could prove that an employer knowingly hired an unauthorized worker and issued a notice of intent to fine, the fine amounts agents recommended were often negotiated down in value during discussions between agency attorneys and employers. The amount of mitigated fines may be, in the opinion of some ICE officials, so low that they believe that employers view the fines as a cost of doing business, making the fines an ineffective deterrent for employers who attempt to circumvent IRCA.
In 2011, my then-boss Lamar Smith, chairman of the House Judiciary Committee, testified at a hearing of the Committee’s immigration subcommittee that “Stewart Baker, [DHS’s] Assistant Secretary for Policy Development in the [George W. Bush] Administration, said that ... ‘the [civil employer sanctions] fines are ridiculously low, sometimes less than a New York City parking ticket.’” However, as to criminal penalties, Mr. Smith said that “each time [DOJ] brings a criminal action against an employer who knowingly hired illegal workers, it sends a powerful message that their employment will not be tolerated.”
At the same hearing, committee member Trey Gowdy, a former South Carolina prosecutor, discussed the value of criminal penalties with ICE Deputy Director Kumar Kibble:
Mr. GOWDY. You will agree, I hope, that criminal consequences get people’s attention more so than civil consequences?
Mr. KIBBLE. Yes, sir, they do.
Mr. GOWDY. There is a full range, a panoply of negative consequences that go along with a criminal convention that don’t exist with a civil one.
Mr. KIBBLE. That is correct, sir.
Mr. GOWDY. [Y]ou concede with me ... that nothing gets people’s attention quite like seeing a colleague go to prison, agreed?
Mr. KIBBLE. Absolutely. But this is an issue, though, that spans — that is more complex than that. I mean, we are —
Mr. GOWDY. Tell me how it is more complex. We do it in every other category of crime. We send people to the Bureau of Prisons, whether it be for 6 months or 6 years or life. And that is how we deter criminal conduct.
Professor Jonathan Turley at the George Washington University Law School has similarly argued that “major employers ... would be susceptible to deterrent policies of prosecution. It is possible to change the dynamic, but that would mean getting ‘a little rougher’ on the back end of the illegal immigration system.”
In fact, the American labor movement had for decades prior to IRCA’s enactment sought employer sanctions with criminal penalties. Professor Daniel Tichenor at the University of Oregon has noted that delegates at American Federation of Labor conventions “as early as 1950 endorsed ... a criminal penalty for employers who hire [illegal] labor”.2 In 1971, the 9th Constitutional Convention of the AFL-CIO adopted a policy resolution stating that “Federal legislation should be adopted to provide criminal penalties for employers ... who knowingly and willfully hire illegal immigrants, thus robbing legal immigrants and American citizens of employment opportunities at decent wages.”3 The AFL-CIO later recommended to the Select Commission on Immigration and Refugee Policy that “[a] new immigration law should provide effective penalties for employers who knowingly hire illegal aliens, including criminal sanctions and injunctions to prevent violations.”4
Ray Marshall, President Jimmy Carter’s secretary of Labor, agreed. He wrote when serving on the Select Commission that:
[U]nless employer sanctions are enacted, I believe U.S. efforts to curtail the entry of undocumented workers will neither be nor appear to be very effective. This, in turn, will encourage further illegal immigration. A graduated system of civil and criminal penalties, applying to all employers who knowingly hire aliens without work authorization but varying ... according to the magnitude and frequency of offence, is preferable.5
Many civil rights organizations also advocated for employer sanctions with criminal penalties. In 1975, Manuel Fierro the president of the National Congress of Hispanic-American Citizens, testified that:
The most effective way to discourage employers from hiring illegal aliens is to make them liable for criminal penalties for hiring illegals. If the purpose of immigration laws is to protect the domestic work force, it is logical to exercise the most stringent control at the place of work. Therefore, we strongly urge that penalties for violations be substantially strengthened by providing for criminal penalties ... for the first violations as well as subsequent ones. ... It is the unskilled Mexican-American and unions who are hurt the most severely by the entry of illegal aliens.6
In 1978, the National Urban League stated that: “We support the imposition of civil penalties for those employers who knowingly and willingly employ undocumented aliens. Additionally, criminal penalties should be imposed upon those employers engaging in patterns and practices of knowingly employing undocumented workers.”7
Even the Los Angeles Times proclaimed in 1980 that a “necessary element of a rational immigration policy [is] criminal sanctions against employers who knowingly hire illegal immigrants, and all too often, exploit their vulnerability to deportation.”8
Of course, not all agree. Rachel Sumption has written that:
Prosecuting employers for immigration-related crimes creates vast collateral consequences that do not appear in other forms of corporate prosecution.
[T]he investigation of criminal employer sanctions cases inevitably leads to the firing, arrest, and deportation of undocumented workers without establishing protections for future workers.
Sanctions, though not directly targeted at undocumented workers, harm [them] indirectly by making it undesirable for employers to hire them.
Ultimately, the goal of employer sanctions is not to reform, punish, or rehabilitate the employers; it is to force criminal defendants to cease hiring undocumented workers.
[P]lea deals, deferred prosecution agreements, [and] non-prosecution agreements. ... accomplish sanctions’ ultimate goal of deterring migrant workers through the raids, audits, and firings that occur in the early stages of a case. It is impossible for prosecutors to target corporate wrongdoing without turning migrant workers into collateral damage as the prosecution builds its case and the employer seeks to minimize punishment.
In every [criminal employer sanctions] deferred-prosecution or non-prosecution agreement brought ... in the last decade, all undocumented employees were terminated voluntarily by companies in the early stages of criminal investigation. In many cases, mass arrests and detentions of employees by ICE were part and parcel of the criminal investigation. ... [R]eview of the ... agreements ... also reveals that ... companies were only obligated to adopt stricter standards for “discovering” undocumented workers, such as E-Verify or internal audits.
Wait a second — employer sanctions make it undesirable for employers to hire illegal aliens and even leads to their firing, arrest, and deportation?! Sacré bleu!
What Are the Criminal Penalties?
What are the potential criminal penalties for violations of IRCA’s employer sanctions?
Pattern or Practice. The primary criminal offense established by IRCA for employer sanctions violations involves “pattern or practice” violations:
Any person or entity which engages in a pattern or practice of violations ... shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels.
IRCA’s conference report stated that:
It is the intention of the Conferees that criminal sanctions are to be used for serious or repeat offenders who have clearly demonstrated an intention to evade the law by engaging in a pattern or practice. ... The Conferees expect the [INS] to target its enforcement resources on repeat offenders and that the size of the employer shall be a factor in the allocation of such resources.9
The House Judiciary Committee’s report explained that:
The term “pattern or practice” has received substantial judicial construction, since the term appears in the Voting Right Act ... the Civil Rights Act of 1964 ... and the Fair Housing Act of 1968. ... The Committee emphasizes that it intends to follow the judicial construction of that term as set forth in [enumerated] cases [that] all indicate that the term ... has its generic meaning and shall apply to regular, repeated and intentional activities, but does not include isolated, sporadic or accidental acts.10
Should UC establish an official policy of flouting IRCA’s prohibition on the knowing hiring or employment of unauthorized aliens and then actually hire/employ multiple unauthorized aliens over a period of time, it seems apparent that this would indeed constitute a pattern or practice — “regular, repeated and intentional activities” rather than “isolated, sporadic or accidental acts”.
Ten Is Enough. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added an additional criminal penalty for the knowing hiring of at least 10 aliens who the employer knew had been smuggled into the U.S.:
Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens [unauthorized to work in the U.S. who have been smuggled into the U.S.] shall be fined under Title 18 or imprisoned for not more than 5 years, or both. [Emphasis added.]
IIRIRA’s conference report explained that:
This provision creates a new offense for an employer to hire an alien who the employer knows is not authorized to be employed in the United States, and who the employer also knows was brought into the United States in violation of INA section 274[, titled “Bringing in and Harboring Certain Aliens”]. In order to be liable under this provision, the employer must have actual knowledge both of the alien's unauthorized status and of the fact that the alien was brought into the United States illegally.
Generally, this offense should not be a major concern for UC, as it would be unlikely that UC hiring officials would have knowledge that unauthorized aliens they hire were brought to the U.S. illegally. However, I can imagine scenarios in which aliens would voluntarily disclose this information in the hiring process, had previously disclosed it to UC as students, or make it publicly available on social media. Hiring officials who do not perform due diligence might be vulnerable to allegations of willful blindness.
Harboring. The INA provides that:
Any person who ... knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation ... or ... engages in any conspiracy to commit any [such] act, or ... aids or abets the commission of any ... [such] act, shall be punished as provided [below].
A person who violates [the above] shall, for each alien in respect to whom such a violation occurs ...
... [if] the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
in the case of a violation ... be fined under title 18, imprisoned not more than 5 years, or both. [Emphasis added.]
What does this have to do with employer sanctions? In 1952, Congress clarified the preexisting criminal penalties for concealing or harboring illegal aliens. At the same time, it added the infamous “Texas Proviso” — “Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.” IRCA struck the Texas Proviso. The House committee report stated that the bill “eliminate[s] the so-called ‘Texas proviso,’ which prevents employment from being considered as harboring an alien.”11
This is where the UC regents themselves should be most concerned. They could potentially be charged not only with harboring illegal aliens, but additionally or alternately with being part of a conspiracy to do so, or with aiding or abetting the harboring.
Encouraging or Inducing. The INA provides that:
Any person who ... encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law ... or ... engages in any conspiracy to commit any [such] act, or ... aids or abets the commission of any ... [such] act, shall be punished as provided [below].
A person who violates [the above] shall, for each alien in respect to whom such a violation occurs ...
... [if] the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
in the case of a violation ... be fined under title 18, imprisoned not more than 5 years, or both. [Emphasis added.]
As with harboring, UC could potentially be charged not only with “encouraging or inducing” illegal aliens, but additionally or alternately with being part of a conspiracy to do so, or with aiding or abetting such encouraging or inducing.
As DOJ describes the Racketeer Influenced and Corrupt Organizations Act (RICO) to federal prosecutors:
[RICO] provides for civil as well as ... powerful criminal penalties for persons who engage in a “pattern of racketeering activity” ... and who have a specified relationship to an “enterprise” that affects interstate or foreign commerce. Under the RICO statute, “racketeering activity” includes state offenses involving murder, robbery, extortion, and several other serious offenses, punishable by imprisonment for more than one year, and more than one hundred serious federal offenses including extortion, interstate theft, narcotics violations, mail fraud, securities fraud, currency reporting violations, certain immigration offenses, and terrorism related offenses. A “pattern” may be comprised of any combination of two or more of these state or federal crimes committed within a statutorily prescribed time period. Moreover, the predicate acts must be related and amount to, or pose a threat of, continued criminal activity. ... An “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any group of individuals associated in fact although not a legal entity. [Emphasis added throughout.]
Depending on the underlying racketeering activity ... criminal penalties rang[e] from ... a fine under Title 18 or any term of up to life imprisonment ... [and] forfeiture of the defendant’s interest in the enterprise connected to the offense, and his interests acquired through or proceeds derived from racketeering activity or unlawful debt collection.
The Anti-Terrorism and Effective Death Penalty Act of 1996 added certain immigration-related crimes to the list of RICO predicate offenses, including “any act which is indictable under [INA] section 274 (relating to bringing in and harboring certain aliens) ... if the act indictable ... was committed for the purpose of financial gain”.
As IIRIRA’s House Judiciary Committee report argued in support of making certain immigration crimes RICO predicate offenses, “Federal law enforcement should have the same tools to combat immigration crimes it does to combat other serious crimes that threaten public safety and national security.”
I would presume that UC’s potential hiring of unauthorized aliens would not be done for financial gain, so this offense should not be a major concern for UC.
The “Knowing” Problem
As I have written:
In over three decades, no administration has aggressively utilized the criminal penalties provided for by Congress. This became shockingly apparent in 2019 when the Transactional Records Access Clearinghouse at Syracuse University reported that “since criminal penalties for employers were first enacted by Congress in 1986, few employers have ever been prosecuted. ... [and] fewer who are convicted receive sentences that amount to more than token punishment.”
I also explained that a principal cause of the neglect of criminal enforcement is the difficulty of proving that an employer “knowingly” hired or employed unauthorized aliens, in large part the result of the easy availability of fraudulent documents.
The Achilles Heel of IRCA’s I-9 process has been that, as GAO noted in 1999, “INS officials ... stated that the widespread use of fraudulent documents made it difficult for INS to prove that an employer knowingly hired an unauthorized alien.” In 2005, GAO similarly concluded that:
[T]he widespread use of counterfeit documents ... make it difficult for ICE agents to prove employer violations.
ICE officials told us that employers who agents suspect of knowingly hiring unauthorized workers can claim that they were unaware that their workers presented false documents at the time of hire, making it difficult for agents to prove that the employer willfully violated IRCA.
In his 2011 testimony, ICE Deputy Director Kibble concurred, stating that “In many instances, we may not be able to ... meet that burden, in terms of knowledge on the part of the employer.”
In 2019, the New York Times reported that:
[I]n most cases, it is difficult to prove that employers knowingly hired people who were not authorized to work in the United States. Most employers do not question documents submitted to them, and few states require them to use [E-Verify] to vet them. Tom Roach, an immigration lawyer [said] “It’s very hard for the government to prove what an employer knows in his head about his workers.” ... “It’s a steep hill to climb.” Employers most likely to face prosecution tend to be immigrants who own small businesses such as restaurants, gas stations and liquor stores staffed by people whom they have recruited from their home countries to work for them.
Roy Mauer has written for the Society for Human Resource Management that:
[Attorney Bruce Buchanan] explained that the employer needs to have either actual or constructive knowledge that the individual being hired is an undocumented worker. “That's not easy to do,” he said. “The law states that HR is required to accept workers' employment or identification documents if they appear genuine and relate to the person. HR is not trained to nor are they supposed to investigate phony identity documents. And prosecutors can't build a criminal case of off saying that HR should've known those documents were fake. It takes a lot more than that.”
[Julie Myers] Wood [ICE Director during the George W. Bush administration] explained that ICE seeks to hold management liable if possible. “When I was at ICE, we tried, but it was very difficult to hold employers liable under the law because the ‘knowingly hired’ standard is a very high standard. To show managers are involved takes finding e-mails, cooperative witnesses and hiring patterns.”
John Amaya, former deputy chief of staff at ICE during President Obama’s administration, similarly explained that “At the end of the day ... it’s about how much can you prove in court? Proving intent is pretty hard. As long as there isn’t a paper trail or an email trail, it will be a ‘he said, she said.’”
Mauer concluded that “The ‘knowingly’ language has not only spawned a cottage industry for fake documents, but it has also led some employers to engage in layered hiring — using staffing agencies and contractors who hire subcontractors — to shield themselves from knowledge of foreign workers' employment authorization status.”
However, proof of knowledge should not a difficulty in the case of UC if the regents explicitly authorize the hiring and continued employment of illegal aliens. Per John Amaya, the paper and email trails would become superhighways. Per Julie Myers Woods, finding “cooperative witnesses and hiring patterns” should not be necessary in order to show that managers are involved. Thus, for an administration determined to utilize criminal penalties in the enforcement of employer sanctions, prosecutions against UC, UC hiring officials, and/or the regents themselves could be ideal ones for prosecutors. There would presumably be few or no factual issues — the prosecution would depend entirely or primarily on whether employer sanctions do, or constitutionally can, apply to UC.
Prospects for Criminal Enforcement
Even with TRAC’s troubling conclusion about the lack of criminal prosecutions for employer sanctions violations, lengthy prison sentences have been doled out on occasion. For instance, after two Waste Management of Texas managers were convicted for offenses including “encouraging or inducing”, “[o]ne was sentenced to 94 months imprisonment; the other to 87 months imprisonment”. They had “actively implemented ... identity theft and unlawful employment schemes”.
I can certainly see the Biden administration rely on its power of prosecutorial discretion to refuse to investigate employer sanctions violations by UC, or to refuse to seek either civil or criminal penalties. However, the statute of limitations for the federal crimes involved is five years. Thus, the next administration could bring prosecutions for all or most of UC’s hiring under the new policy, and as continuing employment is a continuing offence, there would be no statute of limitation issues at all regarding aliens still employed at UC.
1 “Illegal Aliens: Hearing Before the Subcommittee on Immigration, Citizenship and International Law of the House Committee on the Judiciary”, 94th Congress 28 (1975).
2 Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America, Princeton, N.J.: Princeton University Press, 2002, 224-25 (footnote omitted).
3 “Illegal Aliens” at 194.
4 Select Commission on Immigration and Refugee Policy, “Appendix H of the Staff Report of the Select Commission on Immigration and Refugee Policy: Public Information Supplement: Supplement to the Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy”, summary prepared by the Select Commission’s public affairs staff, 250 (1981).
5 Id. at 313 (emphasis omitted).
6 “Illegal Aliens” at 315, 317.
7 Select Commission at 254-55 (emphasis in original).
8 Id. at 256.
9 H.R. Rep. No. 99-1000 at 86 (1986) (conference report).
10 H.R. Rep. No. 99-682, pt. 1, at 59 (1986).
11 Id. at 94.