- In 1986, the Immigration Reform and Control Act established “employer sanctions”, making it unlawful for employers to knowingly hire and employ illegal aliens. Congress incorporated civil penalties, generally in the form of fines, and a misdemeanor criminal offense for engaging in a “pattern or practice” of violations. In the same legislation, Congress made employers potentially liable for the preexisting crime of “harboring” illegal aliens. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act established a separate criminal offense for the knowing hiring of at least 10 illegal aliens known by the employer to have been smuggled into the U.S., and made harboring illegal aliens a predicate offense for the purpose of prosecutions under the Racketeer Influenced and Corrupt Organizations (RICO) Act.
- 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”. 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.”
- A principal cause of the neglect of criminal enforcement is the difficulty of proving that an employer “knowingly” hired or employed illegal aliens, in large part the result of the easy availability of fraudulent documents used by illegal aliens.
- I recommend that Congress seriously consider two statutory changes to fulfill the failed promise of employer sanctions to turn off the jobs magnet for illegal immigration. The first would be to provide temporary legal status (and potentially lawful permanent residence) to illegal aliens who can provide critical information that can lead to the successful prosecution of their employers for employer sanctions violations. The second would be to provide the victims of employers who knowingly employ illegal aliens (such as American workers who are fired or not hired as a result of such unlawful employment) a private right of action to sue the employers for damages.
In 2005, Matthew Reindl, the owner of a family-owned woodworking business started by his immigrant grandfather in 1951, testified before the House Judiciary Committee’s immigration subcommittee that:
As my competitors break the law and hire illegal aliens, my product price cannot be raised. ... In order to stay in business, I cannot give my legal employees the raises they deserve. Why do I have to compete against employers blatantly breaking immigration, tax, Social Security and insurance laws? ... The Federal Government can’t allow a criminal minority of employers to profit from illegal labor practices because it undermines the founding principles of our Nation.
That same year, Maria Echaveste, former deputy chief of staff for President Bill Clinton, wrote that:
If we are concerned about stagnating wages and adverse working conditions for those at the bottom, reducing the supply of unauthorized workers would change the dynamics of the labor market. We should be able to ask this question without being considered racist or nativist. Today, those who are competing with the undocumented workforce are often legal immigrants and their children, as well as traditional low-income populations. ... If we care about low-income workers in this country, we need to create pressure to improve their economic condition by reducing the supply of unauthorized workers.
During the Obama administration, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) proclaimed that:
Responsible employers who conduct their business lawfully are put at an unfair disadvantage when they try to compete with unscrupulous businesses. ... [who] may gain a competitive edge by not paying their unauthorized workers prevailing wages and benefits.
Employment is a primary driving force behind illegal immigration. ... HSI is committed to ... safeguarding employment opportunities for authorized workers.
Illegal aliens often turn to criminal activity, including document fraud, Social Security fraud or identify theft to obtain employment. It can take years for identity theft victims to repair the damage.
Why Employer Sanctions?
What exactly are “employer sanctions” and why were they enacted into law? The Select Commission on Immigration and Refugee Policy, chaired by Rev. Theodore Hesburgh, C.S.C., the president of the University of Notre Dame and former chairman of the U.S. Commission on Civil Rights, concluded in 1981 that:
The vast majority of undocumented/illegal aliens are attracted to this country by employment opportunities. ... As long as the possibility of employment exists, men and woman seeking economic opportunities will continue to take great risks to come to the United States, and curing illegal immigration will be extremely difficult. ... [T]he success of any campaign to curb illegal migration is dependent on the introduction of new forms of economic deterrents.
Without an enforcement tool to make the hiring of undocumented workers unprofitable, efforts to prevent the[ir] participation ... in the labor market will continue to meet with failure. Indeed, the absence of such a law serves as an enticement for foreign workers. ... [S]ome form of employer sanctions is necessary if illegal migration is to be curtailed.
In 1982, the Supreme Court itself concluded in Plyler v. Doe, its seminal decision barring states (at least without clear congressional authorization) from denying public education to illegal alien children or requiring them to pay tuition, that:
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor.
The dominant incentive for illegal entry ... is the availability of employment. ... [W]e think it clear that “[charging] tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,” at least when compared with the alternative of prohibiting the employment of illegal aliens.
In 1986, the House Judiciary Committee argued in the lead-up to the enactment of employer sanctions that:
The principal means of ... curtailing future illegal immigration ... is through employer sanctions. ... Employment is the magnet that attracts aliens here illegally. ... Employers will be deterred by ... penalties ... from hiring unauthorized aliens and this, in turn, will deter aliens from entering illegally or violating their status in search of employment. The logic of this approach has been recognized and backed by the past four administrations, and by the Select Commission. ... [E]mployer sanctions is the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens.1
Employer sanctions were finally enacted into federal law through the Immigration Reform and Control Act of 1986 (IRCA), which made it unlawful for employers to knowingly hire and employ illegal aliens (as well as other aliens not authorized to work in the U.S.). IRCA’s civil penalties provide that, with respect to the knowing hiring or employment of aliens not authorized to work in the U.S.:
[The order] 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 ... 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 .., or
(iii) 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.
IRCA also established a misdemeanor criminal offense for engaging in a “pattern or practice” of knowingly hiring or employing aliens unauthorized to work. And IRCA lifted a statutory bar against considering the employment of illegal aliens as the criminal harboring of such aliens. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) established a separate criminal offense for the hiring of at least 10 illegal aliens who the employer knows had been smuggled (“brought”) into the U.S. IIRIRA also made harboring and other alien smuggling crimes predicate offenses for the purpose of prosecution under the Racketeer Influenced and Corrupt Organizations (RICO) Act.
IRCA also requires employers to complete an employment eligibility verification process when hiring new employees utilizing Form “I-9”, certifying that they have reviewed specified identity and employment eligibility documents provided by the new hires and that the documents reasonably appear to be genuine and relate to the individuals.
Why Criminal Penalties?
In February 1975, Acting Attorney General Laurence Silberman testified before the House Judiciary Committee’s immigration subcommittee that:
[W]hen [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.2
While Silberman’s analysis may be true in an ideal world, in the real world the effectiveness of civil fines quickly evaporated. In 2005, the Government Accountability Office (GAO) concluded that:
[The former Immigration and Naturalization Service] INS and [now] 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, 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 prior 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, had a discussion with Kumar Kibble, ICE deputy director, on the value of criminal penalties:
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 similarly argues 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 before IRCA’s enactment sought employer sanctions with the threat of criminal penalties. Professor Daniel Tichenor writes that delegates at American Federation of Labor conventions “as early as 1950 endorsed ... a criminal penalty for employers who hire [illegal] labor”.3 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.”4 The AFL-CIO later recommended to the Select Commission that “[a] new immigration law should provide effective penalties for employers who knowingly hire illegal aliens, including criminal sanctions and injunctions to prevent violations.”5
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.6
Many civil rights organizations also advocated for employer sanctions. 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.7
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.8
In 1985, Althea Simmons, director of the Washington Bureau of the NAACP testified that:
The NAACP strongly supports employer sanctions. Our branches across the country, particularly in large cities, report that the undocumented worker impacts the employment of blacks. Many blacks are forced from employment rolls by the undocumented worker who is hired at a subminimum wage and is at the mercy of the employer.9
Even the Los Angeles Times proclaimed in February 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”.10
However, rejecting these arguments, Rachel Sumption writes 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!
Federal Criminal Penalties for Employer Sanctions Violations
Pattern or Practice
IRCA established “pattern or practice” penalties:
Any person or entity which engages in a pattern or practice [of knowingly hiring or employing aliens unauthorized to be employed in the U.S.] ... 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.11
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.12
10 Is Enough
IIRIRA added a new 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.
The 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(a) [which includes the crime of harboring]. 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.
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
in the case of a violation ... during and in relation to which the person causes serious bodily injury ... to, or places in jeopardy the life of, any person, be fined under title 18, imprisoned not more than 20 years, or both; and ...
in the case of a violation ... resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.
The criminalization of harboring occurred over a century ago. Section 8 of the Immigration Act of 1907 criminalized the bringing into or landing (or the attempt to do so) of any alien into the United States not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the U.S. Section 8 of the Immigration Act of 1917 extended the scope of the offense to include concealing or harboring, providing:
[A]ny person ... who shall bring into or land in the United States ... or who shall attempt, by himself or through another, to bring into or land in the United States ... or shall conceal or harbor, or attempt to conceal or harbor, or assist or abet another to conceal or harbor in any place, including any building, vessel, railway car, conveyance, or vehicle, any alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the United States under the terms of this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding $2,000 and by imprisonment for a term not exceeding five years, for each and every alien so landed or brought in or attempted to be landed or brought in.
In 1948, the Supreme Court in U.S. v. Evans was “present[ed with] an unusual and a difficult problem in statutory construction ... concern[ing] not so much Congress' intention to make concealing or harboring criminal as it d[id] the penalty to be applied to those offenses.” The Immigration Act of 1917 clearly made concealing or harboring an illegal alien a misdemeanor, but it only established a penalty with regards to aliens “landed or brought in”. The Court stated that “we agree that Congress meant to make criminal and to punish acts of concealing or harboring” but that “the Government in effect concedes that ... [the statute] prescribes no penalty for concealing or harboring.”
The Court could not determine the extent to which Congress intended to criminalize acts of concealing or harboring not “closely connected with” acts of alien smuggling. As a result, it did not believe it could determine with any degree of accuracy the penalties that Congress intended to apply to acts of concealing or harboring. And it wasn’t sure what Congress even meant by “concealing or harboring” — “doubt over the section's reach to bring in very different acts which conceivably might be held to be concealing or harboring”. The Court concluded that “It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make.”
In 1952, in reaction to Evans, Congress clarified the criminal penalties for concealing or harboring illegal aliens. At the same time, it included 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.”
One member of the House of Representatives bemoaned the fact that the bill’s “exempting employment from definition as ‘harboring,’ will permit the employer to laugh at the law.” Louis F.B. Plascencia writes incredulously that:
The McCarran-Walter Act ... sought to deter the employment of illegal aliens through penalties for smuggling, transporting, and harboring such migrants. ... [The “Texas Proviso”] protected the practice of employers providing job opportunities that were recognized as being part of the attraction to undocumented migrants, even while criminalizing the entry and presence of such migrants.13
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.”14
The Racketeer Influenced and Corrupt Organizations Act
As DOJ describes 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.]
Depending on the underlying racketeering activity ... criminal penalties rang[e] from ... a fine under Title 18 or any term of years 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.
As IIRIRA’s House Judiciary Committee report argued in support of making 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.” Thus, the Anti-Terrorism and Effective Death Penalty Act of 1996 added to the list of predicate offenses immigration-related crimes, including those under section 274 (relating to bringing in and harboring certain aliens) “if the act ... was committed for the purpose of financial gain”.
The Illusion of Enforcement
HSI stated in 2013 that:
HSI enforces the law and engages in effective worksite enforcement. This reduces the demand for illegal employment and protects employment opportunities for the nation's lawful workforce.
On April 30, 2009, ICE HSI rolled out a revised worksite enforcement strategy. The strategy prioritizes the use of criminal prosecutions against employers that:
- Utilize unauthorized workers as a business model
- Mistreat their workers
- Engage in human smuggling or trafficking
- Engage in identity and benefit fraud
- Launder money
- Participate in other criminal conduct
HSI continues to prioritize criminal investigations.
As to these statements made during the Obama administration, President Biden’s HSI ... now clarifies that “This information is archived and not reflective of current practice.” Yet, HSI’s website still states that:
HSI conducts ... labor exploitation investigations that target egregious worksite violators [with t]he goal ... to penalize employers who knowingly hire unauthorized workers as well as to deter employers who are tempted to hire unauthorized workers.
HSI’s labor exploitation program brings integrity to the immigration system, eases pressure at the borders, promotes self-compliance in the business community and protects employment opportunities for the nation's lawful workforce. HSI utilizes both criminal and civil authorities as powerful deterrents to unlawful employment schemes. Through HSI's comprehensive labor exploitation strategy, corporate officers, managers and contractors who knowingly hire, exploit or utilize unlawful workers as a business model are held accountable. These efforts protect jobs for U.S. citizens and others who are lawfully employed; eliminate unfair competitive advantages for companies that hire an illegal workforce; prevent illegal immigration and promote border integrity; and strengthen public safety and national security.
The Reality of Non-Enforcement
Matthew Reindl stated in his 2005 testimony that:
To my knowledge, not one employer in the last few years has been jailed for hiring an illegal alien. This whole problem can be fixed immediately with no new laws, no new legislation, just enforce existing laws. All the laws and fines are on the books, and they all exist. What does not exist is our Government’s will to enforce our laws. ... Employers need to be prosecuted for hiring illegal workers, and legal immigrant workers need to believe that all employers respect our laws.
Don’t just take Reindl’s word for it. In 2019, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University released some remarkable, and remarkably troubling, DHS enforcement data. TRAC investigated the actual scale of employer sanctions prosecutions through “case-by-case information ... obtained from the Justice Department as a result of litigation brought by TRAC under the Freedom of Information Act (FOIA)”. What TRAC found was that:
[D]uring the last twelve months (April 2018 - March 2019) only 11 individuals (and no companies) were prosecuted in just 7 cases. ... [T]he odds of being criminally prosecuted for employing undocumented workers appears to be exceedingly remote. Indeed, since criminal penalties for employers were first enacted by Congress in 1986, few employers have ever been prosecuted. ... Prosecutions have rarely climbed above 15 annually, and have never exceeded 20 individuals a year except for brief periods during 2005 under President Bush, and in the first year of the Obama Administration. ... Prosecutions of employers since President Trump assumed office roughly parallel the[se] number[s]. ... Not only are few employers prosecuted, fewer who are convicted receive sentences that amount to more than token punishment. Prison sentences are rare. For example, of the 11 individuals the Justice Department reported as convicted [from] April 2018 - March 2019 ... only 3 were sentenced to serve prison time.
As the The New York Times commented after the release of the TRAC report, “[b]oth the Obama and Bush administrations unveiled efforts to target employers as they goaded Congress to fix the broken immigration system. ... [but] prosecutions have rarely exceeded 15 in a single year, according to TRAC.”
Have things improved since the release of TRAC’s report? According to data collected by the Corporate Prosecution Registry (CPR), a joint project of the Legal Data Lab at the University of Virginia School of Law and Duke University School of Law “to provide comprehensive and up-to-date information on federal organizational prosecutions in the United States ... gathered from federal docket sheets, press releases, prosecutor’s offices, as well as from FOIA requests”:
- In 2019, three corporations reached plea deals with the Federal government, one reached a non-prosecution agreement (NPA) including the admission of responsibility, and two cases were dismissed; and
- In 2020, there was one plea agreement, in one case a co-defendant was sentenced to two 18-month terms of imprisonment, to run concurrently, to be followed by one and three year terms of supervised release, to run concurrently, and in one other case two individual defendants were sentenced to time served.
As to earlier periods, CPR reports that:
- In 2019-2020, there were eight plea deals, five dismissals, and two NPAs;
- In 2017-2018, there were four plea deals, three dismissals, and one NPA;
- In 2009-2016, there were 81 plea deals, 12 dismissals, two deferred prosecution agreements (DPA), and five NPAs;
- In 2001-2008, there was one conviction at trial, 59 plea deals, 10 dismissals, two DPAs, and two NPAs; and
- In 1993-2000, there were two plea deals and 1 DPA.
In many cases, the employer agrees to compliance obligations of the following sort:
[The employer] agrees to verify the Social Security Numbers [SSN] of its existing workforce utilizing the [SSN] Verification System and to submit to an 1-9 Form audit by [HSI] with annual audits by HSI occurring every year thereafter during the term of this Agreement. Thereafter [the employer] agrees to:
a. Use the U.S. Citizenship and Immigration Services (“USCIS”) “E-Verify” system for all hiring;
b. Establish within 30 days of the execution of this Agreement, after receiving instruction from HSI, an internal training program to instruct employees on how to: properly and legally complete I-9 Forms ..; detect fraudulent use of documents in the 1-9 Form process; and use the E-Verify system;
c. Require the 1-9 Form and E-Verify system process be conducted only by individuals who have received training pursuant to subparagraph (b);
d. Establish within 30 days of the execution of this Agreement a self-reporting procedure for reporting to HSI, within 24 hours, the discovery or allegations of violations of immigration laws or regulations, provided that the United States will not seek to criminally prosecute ... for any acts or conduct disclosed ... pursuant to this Agreement if [the employer] voluntarily, truthfully, completely and timely discloses all information and knowledge that [it] has with regard to such discoveries or allegations of violations of immigration laws or regulations;
e. Within 30 days of the execution of this Agreement, designate an employee to serve as Compliance Officer to ensure that employment practices are in accordance with the terms of the USCIS's Handbook for Employers, … internal training program, and this Agreement;
f. Establish and maintain safeguards against use of the verification process for unlawful discrimination;
g. Require contractors employed by [the employer] to submit a sworn affidavit, signed under penalty of perjury, attesting that the contractor has examined identification document(s) relating to its employees and that such identification document(s) appear to be genuine and relate to the employee named and, to the best of the contractor's knowledge, such employee is authorized to work in the United States.
The Schemes and the Schemers
Waste Management Knows Recycling (Workers)!
In 2018, the U.S. attorney for the Southern District of Texas agreed to an NPA with Waste Management of Texas (WMT):
A five-year investigation conducted by agents with ... HSI ... revealed [WMT] hired various staffing agencies to provide contract laborers. These staffing agencies “re-hired” employees already working as contract laborers at the ... location knowing or in reckless disregard of the fact that the alien was not authorized to work ... at the direction of [WMT] managers working at the ... location.
[T]hree [WMT] managers directed the “firing” of at least ten employees they know to be unauthorized aliens. ... During the “termination” process, the [WMT] managers directed unauthorized aliens to assume the identity of actual U.S. citizens or ... [aliens] who had legal status ... to work. ... The [WMT] managers ... also devised an identity theft scheme providing the terminated aliens with names and identifiers of individuals legally permitted work in the United States to use for employment and payroll purposes. At the direction of [WMT] managers, these aliens were then “rehired” by a co-conspirator employed at the staffing company under their assumed identities.
The government’s investigation revealed that ... [WMT] managers actively implemented the identity theft and unlawful employment schemes on a regular basis ... by ... supplying aliens with identities of other people to use ... and ... covering up the illegal schemes by ensuring that business records, such as schedules, route sheets, attendance and pay roll records reflected the false identity an unauthorized alien employee was assuming.
Two [WMT] managers were convicted following a two-week trial. ... One was sentenced to 94 months imprisonment; the other to 87 months imprisonment. The other [WMT] manager cooperated with the Government, pled guilty pursuant to plea agreement and was sentenced to 27 months imprisonment.
[WMT] cooperated with the Government’s criminal investigation. ... The [WMT] managers intentionally thwarted a pre-existing immigration compliance program to engage in the previously described criminal conduct.
The Southern District of Texas and [WMT] have concluded that a [NPA] is an appropriate resolution of the investigation against [WMT], which will continue its ongoing immigration related compliance program in order to avoid the hiring or continued employment of unauthorized aliens.
In 2016, the acting U.S. attorney for the Eastern District of California agreed to an NPA with Mary’s Gone Crackers (MGC), a company that made gluten-free cookies and crackers:
ICE sent MGC ... a letter notifying [it] that the right-to-work documentation provided by 49 of its employees did not satisfy the Form I-9 eligibility verification requirements, and that those 49 individuals appeared not to be authorized to work in the United States. ... MGC informed ICE that ... 48 employees had either been terminated or resigned.
MGC rehired 12 ... people who it had previously represented to ICE had been terminated or resigned, all of them under new names.
[Redacted name] is not associated with [the company] but discovered that an employee at [the company] had been using her son’s [SSN]. ... [She] contacted [the company] to complain. [She] ultimately had to pay approximately $3,000 of her own funds to resolve debts resulting from the use of her son’s [SSN] by a [company] employee.
At the Car Wash, Identities Are Wiped Clean
In 2014, the U.S. attorney for the District of Arizona entered into a plea agreement calling for a criminal fine of no more than $699,000, the forfeiture of $156,295 in currency, and 24 months of probation for Danny’s Family Car Wash (DFC):
[F]ederal immigration officials determined, following an audit ... that over 900 of [DFC] employees were aliens who weren’t authorized to work . ... At first, DFC hired legally-authorized workers as replacements for these workers. ... [It then] began engaging in a pattern and practice of knowingly re-hiring some of the terminated employees under new identities. ... This re-hiring was done with the knowledge, and occasionally the assistance, of some members of DFC management.
Constructing New Identities
In 2019, the assistant U.S. attorney for the Northern District of Texas agreed to an NPA with Speed Fab Crete (SFC), a construction company:
HSI commenced a Form I-9 inspection ... [and] determined that of the 106 employees of [SFC], approximately 43 ... were not authorized to work in the United States because they were in the United States illegally.
[SFC] entered into a settlement agreement with [ICE]. ... [I]t agreed to provide ICE with a memorandum ... detailing the employment status of the 41 illegal aliens. ICE agreed that [SFC] would have a six-month period before ICE would conduct any subsequent I-9 inspections.
Take Charge Staffing [TCS] informed [SFC] that they would be willing to transfer some of the illegal alien workers from [SFC]’s payroll to [TCS]’s payroll and then assign them to work at SFC. ... [SFC] agreed to transfer the 23 illegal aliens to the payroll of [TCS]. ... [SFC] terminated 39 illegal aliens and essentially reassigned 23 illegal aliens from [SFC]’s payroll to [TCS]’s payroll. Each of the 23 illegal aliens returned to work at [SFC] the following business day.
[I]n accordance with the Settlement Agreement with ICE, [SFC] ... sent a written statement to the government stating that all 39 of the illegal aliens were released and were “no longer working at [SFC],” which was false and misleading.
SFC agreed to pay $3 million to the U.S. as a “monetary payment to resolve the criminal investigation and for the purpose of promoting future law enforcement programs and activities in this field by HSI”.
“PAW Patrol” ID Card? Marshall, Welcome Aboard!
In 2011, the U.S. attorney for the Southern District of Texas agreed to an NPA with Advanced Containment Systems, Inc. (ACSI), which “design[ed] and manufacture[d] custom emergency response vehicles and trailers [and] offer[ed] emergency decontamination systems, restroom and shower trailers, surge systems, mobile command centers, abatement equipment, mobile laboratory facilities, and interchangeable pods:
HSI received a complaint from a terminated employee who alleged that ... one person in management was pressuring [the employee] to hire undocumented aliens. ... The employee claimed that [the company] was using illegal aliens to manufacture the pods, many of which were used by the U.S. military. The employee complained to management ... [and] was fired and filed a lawsuit for wrongful termination. ... HSI learned of the lawsuit and opened an investigation.
HSI identified numerous “egregiously suspect documents that were provided to [the company] by its illegal workforce during the hiring process ... [including] an Identification card with the words “novelty item” typed on the back.
ACSI agreed to the forfeiture of $2 million.
Let Me Protect Myself from Legal Liability by Forging Someone Else’s Name!
In 2011, the U.S. attorney for the Southern District of Texas entered into an NPA with Atrium Companies, a manufacturer of residential windows and patio doors:
[O]ne Champion [Window] employee forged the signatures of several different managers on approximately 95 Form I-9’s because the employee was unwilling to sign [their] name ... as [they] did not believe the work authorization documents presented by the new hires were genuine. The employee forged these manager’s names with the knowledge of Champion’s long-time human resources manager and, in some cases, the managers themselves.
With the use of a confidential informant who worked at Champion, [HSI] agents obtained multiple recordings in which two separate managers were informed by the confidential informant-worker that he/she was unlawfully present in the United States. Nevertheless, the managers allowed the worker to remain employed at Champion. Both managers captured on the recordings later told agents that it was common knowledge among management that Champion’s workforce was predominantly illegal.
Make Your Illegal Alien Employees Pay for Their Fake Documents
In 2005, the U.S. attorney for the Eastern District of Wisconsin agreed to a plea deal in which Julia’s Café, which operated a number of restaurants, pled guilty to engaging in a pattern or practice of knowingly hiring illegal aliens:
The Café regularly and continually employed illegal aliens, knowing that the aliens were unauthorized to work ... providing the aliens with fraudulent identification documents ... provided by a former employee who was an illegal alien. The former employee charged the defendants for the fraudulent documents. The aliens paid the Café approximately $1,000 for each identity which included a fraudulent social security card and a fraudulent birth certificate of a United States citizen. The false documents were kept in a vault at [one of the restaurants]. The Café ... kept records of the aliens’ payments for their false identification. The aliens were paid on a weekly basis in cash. Each week money was deducted from the aliens’ earnings and recorded as a payment toward their fraudulent identification documents. Over the years, the Café received notification from individuals and/or governmental entities that the [SSNs] of some of their employees were inaccurate. After receiving notification, the Café would change the identity of the illegal alien by recording his or her earnings under a new false identity.
A Property Management Company Dabbles in Identity Management
In 2013, the U.S. attorney for the District of Colorado agreed to a plea deal in which Commercial Management Corp. (CMC) pled guilty to engaging in a pattern or practice of knowingly hiring illegal aliens and agreed to forfeit $175,000.
CMC referred aliens it hired to a fake document vendor so the aliens could purchase and submit fake documents to CMC. In multiple instances, CMC continued to employ aliens, knowing the aliens had been arrested and deported and had returned to the United States in violation of the law. On many occasions, CMC employees were rejected from working on projects because the CMC workers had patently fake documents or had clearly changed [SSNs]. Because some of CMC’s unlawful workers were denied access to military bases and were rejected by certain contractors, CMC generally sent lawful workers to some projects and sent unlawful workers to other projects.
On several occasions, police stopped CMC vehicles and concluded the driver and or passengers were not lawfully present in the United States. To avoid the arrest of its unlawful workers, [it] devised a plan to provide them with a document stating an application was pending with the U.S. government. For those aliens, CMC sponsored them using the “labor certification process.”
Hotel Opens a Check-Cashing Business
In 2006, the U.S. attorney for the Eastern District of Kentucky agreed to a plea deal in which Narayan, LLC pled guilty to a conspiracy to harbor illegal aliens but the individual defendants would not be charged:
To write or to direct employees to write checks on the bank accounts of the Super 8 Motel, Days Inn Motel, Sleep Inn Motel, and Holiday Inn Express, to ... employees in payment for housekeeping services performed by illegal aliens at those hotels, and then cashing those same checks at the hotels, causing those checks to be redeposited into the bank accounts of the same hotels, thereafter, paying the illegal aliens with the cash from those checks. ... [T]he checks were written to have the appearance of payment to legitimate cleaning companies and legal employees, and immediately redeposited to generate cash to conceal the true identity of the checks as payment of wages to illegal aliens.
The Achilles Heel of IRCA’s I-9 process has been that, as the GAO concluded in 1999:
IRCA’s employment verification process is easily thwarted by fraud. Large numbers of unauthorized aliens have used fraudulent documents to circumvent the ... process. ... Counterfeit employment eligibility documents are widely available. For example, in November 1998 in Los Angeles, INS seized nearly 2 million counterfeit documents, such as INS permanent resident cards and Social Security cards.
Consequently, in 1999, the GAO noted that “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, it similarly concluded that:
[T]he widespread use of counterfeit documents that 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.” And in 2018, Alan Neuhauser reported in U.S. News and World Report that:
Often prosecutors are able to show that employers were “willfully blind” to the fact that an employee wasn't permitted to work in the U.S. — especially in cases involving smaller companies with fewer resources to mount a defense — but it can be a tougher standard to prove in situations where workers are presenting credentials like driver's licenses or other IDs that, while not their own, are otherwise legitimate.
There are further impediments to establishing “knowing” employment. Rachel Sumption writes that:
Evidence that an employer “knowingly” employed undocumented people (i.e., the scienter element) is difficult for prosecutors to acquire in the corporate setting, especially when many large corporations contract their hiring and employment of laborers to external labor contractors or do not have an employer-employee relationship with undocumented workers.
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.
Following the release of the TRAC report, the Society for Human Resource Management pondered the “long-standing question, especially in an era of increased worksite enforcement[, of w]here are the charges against the employers for hiring unauthorized workers?” It then searched for answers to the question:
ICE Acting Director Matthew Albence has stated that anyone, including employers, found to have broken the law would be held accountable, but Mike Hurst, the U.S. attorney for the Southern District of Mississippi ... said employers will be prosecuted if it's proven beyond a reasonable doubt that they violated the law.
It could take months or years for federal agents and prosecutors to review evidence seized from the companies to determine whether the employers should face charges, said Julie Myers Wood ... former director of ICE under President George W. Bush. ... [B]uilding criminal cases requires time and detailed investigative work, Wood explained.
“The presence of unauthorized workers does not necessarily mean that the employer committed a crime,” Wood said. “It must be shown that the employers knowingly engaged in the activity. But given the prevalence in fraudulent documents ... it can be very hard for employers to ensure they have an authorized workforce.”
[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.”
Wood 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.”
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.
And Adolfo Flores and Hamed Aleaziz report that:
Muzaffar Chishti of the Migration Policy Institute has concluded that “[i]t's only a handful of employers who have gone to jail[.]” ... “I call it the ‘knowingly’ loophole. ... It's the ‘knowingly’ that provides the employer a major defense in such actions. ... You can always play dumb.” ... [T]he chances that [an employer] will go to jail are “minimal to minuscule,” Chishti said.
Jessie Hahn, labor and employment policy attorney at the National Immigration Law Center ... [says that] “The fines tend to be quite low ... and the risk of being prosecuted is basically nonexistent[.]” ... During a typical immigration enforcement raid, agents walk into a business with search warrants, not arrest warrants, and don't have enough evidence to bring criminal charges, Hahn said. In the aftermath, investigators can collect documents and witness statements to build a criminal case against employers.
“At the end of the day,” [John] Amaya[, a former deputy chief of staff at ICE under Obama] said, “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.’”
Foreseeing these difficulties, the AFL-CIO argued pre-IRCA that prosecutors should not have to prove the “knowing” hiring or employment of illegal aliens. Andrew Biemiller, the AFL-CIO’s director for the Department of Legislation, testified before the House Judiciary Committee’s immigration subcommittee in 1975 that:
We seriously question the need for specifying that only “knowing” employment of an illegal alien shall be grounds for prosecution of an employer. ... Criminal statutes ... could be drastically diminished in effectiveness if an affirmative showing has to be made in all cases that the violation of law must be specific and deliberate. The criminal law, of course, requires that intent be shown to commit the act prohibited, but this is very different from requiring that specific intent to violate the law be shown. ... To require [such] specific intent ... seems to us to vitiate the effectiveness of the bill.15
And Kenneth Meiklejohn, legislative counsel to the AFL-CIO, added that “the inclusion of the word knowingly has for its purpose the adding of an additional limitation on the extent of responsibility of the employer, that it is primarily designed to make it very, very difficult to — or, it is not so designed but the effect is — to make it very difficult to hold an employer responsible.”16
Can Employers Be Prosecuted for Harboring and for the Knowing Employment of Illegal Aliens?
Defendants have argued that they can only be prosecuted for the knowing employment of illegal aliens under § 274A’s pattern or practice offense, not for harboring. However, federal courts have rejected this contention. For example, in 1999, the 2nd Circuit ruled in United States v. Myung Ho Kim that:
[O]n its face [the harboring provision] applies to “any person” who ... knowingly harbors an illegal alien. ... As a general matter, the fact that Congress has enacted two sections encompassing similar conduct but prescribing different penalties does not compel a conclusion that one statute was meant to limit, repeal, or affect enforcement of the other. Statutes may “overlap” or enjoy a “partial redundancy,” ... and yet be “fully capable of coexisting.”
The legislative history expressly confirms that ... [IRCA eliminate[d] [the] proviso which prevents employment from being considered as harboring an alien[.] ... The present version ... is sufficiently broad on its face to encompass the knowing or reckless harboring of illegal aliens by employers, [and] was plainly intended to have that breadth.
Can the Knowing Employment of Illegal Aliens By Itself Constitute Harboring?
Apparently not. In 2013, the 2nd Circuit ruled in United States v. Vargas-Cordon that:
[To] “harbor” ... a defendant must engage in conduct that is intended both to substantially help an unlawfully present alien remain in the United States — such as by providing him with shelter, money, or other material comfort — and also is intended to help prevent the detection of the alien by the authorities.
And as the Federal District Court for the Northern District of Alabama ruled in Hall v. Thomas in 2010:
[W]hile it is clear that the act of employing an illegal alien may be significant evidence that an employer has harbored an unauthorized alien in violation of § , unless that employer has provided further material aid constituting “substantial facilitation,” that alone is not sufficient.
What does “substantial facilitation” mean? In 2007, the 5th Circuit explained in United States v. Shiu Sun Shum that:
[The defendant] asserts that those aliens whom he was charged with harboring testified at trial that they had remained in the United States before and after they were employed by Shum and that, therefore, his conduct had no bearing on the aliens' remaining in the United States illegally.
We reject [the defendant’s] narrow view of what it means to “substantially facilitate”. ... He would have the Government show that “but for” his conduct. ... We decline to adopt a definition of “substantially facilitate” that undermines Congress's purpose in enacting [employer sanctions]. Instead, we hold that to “substantially facilitate” means to make an alien's illegal presence in the United States substantially “easier or less difficult.”
In 2009, the 7th Cir. did rule in United States v. Xiang Hui Ye, albeit in the context of defining harboring’s sister crime “shielding”, that the “substantially” requirement is illegitimate:
Neither “conduct tending substantially” nor any similar wording appears in the text of the current statute or its previous versions, nor is it even mentioned in the legislative history. ... Rather, it is merely a judicial addition to the statute. ... Whether ... conduct “tends substantially” to assist an alien is irrelevant, for the statute requires no specific quantum or degree of assistance.
Congress could not have been clearer: it said that concealing, harboring, or shielding from detection an alien is unlawful conduct, regardless of how effective a defendant's efforts to help the alien might tend to be. If a person commits a relatively nominal act that is proscribed .., the executive branch has the discretion to forego prosecution. Courts' overlaying the statute with the “tending substantially” veneer appropriates that discretion and also invades the province of Congress by de-criminalizing lesser forms of conduct — i.e., actions that only “tend slightly or moderately” to help an alien.
No other circuit appears to have adopted this analysis.
What Sort of Acts Have Federal Courts Found to Constitute Substantial Facilitation?
[The employer] knowingly hired and employed illegal aliens, allowed them to work under the names of former ... employees who were United States citizens, and provided them with the former employees' social security numbers. In addition, the defendants gave the illegal aliens more time than federal law permits to produce paperwork establishing their eligibility to work in this country and sometimes did not require the illegal aliens ever to produce the paperwork. ... [The employer] paid illegal aliens in cash. ... As part of the illegal enterprise the company also provided illegal aliens with name tags showing names other than their own. (Edwards v. Prime, Inc. (11th Cir. 2010))
A rational trier of fact could have found that [the defendant] made it easier for aliens to remain in the United States illegally. ... Witnesses testified that [the defendant] provided false identifications to these aliens to facilitate the background check required to clean government buildings. [The defendant] admitted to police that he made these false identification cards. A former subordinate testified that [the defendant] did not file social security paperwork on aliens. In sum, there is ample evidence that [the defendant] provided aliens with employment in the United States and took steps that would shield their identities from detection by the government. (United States v. Shiu Sun Shum (5th Cir. 2007))
[T]he Superseding Indictment alleges that Defendants ... did not require [the company] to complete Forms I-9 for undocumented workers, … directed ... managers to pay undocumented workers in cash and to record the cash payments outside of the regular payroll system ... directed an individual to collect the handwritten wage reports created by ... managers on a weekly basis ... directed that individual to create a separate set of books ... did not require ... managers to withhold federal or state income taxes from the cash wages paid to the illegal aliens ... did not report wages paid to undocumented workers on IRS Forms ... and ... failed to provide complete and accurate information in response to Notices of Inspection from [DHS]. The Court finds that these actions amount to more than “mere employment” of illegal aliens, and constitute actions taken by Defendants to harbor or conceal the illegal aliens from detection by the United States Government. ... making it substantially easier for the undocumented workers to remain in the United States. (United States v. Hamdan (E.D. Louisiana 2020))17
A jury reasonably could conclude that [defendants] harbored these aliens by granting them employment, by providing the aliens a place to live, daily transportation, and money to purchase necessities, and by maintaining counterfeit immigration papers for each alien. (United States v. Tipton (8th Cir. 2008))
The evidence was also sufficient to permit the inference that [the defendant] attempted to prevent [an illegal alien employee’s] continued presence from being detected by the authorities. ... [An illegal alien employee] testified that [the defendant] instructed her to report falsely to the INS that after [she] was hired [her] employment ... was terminated; and ... later instructed her to obtain false documentation and to submit an I-9 form similarly attempting to mislead the INS to believe that [she] had been terminated and another worker had been hired in her place. ... The jury was entitled to credit [this] testimony, which was ample to support an inference beyond a reasonable doubt that [the defendant] had attempted to facilitate [the illegal alien employee’s] continued unlawful presence and prevent her detection by the INS. Accordingly, we see no basis for disturbing [the] conviction of harboring. (United States v. Myung Ho Kim (2nd Cir. 1999))
I should note that Judge Richard Posner concluded in the 7th Circuit’s 2012 decision in United States v. Costello, regarding whether co-habitation can constitute harboring, that “[t]here is no suggestion that [the defendant] prefers illegal aliens as boyfriends to legal aliens or citizens. She had a boyfriend who happened to be (as she knew) an illegal alien, and he lived with her for a time.”
To Be Guilty of Knowingly Hiring 10 or More Smuggled Aliens, Must an Employer Know That the Workers Had Been Smuggled into the United States?
Yes, the employer must know that the aliens were smuggled into the U.S., not simply that they are unauthorized to work. However, the employer need not have participated in the smuggling. In 2004, the Federal District Court for the Northern District of Georgia ruled in Williams v. Mohawk Industries that:
[“I]n order for liability to attach ... the aliens have been brought into the country by an employer for the purpose of illegal employment.” ... [S]imple allegations that the defendant knowingly hired undocumented aliens are insufficient. ... [But it is not the case] that the employer itself must have brought the aliens into the United States.
As the Federal District Court for the Southern District of New York ruled in 2009 in Nichols v. Mahoney, “If the employer does not know that at least 10 of its illegal hires were ‘brought into’ the country by some third party (as opposed to walking across the border themselves, or arriving on a visitor's or student visa and overstaying their welcome), then it has not” violated the statute.
In 2010, the 11th Circuit explained in Edwards v. Prime, Inc. that this additional element of proof results pays off for the government in potentially greater punishment:
[This statute has] the added element of knowledge that the alien was brought into the country illegally. That added element makes a difference when it comes to the penalty. ... [Here,] the employer may be fined, sentenced to as much as 5 years in prison, or both. And that crime would be a RICO predicate act. ... By contrast, if an employer knowingly hires aliens not authorized to work in this country, without knowledge that they were brought into this country illegally, only [§ 274] would be violated ... [and] only civil penalties are available, unless there is a "pattern or practice" in which case a conviction may result in a fine and a sentence of up to six months.
The differences ... suggest that Congress found the combination of bringing illegal aliens into this country and hiring them to be a far more serious problem than hiring aliens who were here illegally but had not been brought here. Congress obviously sought not only to deter employers from directly joining forces with those who bring in illegal aliens but also to prevent them from encouraging the practice by hiring aliens knowing that they had been brought in illegally.
What Constitutes “Knowingly”?
- As the 9th Circuit ruled in 1979 in United States v. Mills, a “jury ... [can] infer actual knowledge from circumstantial evidence”.
- As the 9th Circuit ruled in 1989 in Mester Mfg. Co. v. INS, constructive knowledge counts as knowledge (The employer “received specific information that several of his employees were likely to be unauthorized. He made no further inquiry of the INS, and failed to take appropriate corrective action.”).
- As the 9th Circuit ruled in 1976 in United States v. Jewell, deliberate ignorance counts as knowledge — “‘knowingly’ includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment. ... [There must be] a calculated effort to avoid the sanctions of the statute while violating its substance.”
What to Do?
What can be done to invigorate criminal employer sanctions? Of course, there needs to be the political will in an administration to incentivize and unleash prosecutors and to shield them from the political fallout and the complaints from the business community. But, in addition, new laws can facilitate the ability of federal prosecutors to meet the “knowingly” standard. And the keys to such facilitation are the illegal workers. As Adolfo Flores and Hamed Aleaziz write:
Authorities could ... obtain more information on an employer's practices from the workers themselves to prove that a company knowingly hired undocumented people.
Federal authorities will likely need to rely on workers to provide them with detailed accounts of the hiring practices, and if the evidence isn’t there, the agency can issue civil fines against companies.
As the case histories I related earlier demonstrate, often the most intimate knowledge of what is known by those employers desiring to employ illegal aliens is in the possession of the illegal workers themselves. How can prosecutors more easily access such knowledge?
Utilizing Arrests During Worksite Enforcement Actions
One avenue is to actually arrest the illegal workers. As Mark Krikorian, the Center for Immigration Studies’ executive director, testified to the House Judiciary Committee’s immigration subcommittee:
A ... benefit of full-spectrum enforcement, including arrests of illegal employees, is that it’s necessary to gather evidence against crooked employers. ... [I]f agents can’t arrest or even speak to illegal workers, it’s very difficult to gather evidence on their employers’ illegal activities. The AgriProcessors kosher meatpacking plant in Postville, Iowa, for instance, had been the target of investigations by state officials for health and safety violations even before the May 2008 raid which resulted in the arrest of nearly 400 illegal aliens for identity theft and related charges. But only after the arrests was the curtain torn away and the squalor and mass illegality exposed and management personnel arrested for criminal child labor and immigration violations. What’s more, the raid also exposed financial crimes committed by the plant’s chief executive. Merely auditing the plant’s personnel records, while scrupulously avoiding any arrests of illegal workers, could well have meant that AgriProcessors would still be abusing underage workers today.
Another avenue is offering the most information-dense illegal workers immigration relief in exchange for actionable information that can lead to the prosecution and conviction of their employers. Rachel Sumption writes that:
[T]he “lower-level” drug dealer may have the option of testifying about the crimes of his employer in exchange for a reduced sentence or lack of prosecution altogether. In the case of employer sanctions, however, this option does not exist. Undocumented workers are constantly vulnerable to termination or deportation simply by their presence in the workplace. There is no way that an undocumented person can escape criminalization or shift the prosecution onto their employer, even if the employer has committed other exploitative acts. Due to the constant threat of discovery and deportation, undocumented workers cannot be witnesses in criminal prosecutions.
Seemingly taking Sumption’s clue, on January 13, DHS “Announces[d] Process Enhancements for Supporting Labor Enforcement Investigations”:
[N]oncitizen workers [read: illegal aliens] who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedited deferred action request process. Deferred action protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers. Effective immediately, this process will improve DHS’s longstanding practice of using its discretionary authority to consider labor and employment agency-related requests for deferred action on a case-by-case basis.
Workers are often afraid to report violations of law by exploitative employers or to cooperate in employment and labor standards investigations because they fear removal or other immigration-related retaliation by an abusive employer. Agencies tasked with enforcing labor and employment laws depend on the cooperation of these workers in their investigations. Refraining from reporting violations due to a fear of immigration-based retaliation creates unfair labor market conditions and perpetuates the commission of unlawful and inhumane acts by employers.
Noncitizens will now be able to submit such requests ... through a central intake point established specifically to support labor agency investigative and enforcement efforts. ... Given the often time-sensitive labor agency enforcement interests, efficient processing of deferred action and related applications for employment authorization will reduce potential risks to workers and retaliation by their employers under investigation.
[R]equests for deferred action submitted through this centralized process must include a letter ... from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction.
[D]iscretionary grants of deferred action under this process will typically last for a period of two years ... and [i]ndividuals granted deferred action may be eligible for employment authorization.
The foundational flaws in DHS’s proposal are that 1) it is unmoored from the immigration laws as passed by Congress; 2) it hardly seems designed to catalyze employer sanctions prosecutions, but rather to bolster union activity; and 3) the bestowing of immigration relief does not seem to be dependent on the significance of the information possessed by an illegal worker, or whether such information did, or can, lead to a successful prosecution.
What about including criminal employer sanctions violations as qualifying crimes for the “U” visa program? The program provides nonimmigrant status to an alien if DHS determines that:
(I) [T]he alien has suffered substantial physical or mental abuse as a result of having been a victim of [qualifying] criminal activity ..;
(II) the alien ... possesses information concerning criminal activity described in clause (iii); [and]
(III) the alien ... has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting [qualifying] criminal activity[.]
Qualifying criminal activity includes:
that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting ..; or attempt, conspiracy, or solicitation to commit any of the above mentioned crime[.]
Further, the U visa program provides that:
The ... alien[’s petition] shall contain a certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating [qualifying] criminal activity. ... This certification may also be provided by an official of the Service whose ability to provide such certification is not limited to information concerning immigration violations. This certification shall state that the alien “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of [qualifying] criminal activity.
There is a 10,000 limit on the number of principal aliens who may be issued visas or otherwise provided U visas status each year. The program provides for adjustment of status of lawful permanent residence:
[DHS] may adjust the status of a [U visa recipient] ... to that of an alien lawfully admitted for permanent residence ... unless ... determin[ing] based on affirmative evidence that the alien unreasonably refused to provide assistance in a criminal investigation or prosecution, if—
(A) the alien has been physically present in the United States for a continuous period of at least 3 years since the date of admission as a [U visa recipient] ..; and
(B) in the opinion of [DHS], the alien’s continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.
One basic problem is that an illegal worker is not the victim of an employer sanctions violation — an illegal worker is a beneficiary of the violation. After all, obtaining employment is what they came here for in the first place. It is certainly true that in some cases, the worker will have suffered from physical or mental abuse by their employer, but can that abuse be categorized as having been caused by their unlawful employment, or was it caused by separate crimes committed by their employer?
Another basic problem is that the U visa program has long been fraud-ridden. In January of this year, DHS’s Office of the Inspector General (IG) issued a damning report on the program. As to fraud, the IG reports that:
[W]e identified 10 USCIS approved petitions with forged, unauthorized, altered or suspicious law enforcement certifications.
We asked 125 law enforcement offices to confirm whether the signature on ... forms certified by their office, was that of an authorized signer. Law enforcement officials confirmed four certifications had forged signatures and three had unauthorized signatures. ... Further, we identified 3 of 83 [certification forms] that were or appeared altered after being certified by a law enforcement official.
[In 2018, USCIS’s Center Fraud Detection Operations (CFDO) officials reported that m]any fraud cases ... involve bad ... certifications. Instances include police officials selling fraudulent [certification forms] with false police reports, unauthorized certifying officials, and fraudulent practitioners substituting pages from legitimate [certification forms] to steal money from clients or fraudulently obtain benefits.
[USCIS Immigration Service Officers] ISOs found it challenging to adjudicate cases when the petitioner reported a crime long after it purportedly took place. In such cases, no investigation is possible or likely, or no corroborating evidence exists to establish that the crime took place.
USCIS does not know the number of U visa related fraud referrals that resulted in prosecution because it does not track the outcome of fraud referrals related to the U visa program.
A third basic problem is that, to the extent we can tell, the U visa program has been spectacularly unsuccessful in actually resulting in successful prosecutions. The IG reports that:
An independent contractor released [a study in 2012 in which] ... law enforcement agencies noted that certifying old or closed cases did not help solve the cases and contradicted the intended purpose of the program — to assist with their investigations.
The USCIS U Visa Fraud and Benefit Integrity Research Study, February 2020, ... found that 66 percent of cases were marked as completed by the certifying official. Therefore, the law enforcement officials did not need the majority of victims for active assistance with a case by the time the victim filed the petition with USCIS.
Our survey of 57 certifying law enforcement agencies ... indicated the program is not helpful for solving crimes. ... 61 percent stated the program does not significantly improve their ability to investigate and solve crimes and 54 percent believe petitioners abuse the program. ... Some respondents explained that ... the U visa program is not helpful because the requests are often for old or closed cases, and in some cases, “staged” crimes, or “exaggerated injuries.”
[In 2018, USCIS’s CFDO officials expressed that] “We have grave concerns about the reliability of the certification from 2016 on as the threat of lawsuits has forced many law enforcement agencies to just sign and not question the certification.”
[I]n 2016 the U.S. House and Senate Judiciary Committees ... wrote a letter to DHS ... regarding alleged fraudulent activity associated with the U visa program. In response ... USCIS stated it could not ... distinguish the number of principal petitioners approved based on “likely to be helpful” versus those who actually aided investigators or prosecutors ... [or] determine the number of arrests or prosecutions resulting from U visa petitioners assisting law enforcement agencies.
In part, these issues with the U visa program stem from the fact that it was hardly designed to turbocharge criminal prosecutions. Rather, it was designed to turbocharge the government’s ability to legalize “sympathetic” illegal aliens. However, there is another visa program that was actually designed to lead to successful prosecutions, and that thus might serve as a quite good model for a new visa program designed to lead to successful employer sanctions prosecutions. It is the S1 visa program. The program provides nonimmigrant status to an alien who the attorney general determines:
(I) is in possession of critical reliable information concerning a criminal organization or enterprise;
(II) is willing to supply or has supplied such information to Federal or State law enforcement authorities or a Federal or State court; and
(III) whose presence in the United States the Attorney General determines is essential to the success of an authorized criminal investigation or the successful prosecution of an individual involved in the criminal organization or enterprise. [Emphasis added.]
There is a 200 limit on the number of aliens who may be issued S1 visas each year. The program provides for adjustment of status to lawful permanent residence:
If, in the opinion of the Attorney General—
(A) a nonimmigrant admitted into the United States ... has supplied [the critical reliable] information ..; and
(B) the provision of such information has substantially contributed to the success of an authorized criminal investigation or the prosecution of [the] individual [involved in the criminal organization or enterprise] ..,
the Attorney General may adjust the status of the alien ... to that of an alien lawfully admitted for permanent residence.
This, indeed might work. If Congress were to only make a limited number of visas available for illegal workers who possess critical reliable information regarding their employers’ knowing hiring or employing of them and other unauthorized workers and whose presence is essential to the success of a criminal investigation or a successful prosecution, then maybe a visa program could work and would make sense. And if Congress were to only make adjustment of status available where an alien’s provision of information substantially contributed to the success of a criminal investigation or prosecution, the odds of success would be even higher. And, as a fringe benefit, bad actor employers might be chastened simply by the fear that any illegal aliens they purposefully hire might one day turn “state’s evidence” in order to procure legalization. Congress should seriously consider such a visa program.
A Private Right of Action?
In 1983, Congress enacted the Migrant and Seasonal Agricultural Worker Protection Act, including a provision providing that: “No farm labor contractor shall recruit, hire, employ, or use, with knowledge, the services of any individual who is an alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment.” The penalties for violations interestingly included a private right of action:
(a) Any person aggrieved by a violation of this Act or any regulation under this Act by a farm labor contractor, agricultural employer, agricultural association, or other person may file suit in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy and without regard to the citizenship of the parties and without regard to exhaustion of any alternative administrative remedies provided herein.
(b) Upon application by a complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action.
(c)(1) If the court finds that the respondent has intentionally violated any provision of this Act or any regulation under this Act, it may award damages up to and including an amount equal to the amount of actual damages, or statutory damages of up to $500 per plaintiff per violation, or other equitable relief, except that (A) multiple infractions of a single provision of this Act or of regulations under this Act shall constitute only one violation for purposes of determining the amount of statutory damages due a plaintiff; and (B) if such complaint is certified as a class action, the court shall award no more than the lesser of up to $500 per plaintiff per violation, or up to $500,000 or other equitable relief.
(2) In determining the amount of damages to be awarded under paragraph (1), the court is authorized to consider whether an attempt was made to resolve the issues in dispute before the resort to litigation. [Emphasis added.]
What if Congress were to create a similar private right of action for damages for the victims of employers who knowingly employ illegal aliens — such as American workers fired or not hired as a result of such unlawful employment? Aside from criminal penalties, this would seem to be the one sanction that could undermine the profit motive in employing illegal aliens. And the compensation would fittingly go directly to the victims, as opposed to the U.S. Treasury. Congress should seriously consider creating such a right of action.
(Most sources are linked in the text. These citations are for documents that are not publicly available online.)
1 H.R. Rep. No. 99-682, pt. 1, at 46 (1986).
2 “Illegal Aliens”, Hearing Before the Subcommittee on Immigration, Citizenship and International Law of the House Committee on the Judiciary, 94th Congress 28 (1975).
3 Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America, Princeton, N.J.: Princeton University Press, 2002, pp. 224-25. (Footnote omitted.)
4 “Illegal Aliens”, Hearing Before the Subcommittee on Immigration, Citizenship and International Law of the House Committee on the Judiciary, 94th Congress at 194.
5 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, p. 250 (1981).
6 Id. at 313. (Emphasis omitted.)
7 “Illegal Aliens”, Hearing Before the Subcommittee on Immigration, Citizenship and International Law of the House Committee on the Judiciary at 315, 317.
8 Select Commission, Appendix H, at 254-55.
9 H.R. Rep. No. 99-682, pt. 1, at 47.
10 Select Commission, Appendix H, at 256.
11 H.R. Rep. No. 99-1000 at 86 (1986) (Conference Report).
12 H.R. Rep. No. 99-682, pt. 1, at 59.
13 Louis F.B. Plascencia, “Employer Sanctions”, in A Historical Encyclopedia: Anti-Immigration in the United States, Vol. 1 177-78 (Kathleen R. Arnold, ed.) (2011).
14 H.R. Rep. No. 99-682, pt. 1, at 94.
15 “Illegal Aliens”, Hearing Before the Subcommittee on Immigration, Citizenship and International Law of the House Committee on the Judiciary at 196.
16 Id. at 206.
17 2020 U.S. Dist. LEXIS 90135.