RETURNING PERMANENT RESIDENTS WITH CRIMINAL CONVICTIONS LIKELY TO BE DETAINED AND ISSUED AN NTA
In a recent teleconference with the AILA/CBP National liaison committee on September 29, 2009, CBP officials confirmed that beginning October 1, 2009, Legal Permanent Residents (LPRs) with criminal convictions may be detained and issued a Notice to Appear (NTA) rather than just allowed to enter and given deferred inspection. Whether someone is detained will depend on a numbef of factors including: the nature of the conviction, CBP staffing, and available detention bedspace. CBP explained that it modified its policy based on information showing an appreciable percentage of those granted deferred inspection do not show up for such inspection. So far, this policy has been in place in Georgia and Florida.
IMMIGRATION CRACKDOWN WITH FIRINGS, NOT RAIDS
About 1,800 immigrant employees were fired by Los Angeles company American Apparel — more than a quarter of its work force — after a federal investigation turned up irregularities in the identity documents the workers presented when they were hired. Representative Brian P. Bilbray, a Republican from San Diego who is chairman of a House caucus that opposes efforts to extend legal status to illegal immigrants, backed the enforcement effort. They say American Apparel is typical of many companies that, in Mr. Bilbray's words, have "become addicted to illegal labor." Mr. Bilbray said of the crackdown and American Apparel, "They seem to think that somehow the law doesn't matter, that crossing the line from legal to illegal is not a big deal."
The firings at the company, American Apparel, have become a showcase for the Obama administration's effort to reduce illegal immigration by forcing employers to dismiss unauthorized workers rather than by using workplace raids. In July, the ICE began auditing of employment records at 654 companies around the country. The investigation at American Apparel began nearly 17 months ago. John T.Morton, assistant secretary of homeland security, said the audits covered all types of employers with immigrant workers, including many like American Apparel that were not shadowy sweatshops or serial violators of labor codes. BORDER CROSSING DEATHS INCREASE IN ARIZONA
According to the Spanish-language wire Agencia EFE, the number of deaths among undocumented immigrants entering the U.S. through the Arizona desert increased 20% in fiscal year 2009. From Oct. 1, 2008 to Aug. 31 this year, 191 migrants died, EFE said, mostly Mexican nationals. According to US Customs &Border Patrol, the number of people apprehended illegally crossing the U.S.-Mexico border is down more than 25 percent. It is not known whether the drop in illegal crossings is due to the increase in border patrol officers at popular crossing sites, the decline in the U.S. economy making the crossing a less attractive option, or the 600 miles of fencing that have been raised. But what is clear is that over places that were previously easier to cross have been closed, pushing people into crossing at more isolated areas and taking greater risks. Perhaps seeking a better life, many take such grave risks, including using smugglers or coyotes who take advantage of them who then leave them stranded.
ILLEGAL IMMIGRANTS FROM MEXICO ATTEMPT DANGEROUS SEA CROSSINGS INTO US
US Customs and Border Patrol agents have intercepted 14 boats and made 122 arrests in the past five months off Torrey Pines Beach near San Diego. This year they are on target to double this number. Already since July, four unmanned boats believed to have been piloted by smugglers have washed up onshore, with another intercepted nearby. All have been long, narrow panga-style fishing boats with outboard Yamaha. On March 19, a fishing boat was intercepted 33 miles (53 km) off the coast; 21 illegal immigrants were aboard, including a pregnant woman.
The increase in dangerous sea crossings is believed to be due to the tightening at US-Mexico land border between Tijuana and San Diego. An increase in border-patrol agents, a National Guard presence, a refortified fence and cameras make it now extremely difficult to cross. Desperate immigrants and greedy smugglers are left with fewer alternatives including attempting to bribe a border-patrol agent, crossing into the US by way of the treacherous desert or to go west via the sea.
Using night vision cameras, radar and helicopters, CBP agents are able to spot smuggling boats relatively easily. According to the Keley Hill, CBP’s marine interdiction director. "If the agents sight a smuggler's boat, it's game over — the feds' boats are faster, their drivers better trained and their guns bigger," Hill explains. According to the agents, typically the smugglers just surrender tossing their cell phones and BlackBerrys overboard. "The first thing we'll see are little black things going 'splash, splash, splash,'" he says. Overnight lookouts also stand watch at Torrey Pines Beach.
DHS SHIFTS IMMIGRATION FOCUS TO US EMPLOYERS TO TARGET ILLEGAL IMMIGRATION
A new policy will aim enforcement efforts at those who hire illegal workers. But immigration raids will continue. DHS Secretary Janet Napolitano announced immediate plans to have US federal agents focus more on arresting and prosecuting American employers who hire and employ illegal workers. The shift in emphasis will be outlined in revamped field guidelines issued to agents of Homeland Security's Immigration and Customs Enforcement, or ICE, as early as this week.
This policy is consistent with comments made by President Obama during last year's campaign. Obama said enforcement efforts taken thus far had failed because they focused on illegal immigrants rather than on the companies that hired them. One DHS official said the changes are the result of a broad review of all immigration and border security programs and policies that Napolitano began to tackle since coming to office.
Homeland Security officials emphasized that the department would not stop conducting sweeps of businesses while more structural changes to U.S. immigration law and policy were being contemplated. Employers and their agents would likely faced criminal prosecution and civil fines for knowingly employing illegal workers. Many employers, particularly in the construction industry, could face federal rackeetering charges under the RICO statutes for undermining US wages and undercutting the biding process for jobs by using illegal workers and paying them below actual US wages. Several RICO actions have been filed in recent years, brought on by competing construction companies tired of losing bids to those who routinely employ illegal immigrants. This more aggressive policy stance under the Obama administration is expected to begin in the coming weeks.
11 ARRESTED FOR VISA AND MAIL FRAUD IN MULTI-STATE ICE INVESTIGATION
Eleven individuals were arrested on Wednesday February 11 and charged with conspiracy, mail and wire fraud all related to H-1B applications. The arrests came as a result of an on-going investigation by the U.S. Immigration and Customs Enforcement (ICE) in collaboration with several other government offices as well as state and local offices. The investigation took place in Iowa, California, Massachusetts, Texas, Pennsylvania, Kentucky and New Jersey. The people arrested are accused of mailing and wiring false statements and documents to state and federal agencies to support visa petitions.
The companies involved in the investigation allegedly did not have jobs available for the workers and would place them in non-pay status once they arrived in the U.S. Additionally the companies are accused of placing the workers in jobs that were not approved by the Department of Labor.
LAS VEGAS LAW ENFORCEMENT TO COOPERATE WITH ICE ENFORCEMENT
"If you were born in another country and are arrested by Las Vegas police, your name will be checked against a federal database. And if it is found that you are in the country illegally, your name will be forwarded to federal immigration officials and you could be deported." says Las Vegas Sheriff Doug Gillespie explaining a soon-to-be launched arrangement that the Metropolitan Police Department has with the U.S. Bureau of Immigration and Customs Enforcement to handle those suspected of committing crimes. The program is not meant to disrupt the lives of law-abiding citizens. However, those who are arrested will be run through the database. Those found to be undocumented will be handed over to ICE for deportation proceedings. The program is expected to begin in a few weeks but will not be retroactive. Only foreign-born inmates who have been arrested after the program is up and running will be screened through the federal database. U.S. citizens who were born in another country also will be subject to this screening. Under the so-called 287 (g) partnership,, the first of its kind in Nevada, specially trained officers will be allowed to start possible deportation proceedings of foreign-born inmates. Inmates who are found to be undocumented will be turned over to immigration officials after their charges have been settled at local court, police and ICE officials said. Las Vegas Police cites on a busy day, they process an estimated 160 suspects a day. They also cite that 19-22% of the county jail's current estimated 3,300 inmates are foreign-born.
Sheriff Gillespie also went on to say the program's goal is to reduce the number of violent offenders in the community. He clarified that, "People who report crimes are not going to be reported to immigration. People who are victims of crimes will not be reported to immigration. We're focusing on the criminal element."
Both Arizona and Oklahoma passed tough new legislation impacting businesses and those who aid or harbor illegal immigrants. Arizona law severely penalize business owners for hiring or employing undocumented workers. First offense violations result in the suspension of business licenses depending upon the specific nature of the offense and second time offenders risk permanently losing their business licenses.
Franchises owners operating multiple franchises under a single license risk the complete loss of operations for violating these laws.
Under the new system, employers are required to use the federal requirements for confirming employment eligibility. This includes confirming the employee has a valid social security number, driver's license, completes the I-9, and use of the new federal e-verification system for all new hires.
Businesses of all sizes are vulnerable under these new requirements as the law also encourages employers to report competitors to the authorities who regularly employ undocumented workers. A hotline has been set up by the District Attorney and County Sheriff for reporting undocumented immigrants and workers. Employers in all states risk being prosecuted by their competitors under federal RICO statutes for unfairly undercutting bids by using illegal labor.
There is also growing sentiment across the country to change our Constitution to bar citizenship for children born in the United States to undocumented parents. Whether such a law could pass and be retroactive remains to be seen.
In Oklahoma, similar legislation was passed last year which took effect on November 1, 2007. Oklahoma law made it a new State felony for any person who knowingly or in reckless disregard harbors, transports or conceals an undocumented person. One can see the domino effect this legislation has on businesses which rely on subcontractors who routinely use undocumented labor as part of their regular labor force, i.e. construction, janitorial services, restaurants, factories and manufacturing plants, etc.
Oklahoma law also creates a new private action which allows a US citizen who loses his or her job to sue their employer if they can show that their employer was employing an undocumented worker at the time they were discharged. This legislation is meant to protect US citizens jobs and penalize employers who lay off US citizens while continuing to employ illegal workers.
While immigration advocates continue to challenge these and similar bills, American sentiment on the matter and the fact that these laws are being passed reflect the growing concern about illegal immigration. Whether similar laws will be passed in other states is yet to be seen. In any event, it makes a comprehensive immigration reform bill all the more important for Congress to pass this year.
US TO RESUME DEPORTATIONS TO VIETNAM
Homeland Security Assistant Secretary for Immigration and Customs Enforcement Julie L. Myers and Deputy Foreign Minister for the Government of Vietnam Mr. Dao Viet Trung signed a memorandum of agreement (MOU) allowing for the repatriation of Vietnamese citizens who have been ordered removed from the United States. a framework for the prompt and efficient repatriation of Vietnamese nationals who have been ordered removed by the U.S. Government.
The repatriation MOU is the culmination of almost a decade of negotiations between the United States Department of State and the government of Vietnam. Under this agreement, Vietnamese nationals who arrived in the United States on or after July 12, 1995 are subject to return to Vietnam. To date, this will affect approximately 1,500 Vietnamese nationals currently living in the U.S. As part of the agreement the U.S. government will pay for the cost of repatriating individuals under the agreement. Once the Vietnamese government has issued a travel document, the U.S. Government will provide at least fifteen (15) days notice of the flight and travel arrangements by which the person will be returned to Vietnam.
The MOU will enter into force sixty (60) days from the date of signature, January 22, 2008 and will be valid for five years. The MOU will be extended automatically for terms of three years thereafter unless written notice not to extend is given by one government to the other at least six months prior to the expiration date of the Agreement. The MOU may be amended or supplemented by written agreement of the Vietnamese government and the U.S. government through appropriate diplomatic channels.
US DISTRICT COURT ENJOINS DHS FROM IMPLEMENTING NEW SS-NO MATCH LETTER REGULATION
On October 10, 2007, US District Judge Breyer's granted the motion for a preliminary injunction enjoining the Department of Homeland Security from implementing its new regulation regarding SS No- Match letters.
In granting the motion in American Federation of Labor v. Chertoff, No. C 07-04472 CRB (Northern District of CA. Oct. 10, 2007), the Court stated that "the rule (1) contravenes the governing statute; (2) is arbitrary and capricious under the Administrative Procedure Act; (3) is an exercise of ultra vires authority by DHS and the Social Security Administration (SSA); and (4) was promulgated in violation of the Regulatory Flexibility Act. The balance of hardships tips sharply in plaintiffs' favor and plaintiffs have raised serious questions going to the merits."
The new regulations which were the subject of the Injunction were meant to clarify when an employer is deemed to have constructive or actual knowledge that a worker is not authorized to work most often because they are undocumented. Essentially, many Employer advocates argued that 93 days is not enough time for the employer to seek verification of a worker’s Social Security number when they receive a no-match letter.
The question then becomes not IF, but WHEN the new rule will take effect and what are an Employer’s obligations now? The Injunction DOES NOT remove an Employer’s obligation to ensure that it does not violate US immigration or criminal or other civil laws by hiring undocumented workers. Moreover, it is very likely the injunction will only cause ICE to step up its raids and enforcement activity which have occurred with increased regularity for some time even prior to the new regulations being published. Employers who routinely utilize undocumented workers should beware. This is but a hollow victory as the injunction does not stop ICE from continuing its active pursuit of employers who violate US Immigration laws by hiring undocumented workers. This is because the law authorizing both criminal and civil action against US Employers has been on the books for some time but not actively enforced. This is no longer the case. Employers across the board are finding themselves facing federal indictment under the RICO statutes as well as facing criminal indictment and stiff civil penalties for each instance of violation. Immigrants are also facing criminal and civil action on both state and Federal levels with increased regularity.
Targeted employers include construction companies, agricultural facilities, manufacturing and produce facilities, retail and food service chains and companies.
Immigrant workers found using a false social security number will still be brought up on federal charges for identity fraud and/or theft and other federal criminal and civil violations in line with recent efforts by Congress to stop social security fraud against US citizens. Once in federal custody, immigration proceedings are then to follow.
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FOR EMPLOYERS
FAQS - Frequently Asked Questions on Safe Harbor Compliance
DHS LETTER - Included With SSA No Match Letter Mailings