Déjà Vu All Over Again

Published on July 1st, 2011

A debate is currently raging on Capitol Hill about an immigration bill that has been proposed by House Judiciary Committee Chairman Lamar Smith (H.R. 2164).  I have had the privilege of appearing before a number of Congressional hearings at the behest of Mr. Smith and have worked closely with him and his staffers for a number of years and consider him to be a true leader in efforts to secure our nation's borders and enforce our nation's immigration laws.

Before we delve into H.R. 2164 I believe a retrospective of a previous sweeping immigration law might be helpful.  It is widely accepted today that the Immigration Reform and Control Act of 1986 was an abysmal failure.

In 1986, then President, Ronald Reagan signed the Immigration Reform and Control Act (IRCA) into law.  This law, at least in principle, would finally bring much needed integrity to the immigration system that was failing at its mission of preventing the entry of millions of illegal aliens into the United States and, would purportedly bring an estimated 1 million illegal aliens out of the proverbial “shadows.”

IRCA also promised to do something that had never been done before; it would impose penalties on employers who could be proven to have intentionally hired illegal aliens.

Back then I was an INS Special Agent and my colleagues and I were very concerned about the concept of providing illegal aliens with lawful status, especially when we knew that there would be no easy way to determine the true identities of these illegal aliens.

That was the “bad news.”  The “good news” was that IRCA would finally provide us, the INS special agents with an important weapon to be used against the unscrupulous employers who intentionally hired illegal aliens and then exploited them terribly.  Up until the enactment of IRCA, employers actually called our office to announce that they had “found” illegal aliens were working for them and they wanted us to arrest them!  All too often we found out that these illegal aliens were attempting to unionize the factory workers or were complaining about serious health and safety violations.  Sometimes employers actually contacted us with some pretext and we later found out that they sought to have their employees arrested to avoid having to pay them!

In essence, these employers were attempting to use the INS as a sort of “goon squad” and knew that unless we could prove that they had smuggled their employees into the United States, harbored them or were otherwise involved in illegally entering the United States they faced no repercussions from the INS.  Can you imagine how angry and frustrated we became as INS Special Agents?

IRCA was supposed to balance the equation.  Under IRCA employers and their illegal alien employees were both subject to legal sanctions and punishment for violating our immigration laws.  We were ecstatic because no sane employer would ever again call up the local INS office to complain about his employees and attempt to use our authority as INS agents to act as that employer's “enforcers.”

We were also told that this would turn off the “jobs magnet” that encouraged and induced the majority of illegal aliens to run our nation's borders and violate our immigration laws.

The problem was that while the government estimated that approximately 1 million illegal aliens would step out of those shadows, we wound up with anywhere from 3 million to 4 million aliens coming forward.  While the law was supposed to punish employers as well as illegal alien employees, a lack of resources meant that few employers would actually face consequences for their unlawful hiring practices.  Furthermore, the way that the law was written, aliens could decide what documents they wanted to show their employers and employers could not demand to see an Alien Registration Card (Green Card) as long as the newly hire alien employee provided a document that established identity and another document that established the alien's lawful status in the United States and the fact that he (she) was lawfully entitled to work in the United States.  This meant that an alien could, for example, show his new employer a valid state ID such as a driver's license and a Social Security card and write down his Alien Registration Number but the employer was forbidden, under provision of the Civil Rights laws, from asking to see the alien's immigration documents.

Employers were instructed to make a “good faith effort” to determine the authenticity of the documents proffered by their new employees.

This resulted in a new cottage industry of false document vendors springing up, virtually overnight.  Yet INS did not provide much, if anything, in the way of training enforcement personnel to identify altered or counterfeit documents.  Relatively few agents were assigned to what came to be known as “Employer Sanctions.”

Most of the INS personnel quickly saw that IRCA provided millions of illegal aliens with a pathway to United States citizenship but did little, if anything, to curtail the intentional hiring of illegal aliens by employers who were determined to maximize profits through the exploitation of desperate and vulnerable employees.  In short order it became all too apparent that the INS lacked the resources and the resolve to enforce the employer sanctions provisions of IRCA. Business owners quickly resumed the large scale hiring of illegal aliens knowing that with millions of employers in the United States, getting investigated and fined or prosecuted for violating IRCA was somewhere between slim and none!

Today, Lamar Smith, the Chairman of the House Judiciary Committee, is attempting to make E-Verify mandatory;  an important goal.  Mandatory E-Verify would undoubtedly make it harder for illegal aliens to secure unlawful employment if this law were effectively enforced.  Additionally, the bill would cause situations where those who presented Social Security numbers that have been used simultaneously in different jobs, likely indicating that identity theft has taken place, would be flagged so that an investigation could be conducted by ICE (Immigration and Customs Enforcement).

The problem is that H.R. 2164 would pre-empt local governments from enforcing the employer provisions of the immigration laws on the local level other than to be able to suspend the business licenses of those employers who failed to comply with the new law.

By eliminating the states from the immigration law enforcement equation, the federal government would have a clear monopoly on the enforcement of the immigration laws.  If the federal government's track record had been reasonable in the first place, local and state governments would never have taken the steps that more and more such governments are now taking.  These municipalities and states would never have sought to enact their own immigration laws in an effort to fill the void created by a federal government's failures to secure the borders and enforce the immigration laws from within the interior of the United States.  It is clear that the federal government is determined to create the illusion of enforcement while making certain that, in reality, illegal aliens have virtually nothing to fear where their violation of our nation's borders and our immigration laws are concerned.

It is extremely important to remember that the immigration laws are supposed to prevent the entry of aliens into our country whose presence would be harmful or even dangerous to our nation and our citizens.

Among the categories of aliens who are supposed to be kept out of the United States are aliens with dangerous communicable diseases, aliens who suffer serious mental illness and are prone to violence, aliens who are convicted felons, aliens who fugitives from justice in other countries, aliens who are human traffickers and drug smugglers, aliens who are war criminals and aliens who have committed human rights violations. Also aliens who are engaged in terrorism and espionage are among those who are, by law, supposed to be prevented from entering our country and are supposed to be removed if they manage to evade the Border Patrol and enter the United States.

It must be presumed that an alien who would pay many thousands of dollars to a smuggler to evade the inspections process rather than seek to enter our country lawfully knows that they would not be able to lawfully enter the United States because they fall under one or more categories of aliens who are statutorily ineligible.

Yet the President, members of his administration and members of Congress, at the behest of special interest groups and deep-pocketed contributors have made it clear that they cannot wait to provide these unknown millions of illegal aliens with lawful status and a "pathway to United States citizenship!"

Recently it has been uncovered by the AFGE (American Federation of Government Employees) that the administration has been ordering that the removal (deportation) of aliens not be sought if the aliens are attending school, if they have family members in the military, if they have not committed “serious” felonies (I thought all felonies were serious).

The list goes on and on as to the reasons why the administration believes that illegal aliens should not be removed from the United States.

With such a mindset, does anyone really believe that ICE would aggressively enforce any immigration laws including the E-Verify requirement?  Recently the administration implemented a policy of conducting “silent raids” which means that employers might face fines or other punishment but the illegal aliens would likely not even be interviewed by ICE.

On January 26th of this year, the House Judiciary Committee, Subcommittee on Immigration Policy and Enforcement Conducted a hearing in to how ICE conducts worksite investigations.  I was one of four witnesses who were called to testify.

Prior to the implementation of IRCA in 1986 the unbalanced approach of going after the illegal aliens and all but ignoring their employers failed to deter the employment of illegal aliens.  Now the administration has gone in the opposite direction- going after the employers while virtually ignoring the illegal aliens.  This one-sided approach will not work.  This approach will not deter aspiring illegal aliens from entering our country and violating our borders and our laws.

Furthermore, the administration and members of Congress in both houses and from both parties provide aspiring illegal aliens with more incentives to run our borders by saying that illegal aliens should be placed on a pathway to United States citizenship!

Once again I am compelled to ask- is the federal government up to the task of enforcing the immigration laws?  Does it have the resources- and even more importantly, does it have the resolve or even the desire?

We have been told that the Chamber of Commerce favors H.R. 2164 because the Chamber is attempting to avoid having corporations deal with a patchwork of employer sanctions laws created by numerous states.  In my judgment, this is absurd.

Today all sorts of laws, regulations and policies vary every time you go from one state to another.  Here are just a few of such variations:

Motor vehicles laws, building codes, firearm laws, emission standards for vehicles and factories and power plants, minimum wage laws and tax laws, to name just a very few of ever so many!  Furthermore, when companies are “multinational” in their operations, they need to deal with the customs laws of the United States as well as the customs laws and all of the other laws of the other countries!  Yet they gladly expand their factories and their offices around the world, undaunted by the mountains of laws, regulations and policies that must be adhered to as they move from one state to another and cross international boundaries in pursuit of profit and lower operating costs.

I would like to offer a suggestion–why not modify H.R. 2164 to require that while states may enforce the employer sanctions provisions of E-Verify, that the law must be identical with the federal statute?  Suddenly there would be homogeneity where these laws are concerned. The good news for Americans seeking work is that local and state government could bolster the meager, indeed all but nonexistent resources and efforts being brought to bear by the federal government.  This would help to get many more Americans working and by hiring citizens of the United States of all races, religions and ethnicities, unemployment rates would drop and the money that is currently being sent out of the United States by foreign workers would be greatly diminished!

Chairman Smith wants to reduce the number of documents that aliens can provide employer when they are hired.  I could not agree with him more.  I would actually go further with this.  Why not remove the right that aliens have to determine what documents they want to show their new employers and simply require that aliens provide their employers with the document that provides proof of “alien registration” that by law, all aliens who are 14 years of age and older must carry on their persons at all times?  Under the provisions of Title 8, United States Code, Section 1304(e) an alien who has, for example, been lawfully admitted for permanent residence, must carry his Alien Registration Receipt Card (Green Card) with him at all times.  Failure to comply with this law can result in a fine of $100 and a 30 day jail sentence.

I would also urge that H.R. 2164 include provisions requiring that resources be devoted to conduct fraud investigations to combat the fraudulant document vendors and also to combat the massive levels of immigration benefit fraud that enable aliens to acquire lawful status in the United States by engaging in fraud schemes such as marriage fraud to circumvent the immigration laws and worksite enforcement efforts.

H.R. 2164 could put virtually all of our nation's “enforcement eggs” into one basket- the ICE basket.  That agency and other component agencies of DHS have failed to secure our nation's borders and block the flow of members of the Mexican drug cartels and other transnational criminal organizations and gangs even as the Secretary of Homeland Security, Janet Napolitano has repeatedly declared our borders are safer now than ever before. Even the President ridicules those Americans who are rightly concerned at the multitude of failures of this administration and prior administrations to actually secure our nation's borders and create an immigration system that possesses meaningful integrity to secure our nation, protect our citizens and honor the countless lawful immigrants and their descendants who built this great nation since its founding.

Yet H.R. 2164 does not establish any enforcement requirements or establish additional funding for enforcement to make certain that the E-Verify mission is actually accomplished.  I want you to consider that there are reportedly at least 5 million employers in the United States today.


H.R. 2164 does not call for the hiring of a single new Special Agent or other employee for ICE.  If ICE refuses to assign any agents to conduct E-Verify investigations and enforcement actions, then no one else would be able to do the job! This is why I believe that the Chamber of Commerce likes this law.

Think how many years and how much money was squandered on the program known as SBINet (Secure Border Initiative Network) also known as the “Virtual Fence.”  Years ago when I appeared on various programs I predicted that the Virtual Fence would stop “virtually no one!”  Unfortunately I was right as established in recent GAO reports.  Why should anyone expect that E-Verify would not suffer a similar fate?

US-VISIT was a program that was mandated by the 9/11 Commission to track the entry and departure of non-immigrant aliens as a matter of national security.  Reportedly over one billion dollars have to been spent on this program and yet it is still unable to verify the departure of aliens who enter the United States while various companies such as Fed-Ex and UPS are able to track, in excruciating detail, the movement of millions of packages across our nation each and every day!

ICE touts the apprehension of thousands of fugitive aliens but is unable to explain how criminal aliens who had been in custody somehow managed to make their way back out onto the streets of cities and towns across our nation and, all too often, been caught when they kill or injure yet another victim before they were arrested again and ICE was able to take credit for the arrest.

Can anyone name even one component of the immigration system that works as it is supposed to?

I know that there are those who support H.R. 2164 as it now stands.  I cannot support this bill in its current form.  Please understand my profound frustrations and concerns.   When I was an INS Special Agent my colleagues at the INS and I confronted the failings of our federal government to secure our borders and effectively enforce the immigration laws each and every day we went on duty.   During my 30 year career I had a front row seat to the bedlam that came to pass for “business as usual” at the INS back then and at ICE, today!  I spent half of my career assigned to the “War on Drugs.”  That war continues to be fought on the streets of our cities and towns and racks up casualties each and every day.

I am first and foremost an empiricist as are all law enforcement officers.  As an agent I had to stay focused on the real world.

Consequently, for us, our concerns were not merely academic in nature- we were mindful of the fact that failures could have profound real world ramifications.

Until and unless the areas of concern I have laid out are addressed, I fear that we will once again witness the passage of a new immigration law that will have many unintended consequences- consequences that we can ill afford. The failures to secure our nation's borders and create an immigration system that has real integrity impacts everything from national security, criminal justice, community safety and the economy, the environment, healthcare and education.

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