Judge Blocks Worker ID Rule

By Anna Gorman, Los Angeles Times

A federal judge ruled Wednesday that the government cannot use mismatched Social Security data to root out illegal immigrants from the workforce, declaring that such enforcement actions would do "irreparable harm to innocent workers and employers."

In a major defeat for the Bush administration, U.S. District Judge Charles R. Breyer issued a preliminary injunction temporarily preventing the Department of Homeland Security from beginning a program to punish companies that do not clear up discrepancies between their workers’ names and Social Security numbers.

The decision comes after labor, civil liberties and immigrants’ rights groups filed a lawsuit to stop the department from using Social Security "no-match" letters for immigration enforcement.

"The government’s proposal to disseminate no-match letters affecting more than 8 million workers will, under the mandated timeline, result in the termination of employment to lawfully employed workers," Breyer wrote in a 22-page ruling.

Business groups hailed the decision.

"It’s a signal to the government that they can’t do anything they want simply by calling it enforcement," said Randel Johnson, a vice president with the U.S. Chamber of Commerce. "The Department of Homeland Security overstepped its bounds on this one."

Administration officials, groups that oppose illegal immigration and some members of Congress were critical of the ruling.

Homeland Security Secretary Michael Chertoff said he would consider mounting a legal challenge or issuing a modified rule that addressed the judge’s concerns. He said his department would continue to pursue other forms of employer enforcement, including criminal prosecution.

"This is only one arrow in a whole quiver full of strategies that we are undertaking to continue to increase enforcement efforts directed at employers who hire illegals," Chertoff said. "Our commitment to enforcement is not going to be frustrated or diminished because we have hit a bump on this one particular element of the strategy."

The injunction will remain in place until it is either overturned on appeal or the judge makes a final ruling after trial, which could be months away, attorneys said.

For years, the Social Security Administration has sent no-match letters to employers with workers whose names did not match their numbers on file, but the letters had never been used to sanction employers that may have hired illegal workers. To get jobs, undocumented immigrants often use false or stolen Social Security numbers.

Under the new regulation, Chertoff had warned companies that they could face criminal or civil liability if they received a letter and did not clear up the discrepancies within 90 days.

After Congress failed to agree on an overhaul of the nation’s immigration rules this summer, the administration announced a number of measures — including the no-match regulation — designed to toughen enforcement by administrative means. Beginning in September, the Social Security agency had planned to mail 140,000 letters to businesses that have at least 10 employees with discrepancies.

But before the letters could be sent, the coalition filed its suit against the Homeland Security Department and the Social Security Administration, and a judge issued a temporary restraining order. The groups, which included the AFL-CIO, the American Civil Liberties Union and the National Immigration Law Center, argued that the enforcement would have led to the firings of U.S. citizens and documented workers.

They presented their case to Breyer during a hearing in San Francisco last week and hailed Wednesday’s decision as a victory.

"The administration showed a callous disregard for legal workers and citizens by adopting a rule that punishes innocent workers and employers under the guise of so-called immigration enforcement," said Lucas Guttentag, director of the ACLU Immigrants’ Rights Project and one of the attorneys on the case. "The court’s decision exposed the new rule’s fatal flaw by recognizing that no-match letters are based on error-filled Social Security records."

An attorney for the AFL-CIO said the department’s rule also would have led to discrimination against foreign-born employees and retaliation against those who tried to organize.

"This is a particularly important day for the labor movement because the Social Security no-match letters have long been used to defeat worker organizing," said Ana Avendano. "Today Judge Breyer sent a clear statement that these letters are not to be used in that way."

Members of Congress who favored stiffer workplace enforcement criticized the ruling.

"What part of ‘illegal’ does Judge Breyer not understand?" Rep. Brian P. Bilbray (R-Solano Beach) said in a statement. "Using a Social Security number that does not belong to you is a felony. Judge Breyer is compromising the rule of law principles that he took an oath to uphold."

Rick Oltman of Californians for Population Stabilization called employers that received no-match letters and did not clarify their workers’ status irresponsible. The DHS rule would have helped to ensure that employees were authorized to work in the United States, he said.

"This is just another step to make sure that people are eligible for those jobs, which we all agree is the No. 1 magnet attracting people to this country," he said.

But Larry Rohlfes, assistant executive director of the California Landscape Contractors Assn., said the rule would have been tough on employers.

Employers would have faced the choice of complying or going out of business, he said.

Businesses and immigrants’ rights groups said the judge’s ruling underscored the need for comprehensive immigration reform.

In his ruling, Breyer wrote that the scope of the rule was "staggering" and the effects of its implementation "severe." The 90-day deadline would have imposed a burden on employers, prompting them to develop costly personnel systems and fire workers who may be legally employed, he wrote.

"There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days, even if the employees are actually authorized to work."

Breyer also ruled that the government did not follow mandated requirements before changing its policy on how to use no-match letters. Although mismatched Social Security data could be evidence that someone is unauthorized to work, it also could be caused by a typo or name change, he wrote.

Tom Nassif, president and chief executive of Irvine-based Western Growers, an agricultural trade association, said employers were not trying to avoid their responsibility to employ authorized workers. "The question is much more complex than, ‘Are they legal or are they illegal?’ The question is whether we have the time to investigate and come to a correct conclusion as to whether or not they’re truly here legally."

[email protected]

Times staff writers Maura Reynolds and Andrea Chang contributed to this report.