ICE numbers belie Obama promise on immigration enforcement

By Marcelo Ballvé, New America Media

The Obama administration had long promised to shift the focus of immigration enforcement from workers to employers.

In real terms, that means less of the high-profile raids like those at electronics and meatpacking plants in Postville, Iowa and Laurel, Miss. that characterized the last years of the Bush administration. Those led to the arrests of hundreds of immigrant workers, but only a trickle of employer prosecutions.

Instead, as John Morton, assistant secretary of Homeland Security under President Obama, promised in a rare public speech earlier this year at the Migration Policy Institute in Washington, D.C., his agency would "focus on the employer" and pursue "aggressive criminal and civil enforcement against (employers) who knowingly violate the law."

"But it hasn't been done," said Crystal Williams, executive director of the American Immigration Lawyers Association (AILA).

Although Immigration and Customs Enforcement (ICE) worksite arrests appear to be trending down, worksite raids continue. I-9 or Employment Eligibility Verification audits designed to spot unauthorized workforces have leapt in number. Meanwhile, ICE's own statistics -- which the agency shared with New America Media -- show that the agency's efforts to investigate employers have yet to yield an increase in prosecutions.

In fact, the opposite happened -- ICE brought less charges against employers in 2009 than it had the previous year.

In the 2008 fiscal year, still under President Bush, ICE brought criminal charges against 135 business managers, supervisors and owners as part of immigration investigations.

In the next fiscal year -- which ended in September 2009 after President Obama's first eight months in office -- ICE brought criminal charges against 114 employers, a 16 percent decrease.

Clearly, "white-collar" cases against employers who profit from the broken immigration system are harder to prove than run-of-the-mill immigration arrests.

But the number of employer cases appears as a "miniscule proportion" when set alongside the total prosecutions initiated by ICE, said Williams of AILA.

Taken together, the total number of ICE cases referred to the federal courts ballooned to 20,411 in fiscal year 2009 -- a 12 percent increase over the prior year -- according to data from the Transactional Records Clearinghouse (TRAC) at Syracuse University.

These prosecutions take in everything from counterfeit toothpaste to drug trafficking, but the bulk of the cases were relatively minor immigration charges. Just over half (10,346), according to TRAC, were for entry or re-entry of undocumented immigrants.

The large number of lower-level immigration prosecutions has immigrant advocates worried that the agency's focus is still on quantity rather than quality.

Of course, new priorities take a while to trickle through a law-enforcement agency as large as ICE. The agency has more than 7,000 agents and is the federal government's second-largest investigative force after the FBI.

"They are trying to do what they say they're trying to do," said Donald M. Kerwin, Jr., vice president for programs at the Migration Policy Institute. "Give them a couple of years to turn the ship around."

It may be well be that this fiscal year, which began Oct. 1, 2009, proves a turning point for worksite enforcement.

In December 2009 ICE prosecuted 6 percent fewer total cases than in the same month the prior year, a drop driven mainly by a decline in charges for illegal entry, a charge for which those convicted are rarely sent to prison, according to TRAC.

Kerwin of the Migration Policy Institute sees this decline in prosecutions as a possible sign the agency is re-ordering its priorities to focus on serious and flagrant violators of immigration laws such as exploitative employers.

And so far this fiscal year, ICE has initiated 1,687 investigations against employers, more than the entire previous year combined, said Harold Ort, ICE spokesman in Newark.

These cases include an ongoing investigation in the Baltimore area that last month led to raids on two Maryland restaurants, as well as several homes and businesses.

The sweep was meant "to ensure that employers are held accountable for maintaining a legal workforce," William Winter, ICE special agent in charge of Baltimore, said in a press release issued after the raid.

Yet no employers were charged in connection with the Maryland raids. The only arrests were non-criminal administrative detentions of 29 immigrants in the country unlawfully.

The absence of immediate charges against business owners or managers is not unusual. The lag-time between raids and charges against employers can be years.

But when raids are not quickly followed by high-level charges or indictments, it reinforces the perception that it's still employees and not their bosses who are bearing the brunt of enforcement. They are the ones being scooped up by ICE and fired en masse.

"This is not an acceptable way to treat members of our community," said Gustavo Torres, executive director of the CASA de Maryland immigrant rights group, after the Baltimore-area raids.

ICE has no choice but to enforce the law when encountering undocumented immigrants in the course of employer-targeted investigations, said agency spokesman Ort.

Ort also defended the audits of I-9 forms as a powerful tool in detecting unscrupulous employers, immigration-related fraud, and fineable employment offenses.

"We consider ... employee records as important as tax or income records," he said.

As a federal agency in charge of the politically sensitive task of immigration enforcement, ICE must endure criticism from both sides of the immigration debate.

On the one hand, immigrant advocates castigate the agency as a callous enforcer that terrorizes immigrant communities through raids such as last week's sweep of Arizona shuttle van installations or I-9 audits (which advocates call "paper raids").

On the other hand, activists and elected officials with more uncompromising law-and-order views on immigration prod the agency to be more aggressive and make as many arrests as possible.

On March 18 -- just a week after the raids in nearby Maryland -- ICE assistant secretary John Morton testified on Capitol Hill before the House Appropriations Homeland Security Subcommittee about his agency's budget request of $5.5 billion for the 2011 fiscal year.

Morton received a tongue-lashing from a Kentucky legislator.

Rep. Hal Rogers, a Republican, pointed out that while I-9 audits of businesses had increased by 187 percent to more than 1,100 in fiscal year 2009, at the same time there had been a drop in worksite arrests of undocumented immigrants.

"When I look at the shift in ICE's focus over the last year, I'm deeply concerned," said Rogers, according to a transcript of the hearing. "It appears as though immigration enforcement is being shelved and the administration is attempting to enact some sort of selective amnesty under the cover of prioritization."

For Frank Sharry, executive director of immigrant advocacy group America's Voice, only comprehensive immigration reform that modernizes the system as a whole will free up immigration enforcement to balance priorities and focus on illegal hiring and unfair labor practices.

In the current climate, federal immigration authorities certainly do feel pressure to deliver politically expedient statistics.

This pressure was put on public view by the Washington Post's March 27 publication of internal memos in which a top ICE official discussed deportation quotas. In a written statement, Assistant Secretary Morton said most of the memo obtained by the newspaper did not reflect ICE policy, and added, "We definitively do not set quotas."

Still, Morton himself was not above promising improved numbers as he was grilled on the 2010 drop in worksite enforcement arrests during the March 18 appropriations hearing.

"I am very focused on getting that up," Morton replied.