Border Patrol Strays From Border in New Enforcer Role : Immigration: Employers, others challenge diversion of agents in effort to enforce sanctions against job providers under 1986 law.

When U.S. Border Patrol agents raided his San Diego hosierymanufacturing firm last January, Michael Speyer was incensed. The raid, Speyer said, culminated weeks of “harassment” of his work force, spreading particular fear among the many Latino laborers in a neighborhood that is mostly Latino and black.

“The Border Patrol should be patrolling the border--that’s what they’re here for,” said Speyer, president of Mountain High Knitting, which employs almost 200 people and generates $25 million-$30 million in annual sales from its Southeast San Diego plant.

“If they did their job at the border, I wouldn’t have a problem here,” said Speyer, whose firm was set up with government incentives in an effort to bolster minority employment.

The agents who raided Mountain High, armed with a federal search warrant, were not performing the principal and best-known Border Patrol task: guarding the notoriously permeable international boundary.

The lawmen were instead acting in the relatively new--and increasingly controversial--capacity: enforcing provisions of the so-called “employer-sanctions” law, a cornerstone of the sweeping Immigration Reform and Control Act enacted by Congress in 1986, which proscribes the hiring of undocumented immigrants.

In the San Diego area, home to the largest single Border Patrol contingent nationwide, statistics indicate that employers may be subject to some of the nation’s most intense sanctions-related scrutiny--much to the chagrin of businessmen such as Speyer of Mountain High, who contend that the region is unfairly singled out simply because of the proximity of the international border.

“San Diego is just guilty by association,” Speyer said during a recent interview at his San Diego plant, where the whirring of machines knitting high-fashion hosiery is a 24-hour-a-day accompaniment.

In a related development, a study by the General Accounting Office, Congress’s investigative arm, recently found that Border Patrol agents’ sanctions duties, along with other new assignments, have detracted from their principal task--the policing of the U.S.-Mexico border.

Investigators determined that Border Patrol agents based in San Diego now spend less than half their time on border activities--a stunning finding that was immediately disputed by Border Patrol officials.

The sanction statutes, passed despite bitter resistance from an unusual coalition of business interests and immigrant advocates, were designed to shrink the national job market for unauthorized foreign workers. For the first time, the law made it a federal crime for U.S. employers to hire undocumented foreigners, creating a new regimen of paperwork requirements for all job providers.

Employers are now mandated to fill out forms for each new hire, verifying every employee’s identity and his or her eligibility to work in the United States.

Violators, both those found to be hiring undocumented workers and those who have failed to complete the required forms or who have done so improperly, are subject to civil and criminal penalties, including stiff fines of up to $10,000 per unauthorized worker and, for repeat violators, five-year jail terms.

The overall legacy of sanctions is a decidedly mixed one.

Illegal immigration is still rampant, apparently escalating, thanks in part to the widespread availability of forged and stolen documents, which allow unauthorized employees to sidestep the law. Meanwhile, studies have linked the law to a surge in discrimination by employers against foreign-appearing or foreign-sounding job applicants.

One Los Angeles study found that the law may have increased unemployment among low-income legal U.S. residents who simply did not have the documents--such as U.S. passports, birth certificates, driver’s licenses, Social Security cards--that are now needed to qualify for jobs. Some congressional critics have called for the repeal of sanctions.

Nonetheless, as of a year ago--the latest nationwide data available--U.S. immigration officials had assessed 5,000 fines against employers totaling more than $17 million in penalties. Immigration and Naturalization Service Commissioner Gene McNary is expected to unveil a renewed sanctions initiative in the next week or so, officials say.

Any reverberations are likely to be felt especially hard by San Diego-area employers.

From the program’s inception in 1987 until last Feb. 1, Border Patrol officers and investigators from the Immigration and Naturalization Service San Diego district office had together assessed 433 sanctions-related fines against employers, totaling $2.6 million.

By contrast, officials from the Los Angeles INS district office--which covers Los Angeles, Orange, and five other counties, with a combined population of 15.1 million, more than six times that of San Diego County--had imposed 455 fines totaling $1.7 million.

The difference: There are no Border Patrol agents posted to Los Angeles, a giant undocumented employment hub and the principal destination of most border-jumpers passing through San Diego.

San Diego is host to both the busiest Border Patrol “sector”--base to about 720 agents, the largest nationwide--and a large INS district office. Lawmen from both agencies enforce sanctions. (The Border Patrol is a uniformed agency of of the Immigration and Naturalization Service, but patrol sectors and INS district offices, the latter staffed by plainclothes agents, traditionally maintain separate operations.)

The Border Patrol’s newfound role at the forefront of employer sanction enforcement has drawn considerable ire.

Detractors say border guards, accustomed to arresting illegal immigrants in the field, lack the expertise needed to pursue complex sanctions cases, which mostly involve exhaustive examinations of paperwork.

“You’ve got agents who are out one night chasing Mexicans in the backcountry, convinced that these guys are criminals, and the next week they come in, and they’re enforcing sanctions,” said Peter N. Larrabee, a San Diego attorney who has represented several firms accused of sanctions-related violations, including Mountain High Knitting.

“They (agents) have the same negative mind-set about the employers as they do about the people they chase,” said Larrabee, who maintains that sanctions have been “perverted” into a tool allowing vindictive agents to harass employers for purely administrative violations and impress Washington with funds garnered from fines.

In the case of Mountain High Knitting, he noted, the Border Patrol, after a raid and subsequent check of documents, presented company officials in February with a list of 15 employees believed to be unauthorized to work in the United States. Officials later determined that 11 of the workers were indeed legal U.S. residents, including one who was a U.S citizen, Larrabee said.

“Mountain High could have fired those people, and they would have been out of work--all because the Border Patrol made a mistake,” said Larrabee, who himself served as a Border Patrol agent for five years. “I think the Border Patrol should be out of the sanctions area. . . . How can we attract employees in a mostly Latino area when everyone knows this kind of harassment is going on?” Larrabee added, noting that many legal U.S. residents of Latino ancestry were questioned about their status.

Last month, the Border Patrol fined Mountain High Knitting and a sister firm, Mountain High Hosiery Ltd., a total of $84,000 for more than 200 alleged violations, all involving required paperwork that the Border Patrol said was non-existent or submitted incorrectly. Mountain High is challenging the penalties.

Alan S. Rabinowitz, assistant district INS counsel in San Diego, who is handling the case against Mountain High, denied any harassment of Mountain High or other firms but declined further comment.

Federal officials, although acknowledging that mistakes have been made nationwide in inconsistent assessment of fines and other matters, say that sanctions remain a key weapon in battling illegal immigration. Border Patrol agents and other officers are well-trained in the new sanctions law, authorities maintain.

“We try to cooperate with employers as much as we can,” said Gene Smithburg, assistant chief patrol agent in San Diego, who noted that the Border Patrol has made “educational” visits to almost 30,000 area employers since the law was enacted. “We want voluntary compliance.”

Immigration authorities point out that the service has yet to lose a contested sanctions case before an administrative law judge, be it a matter initiated by the Border Patrol or by an INS district office. (Many fines have been reduced based on judicial rulings or negotiation.)

“If they (employers) are grousing about sanctions, then I guess that’s good news, because it means they’re violating the law, and we’re putting pressure on them,” said Duke Austin, immigration service spokesman in Washington, who characterized most complaints as “sour grapes.”

However, Austin added that Immigration and Naturalization Service Commissioner McNary was concerned about reports of numerous paperwork-only violations; supervisors are reviewing the matter. “We certainly don’t want the law to be used solely against people who made minor administrative errors in filling out documents,” Austin said, adding that the focus is meant to be on repeat violators and others whose actions demonstrate a propensity to employ unauthorized workers.

Among Border Patrol personnel, according to the study released last month by the the General Accounting Office, enforcement of sanctions and other relatively new patrol responsibilities have resulted in a considerable decrease in time devoted to “border control activities”--from 71% of total hours five years ago to 60% last year border-wide.

The decline was even more dramatic in the San Diego area, where investigators found that agents dedicated less than 50% of their time last year to border vigilance.

Paradoxically, INS Commissioner McNary has repeatedly stressed the need to concentrate agents on “the line.”

The congressional study bolstered a widespread perception among lawmakers and others that the Border Patrol is wandering from its mission at a time when smuggling of illicit drugs and undocumented foreigners from Mexico is rising rapidly.

“There has been a very significant decrease in the amount of time that the Border Patrol agents are actually spending on the border,” noted Rosalie Lopez, legislative assistant to Sen. Dennis DeConcini (D-Ariz.), long an opponent of sanctions, who requested the congressional study. “It raises some very serious concerns about what we are asking of the Border Patrol.”

U.S. immigration officials have disputed the congressional conclusions, contending that agents are actually spending more hours on the border than ever before.

In San Diego, Border Patrol agents spend 70% to 75% of staff time on line duty, said Gustavo De La Vina, chief patrol agent in San Diego. Authorities say that at most 30 agents--4.1% of staff--are now deployed to sanctions duties, though as many as twice that number were assigned two years ago.

Whatever the numbers, employers such as Speyer of Mountain High have felt the pinch. In response, Speyer said he is contemplating moving his plant. He said he has already opted to open a second plant in Italy rather than face what he refers to as the Border Patrol’s “Gestapo tactics” and “targeting” of Latino-looking employees.

Border Patrol officials reject such characterizations. “We’re always professional,” said Armand E. Olvera, assistant chief Border Patrol agent in San Diego.

Another area employer, Mester Manufacturing Co., formerly of El Cajon, decided to relocate its water-bed manufacturing operations--involving 75 jobs--to Tijuana after Border Patrol agents assessed a $6,000 fine, sparking a lengthy and costly legal battle that was among the nation’s first sanctions cases. Firm officials ultimately paid a $3,000 fine.

“I think the United States is the greatest country in the world,” said Speyer, “but if the rest of the government was like the Border Patrol, this would be a Third World nation.”