The Gaping Loophole in the Middle of INS Law Enforcement

The law is clear enough. It is illegal to enter the United States without passing through ports of entry with proper documentation. Furthermore, since passage of the 1986 Immigration Reform and Control Act, it is illegal for U.S. employers to knowingly hire undocumented workers. Both facets of the law are related: The state cannot be expected to effectively deter illegal entries if the employers who hire them go unpunished.

The Immigration and Naturalization Service, however, has been inconsistent in its enforcement of the law. While flexing considerable muscle along the U.S.-Mexico border to curb illegal entries, the agency has largely turned a blind eye toward arresting those who employ them. In San Diego, for example, more than 2,100 agents are deployed along the border, compared with a mere 23 assigned to work-site enforcement. Small wonder that since 1986, less than .5% of U.S. firms have been inspected.

In some respects, INS inconsistency in enforcement is understandable. Hunting undocumented Mexicans in the Tecate Mountains is less politically risky than targeting employers. Undocumented workers cannot vote. They cannot contribute to political campaigns. Unlike businesses, they cannot threaten to pack up and relocate to friendlier environs in less developed countries.

But by not vigorously enforcing the law against employers who hire illegal labor, the INS is undercutting its own effectiveness at the border. Indeed, it is reasonable to assume that if the INS deployed more resources to arresting employers of illegal immigrants, the agency could begin demilitarizing the U.S.-Mexico border--and saving lives.

Recently, the agency launched a campaign that seemingly aimed to resolve its enforcement dilemma. Unfortunately named Operation Clean Sheets, the INS inspection audited more than 200 hotels in the San Diego area. Yet, closer examination reveals this “crackdown on employers” to be little more than a hollow exercise lacking broader implications for employers who depend on illegal labor. For example, 40% of the workers in California agriculture are undocumented, but INS inspections are virtually nil.

According to Bridgette Browning, representative of Local 30 of the Hotel and Restaurant Employees Union of San Diego, many of the suspected undocumented workers who were given an opportunity to quit their jobs did so. Since then, they have found similar employment in the hotel industry. There appears to be no shortage of jobs for workers willing to make more than 45 beds a day for low wages.

What about the people who hired them, the hotel owners and proprietors? According to Robert H. Mandgie, acting INS San Diego district director, there has not been a single prosecution of an employer this year. Operation Clean Sheets can hardly be said to be a serious attempt by the INS to straighten out its law-enforcement policies.

This may be related to how the law is structured. Employers are required to demonstrate compliance with the law by asking prospective employees for proof of work eligibility, such as a green card or Social Security card, then recording the information on an I-9 form. Penalties for knowingly hiring undocumented workers range from $250 for the first offense to $10,000 for repeated offenses, though fines are, on average, adjusted downward by about 59% through negotiations. Fines for paperwork violations relating to the I-9 form range from $100 to $1,000 per violation.

Also, the INS ordinarily gives employers a three-day notice before it dispatches inspectors to their work site. This has been true of Operation Clean Sheets. The stated intent of the notice is to give employers reasonable time to arrange their paperwork. In fact, it enables employers to complete previously uncompleted I-9 forms, as well as to notify any known or suspected undocumented workers of the upcoming INS inspection. After the INS audits the I-9 forms, employers are alerted about workers whose eligibility may be suspect. Employers, in turn, may notify the suspected workers, who are then given the option of resigning.

Only employers too witless to capitalize on such gaping loopholes are ever prosecuted--and there aren’t many of them. As reported by George Guzman, supervisory special agent for work-site enforcement in the INS’ Los Angeles district, only 18 notices of intent to fine employers were issued in fiscal 1995-96.

More than 65 undocumented immigrants have died this year attempting to cross into the San Diego area. Many more have been injured; untold others and their families have suffered serious economic setback upon being apprehended by the Border Patrol. They are the victims of an INS enforcement policy that specializes in arresting the weakest link in the labor chain that connects America with its neighbors.