Ending worksite raids is a show; focus should be on employer compliance

On Oct. 12, Department of Homeland Security (DHS) announced that ICE will no longer conduct mass worksite raids. These resource-intensive operations have resulted in the simultaneous arrest of hundreds of undocumented immigrant workers — and they have been used as a tool by exploitative employers to suppress and retaliate against undocumented workers who report labor law violations.

DHS Secretary Alejandro Mayorkas outlined the new strategy in a worksite enforcement memorandum. ICE will focus its worksite enforcement operations on unscrupulous employers who exploit the vulnerability of undocumented workers. These employers engage in illegal acts ranging from paying substandard wages to imposing unsafe working conditions and facilitating human trafficking.

Moreover, by exploiting undocumented workers and paying them substandard wages, these employers unfairly drive down their costs and disadvantage their business competitors who abide by the law.

To achieve these goals, DHS will adopt policies to facilitate the efforts of the Department of Labor (DOL) and other agencies to enforce wage protections, workplace safety, labor rights, and other labor laws and standards.

This may help DOL, but not as much as additional funding from Congress to cover the cost of expanding its enforcement operations in the industries known to hire large numbers of undocumented immigrants.

Are undocumented immigrant workers safer now?

The National Immigration Law Center believes that ending mass worksite raids will eliminate the fear undocumented workers have of being arrested by ICE during a worksite raid.

The American Immigration Council, agrees. They view the worksite strategy memorandum as an important first step toward lifting the threat of deportation for exploited workers. 

But the Biden administration has never permitted ICE to arrest undocumented workers during worksite raids.

Within a few hours of being sworn in, Biden had his acting DHS secretary issue an interim enforcement guidelines memorandum that restricted immigration enforcement actions to aliens who pose a threat to national security, public safety, or border security. And undocumented immigrants who work without authorization aren’t in any of those categories.

Secretary Mayorkas finalized these guidelines in a second enforcement memorandum entitled, “Guidelines for the Enforcement of Civil Immigration Law,” that he issued two weeks before ending mass worksite raids.

This memorandum made enforcement decisions even more difficult by requiring that they must be based on “an assessment of the individual and the totality of the facts and circumstances.”  This has to include consideration of aggravating factors that militate in favor of the enforcement and mitigating factors that militate in favor of declining enforcement action.

It isn’t possible to make such an assessment of undocumented employees during a worksite raid. The information needed simply isn’t available.

In fact, the memorandum ending mass worksite raids acknowledges that arrests during a worksite raid would be inconsistent with the final enforcement guidelines.

If worksite arrests were nevertheless being made, DHS could just have taken disciplinary action against the officers who were making the arrests. It was not necessary to end the raids.

The raids are needed to enforce section 1324a of the Immigration and Nationality Act which gives DHS the authority to fine employers who hire foreign employees who do not have work authorization. These provisions were part of an interior enforcement program that was used to get Republican cooperation for the last legalization program, which was established by the Immigration Reform and Control Act of 1986 (IRCA). And I believe that the failure to enforce them fully is at least part of the reason why it has not been possible to get the Republican support for a legalization program since then.

In any case, I don’t understand why worksite raids were ended with a public announcement. It eliminated whatever uncertainty undocumented workers might have had regarding the likelihood of being arrested at worksites. This will only make the job magnet that draws undocumented workers to the United States even stronger than it already was.

Protecting undocumented workers who report labor law violations

The worksite enforcement memorandum also requires the development of a plan to alleviate or mitigate the fear undocumented workers have of being turned in to ICE if they report unfair labor practices.

This concern is covered in a memorandum of understanding (MOU) between DHS and DOL. ICE agreed to be alert to — and thwart — attempts to manipulate its worksite enforcement activities for illicit or improper purposes, and DOL agreed to report information it gets about such attempts to ICE.

It probably isn’t possible to stop disgruntled employees or unscrupulous employers from reporting undocumented workers to ICE, but I doubt that ICE acts on such tips. It seems quite unlikely that someone reporting undocumented workers will have the information needed to make the assessment required for initiating an enforcement action.

Assisting DOL with its labor law enforcement operations

The advantage to relying on DOL to go after unscrupulous employers who are exploiting vulnerable employees is that DOL does not need to know the immigration status of foreign workers when it investigates labor law violations.

The laws DOL enforces apply to citizens and undocumented workers alike.

For instance, DOL’s Wage and Hour Division enforces the Fair Labor Standards Act which establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments.

In an article we wrote five years ago, former CIS Ombudsman Prakash Khatri and I proposed the creation of a large-scale, nationwide DOL campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants.

The fact that DOL would conduct such operations without inquiring about the immigration status of the workers they encounter should avoid criticism from immigrant advocates, who oppose worksite raids because they think that such enforcement operations punish vulnerable undocumented workers and sow fear in immigrant communities. But DOL has no need to inquire about immigration status to enforce the laws on the books — for all workers.

But as I have already indicated, DOL would need additional funding from Congress to conduct such a campaign.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.