Trump's crackdown focuses on people in the U.S. illegally – but not on the businesses that hire them

Nearly 20 years ago, Mark Reed, then a top boss for the Immigration and Naturalization Service, sent agents into Nebraska to crack down on meatpackers hiring immigrants who were in the country illegally.

Agents pored over records to ferret out forged documents or fake Social Security numbers, and thousands of workers, fearful of being caught without papers, fled the state.

Reed thought the effort, Operation Vanguard, could become a national model to shut down a magnet for illegal immigration, and he said as much to Rep. Lamar Smith (R-Texas) during a congressional hearing on immigration while Vanguard was underway.

“The neon light is on. It has been for decades, and that neon light is driven by jobs,” Reed testified. “As long as those jobs are available, those people are going to come in.”

Smith thought otherwise. “Deportation is the strongest deterrent to illegal immigration,” he said.

Soon after that 1999 hearing, political blowback prompted the agency to halt Operation Vanguard, and officials turned their focus to apprehending immigrants and militarizing the Southwest border.

In the years since, the government’s strategy hasn’t much changed.

In the never-ending political and rhetorical war over illegal immigration, immigrants usually have received most of the blame, while businesses have gotten a relative pass — from enforcement and vitriol alike.

“If you take hypocrisy and then put in a good dose of unintended consequences, you can see why we are in such a mess,” Reed, now semiretired, said of immigration enforcement.

For all President Trump’s tough talk on deportations and building a wall on the Mexican border, his executive orders on immigration so far make no mention of targeting employers. Nor did he mention employers when, in his first address to a joint session of Congress, he renewed his pledge to build the border wall.

Though Trump’s rhetoric on illegal immigration is unusual compared with previous presidents, his basic approach to enforcement is not.

In fiscal years 2009 through 2016, immigration officials deported more than 2.5 million people. During that same time, officials arrested 1,337 managers of businesses on charges that included illegal hiring, tax evasion and money laundering.

“It’s always been easier to go after the workers,” said Doris Meissner, a former INS commissioner. “But is that any more than just counting numbers? Does that actually change the basic magnet effect of the jobs? No.”

For years, federal law did not bar the hiring of people in the country without legal status.

That changed in 1986, when President Reagan signed the Immigration Reform and Control Act. The law, commonly called IRCA, granted residency to about 3 million people who were in the country without legal status, bolstered border enforcement and for the first time established penalties for hiring people who were in the country illegally.

But to win the support of industry, including the powerful U.S. Chamber of Commerce and agricultural delegations from the Midwest, the employer sanctions were watered down, said Peter Brownell, research director for the Center on Policy Initiatives in San Diego, who has studied the issue.

IRCA set low fines and the law stated that, to be convicted, employers had to have “knowingly employed” a person who was in the country illegally.

The minimum penalty imposed by the Department of Justice is $548 per unauthorized employee. The maximum fine can reach $21,916, depending on whether it’s the employer’s first, second, third or subsequent offense.

To avoid sanctions, all employers have to do is to make certain that, as the law states, an employee’s paperwork “reasonably appears on its face to be genuine.” The employer also must attest that they made a good-faith effort to verify the eligibility of the employee by completing a document known as an I-9 form.

Simply employing someone who lives in the U.S. illegally isn’t enough to incur a violation.

“This made it difficult to prosecute cases,” Brownell said.

”Turns out that these people — the workers — were part of the community,” he said. “Turns out these are the people who go to their church, the people they hang out at the bar with. And now they were leaving.”

Americans are used to cheap labor and goods, and it’s unclear whether they would be able to stomach a real crackdown on employers and the consequences that would follow, such as higher-priced produce and emptied communities, experts say.

“It’s time for a gut check,” Reed said. “We’ll see what America wants and what America doesn’t want.”

Operation Vanguard was abandoned, and the focus shifted to the Southwest border.

These efforts accelerated after the terrorist attacks on Sept. 11, 2001, especially after federal officials dismantled INS and reorganized it into Immigration and Customs Enforcement, known as ICE, part of the new Department of Homeland Security.

Under President George W. Bush, the enforcement that did take place occurred in the form of high-profile, well-publicized raids on factories — including meatpacking plants.

President Obama shifted away from raids and instead instructed immigration agents to focus on audits, like those under Operation Vanguard, going after employers rather than just workers.

The new strategy toward audits of ’s I-9 forms and administrative fines proved fruitful for some time, reaching a peak when federal officials convicted 193 managers at work sites in fiscal year 2011 — up from 89 in 2009.

But eventually those efforts slowed, with a drop-off to 77 convictions in fiscal year 2015. The latest figures show 49 convictions in 2016. (ICE does not break down statistics by infraction, so it’s unclear how many convictions were for illegal hires.)

One of the reasons for fewer work site cases in recent years is the agency’s decision to focus on the more egregious violators, an ICE official said.

Reed says audits can be effective and, ideally, would be paired with Self Check, a little-known voluntary electronic verification program that takes the burden of determining employment eligibility off the employer. Instead, Self Check places it on the federal government.

Under Self Check, which uses the same databases as E-Verify, prospective employees answer questions online to prove their eligibility to work. But Homeland Security warns businesses against forcing employees and prospective employees to use the voluntary program because doing so might violate anti-discrimination laws.

The Department of Homeland Security “won’t allow employers to use it because they are not prepared to accept the consequences of denying employment to unauthorized workers,” Reed said. “A shining example of the hypocrisy surrounding work site enforcement.”

After retiring, Reed launched a consulting firm that helped meatpacking factory employers comply with immigration laws by ridding their employee rolls of unauthorized workers.

Reed lives a 90-minute drive from the border but rarely visits it. But when he does, Reed is reminded of why Congress and its constituents have become more focused on the border, and those who cross it, than the businesses in the country’s interior that hire immigrants for cheap labor.

“That is the visual,” he said, referring to the hundreds of miles of rusted fence illuminated at night by lights. “You can take a picture of lights; you can take a picture of a fence and a road being built. You can show progress from that day to day. It’s all optics.”

Employer sanctions, he added, are “the real wall.”

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