Deputizing - and then prosecuting - America's businesses in the fight against illegal immigration.

• Author: Green, Thomas C.

There has been a significant upsurge in the number of federal criminal prosecutions in recent years. In fact, between fiscal years 2000 and 2004, the number of federal criminal cases increased by about one-third. (1) This upswing in federal criminal cases was largely fueled by immigration cases. (2) Indeed, the number of immigration prosecutions in those four years surged from 16,724 to 37,854, making immigration prosecutions the single largest category of federal crimes, surpassing even drug prosecutions. (3)

Given the growing number of illegal immigrants in America (4) and the corresponding political debate about how the federal government should respond, (5) it is unsurprising that the Department of Justice ("DOJ") and Department of Homeland Security ("DHS") would place increased focus on immigration cases. What is surprising is the federal government's attempt to deputize America's business community in the fight against illegal immigration while simultaneously treating America's businesses as a favored target of the DOJ's prosecutorial efforts in immigration cases. Recent policy statements from the DOJ and DHS have made clear that the government expects America's businesses to increasingly work together with the government to curb illegal immigration or else face severe sanctions. (6) At the same time, the DOJ has refused to collaborate with businesses to address any isolated problems that may arise in their hiring practices, and has sought unprecedented penalties to resolve immigration investigations. (7) Indeed, at least one of the businesses that was among one of the first to volunteer for new government programs designed to stem illegal immigration was also among the first DOJ targets for investigation and prosecution when something went wrong in a part of the company. Even when those federal prosecutions have been unsuccessful, the government's charges have led to years of follow-on civil litigation, with attendant costs and distractions for the businesses involved.

In sum, the business community has never been more at risk in immigration matters. The government wants--indeed, demands--that businesses do more to assist the government's compliance efforts. Thus far, however, the government's invitation to work in a closer partnership--one which many business leaders would surely like to accept--has provided businesses with few or no benefits and significant risks.

This Article discusses the paradox in the federal government's attempts to invite closer cooperation with businesses while simultaneously sending the signal that cooperation with the government can be dangerous. It suggests ways that the government could achieve greater results by entering into true partnerships with American businesses. This Article points out several key defenses available to businesses that are charged with failing to comply with America's complex immigration laws, and ways in which companies can avoid becoming the targets of immigration investigations. Finally, this Article reviews the creative civil litigation that is being filed in an attempt to capitalize on the nation's immigration problems.

1. THE BEGINNING OF CORPORATE DEPUTIZATION IN IMMIGRATION AFFAIRS

   The federal government's effort to deputize America's businesses in immigration matters began in 1986, when Congress passed the Immigration Reform and Control Act (the "Act"). (8) The Act has been amended several times as Congress has sought solutions to the nation's immigration problems. (9) Under the current form of the Act, businesses are required to examine certain types of identification documents to verify that each job applicant is eligible for employment in the United States. (10) Employers are required to retain the "I-9" forms completed in the application process, and may elect to retain copies of the identification documents presented. (11) Employing any individual without verifying the individual's identity and employment authorization can subject a business to civil penalties. (12) The Act also makes it illegal, among other things, to knowingly hire an illegal alien, or to retain such an individual in employment after learning of his illegal status, (13) and businesses in violation of these provisions can be subject to both civil and criminal sanctions. (14) In passing this legislation, Congress was clearly trying to curb the flow of undocumented aliens in the United States by deputizing corporate America to reduce job opportunities for unauthorized aliens. (15)

   In theory, complying with this verification process would seem to be fairly straightforward for employers and effective in combating illegal immigration. In reality, however, the process has imposed great burdens and risks on American employers, while failing to prevent the employment of illegal aliens. The main problem is one of counterfeit documents. While American employers are required to visually examine an applicant's identification and employment verification documents (which commonly consist of a driver's license or other photo identification, together with a Social Security card), counterfeit documents are readily available for purchase almost anywhere in America. (16)

   Skeptics may say that counterfeit documents should be easily detected by prospective employers. But from our own experience with immigration-related cases, we can report that the counterfeit documents that are commonly traded on the street often appear as genuine as those issued by government agencies. In fact, in the Tyson Foods case discussed below, even the federal immigration agents and DOJ prosecutors involved in the case had difficulty determining with accuracy which of the suspected illegal aliens were, in fact, unauthorized. Employers can spot fake identification documents that are obvious (e.g., when the document has plainly been altered), but the average American business person is not an expert in document authentication. Moreover, under federal civil rights laws, employers must be careful not to impose higher standards of questioning or document scrutiny on applicants who do not speak English or who are of any particular national origin. (17) In sum, traditionally an employer has complied with the Act by asking for identification and accepting IDs that reasonably appear to be genuine. (18) An employer can do no more and no less.

   Employers' compliance with Congress' verification system is mandatory. (19) An employer who fails to comply with the employment verification requirements is subject to a civil penalty of between $110 and $1,100 for each individual violation. (20) In determining the amount of this penalty five factors are considered: the size of the employer's business, the employer's good faith, the violation's seriousness, whether the employee in question is in fact an unauthorized alien, and the history of previous employer violations. (21) Additionally, the government often equates a company's failure to verify the employment eligibility of its employees with evidence that the company knowingly hired illegal aliens. Under the Act employers who knowingly hire an illegal alien, (22) or retain in employment an unauthorized alien after learning the alien is illegal, (23) may be civilly fined between $275 and $2,200 for each illegal alien so hired or retained, (24) and the range of prescribed fines increases for repeat offenders. (25) Furthermore, the Act makes it a civil violation for anyone, including employers, to "knowingly" "accept" or "provide" any forged or false documents to satisfy any of the INS hiring or employment verification requirements, (26) and penalties range from $250 to $2,000 for each forged document violation. (27)

   Congress has also authorized criminal charges--either misdemeanor or felony--for certain violations of the Act. If an employer is found to have engaged "in a pattern or practice" of knowingly hiring illegal immigrants (or retaining them after learning of their unauthorized status), the Act imposes misdemeanor criminal penalties of up to $3,000 in fines for each unauthorized alien and/or imprisonment of up to six months. (28) Furthermore, if the employer "knowingly hires for employment at least ten individuals with actual knowledge that the individuals are aliens" during any twelve-month period, the employer has committed a felony and may be fined and/or imprisoned for up to five years. (29)

   Employers may also be charged with non-employment-specific immigration violations that carry criminal sanctions. For example,

   [a]ny person who--(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry ... (ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise ... (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place ... (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or (v)(I) engages in any conspiracy to commit any of the preceding acts, or (II) aids or abets the commission of any of the preceding acts (30) may be fined, imprisoned, or even sentenced to death, depending upon the particular violation and the aggravating circumstances. (31)

   Furthermore, "[a]ny person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States...