Private immigration screening in the workplace.

• Author: Lee, Stephen

INTRODUCTION I. EMPLOYERS AS IMMIGRATION SCREENERS A. IRCA: Screening Out "Unauthorized" Workers B. The Challenges of Immigration Screening C. The Harms of Self-Serving Screening Decisions 1. Legal harms 2. Democratic harms II. ENFORCEMENT REALITIES, RATIONALES, AND COLLABORATIONS A. Underenforcement as Enforcement Policy B. Rationalizing a Necessary Evil C. Collaborations III. ACCOUNTABILITY AND SCREENING DECISIONS A. Legal and Democratic Accountability B. Proposed Remedies 1. Auditing employer reports 2. The exclusionary rule CONCLUSION INTRODUCTION

The latest figures place the unauthorized immigrant population at about 12 million. (1) Meanwhile, the Department of Homeland Security (DHS) (2) boasts that it removed over 275,000 noncitizens in 2007. (3) How does the DHS decide which of our nation's 12 million unauthorized immigrants will be removed and which will remain? How do unauthorized immigrants enter the removal pipeline? Who actually makes these immigration decisions? While scholars have offered rich and textured analyses of the ever-expanding grounds for removing immigrants, surprisingly little attention has been paid to immigration screeners--the persons and institutions that assist the DHS in identifying candidates for removal. This Article focuses on one undertheorized site of immigration screening and one particularly problematic set of immigration screeners: the workplace and our nation's employers. (4)

For over twenty years, our immigration policy has effectively conditioned access to work on proof of citizenship or lawful status. Passed in 1986, the Immigration Reform and Control Act (IRCA) prohibits our nation's employers from hiring anyone other than citizens or those otherwise "authorized" to work. It effectuates this mandate by requiring employers to screen their workforces and "verify" the immigration status of their workers. (5) Thus, along with port-of-entry inspectors, international carriers, asylum officers, and an increasing number of state and local law enforcement officers, employers assist the DHS in a screening capacity by identifying those immigrants who, in their judgment, ought to be reported to DHS officials for removal. Screeners in effect winnow down the universe of potentially unauthorized immigrants to a manageable size.

For immigration purposes, our nation's employers remain a significant and significantly misunderstood group of immigration decision makers. The sheer number of employers makes them significant. The number of public immigration officials within the DHS--the public agency charged with the duty of making immigration-screening decisions--is approximately 31,500. (6) But because our immigration laws require all employers to verify the immigration status of their employees, even focusing on just a handful of the industries that have traditionally relied on immigrant labor reveals a startling reality: within the construction and manufacturing/production industries, for example, no fewer than 1.1 million employers--private entities--must screen their employees to ascertain and verify immigration status. (7) This means that an at-best-loosely-organized group of private screeners is effectively deciding which immigrants in the workplace can stay and which should be reported for removal.

Despite the reach of their influence over immigration matters in the workplace, employers have nonetheless remained significantly misunderstood as decision makers. Employers are not uncommonly seen as the targets of regulation, where the primary regulatory challenge involves properly calibrating the level of enforcement against employers to deter them from hiring unauthorized immigrants. (8) This is not entirely surprising given IRCA's logic. Like other third-party liability schemes, it seeks to disrupt what can often be a collusive relationship. Many employers seek out low-wage unskilled labor, and many unauthorized immigrants in turn seek out work opportunities to support themselves and their families. But while it is true that IRCA formally prohibits employers from hiring unauthorized immigrants under threat of civil and criminal sanction, it has been so infrequently enforced that employers can escape detection in all but the most egregious circumstances. (9) As a result, the employer-worker relationship, while collusive, has become asymmetrical: unencumbered by the fear of being punished, employers can threaten to report workers for removal, whereas workers do not possess any similar ability to blow the whistle on employers. Therefore, in many instances, employers and employers alone decide which unauthorized immigrants in the workplace can remain, and which will be reported for removal.

What has been the result? The immediate harms have been harsh and increasingly apparent. Within industries traditionally dependent on immigrant labor, employers recruit and hire unauthorized workers, and use their de facto immunity from sanctions to negotiate low wages, disregard workplace protections, and otherwise suppress worker dissent. Moreover, with increasing frequency, employers seem to be contacting the DHS to request that it inspect their own workplaces and detain and remove the same unauthorized workers they recruited and hired in the first place. And while some may reach out to the DHS as an attempt to carry out their screening duties in good faith, the growing anecdotal and empirical evidence suggests that many employers report workers in retaliation for unauthorized immigrants' attempting to assert their labor and employment rights. Employers, therefore, possess a great deal of discretion over whom they hire and whom they report, and in both instances it appears they exercise that discretion in a manner that elevates their interest in maximizing profit over the interests of advancing the goals of our nation's immigration and labor and employment laws. As Michael Wishnie explains, IRCA's perversity stems from "a law-breaking employer [who] may invoke the formidable powers of the government's law enforcement apparatus to terrorize its workers and suppress worker dissent under threat of deportation." (10)

Though we know what employers are supposed to do (verify the immigration status of their workers), and what they are instead more likely to do (hire unauthorized workers and threaten removal to gain a bargaining advantage), we know little about why the DHS continues to rely on employer "tips" and "leads," and we know even less about what the long-term effects will be on immigration. Finding a solution to the problem of exploitation requires, therefore, answering a whole series of questions that move us beyond a one-dimensional understanding of employers as regulatory targets engaging in lawless behavior.

Answering those questions requires us to first take account of the way IRCA has actually been implemented. I employ the following diagram for expositional help.

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Taking seriously this "regulatory retriangulation," (11) I provide in this Article a descriptive account of how employers have become not just agents of exploitation, but also agents of the State. I want to suggest that our nation's employers are best understood as private immigration screeners (12) who identify potentially unauthorized immigrants within their workforces for removal. Just as port-of-entry inspectors screen for ineligible entrants, and state and local law enforcement officers screen investigatory targets for removable noncitizens, our nation's employers screen their workforces for immigrants that lack authorization and are otherwise removable. Therefore, the DHS persists in working with (rather than completely against) employers because they provide a variety of screening services. Some of those services attach through the compulsion or encouragement of law, like examining documents and consulting databases to verify immigration status. (13) Other services, like reporting the presence of unauthorized immigrants to the DHS (14) and coordinating workplace inspections and raids, (15) have emerged out of an evolved regulatory practice and culture of collaboration. But in any event, all these services permit employers to shape the conditions under which unauthorized immigrants remain in the United States and define the conditions triggering DHS detention and removal.

Having painted a descriptive reality where the DHS and our nation's employers collaboratively screen for unauthorized immigrants, I then turn to the normative implications that arise from such an arrangement. In particular, I focus on the consequences of this collaboration and argue that this informal regulatory partnership has exacted both legal and democratic costs. The legal costs are straightforward and concrete. Permitting employers to report--and use the threat of reporting against--workers effectively prevents workers from asserting labor and employment rights they would otherwise be entitled to assert. Such a practice also incurs democratic costs, which are no less troubling. Employer screening that proceeds on a self-serving basis incentivizes immigrant workers to embrace docility and avoid activity that draws attention, such as participating in a union drive or pressing claims for overtime pay. But the workplace remains one of the few social institutions where immigrant adults can encounter and develop meaningful relationships with nonfamily citizens, becoming in the process more integrated into their surrounding communities and larger society. Employer screening has therefore diminished the capacity of the workplace to provide more than just an opportunity to earn a paycheck. It injects the threat of removal as one more set of costs workers must bear in attempting to foster a sense of community and solidarity and investment.

Part of my ambition is to unsettle our notions surrounding the type of behavior we ought to reward when screening for unauthorized immigrants. Some have argued that unauthorized...