Whose Job Is it Anyway: How the Statutory and Regulatory Scheme Prohibiting Employers from Hiring Undocumented Workers Falls Short of Achieving Its Intended Purpose

JurisdictionUnited States,Federal
Publication year2021
CitationVol. 72 No. 4

Whose Job is it Anyway: How the Statutory and Regulatory Scheme Prohibiting Employers from Hiring Undocumented Workers Falls Short of Achieving its Intended Purpose

Antonio Solomon

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Whose Job is it Anyway: How the Statutory and Regulatory Scheme Prohibiting Employers from Hiring Undocumented Workers Falls Short of Achieving its Intended Purpose*

I. Introduction

Illegal immigration and jobs are and have been hot-button issues in American politics for quite some time. The further politicization of immigration policies and immigrants themselves in the 2016 presidential election cycle only exacerbated the prescience of America's illegal immigration woes. Inflammatory rhetoric suggesting that illegal immigrants are "stealing" jobs from American citizens permeated the political landscape in 2016. Rhetoric, which, at the same time, gives little credence to the fact that some American companies and industries actively lure immigrant workers as a source of cheap labor, which, in turn, allows those companies to offer their goods and services to American consumers at lower prices.

Against that backdrop, it seems unsurprising that commentators view the federal statutory and regulatory scheme designed to punish employers for hiring undocumented workers as an abject failure because that system is too lenient on employers that knowingly engage in such hiring practices. Ironically, the state of affairs concerning this area of federal law has the same adverse effects on immigrant populations as the Trump administration's spate of migrant border detentions. undocumented immigrants are detained or deported, resulting in the

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separation of migrant families, which places a significant strain on the United States judicial system and other public infrastructure to determine the best way to deal with the children of those deported and detained immigrants. Some of whom are American citizens.

This Comment begins with a review of situations in the news where employers involved in the employment of undocumented workers realized minimal or non-existent penalties for doing so. In contrast, the undocumented workers, on the other hand, are exposed to felony prosecutions and deportation.

From there, this Comment goes on to introduce and discuss the legislative history and purpose of the Immigration Reform and Control Act ("IRCA"),1 the enactment of which introduced Title 8 U.S.C. § 1324a,2 the federal statute prohibiting employers from engaging in the employment of undocumented workers.

Next, this Comment delves into the substance and structure of 8 U.S.C. § 1324a, including the statute's prohibitions, exceptions, requirements, enforcement mechanisms, and penalties. After that, there is a discussion concerning how and why 8 U.S.C. § 1324a falls short of achieving the statute's intended purpose and fosters conditions that promote a culture war among minority blue-collar workers.

The Comment then closes with the writer's assessments concerning a way forward under 8 U.S.C. § 1324a that makes sense for the American people and moves the statute closer to achieving its intended purpose.

A. The Illegal Immigration "Problem"

There were 10.5 million unauthorized immigrants in the United States in 2017, 7.6 million of which participated in the U.S. civilian workforce.3 According to the Brookings Institute, in 2016, the majority of unauthorized immigrants, 62%, were in the United States because they overstayed their visas, compared to 38% who crossed the border illegally.4

Commentators believe illegal immigration is problematic for a host of reasons. Some think that illegal immigrants cause harm to Americans

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and legal resident aliens "[b]y draining public funds, creating unfair competition for jobs . . . and thereby lowering wages and working conditions, and by imposing unwanted strains on [public] services designed to provide port to American[ ] [citizens]."5

Other commentators, however, acknowledge that the United States at times in its past "has invited illegal immigrants even as it has pushed them away, [through] a century of policies facilitating the recruitment and hiring of unskilled Mexican [workers]—regardless of whether those workers were legal or illegal."6 For example, the Bracero Program, under which the United States in 1942, in response to wartime shortages of agricultural laborers, permitted the importation of temporary guest workers to fill vacancies in the agricultural industry. By the time the Bracero Program ended in 1946, more than 4.6 million Mexican guest workers had participated in the program. Many failed to return home to Mexico and remained in the United States illegally.7

these same commentators further believe that it is antithetical to the United States' history as a nation of immigrants to implement immigration policies in a manner that merely pays lip service to the nation's immigrant roots.8

B. Immigration and Customs Enforcement Workplace Raids

Through its Homeland Security Investigations ("HIS") division, U.S. Immigration and Customs Enforcement ("ICE") is the federal agency that enforces 8 U.S.C. § 1324a. ICE executes 8 U.S.C. § 1324a through the agency's Worksite Enforcement Strategy, which "focus[es] on the criminal prosecution of employers who knowingly break the law" related to an employer's obligation to verify the identity and employment eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9.9

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The tools available to ICE to carry out its mission include Form I-9 audits, where ICE agents review a company's I-9 forms, either on-site or remotely, after requesting that an employer make the documents available. ICE also can conduct workplace raids upon obtaining a warrant predicated on a showing of probable cause that an employer is knowingly violating 8 U.S.C. § 1324a or that illegal immigrants may be on an employer's premises.10 These workplace raids typically involve federal agents confiscating an employer's employment eligibility related paperwork and arresting any employees suspected of being in the United States illegally.

The Obama administration took a more hands-off approach to enforcement of work-related immigration laws by choosing to audit employers' compliance in documenting their workers' status, rather than conducting many on-site investigations.11 However, after President Trump took office, then-Acting Director of ICE, Thomas Homan, declared that ICE would increase its worksite enforcement actions by 400%.12 So it is unsurprising that workplace raids have become more common under the Trump administration. ICE opened about 6,850 workplace investigations in 2018, compared to only 1,700 such investigations in 2017.13

On May 12, 2008, ICE agents raided Agriprocessors, Inc., located in Postville, Iowa.14 Agriprocessors was the nation's largest kosher meatpacker at the time.15 The raid was prompted by allegations that 80% of Agriprocessors' employees used falsified documents to obtain employment and resulted in the arrests of nearly 400 unauthorized workers.16 Following their arrests, those workers were transported to a nearby event venue where federal agents had set-up a makeshift detention facility and court to prosecute those unauthorized workers.17

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Generally, the punishment for a person found to have been working in the United States without proper authorization is deportation.18 However, under the direction of the Bush administration, prosecutors brought identity-theft related charges against the unauthorized workers who were arrested during the raid on Agriprocessors.19 Faced with the possibility of two-year minimum prison sentences, more than 250 unauthorized workers accepted plea deals to serve five months in prison.20

The prosecution of those unauthorized workers was unusual. The government's actions garnered criticism from immigrants' rights groups, defenses lawyers, and judges, but what is more novel is that Agriprocessors' plant manager at the time of the raid, Sholom Rubashkin, was arrested and charged with several violations of labor-related immigration laws.21 Agriprocessors' human resources manager also pled guilty to conspiracy to harbor illegal immigrants.22

The prosecution voluntarily dismissed the labor and immigration-related charges against Rubashkin.23 Instead, Rubashkin was prosecuted and convicted on charges of federal bank fraud and money laundering and sentenced to twenty-seven years in prison.24 Although Rubashkin avoided prosecution on any labor and immigration-related charges, commentators viewed Rubashkin's sentencing as the court's way of putting employers on notice to avoid engaging in the employment of unauthorized workers.25 However, against a backdrop of allegations of prosecutorial misconduct and the Rubashkin family's contributions to mostly republican political campaigns, President Trump commuted

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Rubashkin's sentence in December 2017, after Rubashkin had served only eight years in prison.26

Roughly two years later, on August 7, 2019, ICE agents raided several food-processing plants in Mississippi to further the Trump administration's crackdown on workplaces that hire employees without proper work authorization.27 ICE had reason to believe that the affected plants violated immigration law by knowingly hiring undocumented immigrants.28 "There were clear signs that the companies were hiring people who could not legally work in the country . . . . Some workers wore ankle monitors as they awaited deportation hearings, gave Social Security numbers belonging to the deceased or were hired twice by the same manager even though the worker used different names on each occasion."29

The raids resulted in the arrests of 680 undocumented workers and the seizure of the companies' business records.30 While information is yet to be published regarding the outcomes of any criminal prosecutions against those undocumented workers...

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