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Article Excerpt
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.
[FIGURE 1 OMITTED]
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 immigrants, who work hard and endure great difficulties, should, after a number of years, be permitted to regularize their status. This type of immigration policy rewards those who avoid attracting attention to themselves, and indeed, some have rationalized the removal of criminal noncitizens--who, at least in principle, have attracted substantial attention to themselves by virtue of their convictions--on precisely this ground. (16) The case of employer screening, however, suggests that rewarding this type of behavior in the workplace can have perverse consequences. Because employers are often regulated by workers who either report workplace violations to enforcement agencies, like the Department of Labor, or bring enforcement actions themselves, a screening system that rewards immigrant workers who (quite reasonably) lay low to avoid removal, only encourages labor and employment violations and fosters a culture of lawlessness. This raises the troubling specter that employers will use unauthorized immigrants to diminish workplace protections for all workers, and that unauthorized immigrants will be discouraged from developing bonds with citizens within the workplace, one of the few social institutions that facilitates the integration of adult immigrants.
The balance of the Article proceeds as follows. Part I explains and develops the idea of employers as immigration screeners. After briefly summarizing IRCA's ambition of transforming employers into immigration screeners by regulating whom employers hired, this Part then marries this narrative to the prevailing scholarship surrounding immigration screening. The Part concludes by turning away from IRCA's design and toward an exploration of how it has actually been implemented. Here, I trace out the consequences of the DHS's virtual nonregulation of employer hiring decisions. I explain how this regulatory strategy has impoverished the workplace, both because it effectively suppresses the assertion of legal rights for labor and employment violations, and because it diminishes the democracy-enhancing potential of the workplace and obstructs the integration of immigrants into their surrounding communities.
Part II delves into the origins of the DHS's contemporary practice of nonenforcement. By disentangling the web of enforcement realities, rationales, and collaborations running throughout the workplace, I hope to explain why and how a law that was designed to punish employers has been implemented in a way that rewards them. Part III advances my prescriptive claims. Having zeroed in on the legal and democratic harms flowing from the workplace, this Part argues in favor of developing immigration policies that broaden their regulatory focus. Rather than focusing only on whom employers hire, I argue in favor of broadening our regulatory focus to account for whom employers report to the DHS for removal. Doing so will keep employers and complicit low-level DHS officials more accountable and will send the proper signals: namely that employers ought not use immigration laws to serve their own goals to the detriment of labor and employment protections and the workplace's potential to strengthen our democracy. I explore audits and the exclusionary rule as concrete examples of this shift towards greater accountability. I then conclude.
I. EMPLOYERS AS IMMIGRATION SCREENERS
A. IRCA: Screening Out "Unauthorized" Workers
Laws requiring employers to screen their workforces for unauthorized immigrants have appeared at the federal, state, and local levels in some form for more than thirty years. (17) Though these laws differ in minor respects, they all operate in roughly the same manner: by prohibiting employers from hiring unauthorized immigrants, and by imposing verification duties on employers, where they must examine certain documents and determine whether their employees are authorized to work in the United States.
In 1971, California passed the nation's first employer sanctions law. (18) Under the threat of criminal penalties, California forbade employers from "knowingly" employing a noncitizen who was not entitled to lawful residence in the United States if such employment had "an adverse effect" on U.S. citizens and other lawful workers. (19) Employers were also subject to civil actions. Such proceedings could be initiated by anyone, (20) Before then, employers in California were free to hire unauthorized workers, and they did so openly and unapologetically. (21)
California's employer sanction laws eventually made their way to the U.S. Supreme Court in 1975, when several lawful migrant farmworkers sought to enjoin employers from hiring unauthorized workers. The lower courts had uniformly concluded that California's employer sanctions regime unconstitutionally encroached upon Congress's exclusive authority to regulate immigration. (22) The Supreme Court reversed in De Canas v. Bica, holding California's law to be valid and concluding that Congress had not intended for the "complete ouster of state power" in this area of regulation. (23) From a constitutional standpoint, De Canas is typically cited for the proposition that state and local--and not just federal--authorities possess the authority to regulate unauthorized immigrants. But its broader juridical implications reaffirm the principle that within our nation's immigration regime, public entities may continue to structure private relationships to achieve immigration ends. (24)
In 1986, Congress passed IRCA, which created for the first time a federal employer sanctions scheme. (25) IRCA prohibited employers from "knowingly" hiring immigrants who were not authorized to work. Importantly, it imposed screening responsibilities on employers, requiring them to verify the immigration status of their workers and to keep records on whom they hired. Anyone who secures a job in the United States must fill out the by-now-familiar I-9 form. This form verifies that the employee is authorized to work in the United States, must be completed within three days of hire, and must be supported by documentation establishing the worker's identity. (26) Under IRCA, employers face civil and criminal fines for failing to carry out these screening duties.
Congress transferred screening authority to employers because employment opportunities were understood to be "job magnets" drawing in a constant stream of unauthorized migration. Thus, targeting employers was central to Congress's strategy for regulating unauthorized immigration. (27) Employer sanctions prohibit immigrants from working without authorization and prohibit employers from hiring workers without first verifying the proffered documentation. Conditioning U.S. jobs on proof of authorization, so the logic went, would deter immigrants from coming to the United States for work reasons, encourage those that were here without meaningful job opportunities to return home, and over the long term reduce the rate of unauthorized migration. IRCA therefore created a segmented but seamless chain of liability. As the Supreme Court has noted, Congress created a sprawling statute putting both employers and workers on the hook by making it "impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies." (28)
B. The Challenges of Immigration Screening
If employers perform screening duties, where do they fit within the larger universe of immigration screeners? In what ways do their challenges resemble those of other screeners, and in what ways do they stand apart? What kinds of behavior does employer screening reward and what does it punish?
In sizing up employer screening, it is useful to remind ourselves that nation's immigration laws orchestrate what has aptly been characterized as the project of "national self-definition." (29) At the highest level of abstraction, members select new members, and in the process argue about, negotiate, remember, and ultimately decide who "we" are as Americans. (30) And while many social institutions are swimming in the sort of political and legal discourse that invites arguments about "who we are" (schools, marriage, and the military come to mind), none quite so literally implicates the "we" question as do the laws regulating access to immigration and citizenship. This is why screening matters--it operationalizes our abstract ideas about who we are.
Within legal scholarship, few have addressed the empirical aspects of immigration screening. In a series of articles, Janet Gilboy thoughtfully addresses the challenges of screening entrants at international airports, perhaps the most obvious and familiar example of immigration screening. Primary line inspectors in airports must examine a traveler's documents and determine in a short period of time whether the entrant is eligible to enter on the basis of those documents. (31) If the documents are valid and permit entry, the entrant is screened in. But if the entrant arouses suspicion, the inspector directs the entrant to secondary inspection where immigration officials can engage in more extensive questioning and perhaps search the entrant's baggage. Thus, for many entrants, primary inspectors constitute the main screening hurdle to be cleared in gaining entrance into the United States. (32)
Primary inspectors have to make very quick screening decisions and determine which of the hundreds of entrants they inspect daily are ineligible to enter. They look for signs that the entrant is not who she says she is. For example, an immigration agent may be more likely to screen in an entrant who can produce a letter of employment from a well-known employer than she is an entrant who is associated with an obscure one, or who produces no letter at all. (33) Similarly, an inspector might think nothing of a traveler fumbling the names of the relatives she is visiting, unless that traveler is a young woman, from an Eastern European country with a burgeoning black market for overseas "nannies." (34)
Immigration screening also takes place in the interior of the United States. For example, some scholars have noted that state and local law enforcement officers are increasingly providing screening services as our immigration regime fortifies its ties to the criminal justice system. (35) As the DHS has shifted its removal priorities towards criminal noncitizens, it has increasingly relied on the help of state and local law enforcement officers, who can cross-check the names of motorists in a computer database to ascertain whether those motorists have any continuing immigration violations. (36) Other jurisdictions have attempted to impose similar screening duties onto landlords and university officials. (37)
The workplace has long served as a site for screening immigrants, though this phenomenon has largely been appreciated within the context of the formal immigration system. Every year about 160,000 people immigrate each year because an employer has served as a sponsor, (38) highlighting the extent to which...
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