Illegal immigration today: Employer sanctions removed the carrot

October 16, 2011

Mark Duncan

Enterprise Reporter

YAVAPAI COUNTY - By the time Arizona Governor Jan Brewer signed SB1070 into law in April 2010, a previous law, combined with a sharp downturn in the state's economy, had already cut into the fundamental reason most undocumented workers came here in the first place: to make some money and better support their families.

And even though the Legal Arizona Workers Act (sometimes called the Employer Sanctions Act) of 2007 has gone a long way toward decreasing the numbers of illegal immigrants to the state, lawmakers seem disinclined to expand a portion of the law that could reduce the problem even further.

Only about 35 percent of employers statewide, and less than 30 percent of Yavapai County employers, had registered to use the federal e-verify system as of October 2010. The law requires all employers to use the system, which verifies that new employees are eligible to work in the United States by searching Social Security records, but imposes no sanctions against those who don't.

Penalties for employers who knowingly hire illegal immigrants, though, can be severe, up to and including the loss of the right to do business in the state. That, according to Representative and Speaker of the Arizona House Andy Tobin, is sufficient reason to use caution.

"It's clearly a deterrent," Tobin said. "If you're going to be hiring people, you ought to sign up. It's a violation of the law not to and, if you follow the system, you're not going to have a problem."

Given the size of Arizona's undocumented alien population, currently estimated at about 400,000, many people in the early 2000s were enraged about those folks taking advantage of public benefits such as healthcare and schooling at taxpayer expense.

But even the staunchest detractors of illegal immigration allow that the Social Security and Medicare payments made by unauthorized workers and their employers comes to a significant amount of money, even while arguing that those paid taxes pale in comparison with the cost taxpayers bear in supporting the health and education needs of the undocumented.

In its report, "The Fiscal Burden of Illegal Immigration on United States Taxpayers (updated February 2011)," the Federation for American Immigration Reform (FAIR) estimates that roughly half of the nation's 11.2 million undocumented workers are employed in the "above-ground economy" and have $8.67 billion withheld in Social Security and Medicare taxes. The report fails to mention that employers pay a matching amount of both types of taxes, bringing the total collected, for services that in almost all cases will never be provided, to $17.34 billion.

Even then, the report maintains, supporting undocumented workers costs every American household $1,075 per year, further noting that, because of larger than average numbers of undocumented immigrants in California, Arizona and Nevada, taxpayers in these states bear a greater than average burden.

The figures are staggering, but Cottonwood Town Council Member Ruben Jauregui suggests that a question remains as to who created the issue in the first place, the people looking to work and feed their families or the employer who saw an opportunity to make more profit while avoiding some tax liability?

"Who's more to blame?" he asked. "Is it the person who gets a job, and they're getting paid a substandard wage and no benefits? Does the employer have more culpability in that or does the worker have more culpability?"

And that is why the Legal Arizona Workers Act, which the U.S. Congress is currently trying to replicate in a federal law applicable in all states, has made the most impact on the issue.

The FAIR report puts that same point on the way to curb illegal immigration, a way that appears to be already on the way to working in Arizona, when it states that "the influx of illegal aliens can be stemmed by effectively denying job opportunities to those illegally seeking them. When that happens, the illegal alien population will steadily decline through attrition."

The act's enforceability, though, remains in question.

Deputy Yavapai County Attorney Jack Fields heads the department's civil division and is in charge of fielding complaints and initiating investigations into allegations of employers hiring unauthorized workers. With the help of an in-house investigator, Fields said the department at this time has five active investigations, but has yet to file civil charges against an employer.

Fields said prosecution of the cases is difficult for multiple reasons. One is the statute's language, which states that an employer shall not "knowingly" employ an unauthorized alien, requiring a prosecutor to prove intent, often a tricky matter.

Plus, Fields said, "I think you're not seeing much action because we lack some tools we could use."

He said a failed 2010 effort to put some teeth into the act would have allowed county attorneys to depose witnesses and issue subpoenas for business records if reasonable suspicion existed that the employer in question was hiring unauthorized workers.

"We're being diligent as far as enforcing the law," Fields said, "but we're finding that it's very difficult to put these cases together."

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