NO DOCUMENTS, NO PROBLEM FOR COMPANIES

Little blowback for illegal worker hires
Enforcement shifts toward suspected criminal activity

By MARY LOU PICKEL
The Atlanta Journal-Constitution

Published on: 10/08/07

It was 2:30 a.m. when federal agents arrived at Jillian's restaurant in Lawrenceville looking for illegal workers.

As the cleaning crew started work on a night last February, agents arrested four Guatemalans who came to mop and vacuum the theme restaurant.


Calletano Gutierrez and Unique Environmental foreman Isaac Williams work in Decatur. A spokeswoman for the Metro Atlanta Landscape and Turf Association says the industry employs many immigrants but companies try to hire legal workers.

The arrests were part of sting on a Florida-based janitorial service that provided workers on contract to restaurants around the country.

If the janitors at Jillian's had been garden-variety undocumented workers, they likely would have kept sweeping floors. But their employer was suspected by U.S. Immigration and Customs Enforcement of violating a collection of laws.

The janitor bust is the new style of federal work site immigration enforcement. Since about 1999 and definitely since the Sept. 11 terrorist attacks, the government has targeted employers who knowingly break the law by encouraging or participating in immigrant smuggling, abusing workers, not paying taxes or document fraud.

The owners of Palm Beach-based Rosenbaum-Cunningham International were charged with evading $18.6 million in employment taxes.

Agents arrested about 200 illegal workers nationwide in the sting, including 13 at four restaurants in metro Atlanta. All 13 were Guatemalan and were processed for deportation, Smith said.

The new enforcement tactic is a shift away from the 1990s, when the government annually issued hundreds of noncriminal fines to businesses for employing illegal immigrants.

The new direction means ICE has drastically cut enforcement efforts against employers who just hire illegal workers in Georgia and nationally. Now, fines for simply hiring illegal immigrants are rare.

ICE initiated only three such noncriminal fines in the United States in 2004, the last year for which national statistics are available. In the southern region, the government issued one fine in four years, for $123,000, to a restaurant in North Carolina earlier this year.

Noncriminal fines are usually issued to employers who don't complete the paperwork to prove an employee has the right to work in the United States.

Federal immigration officials say it's a shift in policy rather than a retreat from work site enforcement.


Mandate changed

The mandate is two-pronged: the primary goal, since Sept. 11, is to protect sensitive targets such as airports, military bases and nuclear power plants. The next priority is to target abusive employers and those involved in immigrant recruiting, smuggling or fraud.

"The sheer volume of our work requires us to prioritize our response among all our investigative duties," said Ken Smith, special agent in charge of the Atlanta office of ICE.

Under the first mandate, the agency reviewed the employment forms of about 5,000 workers at Hartsfield-Jackson International Airport and arrested 35 illegal immigrants in the past four years, Smith said. In January, ICE raided Fort Benning, another sensitive site, charging 24 illegal workers with document fraud and ID theft.

On the second score, local ICE agents busted Sin Sin Employment Agency in Chamblee in 2005. The couple who ran the agency placed thousands of illegal workers in restaurants in several states. They were convicted of conspiracy and fraud related to immigrant smuggling and were sentenced to prison.

Such criminal prosecutions and seizures hit an employer harder than noncriminal fines, Smith said.

The government says criminal fines, restitutions and civil judgments this year from work site enforcement nationally total more than $30 million, according to ICE. But ICE has not said how much of that money was actually collected or whether it was from a few employers.

It's hard to tell whether the change in approach is having any effect on illegal immigration or on employers' behavior, partly because ICE says data that could illustrate that is not readily available.

ICE did not provide dollar values of fines collected from the 1990s, when the government issued thousands of fines to employers.

But, in 1992, for example, the government delivered 1,461 notices of intent to fine to employers for violating immigration laws. By 2004, there were three.

The number of people arrested at work sites for being in the country illegally has also declined sharply since the change in policy, from about 17,500 in 1997 to about 4,000 in 2007, according to INS statistics and ICE. There has been a recent uptick in arrests in the last two years.

To some degree, states and counties have stepped into the void left when ICE backed away from grass roots enforcement.

Georgia passed a law requiring anyone contracting with a public entity to run new hires through a federal database to ensure the employee can legally work in the United States. Cobb and Gwinnett counties have similar rules for contractors.

But that only affects companies paid with tax dollars.

The state can only regulate licensing, taxation and contracts, said Chip Rogers, sponsor of the law. It can't prosecute immigration violations criminally, he said.

"I think if [federal agents] would go out and find some employers who were violating the law and put them in jail because of it, then what you would have happen is the other employers would think twice about employing illegal immigrants," Rogers said.


'Contempt for law'

The change in policy has other critics.

"If you don't do the mundane work of enforcement and make that a real possibility that an employer will run afoul of the law, then what you do is you create a general contempt for the rule of law," said Steven Camarota, director of research for the Center for Immigration Studies, a Washington, D.C. think tank that favors tighter immigration controls.

"Interior enforcement, including going after employers, has had nothing but a precipitous fall over the last 14 years," Camarota said.

Smith said the reason for that is because it's difficult for the government to prove that employers knowingly hired illegal immigrants. Workers show fake IDs that look real, he said.

"The fines became just the cost of doing business for the employer," Smith said. Many levies were bartered down to "pennies on the dollar."

Mary Kay Woodworth, executive director of the Metro Atlanta Landscape & Turf Association, says an employer who is trying to follow the rules but may have some illegal immigrants on the payroll should not be the focus of a federal investigation.

The landscape industry employs many immigrants, but most employers try to hire legal workers, she said.

"Ninety-nine percent of them are filing taxes and filling out the paperwork," Woodworth said. It's not easy to spot fake documents and asking too many questions can violate a worker's rights.

"Do you think the employer can go and ask, 'Do you really think this is a legal document?' You can't do that," Woodworth said. "If it looks legal, that's the most you can do."


1999 marked shift

The shift in thinking on work site enforcement began in 1999.

In July that year, Robert Bach, an executive associate commissioner for the old Immigration and Naturalization Service, told Congress that even if INS tripled its budget it still would "not have a significant impact on illegal workers and certainly not on employers and labor markets."

INS would focus on criminal investigations against employers who engage in patterns of knowingly employing illegal workers, or who seek to hire them through smugglers, or abuse workers, Bach said.

At that time, there were an estimated 5 million unauthorized migrants in the United States, Bach said.

Estimates by the Pew Hispanic Center put that number last year at between 11 and 12 million.
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