Immigration and Customs Enforcement (ICE) acting Director Thomas Homan said last October that he would quadruple ICE’s worksite enforcement efforts, but did not give any details. Let us review a little history of ICE "raids" as they have been conducted in the past, and what it means for employers this year, particularly beginning with the new fiscal year on October 1.
During the early part of the administration of President George W. Bush, there was not much attention given to ICE enforcement actions as the focus was generally limited to unauthorized individuals that might be posing a national security threat. The strategy changed dramatically in the latter part of the Bush Administration, particularly between 2006 to 2008. While ICE only arrested 527 individuals in FY 2005, that number jumped to 6,287 in FY 2008. Further, ICE performed highly-publicized "raids" in which large numbers of ICE agents would surround a facility (and occasionally surrounding residential areas) and investigate all workers therein. Some work sites lost 80% of their work forces in less than a week, and ICE followed up by attempting to make criminal cases against company officials that had knowledge of the illegal status of the workers. Such actions definitely got the attention of the employer community. However, because of the cost of conducting such massive raids, and the planning and organization necessary to carry them out, such raids did not occur often. ICE attempted to make up for much of its costs for such raids by seeking massive fines against the work sites that were raided. While many attempts were made to criminally prosecute employer officials, the illegal workers themselves were generally released and simply went to work at other establishments.
ICE enforcement strategy changed significantly during the Obama Administration. There were no high-profile "raids" conducted in the manner conducted during the Bush Administration, but instead a new concept was emphasized, popularly known as "silent raids." These type raids did not result in large numbers of ICE agents surrounding a facility and then questioning all therein, but instead involved a significant increase of desk audits. Such I-9 audits went from 1,444 in FY 2009 to 3,127 in FY 2013. Since desk audits were much cheaper to conduct than Bush-era raids, more employers were investigated which created a different type of deterrent to law violations. The "silent" raids, however, resulted in very few criminal prosecutions or deportations of illegal workers. The prime enforcement mechanisms were civil fines for I-9 paperwork violations and requirements on employers to terminate the unauthorized workers.
There is a great deal of speculation on what ICE’s enforcement emphasis will be in the future, particularly in light of acting Director Homan’s comments. In January of this year, the media reported that ICE "raided" 7-Eleven franchises throughout the country, approximately 100 different facilities. While the media reports suggested that the Bush-era "raids" were being resumed, actually the enforcement was more like a massive number of "silent raids" conducted against a single franchise operation. Only 21 undocumented workers were arrested as a result of these raids.
Now let us speculate what the enforcement strategies are going to be under acting Director Homan, particularly beginning around the first of July when Homan indicated new strategies will probably be implemented. This writer is skeptical that budget restraints allow ICE to conduct the massive "raids" as conducted during the last 2-3 years of the Bush Administration, due to the enormous concentration of resources that would only be directed at a very few employers, and the enormous expense of conducting such operations. For example, in one Bush-era raid of which this writer represented the employer, almost all ICE agents across the U.S. were utilized to conduct a single raid.
This writer submits it is more likely that expanded "silent" raids such as those utilized at 7-Eleven will be implemented, as they are much less expensive but at the same time create a great deal of publicity that ICE desires as a deterrent to immigration violations. There may be a few cases where massive fines are assessed, with the best example being Asplundh Tree Expert, which was recently hit with a record-setting $95 million settlement for allegedly knowingly hiring illegal workers. Another change is that rather than merely requiring the employer to terminate the unauthorized workers, a practice followed during both the Bush and Obama Administrations, the Trump Administration is more likely to have the unauthorized workers deported.
Let us now consider the other half of immigration enforcement, the anti-discrimination provisions protecting immigrants against disparate treatment in hiring and employment. Many employers are caught by surprise when they find that they cannot ask immigrants for specific or different documents, or focus their internal I-9 audits on such immigrants, as the immigration laws protect such persons from disparate treatment. There has been a great deal of turnover at IER (Immigrant and Employee Rights), and the current leadership therein seems to be somewhat in limbo. Some of the cases in process have basically been suspended, and this writer believes that the IER is awaiting new leadership.
