INS Fails to Enforce Employer Sanctions

The 2002 year-end INS employer sanctions figures are out. If you don't know what these are, you shouldn't worry. The sanctions penalize employers who hire new aliens who entered the U.S. without authorization. They don't cause markets to rise or fall.

Employer sanctions might have a greater impact on the citizenry if the INS enforced them, but right now, they are so uncommon and so random that one almost feels sorry for the employers that are caught.

To end peaking illegal immigration, Congress passed the Immigration Reform and Control Act of 1986, which provided an amnesty for illegal aliens and sanctions for employers who continued to hire them. While many have debated which of the two was most important, it's clear that Congress wished to wipe the illegal immigration slate clean and remove any commercial incentive for further illegal immigration. The act's sponsors promised, correctly, that only legislation including employer sanctions could deter illegal immigration. Since 1986, immigration lawyers have predicted that employer sanctions are set to become the next lucrative practice area. The INS disappoints them year after year.

In 2002, the INS fined 320 U.S. employers for hiring illegal aliens. The fines totaled $5.3 million, though only $2.6 million was collected. The INS was unable to collect a dime from 73 of those employers, some of which were fined as much as $77,000. The greatest assessment, $1 million, was made against a New York-based office cleaning company, which was able, perhaps not surprisingly, to write a check.

This might seem like a good thing until you stop for a moment and consider the extent of the problem that the employer sanction was legislated to fix: There are over 8,700,000 illegal aliens in the U.S., according to a January 2002 estimate by the Census Bureau. They can't all be employed by the 320 entities fined by the INS last year.

Sixteen years after the passage of the IRCA, employer sanctions are basically unenforced.

So it was a little disingenuous to see the Bush administration sweating it out New Year's Eve over five men who might have driven across the Canadian border into New York just after Christmas. They admittedly knew nothing about these men, except their probable origin in the Middle East. The president highlighted his concern when he spoke about them to reporters, assuring us that an intense search was underway. The comments made evident that border control is still a front in the war on terrorism, but they also made clear that after 15 months of effort, we lack either the will or the manpower to have borders that can actually prevent people from entering our country.

The story has since been revealed as a hoax, further exposing the lack of knowledge and control the government ever had over the situation, proving again the nation's dangerous weakness in this area.

This makes even more troubling the administration's devotion to some form of amnesty for nationals of Mexico. At a moment when we are trying to make our airports and other points of entry safer through uniform enforcement efforts, President Bush seems prepared, where our southern border is concerned, to give up the ghost. To be fair, Secretary of State Colin Powell, at a November meeting with Mexican representatives, said illegal immigration from Mexico presented "difficult issues," but Mexican President Vicente Fox, and Mexicans living in the U.S., have never retreated from a demand for complete amnesty.

Such an amnesty would not just represent an abandonment of our southern border and the people who have spent their careers trying to maintain it. It would vindicate U.S. employers that conduct their business by disregarding immigration laws.

It would also almost certainly require the federal government to resume payment of certain forms of public assistance to illegal aliens, from which it freed itself through the 1996 Welfare Reform Act. Between 1982 and 1995, the number of non-citizens receiving welfare increased 500 percent. By 1996 non-citizens, though less than six percent of America's population, received more than 50 percent of cash payments made by the SSI program —about $8 billion a year. Much of this increase can be attributed to the cost of assimilating illegal aliens who had been amnestied in 1986 under the IRCA, a cost the Center for Immigration Studies pegged at $78.7 billion.

With the Welfare Act of 1996, only citizens, qualifying legal residents and refugees could receive federal public assistance. While the terms of any future amnesty are unclear, the minute an illegal immigrant is granted amnesty, he becomes legal. It's doubtful that in legalizing a group as large as the Mexican illegal immigrant population is presumed to be, our government would leave it unable to qualify for public assistance.

Consider that the total number of illegal immigrants amnestied in 1986 was 2.7 million. In 2000, the Census Bureau estimated the number of Mexican illegals in the U.S. was more than 3.8 million. If that population has similar effects on public resources, we can expect a net cost to taxpayers of at least $110 billion.

If this amnesty of illegal Mexicans is passed, the INS must do a much better job of enforcing employer sanctions so that the incentives for illegal border crossings — jobs — is seriously reduced. If not, then this initiative will be as effective as the 1986 Act — which is, not at all.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He recently left the New York City law practice he founded in 1997 for the "more normal life" of insurance defense, and is author of The New Immigration Law and Practice, a textbook to be pubished by West Legal Publications in October, 2003.

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