U.S. Legislative Immigration Update February 22, 2010

  • Reid Jobs Bill Goes to Floor Monday; Aids Employers Who Hire Illegal Aliens
  • State Trooper Prevails Against ACLU and Illegal Aliens in Bogus Lawsuit
  • As Border Crime Escalates, U.S. and Mexico Agree to Join Forces
  • Obama Administration Issues New Agricultural Guest Worker Rule Placing Priority on American Workers
  • Arizona, Virginia Address Illegal Immigration as Feds Continue to Look the Other Way   

Reid Jobs Bill Goes to Floor Monday; Aids Employers Who Hire Illegal Aliens

Senators and Congressional aides braced Monday for the first test of Senator Majority Leader Harry Reid’s jobs bill-a cloture vote. This vote, set for Monday evening, will determine whether the Senate can proceed with debate on the jobs bill, also called the “Hiring Incentives to Restore Employment Act” or HIRE Act. At this time, reports from Capitol Hill are mixed as to whether there will be enough votes (60 are required) to pass a cloture vote.

Senator Reid introduced the HIRE Act last week hoping to focus on the issue of jobs and the economy, but disappointed immigration reformers by leaving out any mandate that jobs created by the bill go to U.S. workers. The bill has two major tax provisions, an exemption from payroll taxes for employers who hire new employees in 2010 and a $1,000 tax credit for employers who keep those employees for at least 52 weeks. Unfortunately, the bill does not require that these new workers be legal or that employers use E-Verify to confirm their work authorization. Moreover, Congressional staffers have confirmed that Senator Reid has already invoked a procedural maneuver that blocks any and all amendments to the bill.

Stay tuned to FAIR for more information on this bill and other legislation that impacts the American worker.

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State Trooper Prevails Against ACLU and Illegal Aliens in Bogus Lawsuit

On February 4, the United States Court of Appeals for the First Circuit dismissed a lawsuit that had been filed by the ACLU against a Rhode Island state trooper who contacted Immigration and Customs Enforcement (ICE) upon discovering that a group of foreign nationals he encountered were illegal aliens. In dismissing the suit, the First Circuit held that the ACLU – who had sued the state trooper and the state of Rhode Island on behalf of the illegal aliens – could not prevail on the multiple causes of action they filed against the trooper because he had acted “reasonably” throughout the entire encounter. (Opinion, February 4, 2010).

The lawsuit stemmed from a July 11, 2006 traffic stop, in which a Rhode Island state trooper pulled over a 15-passenger van for failure to signal when changing lanes. The driver produced a valid license, registration, and insurance, and stated that he was taking the other 14 passengers in the van to work. The trooper asked the passengers for identification. One of the passengers produced a gym membership card, one offered a non-driver ID card, and two others presented cards issued by the Guatemalan consulate. Though the trooper had difficulty communicating with the individuals because they spoke very little English, he was eventually able to determine that none of the passengers had legitimate identification documents. The aliens ultimately admitted that they were present in the United States illegally. The trooper then conducted a standard background check on the driver and contacted ICE. Three minutes later, ICE called back and asked Chabot to escort the van to ICE’s Providence, Rhode Island field office so that they could address the matter further. Upon arriving at the field office, all 14 passengers were arrested for immigration violations. (Id.).

Six months later, the ACLU sued the state trooper on behalf of the illegal aliens. In January 2007, the 14 passengers filed a complaint in federal court alleging that the trooper had conducted an illegal search and seizure in violation of federal civil rights laws, the Fourth and Fourteenth Amendments of the United States Constitution, and the Rhode Island State Constitution. Specifically, the illegal aliens claimed that the trooper illegally prolonged an otherwise lawful traffic stop when he questioned the aliens as to their immigration status and then took action when he learned they were in the country illegally. The trooper contacted ICE and escorted the aliens to the Providence, Rhode Island ICE field office. The complaint also alleged that the trooper had discriminated against the passengers in violation of both state and federal laws, and further claimed that he had acted negligently. On December 30, 2008, a federal judge dismissed the suit on all grounds, ruling that the trooper had reasonable suspicion to suspect immigration violations and to transport the van’s passengers to ICE, prompting an appeal by the ACLU and the illegal aliens to the First Circuit. (Id.).

At this point in the litigation, FAIR’s litigation arm – the Immigration Reform Law Institute (IRLI) – got involved. IRLI attorneys filed an amicus curiae (“friend of the court”) brief arguing that (1) inquiry into the immigration status of vehicle occupants during a lawful traffic stop does not constitute an unreasonable search and seizure under the Fourth Amendment and (2) the trooper had immediate reasonable suspicion to “shift the focus” of the stop from a traffic violation to violations of federal immigration law upon failure of the passengers to produce valid identification. (IRLI Bulletin, July 2009).

On February 4, the First Circuit upheld the District Court’s decision to dismiss the case. The court observed that, before he called ICE, the trooper already knew that the passengers were going to work, had no appropriate identification, and spoke little English. Accordingly, the court ruled, it was reasonable for the trooper to look into potential criminal activity on the part of the passengers. The opinion went on to state that these facts gave the officer not only “reasonable suspicion” to ask the passengers questions about their immigration status, but also “probable cause” to escort the group to ICE. These facts led the First Circuit to rule that the officer was entitled to “qualified immunity,” meaning that he was shielded from liability. In reaching this determination, the court stated that the trooper’s “conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Opinion, February 4, 2010).

The ruling was well-received in the state of Rhode Island. An editorial in The Providence Journal stated that the First Circuit’s decision represents “a victory for common sense and the rule of law.” (The Providence Journal, February 12, 2010).

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As Border Crime Escalates, U.S. and Mexico Agree to Join Forces

The United States and Mexico are joining forces to crack down on drug smuggling and illegal immigration across their borders. Last week, Department of Homeland Security (DHS) Secretary Janet Napolitano announced a new partnership between U.S. Border Patrol and Mexico’s federal police aimed at securing the U.S.-Mexico border. (DHS Press Release, February 18, 2010). Napolitano and her Mexican counterpart, Genaro García Luna, signed a declaration on joint efforts to secure the border and share information about transnational threats while streamlining legitimate travel and trade. Id. “The success of our efforts to crack down on criminal organizations and others who threaten the safety of our citizens requires close collaboration between the United States and Mexico,” said Secretary Napolitano. Id. “This declaration will allow us to better protect both nations against violent drug cartels and transnational smuggling of drugs, cash and firearms while facilitating legitimate travel and trade.” Id.

The declaration outlines principles to enhance border security, including:

According to DHS, Secretary Napolitano has made several trips over the past year to the Southwest border and Mexico to survey operations, coordinate with state and local law enforcement, and meet with Mexican officials-and has signed several agreements with Mexican officials to bolster cross-border cooperation to crack down on transnational criminal activity. (DHS Press Release, February 18, 2010). The unprecedented partnership is actually an expansion of an ongoing operation at the Arizona-Mexico border, in which hundreds of U.S. Border Patrol agents and Mexican federal police officers are training together, sharing intelligence, and coordinating patrols. (Los Angeles Times, February 17, 2010). The goal of this operation is to launch a joint attack on the northbound flow of drugs and immigrants and southbound shipments of guns and cash in the border’s busiest smuggling corridor. Id. Both countries have political stakes in the success of this effort; Obama would benefit from results on border security, while Mexican President Felipe Calderón is in desperate need of progress in his war on drug cartels.

The effort faces substantial hurdles, including violent drug mafias, long-standing Mexican reluctance to interfere with illegal immigration into the United States, and a legacy of corruption that has plagued enforcement efforts in Mexico. (Los Angeles Times, February 17, 2010). “There’s so much potential for corruption. It could be destined for failure,” said Jennifer Allen, executive director of the Border Action Network, a migrant advocate group in Arizona. Id. Allen also pointed out that law enforcement in Mexico has been unable compete with the money or the power of the drug trafficking networks. Id.

Mexican officers, who undergo U.S. background checks, will be trained by Border Patrol in close-quarters firearms techniques and medical rescue skills, as well as ways to detect contraband concealed in vehicles. Id. Joint U.S.-Mexican operations between Mexican federal police and American agents have included daily communication, responding to security threats, disrupting smugglers’ hilltop lookouts, and breaking up rock-throwing gangs who often clash with U.S. agents. The Mexican forces have also developed new southern barriers to smuggling drugs and people. “The coordination will make our pursuits more flexible so we can stop criminals from ducking back and forth across the border,” said Mexican federal police Cmdr. Armando Trevino, adding that his agency “is most ready to seal the border to put an end to this organized crime.” Id. Despite this commitment to aggressively pursue smugglers, Trevino and his officers have no intention to interfere with Mexicans who are illegally crossing the border absent evidence of other criminal activity. Id.

The crackdown has been met with retaliation from smugglers over the past five months. Gunmen wounded a Border Patrol agent in December, and in November, a sniper in Mexico fired volleys at the U.S. port of entry. (Los Angeles Times, February 17, 2010). Officials suspect it was payback for the seizure of $300,000 by U.S. inspectors, and have responded with concerted scrutiny of southbound traffic and pedestrians. The checks have resulted in the seizure of $2.2 million in smuggled cash and have led inspectors to identify more than 3,000 illegal immigrants since October. Id.

The news of this joint effort to combat crime on the border is timely, as reports of drug smuggling and violence have escalated in recent months. Just last week, U.S. Border Patrol in Arizona seized more than 1,500 pounds of marijuana, worth an estimated $1.25 million. (KVOA News, February 18, 2010). The agents discovered the marijuana in a stolen vehicle that had been abandoned in the desert. Id. This latest seizure continues another record-breaking year for marijuana busts in the Border Patrol’s Tucson Sector. (Arizona Daily Star, February 18, 2010). According to the most recent statistics, agents had seized 350,000 pounds of marijuana through the first four months of fiscal year 2010, up from 341,000 the same time the year before. Id. Furthermore, according to the annual report from the Director of National Intelligence, approximately 90% of the cocaine that reaches the U.S. from South America comes through Mexico. (February 2, 2010).

A major goal of the U.S.-Mexico partnership is to help Mexico fight violent drug cartels, which are often better funded and more heavily armed than Mexican police. Mexico has been unable to deal with the drug cartels that threaten its security, as evidenced by the marked increase in violent crimes, including murders and kidnappings in the midst of gang warfare. Earlier this month, 16 teenagers were violently gunned down at a party in the Mexican border city of Ciudad Juarez across the Rio Grande from El Paso, Texas. (The Wall Street Journal, January 31, 2010). And in the first 10 days of 2010, a total of 283 people are estimated to have died in drug-related violence in Mexico, which is more than double the number during the same period in 2009. (The Atlantic, February 10, 2010). It is apparent that the threat from drug mafias is now extending into the U.S. across our southern border. Last year, in a hearing before the Senate Homeland Security and Governmental Affairs Committee, Secretary Napolitano expressed her commitment to addressing the threat of cartel violence in Mexico as a top homeland security priority for the United States. (See Transcript of Napolitano’s Testimony, March 25, 2009). She told the panel of senators that “the cartels have fingertips that reach throughout the United States.” Id.

Calderón, elected in 2006, has essentially declared war on the drug cartels. As the influence and intimidation of the cartels on local governments has increased, the Mexican president has attempted to fight the war with national forces and agencies. But it is increasingly apparent that the corruption has moved to those national agencies, as reports of abuses by the national drug-fighting forces escalate. (The Arizona Republic, February 19, 2010). Calderón has long sought a bi-national solution to the problem of smuggling guns and cash into his country, and President Obama has already pledged to increase aid to Mexico to fight the drug trade, with $1.4 billion through the Mérida Initiative. (Las Cruces Sun-News, February 19, 2010; The Atlantic, February 10, 2010).

To date, financial assistance from America has not been highly effective in combating the lucrative business of drug smuggling. (USA Today, February 10, 2010). This groundbreaking partnership between U.S. Border Patrol agents and Mexican police officers presents a new approach to combating a drug trade and its violent consequences that is far from under control. Whether the U.S. can help Mexico stop drug smuggling remains to be seen, but one positive side effect of joint enforcement could be the deterrence of illegal immigration. Mexican federal police Cmdr. Armando Trevino said last week, “We are fighting a common enemy. We are going to work together like friends, like comrades, like brothers.” (Los Angeles Times, February 17, 2010).

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Obama Administration Issues New Agricultural Guest Worker Rule Placing Priority on American Workers

Department of Labor Secretary Hilda Solis recently announced a new rule for the H-2A guest worker program, which allows farmers to hire foreign laborers for seasonal work. (DOL Press Release, February 11, 2010). The “new” rule actually restores regulations that were in place before the Bush administration made revisions to the H-2A program in late 2008-changes that gave farmers an easier path to hiring temporary foreign workers. (For more information on the Bush changes see FAIR’s Legislative Update, February 11, 2008). The Labor Department first announced the proposed rule in September 2009, which is now a final rule as published in the February 12 edition of the Federal Register. (Federal Register, February 12, 2010). The Obama Administration says the changes will raise wages and strengthen labor protections for foreign and American workers. The move has been met with mixed reviews, receiving praise from labor-rights advocates and dismay from the agricultural industry.

There are three primary changes under the new H-2A rule:

Deanne Amaden, regional director of public affairs for the U.S. Department of Labor in San Francisco, said that “The intent of the new rule is twofold. We want to protect the workers who are coming over here legally while at the same time making sure willing domestic workers aren’t being overlooked and aren’t being given lower wages and fewer benefits.” (Yuma Sun, February 15, 2010).

By reinstating the labor certification process, the new regulations, which take effect on March 15, require farmers to make a greater effort to fill jobs with American workers. According to Solis, “The major change is that we are asking employers to prioritize those American workers that might be available.” (DOL Press Release, February 11, 2010). Under the new rule, farmers who apply for temporary immigrant workers will have to prove they conducted job searches. Farmers claim the new regulations will just make it more burdensome and expensive to get visas for foreign workers. (The Associated Press, February 17, 2010). Groups representing growers say it will complicate their search for workers because employers seeking H-2A visas for guest workers will be required to provide documented proof that they looked for qualified American workers to fill jobs, instead of simply attesting to the effort, as allowed by the Bush rule. (The Wall Street Journal, February 12, 2010).

The new H-2A rule also directs the Department of Labor to create a national electronic registry of farm jobs to help employers find U.S. workers and alert U.S. workers to available jobs. Although American farm worker organizations support the changes, agribusiness groups say they will be costly and could be prohibitively cumbersome for many farmers. (The New York Times, February 12, 2010). Craig Regelbrugge, a spokesman for the American Nursery and Landscape Association, said that growers “are just beside themselves that these rules keep changing; it just makes it impossible.” Id.

The new rule also reinstates the prior method of calculating wages for temporary farm workers. In announcing the changes, Labor officials said that the method of calculating wages for temporary foreign workers under the Bush rule had reduced farm workers’ wages by an average of a dollar an hour in the year they were in effect. (DOL Fact Sheet, February 11, 2010). The Obama Administration says this change will ensure that U.S. workers in the same occupation, working for the same employer, receive no less than the same wage as foreign workers. (DOL Press Release, February 11, 2010). Farm worker organizations adamantly opposed the Bush changes, arguing that they had rapidly lowered wages for American agricultural laborers. So it is no surprise that these groups applaud Obama’s H-2A revisions. Arturo Rodriguez, president of the United Farm Workers of America, called the new rule “a great victory for all farm workers.” (The Wall Street Journal, February 12, 2010).

In 2009, 94 percent of the applications submitted for H-2A workers were approved by the Department of Labor, bringing 86,014 foreign workers to the United States. (DOL Press Release, February 11, 2010). But according to Labor officials, H-2A workers account for only a fraction of the approximately one million farm workers in the United States. Id. They estimate that at least half of those workers are illegal immigrants. (The New York Times, February 12, 2010). Employers complain that the H-2A program is costly, bureaucratic, and inflexible. (The Wall Street Journal, February 12, 2010). Some in the agricultural industry feel that the new rule will only further reduce the already underutilized H-2A program. “The bottom line is we’re going to see a major reduction in utilization of the H2-A program, particularly among smaller growers,” said Jason Resnick, general counsel for the Western Growers Association in Irvine, Calif. (The Associated Press, February 17, 2010). Supporters, however, argue that the fact that approximately half of farm workers are legal (either American workers or guest workers) demonstrates that there are American workers willing to do these jobs if provided decent wages and conditions.

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Arizona, Virginia Address Illegal Immigration as Feds Continue to Look the Other Way

With the federal government’s persistent refusal to enforce immigration laws, state legislatures across the country continue to address the issue of illegal immigration on their own. Last week, the Virginia House of Delegates and the Arizona State Senate both passed enforcement-oriented legislation.

On Monday, February 15, the Arizona State Senate passed Senate Bill (SB) 1070 by a vote of 17 to 13. (Vote Results). Entitled the “Support Our Law Enforcement and Safe Neighborhoods Act,” SB 1070 would prohibit Arizona police departments from adopting sanctuary policies that prevent officers from asking individuals about their immigration status. SB 1070 would also establish a new state trespassing statute that would make it illegal for any person to be present on any public or private land in Arizona in violation of federal immigration law. (SB 1070; For more on SB 1070, see East Valley Tribune, February 15, 2010). In addition, the Arizona Senate passed another bill, SB 1027, which would require the state’s Department of Public Safety to “seek grants to implement a one-year pilot program that would use seismic sensors to monitor rural airport runways and other rural areas of [Arizona] where illegal drug traffic and illegal alien traffic or human smuggling are likely to occur.” (SB 1027). Both bills have been sent to the Arizona House for further action. (See Bill Status Overviews for SB 1070 and SB 1027). The legislative prospects for the bills are unclear at this point. While SB 1070 has drawn support from the Phoenix Law Enforcement Association and the Arizona Police Association, a similar bill stalled in the Arizona House during the last legislative session after passing through the Senate. (The Arizona Republic, January 21, 2010; KSWT, January 20, 2010).

One day after the action in the Arizona Senate, the Virginia House of Delegates overwhelmingly approved House Bill (HB) 737 by a vote of 82 to 13. (Vote Results). Originally, HB 737 would have required all state agencies, local governments, public contractors, and employers with 15 or more employees to enroll in E-Verify. (HB 737 – Text as Introduced). However, after intense lobbying by big business special interest groups, the House of Delegates passed a pared-down version of the legislation that would require only state agencies and local governments to enroll in E-Verify. (HB 737 – Text as Passed by House). Under the bill, government agencies would be required to enroll in E-Verify before December 1, 2010 and subsequently use E-Verify for each newly hired employee who is to perform work within the state of Virginia. (Id.). The bill has now moved to the Virginia Senate, where it has been referred to the Senate Committee on Commerce and Labor. (Bill Tracking). The bill has now moved to the Virginia Senate, where it has been referred to the Senate Committee on Commerce and Labor. (Bill Tracking). While it is unclear as to when or if HB 737 will move in the Virginia Senate, it may receive support from recently sworn-in Governor Bob McDonnell. McDonnell campaigned on strengthening immigration enforcement, particularly with respect to statewide participation in the 287(g) program. (See FAIR’s Legislative Update, November 9, 2009).