October 14, 2008
FAIR has released its Legislative Immigration Update that covers the following: 

  • 331 Arrested in South Carolina Worksite Enforcement Action
  • GAO Study Finds U.S. Asylum Program Susceptible to Fraud
  • USCIS Finds High Rate of H-1B Visa Fraud
  • Feds Launch Probe into San Francisco Sanctuary City Policy
  • As Election Day Nears, Debate over Voting Fraud Grows  

As Election Day Nears, Debate over Voting Fraud Grows

With less than a month to go before Election Day, accusations of voter fraud and concerns about non-citizens voting have reignited debates about same-day voting, photo IDs, and absentee ballots. News reports in early October uncovered fraudulent voter registration forms in at least ten states across the country where community organizers had turned in over a million voter registration cards. (Fox News, October 10, 2008) Following those initial reports, battles regarding the upcoming elections and voter registration rules are heating up around the United States, and all revolve around one central issue: are ineligible individuals casting votes?

Among those who are registered to vote in the upcoming election may be illegal aliens, according to a recent study by David Simcox, former director of the Center for Immigration Studies. (How Many Non-Citizens Voting) Simcox notes that because voter rolls are not fully or accurately checked for voter eligibility, it is possible for non-citizens and others who are ineligible to vote to register. (Id.) For example, Virginia state voter registration forms have a box for voters to affirm their citizenship status, but according to a Fairfax County official “unless [they] have received something to contradict the statement, the statement is taken as given.” (Loudon Times- Mirror, October 9, 2008) This type of honor system registration, according to the report, could lead to non-citizens in each state registering to vote. (Id.)

A similar report released this summer by the Heritage Foundation cites as an example a Government Accountability Office (GAO) study which concluded that in one U.S. district court, nearly three percent of voters called for jury duty were not U.S. citizens. (Heritage Foundation, July 10, 2008) More states are becoming aware of the problem of aliens – legal or illegal – registering to vote as an increasing number of non-citizens are turned away from jury duty, which is based on county voter rolls. (Id.)

Despite overwhelming popularity for photo identification requirements, only 24 states have enacted laws requiring voters to show proof of identification, and only 7 of those states require that identification to be a photo ID. (National Council of State Legislatures, June 18, 2008) In April of 2008 the Supreme Court ruled that an Indiana law requiring voters to present photo ID was constitutional. (See, Legislative Update, May 5, 2008) In Ohio, where same day registration and early voting ignited concerns about voter fraud after community organizing groups began rounding up homeless people and bringing them into the same day voting sites, photo identification is not required to vote. (Wall Street Journal, September 13, 2008) In fact, the state requires only one form of identification, which could include the last four digits of a social security number, utility bill, or paycheck. (Ohio Elections and Ballot Tips) A recent Rasmussen Reports poll found that 76% of participants supported requiring voters to show photo ID before being allowed to cast a vote. (Rasmussen Reports, October 8, 2008)

As concern about non-citizens voting becomes more prevalent around the country, some groups in Georgia and North Carolina have increased efforts to stop the states from verifying citizenship status of voters. Seeking to stop Georgia’s practice of verifying the eligibility of registered voters, the American Civil Liberties Union (ACLU) and the Mexican American Legal Defense and Educational Fund (MALDEF) requested a temporary restraining order against Georgia’s Secretary of State Karen Handel last week. (Atlanta Journal-Constitution, October 9, 2008) The suit comes after Handel’s office directed counties to check the eligibility of nearly 3,000 individuals who had registered to vote despite the fact that their driver’s license records indicated they were not citizens. Handel said of the suit: “Unfortunately, some groups appear to want to open the door to allow non-citizens to register and vote in the General election.” (Id.) Similarly, officials in North Carolina last week announced that following the November 4th election, the state would no longer use Social Security Numbers to verify the eligibility of all newly registered voters, but will instead use driver’s licenses and other identifying documents. (News and Observer, October 10, 2008)

331 Arrested in South Carolina Worksite Enforcement Action

On Wednesday, October 8th, Immigration and Customs Enforcement (ICE) agents arrested 331 illegal aliens at a Columbia Farms poultry processing plant in Greenville, South Carolina, culminating a ten-month criminal investigation into the plant’s employment practices. (ICE News Release, October 9, 2008) Eleven of the 331 arrested face criminal charges for such crimes as re-entry after deportation, aggravated identity theft, counterfeit documents and false statements. The investigation also resulted in criminal charges against nine plant supervisors and four plant employees. Additionally, six of the aliens were juveniles, who are barred from working in hazardous jobs under South Carolina law. Meat and poultry processing fit into this category, which leaves the company liable to possible state sanctions. (UPI, October 9, 2008)

According to ICE, everyone encountered was medically screened and interviewed by a Public Health Service officer. They were also screened to determine humanitarian needs and, as a result, 83 individuals were released. These individuals are required to appear before a federal immigration judge who will determine whether they will be deported. (ICE News Release, October 9, 2008)

In June, arrest warrants were issued for nine supervisors charged with being illegally in the country, engaging in aggravated identity theft, and making false statements to ICE authorities. Of the thirteen charged, nine have pleaded guilty, two have been sentenced and two of the thirteen, Reyes Ramos and Fortino Cruz, have not yet been arrested and are considered fugitives. (ICE News Release, October 9, 2008)

GAO Study Finds U.S. Asylum Program Susceptible to Fraud

Last month, the GAO released a report on the U.S. asylum program identifying substantial flaws that could increase the likelihood of fraud. GAO found that federal officials charged with adjudicating asylum cases experience difficulty when attempting to identify fraudulent petitions. (GAO Report, September 2008)

Asylum is an immigration benefit afforded to certain noncitizens, which allows them to remain in the United States and apply for lawful permanent residence as a form of humanitarian protection. In order to be granted asylum, an applicant must prove that he or she “is unable or unwilling to return to and is unable or unwilling to avail himself or herself of the protection of” the country in which the individual last habitually resided “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” (8 U.S.C. 1101 (a)(42)(A)&(B)) Applications for asylum are initially reviewed by two different types of federal officials: asylum officers and immigration judges.

Asylum officers work for the U.S. Citizenship and Immigration Services (USCIS) agency within the Department of Homeland Security. As part of its study, GAO surveyed 171 asylum officers and found that most of the respondents felt they needed better fraud detection training. Furthermore, 73% of the asylum officers reported that they found it “moderately or very difficult to identify document fraud.” Nearly 75% of the asylum officers stated that they had “insufficient time to prepare and conduct research” prior to interviewing asylum applicants. (GAO Report, September 2008) To address the problems found in the study, GAO recommended that USCIS provide asylum officers with more opportunities to observe skilled asylum adjudicators – a recommendation that USCIS agreed to.

Immigration judges work within the Executive Office for Immigration Review (EOIR) in the Department of Justice (DOJ). GAO surveyed more than 100 immigration judges and found that “the majority…reported needing more training in several areas, including identity fraud” to help them better adjudicate asylum cases. Almost nine of ten immigration judges surveyed “cited verifying fraud as a moderately or very challenging aspect of adjudicating asylum cases,” while more than eight of ten “reported assessing credibility as moderately or very challenging.” Additionally, 82% of the immigration judges noted that time limitations affected their asylum adjudications, while almost 80% stated that they had “moderately or very challenging” caseloads. Finally, GAO found that DOJ has failed to adequately staff immigration judge positions. Between fiscal years 2002 and 2007, the average caseload per immigration judge rose by 13%; however, the number of immigration judges increased by only 1%. The report also noted that EOIR has already taken several steps to address problems related to immigration judges, including the establishment of a program that allows immigration judges to receive materials that aid them in screening for fraud, as well as hiring more judges and immigration court staffers to ease high caseloads. (GAO Report, September 2008)

USCIS Finds High Rate of H-1B Visa Fraud

USCIS released a report last week revealing high levels of fraud and “technical violations” within the H-1B nonimmigrant visa program. The H-1B program allows employers to petition for an alien to come to the U.S. to fill a vacancy in a “specialty occupation.” To qualify for one of the 65,000 H-1B visas available annually, an applicant must attain the equivalent of at least a bachelor’s degree. (H-1B Benefit Fraud & Compliance Assessment, September 2008)

USCIS selected a sample of 246 H-1B visa petitions out of a total of 96,827 petitions that had been filed between October 1, 2005 and March 31, 2006. Of the 246 cases studied, 33 contained at least one instance of fraud, while another 18 contained “technical violations.” These 51 cases meant that the overall violation rate comprised 20.7% of the sample. By applying the overall violation rate from its research to the 96,827 petitions from which the sample was selected, USCIS surmised that “a total of approximately 20,000 petitions may have some type of fraud or technical violation(s).” (H-1B Benefit Fraud & Compliance Assessment, September 2008)

The study also described several types of H-1B program abuse found in the sample. Nearly one third of the fraudulent petitions contained fake or forged documentation, while three other beneficiaries willfully misrepresented their H-1B status. USCIS also discovered instances where supposed business locations were nonexistent, as well as employers who had never intended for the beneficiary to fill the actual position offered. In one case, an employer petitioned on behalf of an H-1B applicant to fill a business development analyst position. When USCIS reviewed this case, however, “the petitioner stated the H-1B beneficiary would be working in a laundromat doing laundry and maintaining washing machines.” (H-1B Benefit Fraud & Compliance Assessment, September 2008

According to the report, computer-related occupations make up the most popular H-1B job grouping. USCIS noted that computer-related occupations accounted for 104 of the 246 sample cases. Of these, 27% (28 petitions) were associated with some type of technical violation(s) or fraud – an overall violation rate that was approximately 7% higher than that of the entire sample. (H-1B Benefit Fraud & Compliance Assessment, September 2008) Last Wednesday, BusinessWeek reported “technology companies…have come to rely on the H-1B visa program to bring in skilled foreign workers to fill jobs that employers claim can’t be filled with U.S. candidates.” (BusinessWeek, October 8, 2008) The article also noted that tech companies such as Oracle, Google, and Microsoft – whose Chairman Bill Gates has testified before Congress twice on the H-1B program – have pushed to get more of these visas. (Id.)

The results of the report prompted Sen. Chuck Grassley (R-IA), a Member of the Senate Judiciary Subcommittee on Immigration, Border Security, and Refugees, to send a letter to USCIS. Sen. Grassley’s letter called the assessment a “wake up call,” pointing out that “rampant fraud and abuse…is taking place in the [H-1B] program.” Sen. Grassley stated that he had first asked for a benefit fraud assessment of the H-1B program in August 2005, more than three years before the report was released: “The constant delay has been unacceptable, and likely problematic for USCIS adjudicators who may have continued to rubber stamp fraudulent applications for H-1B visas.” Sen. Grassley also said that he was alarmed that, of the 246 cases in the sample, 217 of the petitions had already been approved. Nineteen percent of the cases were associated with some type of technical violation or fraud, prompting Grassley to state “that not enough fraud prevention and detection efforts were incorporated in the adjudication process.”

Feds Launch Probe into San Francisco Sanctuary City Policy

San Francisco city officials announced earlier this month that a federal grand jury is investigating whether the city’s sanctuary policy violates federal law. (San Francisco Chronicle, October 4, 2008) San Francisco’s sanctuary policy prohibits city officials from using city funds to cooperate with immigration enforcement officials or question individuals about their immigration status. (San Francisco Administrative Code, Chapter 12H.1-2) The jury has subpoenaed City Attorney Dennis Herrera’s office for documents relating to the policy, prompting Herrera to hire a private lawyer to counsel the city on how to respond. Both Newsom and Herrera have said that they will cooperate with the investigation. (Id.)

The city’s policy came under fire in June of this year when the San Francisco Chronicle revealed juvenile probation officers were using taxpayer funds to fly minors convicted of dealing cocaine back to their native Honduras, rather than reporting them to immigration authorities. (San Francisco Chronicle, June 29, 2008) After the story broke, San Francisco Mayor Gavin Newsom announced that he had stopped the flights in May and directed city officials to begin handing over juvenile felons as well as adults to immigration officers for deportation. (San Francisco Chronicle, October 4, 2008)