October 27, 2008

FAIR has released its Legislative Immigration Update that covers the following: 

  • DHS to Revive No-Match Regulations
  • DHS to Extend VWP Membership to Seven New Countries Despite High Visa Refusal Rates
  • Sanctuary City Must Report Alien Drug Offenders, Court Rules
  • Supreme Court Will Hear Illegal Alien’s ID Theft Case

DHS to Revive No-Match Regulations

Department of Homeland Security (DHS) Secretary Michael Chertoff announced on October 23rd that the Administration will ask a federal judge to lift a stay on new federal no-match regulations, a move that has angered both the U.S. Chamber of Commerce and the American Civil Liberties Union (ACLU). If DHS is successful in reviving the regulation, the government could begin mailing no-match notices to an estimated 140,000 employers regarding suspect Social Security numbers and immigration documents. (The Washington Post, October 24, 2008)

The No-Match Regulation, which was finalized in September 2007, provides a “safe harbor” protocol for employers who receive a no-match letter. Sent by either the Social Security Administration (SSA) or DHS, these letters notify employers that there is a discrepancy with the information provided by the employer on an employee’s I-9 form. Under the regulation, an employer who receives a no-match letter:

  • Has 30 days to check the appropriate records and determine if the discrepancy was caused by a clerical error, correct the error with SSA, and verify that the corrected name and Social Security number match SSA’s records;
  • Must contact the local DHS office in accordance with instructions included in the letter to resolve discrepancies in the stated immigration status of the employee, if the letter was sent by DHS;
  • Must attempt to re-verify the worker’s employment eligibility by completing a new I-9 employment verification form, if the discrepancy cannot be resolved with either SSA or DHS within 90 days of receipt of a no-match letter.

Additionally, if the employer cannot verify the employee’s work eligibility through completion of a new I-9 form, the employer may terminate the employee. If the employee is retained, the employer could be determined to have constructive knowledge that they are continuing the employment of an illegal alien. (See, Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, ICEB-2006-0004-0001, June 14, 2006)

The regulation was stayed by U.S. District Court Judge Charles Breyer after a suit was brought against it by the U.S. Chamber of Commerce, the American Civil Liberties Union and the AFL-CIO. In March 2008, DHS responded to the court’s concerns by publishing a supplemental Proposed Rule that included a more detailed analysis of how the Department developed the regulation and an economic analysis of the rule. (See, Small Entity Impact Analysis: Supplemental Proposed Rule “Safe- Harbor Procedures for Employers Who Receive a No- Match Letter, ICEB-2006-0004)

In response to Chertoff’s announcement, Randel K. Johnson, a vice president of the U.S. Chamber of Commerce, told the Washington Post, “We are looking at our litigation options,” (The Washington Post, October 24, 2008)

Chertoff commented on the Supplemental Rule finalized October 23rd: “The additional information in this supplemental rule addresses the specific items raised by the Court, and we expect to be able to quickly implement it. The No-Match Rule, along with E-Verify, will increasingly make the pleas of ignorance from businesses that seek to exploit illegal labor ring hollow, and equip their responsible competitors with the tools they need to hire and maintain a legal workforce.” (Media Newswire, October 23, 2008)

DHS to Extend VWP Membership to Seven New Countries Despite High Visa Refusal Rates

President Bush announced Friday, October 17th that seven new countries would be added to the Visa Waiver Program (VWP) in spite of a recent Government Accountability Office (GAO) report that revealed DHS has failed to make two key certifications that would allow the nations – which have high nonimmigrant visa refusal rates – to join the program. The announcement indicated that, in approximately one month, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea will join the VWP, thus allowing citizens of these countries to travel to the United States for business or tourism for up to 90 days without a visa. (White House Press Release, October 17, 2007)

Prior to the signing of the 9/11 Act in August 2007, a country seeking membership in the VWP was required to have a nonimmigrant visa refusal rate below three percent in order to gain admittance to the program. The 9/11 Act, however, allows the Departments of State and Homeland Security to waive the three percent maximum, up to a limit of ten percent. This provision was only to take effect, however, after DHS was able to make two certifications: (1) that an air traveler exit system was in place that could verify the departure of 97 percent of foreign nationals who exit through U.S. airports and (2) that an electronic travel authorization system was in place and fully operational. (DHS Fact Sheet, June 3, 2008)

According to FY2007 State Department statistics, three of the seven new VWP countries fall in the three to ten percent refusal rate range (the Czech Republic, Estonia, and South Korea). Last month, GAO reported that while “the 9/11 Act requires that DHS must certify both the 97 percent air exit system and [an electronic travel authorization system] before the department can consider expanding the Visa Waiver Program to countries with refusal rates between 3 percent and 10 percent…DHS has not announced when it plans to make this certification.” (GAO Report, September 2008) The four other new VWP countries (Hungary, Latvia, Lithuania, and Slovakia) have refusal rates higher than ten percent. (State Department Statistics, 2007)

The President’s announcement came less than a month after the Senate Judiciary Subcommittee on Terrorism, Technology, and Homeland Security held a hearing to assess the VWP. (See Legislative Update, September 29, 2008) At the hearing, GAO’s Director of International Affairs and Trade, Jess T. Ford, testified that the VWP “poses inherent security, law enforcement, and illegal immigration risks to the United States.” (Statement of Jess T. Ford, September 24, 2008) Subcommittee Chairwoman Diane Feinstein (D-CA) said at the time that she found it “ironic that the Department of Homeland Security, whose number one goal is to protect the nation from dangerous people, is instead expediting the expansion of a program that we know is exploited by dangerous people.” (Subcommittee Hearing, September 24, 2008)

Sanctuary City Must Report Alien Drug Offenders, Court Rules

Immigration enforcement advocates scored a major victory on October 22nd when the California First District Court of Appeals reinstated a lawsuit against San Francisco’s sanctuary city policy that had been thrown out last year. The suit, Charles Fonseca v. Heather Fong, Chief, San Francisco Police Department, challenged that the city’s practice of not cooperating with federal immigration authorities violates a state law that requires law enforcement officers who make arrests on drug related charges to notify the federal government if it is suspected that person is not a U.S. citizen. (Opinion of the California 1st District Court of Appeals) The Superior Court judge who heard the case last year dismissed it on grounds that the state statute was itself an invalid law that sought to regulate immigration. The appellate court disagreed, noting that the law intended to fight drug trafficking in California.

The plaintiff, Charles Fonseca, noted that his interest in filing the lawsuit was “making the city comply with the law.” (San Francisco Chronicle, October 23, 2008) The court decision requires the city to comply with the state law, which the city maintains will have no “bearing on the city’s sanctuary ordinance,” noting that written policies for the city already “allow” officials to report drug offenders who appear to not be U.S. citizens to federal authorities. (San Francisco Chronicle, October 23, 2008) However, President Tom Fitton of Judicial Watch remarked: “This landmark ruling strikes at the heart of the sanctuary movement for illegal aliens. San Francisco and other sanctuary cities are not above the law. This court ruling exposes the lie behind the argument that state and local law enforcement cannot help enforce immigration laws.” (The Wall Street Journal, October 23, 2008)

This case marks just another instance in a year of troubles for San Francisco’s sanctuary city policy. In June, Mayor Gavin Newsom came under fire after the San Francisco Chronicle uncovered a taxpayer-funded program that was flying illegal alien youth gang members back to their country of origin, rather than entering them into the court system. Then, in early October, city officials announced that a federal grand jury was investigating whether the sanctuary city policy violated federal immigration laws that prohibit aiding and abetting illegal aliens. (See Legislative Update, October 14, 2008)

Supreme Court Will Hear Illegal Alien’s ID Theft Case

On October 20th the U.S. Supreme Court announced that it would hear the case Flores-Figueroa v. U.S. The case will settle the differing appellate interpretations of the U.S. Code’s aggravated identity theft provision. (18 USC § 1028A) The issue in the case is whether the prosecution must prove that the defendant in an identity theft case knew the fraudulent identification belonged to somebody else.

The pertinent code section states:

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

In the case before the court, Flores, a native of Mexico illegally present in the U.S., began working at a steel company in East Moline, Illinois, under the assumed name of Horacio Ramirez. Flores told his employer that he wanted to be known as Ignacio C. Flores and that he wanted to change the Social Security and alien registration numbers that the employer had on file for him. He then presented the employer with a counterfeit Social Security card and a counterfeit alien registration card. Both the counterfeit documents contained identification numbers that had been assigned to a different person. These documents were in the petitioner’s possession when he was arrested. He was charged with one count of entering the United States without inspection, two counts of misuse of immigration documents, and two counts of aggravated identity theft.

At his trial, Flores argued that the aggravated identity theft charges should be dropped because the government had not proved Flores knew that the Social Security and alien registration numbers he used had been assigned to other people. The trial court rejected that argument, and Flores was convicted on both counts of aggravated identity theft. The Eighth U.S. Circuit Court of Appeals agreed and upheld the conviction. (Ignacio Carlos Flores-Figueroa v. United States of America, Brief for the United States of America)

According to the New York Times, defense attorneys argue that federal prosecutors have used the identity theft provision to pressure illegal aliens to plead guilty to lesser immigration violations. They also argue that their clients shouldn’t be charged with the offense because these individuals were only seeking documents to allow them to work. (New York Times, October 20, 2008) Federal prosecutors, however, have argued in a number of cases that the statute doesn’t require the defendant to have knowledge that the identity belonged to another person. (Id.)