Federal Judge Blocks Crackdown on Hiring of Illegal Immigrants; AFL-CIO Applauds

That labor unions have become champions of the right of illegal (also known as “undocumented”) immigrants to remain in this country is hardly news. In 2000, the AFL-CIO, pushed by President John Sweeney, issued a formal statement supporting unconditional amnesty for illegal workers and their families. But Sweeney and other federation officials want to do more than issue press releases and pass resolutions. Last month, they went to federal court in San Francisco to block implementation of a Bush administration plan to enforce the law. On August 31, they scored an initial victory. U.S. District Judge Maxine M. Chesney, a Clinton appointee, issued a temporary restraining order barring the Department of Homeland Security (DHS) from mailing notices to 140,000 employers, covering about 8.7 million workers, warning them about suspicious Social Security numbers. These “no-match” letters, as they are known, would point out the penalties for failing to resolve paperwork discrepancies.


The decision materialized in a matter of a few weeks, but in a real sense it represented the culmination of decades of stalemate in immigration law enforcement. Phony state driver’s licenses and Social Security Numbers (SSNs) have been driving high levels of illegal immigration, especially among those seeking work here. Their widespread availability has created monumental security problems; all but one of the 9/11 hijackers, for example, had obtained state driver’s licenses, in some cases illegally. But aside from terrorism, the widespread existence of fake IDs has seriously compromised our nation’s ability to enforce immigration law. DHS, aware of this, issued a rule clarification on August 10 in hopes of stemming the tide. 


The Homeland Security Department affirms that employers must verify that employees have a valid Social Security Number, a practice established by the 1986 Immigration Reform and Control Act (IRCA). Under IRCA, when employers file annual tax withholding reports, the Social Security Administration (SSA) matches the employer report to the name, address and SSN provided by the employee. Mismatches are posted to the Earnings Suspense File, which contains employee data going back to 1937. Whenever an employer is notified of a discrepancy, he must notify the affected employee. That’s proven easier said than done.    


The Social Security Administration has found that up to 10 percent of employees have suspect numbers. Yet a crackdown would raise privacy-rights issues. For one thing, fraud is only one reason for a mismatch. Other reasons include typographical errors, confusion over name changes, and multiple surnames (a common source of confusion with Asians and Hispanics). Moreover, any program designed to identify illegal immigrants through this database mistakenly could classify many people here as mismatched. According to a 2006 report by the SSA’s Office of the Inspector General, about 70 percent of the 17.8 million records with discrepancies were those of native-born U.S. citizens. 


The Department of Homeland Security rule, recognizing these problems, would give an employer 90 days to explain a mismatch. If he cannot, he must fire the employee or face penalties. DHS Secretary Michael Chertoff made clear that the plan is the centerpiece of the Bush administration’s renewed immigration enforcement drive in the wake of the Senate’s defeat this June of a bill to promote amnesty all but in name. The DHS had planned to send out the no-match letters during the period September 4-November 9, rather than all at once, so as to minimize the likelihood of placing an overwhelming workload on staff. But some groups were not impressed. The American Civil Liberties Union was one such group.


The ACLU filed suit in Judge Chesney’s court, joined by the AFL-CIO and some top guns of Bay Area organized labor: the San Francisco Labor Council, the San Francisco Building and Construction Trades Council, and the Central Labor Council of Alameda County. Lawyers for the lead plaintiff allege that the no-match letters would violate workers’ rights and unfairly burden employers. “It’s a critical and very significant first step in the first legal challenge of this rule,” said Lucas Guttentag, national director of the ACLU’s Immigrants’ Rights Project. AFL-CIO President John Sweeney is every bit as adamant. “This rule is a new tool to repress workers’ rights in the name of phony immigration enforcement,” he said. Sweeney added that the rule would give employers a pretext for firing workers who try to organize, report a wage claim or get injured on the job. Leading business groups, such as the U.S. Chamber of Commerce (another co-plaintiff) and the National Restaurant Association, also have leaped into action, arguing that enforcement would trigger workplace disruptions and even plant closings. Calling the no-match rule “outrageous,” they pressed the Bush administration for a six-month delay and answers to up to 80 questions related to statutory compliance.  


Homeland Security officials counter that the organized opposition is a smokescreen for a refusal to get serious about shedding payrolls of illegal workers. “This lawsuit is an obvious attempt to impede the department’s ability to enforce our immigration laws,” said DHS spokesman Russ Knocke. “It is completely without merit and we intend to fight it vigorously.” He added that fears of massive civil-rights violations among employers are overblown. “The rule assures employers that if they follow the procedures laid out, they can avoid liability,” Knocke remarked. “Those employers who disregard no-match letters in the future should expect serious consequences.” Those consequences include criminal prosecution and/or fines of between $2,500 and $14,000 per worker.                

Let it be said: The Bush administration has never been serious about immigration reform except when it absolutely has to be – that is, when public pressure demands that something be done. President Bush’s ceaseless advocacy of providing illegal workers with a “path to citizenship,” amnesty by any other name, raises suspicions that the DHS plan is mere window dressing designed to placate advocates of immigration restriction so that the next push to legalize the status of millions of illegal workers and family members will go more smoothly. Thus, while civil liberties concerns are legitimate, once fully addressed, the no-match letters should go out without delay. For too long, the prospect of obtaining a fake ID has been a lure for persons abroad, most of all Mexico, to live here in violation of our laws and sovereignty. 

Judge Chesney says the court needs “breathing room” before deciding on the DHS rule clarification and mailings. Her ban will be in effect until October 1, when another federal judge will consider whether to extend it. Organized labor officials in the meantime can ask themselves whether their own interests, and those of the nation, are well-served by encouraging people to enter America illegally or overstay temporary visas, presumably to take jobs Americans won’t do. (FogCityJournal.com, 8/30/07; Associated Press, 8/31/07; CNN.com, 8/31/07; Washington Post, 9/1/07; San Francisco Chronicle, 9/1/07).