The State of California won and lost bigly last July 4th. But what if the state’s biggest loss could be salvaged because the primary federal immigration enforcement agency performing worksite visits – the Fraud Detection and National Security Directorate (FDNS) in U.S. Citizenship and Immigration Services (USCIS) – has never been lawfully authorized to conduct such investigations.
Three Clear Victories for California
Still in full force and effect are:
Senate Bill (SB) 54, which prohibits California law enforcement authorities from sharing with federal immigration authorities a wide variety of information on all but the most dangerous or felonious noncitizens in state custody (including the detainee’s release date), and
AB 103 which directs the California Attorney General to review county, local, or private locked detention facilities housing noncitizens who are held within the state for civil violations of federal immigration laws, and report on the conditions of confinement at each facility, the due process and care accorded to detainees, and the circumstances leading to their apprehension and placement in the facility to the California legislature, Governor and the public by March 1, 2019.
(A) to disclose in writing, within 72 hours, to each current employee at the worksite and any labor union representing members there that U.S. Immigration & Customs Enforcement (ICE) will be conducting I-9 inspection, and
(B) to follow-up any affected employee or authorized union rep – also within 72 hours of receiving any subsequent immigration enforcement agent’s notices – “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records”
A Partial California Loss?
Unless the injunction is lifted, IWPA may no longer operate to bar employers in California from:
- reverifying the employment eligibility of any current employee (unless required by federal law); and
- voluntarily (a) granting immigration enforcement agents entry to any non-public areas of a worksite (unless the agents present a judicial warrant), or (b) allowing the agents to access, review, or obtain any employee records (unless the agents present an NOI, an administrative or judicial subpoena, or a judicial warrant requiring compliance)(the no-voluntary-access provisions).
IWPA’s Reverification Ban. The ban on employer reverification of a current employee’s right to work in the U.S. could never have operated as the state intended because the exception (unless required by federal law) always
Federal Law Requires Reverification. The only practical and lawful reasons why an employer might be required or motivated to reverify employment eligibility would be if:
- the employee had time-limited work permission which was about to expire, and the employer needed to complete Section 3 of the I-9 requiring reverification in order to confirm that the individual continue to be authorized for employment,
- the employer decided to conduct a lawful, nondiscriminatory I-9 compliance audit,
- an employer had constructive knowledge of suspicious circumstances that must be investigated in order to see whether or not a current employee in fact was authorized to work, or,
- the employer lost, failed to fully complete, or never completed an I-9 for that worker.
Reverifying the employment eligibility of current employees is a continuing legal obligation. This duty stems from Immigration and Nationality Act (INA) § 274A which imposes on employers the ongoing, affirmative obligation to refrain from continuing to employ a worker if the employer has “knowledge” (which by USCIS regulation may be actual or constructive knowledge) that the employee is not authorized to work in the United States. This continuing duty can only be fulfilled if the employer makes sure that it has a fully executed, and undoubtedly correct I-9 for the worker:
- A fully executed I-9 requires the worker to declare his or her status (U.S. citizen, national, permanent resident [etc.], or a noncitizen holding temporary work authorization) in Section 1 of the I-9, and to select from the I-9 Lists of Acceptable Documents and present to the employer an original document or set of documents verifying identity and employment eligibility ; it also requires the employer examine the original(s) in the presence of the worker and then certify in Section 2 that the document(s) appear(s) to be genuine and relate to the employee. As long as the I-9 cannot be located, was never completed initially, or remains partially incomplete, it is not undoubtedly correct.
- An undoubtedly correct I-9 is one as to which the employer has not become aware of any credible facts calling into question the right of a current employee to work in the United States.
The primary federal immigration enforcement agencies – the Homeland Security Investigations (HSI) unit in ICE, the Justice Department’s Immigrant and Employee Rights section (IER), and the Labor Department’s immigration enforcers, the Wage and Hour Division (WHD) and the Office of Foreign Labor Certification (OFLC) – routinely provide written notice in advance and cite to binding legal authority authorizing them to inspect records, and, in some cases, interview employees (although often such interviews are conducted away from the business).
Therefore, the Judge Mendez’s preliminary injunction, for all practical purposes, leaves only FDNS’s investigators free to disrupt California worksites without benefit of legal formality. If the purpose of the IWPA is to avoid federal immigration intrusions at California worksites, and provide protection to undocumented workers in the state, then surely FDNS’ surprise workplace swoops cause disruptions, and frighten and intimidate both documented and undocumented workers on the premises.
In California (and for that matter, throughout the United States), FDNS officers always appear unannounced at businesses and demand that employers provide them with access to nonpublic worksite areas and access to specific employees, while proffering nothing more “official” than the enforcement agent’s business card. As countless employers can confirm, FDNS agents claim they are there merely for a “site visit” in order to confirm the accuracy of statements made in an immigration form submitted to USCIS by an employer petitioning USCIS for an employment-based immigration benefit, such as a work visa or, an employment-based green card. FDNS investigators have substantial leverage to induce an employer’s cooperation. Failure to cooperate would ordinarily lead to a negative report by the investigator to and immigration service officer within USCIS. That officer has the power to reopen a previously approved petition issue a notice of intention to revoke an approved work-visa petition, and notwithstanding any written evidence submitted by the employer, issue a revocation notice. The revocation has the effect of requiring the employer to terminate the employment of the sponsored employee. It also causes the employee and immediate family members to lose lawful immigration status, and be obliged to depart the United States unless an avenue exists to obtain a new authorization to remain.
FDNS’ innocuously-sounding “site visits” at employer locations in the United States, as the Ombudsman of USCIS recently confirmed in her 2018 Annual Report to Congress (p. 9), are of two types, “administrative site visits,” which have occurred continuously since 2004 (when what would become FDNS was initially known as the Fraud Detection and National Security Office), and “targeted” worksite visits under the new “Targeted Site Visit and Verification Program,” established in 2017. (Both the Ombudsman’s 2018 report, and DHS in its December 16, 2014 Privacy Impact Assessment for FDNS (FDNS PIA) provide a wealth of additional data on the internal and external machinations of FDNS.)
This division of immigration authority resulted from a prior history of INS dysfunctions. Long before the HSA came into effect, many INS critics had assailed its schizophrenic and contradictory missions, i.e., on one hand, to protect the border and deport unauthorized noncitizens, and on the other, in the same agency, to adjudicate (approve or deny) requests for immigration and naturalization “benefits.” These benefits are wide-ranging – from the power to grant, change, or extend nonimmigrant visa status, award asylum status, or declare individuals as U.S. lawful permanent residents (green card holders), to the authority over determinations of U.S. citizenship through the naturalization process.
Contemporary criticisms of INS in the years leading to enactment of the HSA included Demetrios G. Papademetriou, T. Alexander Aleinikoff, & Deborah Waller Meyers, Reorganizing the U.S. Immigration Function: Toward a New Framework for Accountability (1998) (describing the need for a demarcation between immigration enforcement and immigration services), and “Reconcilable Differences? An Evaluation of Current INS Restructuring Proposals,” Demetrios G. Papademetriou and Deborah Waller Meyers, Migration Policy Institute, Policy Brief (June 2002) (analyzing two legislative and two Executive Branch INS-restructuring proposals proposals).
Given these several restructuring proposals, it is not surprising that the Senate report on S. 2452, a bill that would ultimately be meshed into the HSA, acknowledged that the bill’s proposed statutory “division of INS programs into ‘enforcement’ and ‘service’ components tracks an administrative reorganization plan that is already underway.”
In ultimately enacting the HSA, however, Congress deviated from S. 2452 by creating a new Department of Homeland Security to house the enforcement and service components of the former INS rather than follow the plan envisioned in the Senate bill (“the law enforcement pieces transferred from INS . . . would necessarily need to maintain close coordination with the service programs that would remain in the Justice Department”). Nonetheless, the HSA maintains this clear separation of immigration enforcement and benefits functions. (For a discussion of the further administrative restructuring that occurred after the HSA’s enactment, including the formation of USCIS, ICE, and CBP, see, David A. Martin, “Immigration Policy and the Homeland Security Act Reorganization: An Early Agenda for Practical Improvements,” Migration Policy Institute, Insight, April, 2003, No. 1.)
A review of the HSA reveals the clear intention of Congress to separate into distinct agencies the inconsistent demands that had been placed on INS.
Specifically, HSA § 451(b) (“Transfer of Functions from [INS] Commissioner”) “transferred from the [INS] Commissioner to the Director of the Bureau of Citizenship and Immigration Services [now known as USCIS] the following functions . . .
“(1) Adjudications of immigrant visa petitions.
“(2) Adjudications of naturalization petitions.
“(3) Adjudications of asylum and refugee applications.
“(4) Adjudications performed at service centers.
“(5) All other adjudications performed by the [INS] immediately before the effective date specified in [the HSA].” (Emphasis added.)
Another provision in the HSA, § 441, created two new DHS law enforcement agencies – now known as ICE and U.S. Customs & Border Protection (CBP) – and transferred to them the former INS authority over:
“(1) The Border Patrol program.
“(2) The detention and removal program.
“(3) The intelligence program.
“(4) The investigations program.
“(5) The inspections program.” (Emphasis added.)
The authority provided by [HSA §] 1502 [codified at 6 USC § 542] may be used to reorganize functions or organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services, but may not be used to recombine the two bureaus into a single agency or otherwise to combine, join, or consolidate functions or organizational units of the two bureaus with each other. (Emphasis added.)
Despite the allocation of exclusive authority conferred on ICE and CBP over “investigations” in HSA § 441(1), and the prohibition in HSA § 471 against combining, joining, or consolidating functions, the first Secretary of DHS, Thomas Ridge, soon violated this prohibition. On June 5, 2003, he issued Department of Homeland Security Delegation Number: 0150.1, “Delegation to The Bureau of Citizenship and Immigration Services [BCIS], (Delegation)” in which he delegated to BCIS (now USCIS) the following power:
Authority to investigate alleged civil and criminal violations of the
immigration laws, including but not limited to alleged fraud with respect to
applications or determinations within the BCIS and make recommendations for
prosecutions, or other appropriate action when deemed advisable. (Delegation § II-I; emphasis added).
- . . .
- Identify, articulate, and pursue suspected immigration benefit fraud, public safety, and national security concerns.
- Conduct administrative investigations and site visits to obtain documents, conduct interviews, perform system checks, and make determinations regarding potential administrative and/or criminal violations.
- Serve as a liaison to law enforcement and intelligence agencies and participate in inter-agency task forces and partner-agency investigations to combat fraud and deter and detect national security and public safety threats. . . .
- Serve as an expert witness and represent USCIS in related court proceedings. (Emphasis added.)
- . . .
- Grant or deny complex and highly sensitive applications and petitions for immigration benefits based on electronic or paper applications/petitions.
- Research, interpret and apply appropriate statutes, regulations, and precedent decisions to make adjudicative decisions.
- Interview applicants and petitioners to elicit statements, assess credibility, and analyze information to identify facts that form the basis for a decision concerning eligibility for immigration benefits.
- Conduct security checks and provide assistance to Federal law enforcement agencies to identify individuals who are ineligible for immigration benefits due to national security, public safety, or other legal grounds.
- Use electronic systems to provide verification of any number of established data points to make adjudicative decisions, determine appropriate level of adjudicative review, and update databases with appropriate information and decisions. (Emphasis added.)
The Cambridge Dictionary:
. . . to examine a crime, problem, statement, etc. carefully, especially to discover the truth:
Police are investigating allegations of corruption involving senior executives.
We are of course investigating how an error like this could have occurred.
The Merriam-Webster Dictionary:
investigate. . .
: to observe or study by close examination and systematic inquiry
: to make a systematic examination; especially: to conduct an official inquiry
The Cambridge Dictionary:
. . .
: to act as judge in a competition or argument, or to make a formal decision about something:
He was asked to adjudicate on the dispute.
He was called in to adjudicate a local land dispute.
The game was adjudicated a win for Black.
The Merriam-Webster Dictionary:
. . .
: to make an official decision about who is right in (a dispute): to settle judicially.
The school board will adjudicate claims made against teachers.
. . .
: to act as judge
The court can adjudicate on this dispute.
BENEFIT FRAUD The conferees have agreed to the Administration’s request to increase the resources available for benefit fraud enforcement by decreasing the funds available to Immigration and Customs Enforcement (ICE) from the examinations fee account, and leaving those resources available to [USCIS], as proposed in the House report. These resources are to fund the Office of Fraud Detection and National Security (FDNS) Unit, as called for by the Government Accountability Office. The FDNS unit is responsible for developing, implementing, directing, and overseeing the joint [USCIS]-ICE antifraud initiative, and conducting law enforcement/background checks on every applicant, beneficiary, and petitioner prior to granting any immigration benefits. [USCIS] is to report by July 1, 2005, to the House and Senate Committees on Appropriations on the progress in implementing the joint anti-fraud initiative. (Emphasis added.)
Moreover, if FDNS already existed through authorizing legislation, why then would Rep. Bob Goodlatte, Chair of the House Judiciary, Homeland Security Education and the Workforce Committee – a former immigration lawyer before his election to Congress – have any reason or need to propose a bill, H. R. 2407, dubbed the “United States Citizenship and Immigration Services Authorization Act,” containing a seemingly superfluous Section 2 which would amend the HSA to include a new provision, HSA § 451(g)(“There is established within United States Citizenship and Immigration Services a Fraud Detection and National Security Directorate”)?
One can only infer that the chairman belatedly realized that FDNS had never been duly authorized (or this author can wistfully imagine that perhaps a supporter of FDNS directed Rep. Goodlatte to “A Cancer within the Immigration Agency,” in which I first assailed the unauthorized status of FDNS back in 2011).
What’s in It for California?
Even if FDNS was never lawfully established, and indeed, if its existence as an immigration investigation and enforcement unit in USCIS violates HSA § 471 (the prohibition against combining, joining, or consolidating functions of the old INS), how does this help California resurrect IWPA’s no-voluntary-access provisions?
As I explained in a prior piece (“AB 450: California’s Law of Unintended Immigration Consequences”), the IWPA does not define the term “immigration enforcement agent.”
USCIS, however, clearly offers a broad regulatory definition (8 CFR § 1.2) of agency employees designated as “immigration officer[s].” The definition includes immigration officials sporting these titles: “immigration enforcement agent, . . . immigration agent (investigations), immigration enforcement agent, . . . investigator, . . . investigative assistant, and special agent.” (emphasis added).
Recall that in U.S. v. California, Judge Mendez declined to rule that the principle of federal primacy over immigration preempted IWPA’s no-voluntary-access provisions, ruling (at pp. 23-24) that the preemption cases cited by the DOJ did not “establish that Congress has expressly or impliedly” “authorized immigration officers to enter places of labor on employer consent . . . [or authorized] immigration enforcement officers to wield authority coextensive with the Fourth Amendment.” Rather, the Court issued a preliminary injunction barring California’s enforcement of the no-voluntary-access sections of the IWPA because it determined that the federal government “is likely to succeed on its Supremacy Clause claim under the intergovernmental immunity doctrine.” Finding California’s arguments unpersuasive, the Court held (at p. 26):
Given that immigration enforcement is the province of the Federal Government, it demands no stretch of reason to see that [IWPA’s no-voluntary-access provisions], in effect, target the operations of federal immigration enforcement. The Court finds that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government. The law and facts clearly support [the Justice Department’s] claim as to these [provisions] and [the DOJ] is likely to succeed on the merits.
Implicit in the Court’s ruling, however, is the premise that in every case federal immigration enforcement authority is lawful, i.e., duly established by statute or regulation. As has been shown, this premise falls flat when evaluated in the context of an administrative or targeted worksite investigation by FDNS. To the contrary, FDNS’s purported authority violates the express prohibition in HSA § 471 against combining, joining, or consolidating the immigration enforcement and services functions of the former INS.
Thus, even though USCIS characterizes FDNS investigators as “immigration officers,” its regulations define this phrase to include immigration enforcement agents and immigration agents (investigations), and its job postings make abundantly clear that FDNS officers “[conduct] administrative investigations and site visits” in order to “make determinations regarding potential administrative and/or criminal violations (emphasis added).”
Therefore, as proceedings in U.S. v. California continue, consider whether the Federal Court’s interpretation of the term “immigration enforcement agent” in IWPA’s no-voluntary-access provisions might view the imposition on employers of a ban on FDNS access to nonpublic business premises and employee records in the absence of a subpoena as a proper exercise of the California legislature’s traditional police powers. After all, the Court recognized that “[when] Congress legislates in a field which the States have traditionally occupied, [Federal Courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress [citing Arizona v. United States, 567 U.S. 387, 400 (2012), which quoted Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)(internal quotations omitted, and emphasis added)].”
The “clear and manifest purpose of Congress” in enacting HSA § 471 (a statute prohibiting any future re-amalgamation of the investigation and enforcement authority of legacy INS with that agency’s service and adjudicative functions) leads to no other conclusion than that FDNS is an unlawfully constituted investigative and enforcement arm of the benefits-adjudication agency, USCIS. In addition, USCIS holds FDNS out in its job postings as an immigration investigations agency whose work product can lead to criminal prosecution of employers and employees. For purposes of IWPA’s no-voluntary-access provisions, therefore, FDNS officers conducting site visits in California should be viewed as a “immigration enforcement agents.” Accordingly, this writer urges the California Attorney General to file a motion for reconsideration of the Federal Court’s preliminary injunction and seek an order allowing IWPA’s no-voluntary-access provisions to continue in effect during the pendency of U.S. v. California.
No one can say how USCIS might respond. Conceivably, the agency could:
- Use its existing regulatory authority to conduct at its field offices in-person interviews of employer representatives and individual beneficiaries of immigration-benefits requests,
- Propose to amend its regulations in compliance with the notice-and-comment procedures of the Administrative Procedure Act in order to create a procedural structure and approved protocols for site visits, that also comply with the HSA, perhaps modeled after its existing regulation on site visits to religious organizations under the R-1 nonimmigrant religious worker category, 8 CFR § 214.2(16)(describing the site visit as an “on-site inspection of the petitioning [religious] organization,” which “may include a tour of the organization’s facilities . . .”).
- Modify its current approaches for gathering data and documentation through the issuance of requests for additional evidence, and the grant of opportunities to respond to USCIS notices of intention to deny a pending petition or to revoke an approved petition.
- Decide to refrain from seeking a judicial subpoena or judicial enforcement of an administrative subpoena for access to nonpublic business premises or records until new authorizing legislation amending the HSA is enacted.
It remains an open question, however, at a time when the hue and cry of “abolish ICE” is heard on the streets and in social-medialand, whether Congress will at last do its job and fix this dysfunctional mess of draconian and contradictory immigration laws by enacting common-sense, workable, and humanitarian immigration reforms that protect our borders, strengthen our economy, assure procedural due process, and promote our historic exceptionalism as a nation of immigrants.