[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
ICE WORKSITE ENFORCEMENT--UP TO THE JOB?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION POLICY AND ENFORCEMENT
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JANUARY 26, 2011
__________
Serial No. 112-2
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
63-875 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TOM REED, New York LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Immigration Policy and Enforcement
ELTON GALLEGLY, California, Chairman
STEVE KING, Iowa, Vice-Chairman
DANIEL E. LUNGREN, California ZOE LOFGREN, California
LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas
TED POE, Texas MAXINE WATERS, California
TREY GOWDY, South Carolina PEDRO PIERLUISI, Puerto Rico
DENNIS ROSS, Florida
George Fishman, Chief Counsel
David Shahoulian, Minority Counsel
C O N T E N T S
----------
JANUARY 26, 2011
Page
OPENING STATEMENTS
The Honorable Elton Gallegly, a Representative in Congress from
the State of California, and Chairman, Subcommittee on
Immigration Policy and Enforcement............................. 1
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration Policy and Enforcement............................. 3
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 8
WITNESSES
Mr. Kumar Kibble, Deputy Director, U.S. Immigration and Customs
Enforcement, Department of Homeland Security, Washington, DC
Oral Testimony................................................. 79
Prepared Statement............................................. 81
Mr. Mark Krikorian, Executive Director, Center for Immigration
Studies, Washington, DC
Oral Testimony................................................. 89
Prepared Statement............................................. 91
Mr. Michael W. Cutler, Senior Special Agent (Ret.), Immigration
and Naturalization Service, New York District Office
Oral Testimony................................................. 95
Prepared Statement............................................. 98
Mr. Daniel Griswold, Director, Center for Trade Policy Studies,
Cato Institute, Washington, DC
Oral Testimony................................................. 101
Prepared Statement............................................. 104
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration Policy and Enforcement............. 5
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration Policy and Enforcement............. 11
APPENDIX
Material Submitted for the Hearing Record
Letter from Lynn Shotwell, Executive Director, American Council
on International Personnel (ACIP).............................. 126
ICE WORKSITE ENFORCEMENT--
UP TO THE JOB?
----------
WEDNESDAY, JANUARY 26, 2011
House of Representatives,
Subcommittee on Immigration
Policy and Enforcement,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1 p.m., in
room 2141, Rayburn House Office Building, the Honorable Elton
Gallegly (Chairman of the Subcommittee) presiding.
Present: Representatives Gallegly, Smith, Poe, Gowdy, Ross,
Lofgren, Pierluisi, and Jackson Lee.
Staff Present: (Majority) George Fishman, Subcommittee
Chief Counsel; Marian White, Clerk; and Tom Jawetz, Minority
Counsel.
Mr. Gallegly. Good afternoon, everyone.
One of the things about chairing a Committee, I like to see
my trains run on time. And today is probably a better example
than most, when we are fighting the weather. And we are
expecting votes on the floor here in the next 30 to 45 minutes,
and there will be a series. So I want to try to get as much in
before we have to break as possible.
I welcome everyone here today and just say that the
Subcommittee on Immigration Policy and Enforcement is holding
its first hearing of the 112th Congress. I would like to take
this opportunity to welcome the Members of the Subcommittee as
we begin our work this session.
I especially want to welcome Congresswoman Lofgren. I know
she is on her way. I have worked with Zoe for many years and
she is a very capable person. Ms. Lofgren, as you know, was the
Chairwoman during the previous two Congresses, and she brings
with her a great deal of expertise on the issues under the
jurisdiction of this Subcommittee.
Let me now turn to today's hearing, which will be an
overview of ICE's worksite enforcement efforts.
We are in the midst of a job depression more severe than
most Americans have witnessed in their lifetimes. Over 14
million Americans are currently unemployed. The most vulnerable
American workers have been especially hard-hit. The official
unemployment rate for native-born Americans without a high
school degree exceeds well over 20 percent, and their
underemployment rate exceeds 32 percent. That is almost a third
of that entire class of workers.
And yet, at the same time, millions of illegal immigrants
hold jobs. Even when low-skilled Americans can find jobs, their
wages are depressed by illegals and other low-skilled
immigration. Harvard economist George Borjas has estimated that
immigration in recent decades has reduced the wages of native-
born workers without a high school degree by almost 9 percent.
The Immigration Reform and Control Act of 1986 made it
unlawful for employers to knowingly hire or employ immigrants
not eligible to work and required employers to check the
identify and work eligibility documents of all new employees.
Unfortunately, IRCA simply asked employers to see if the
documents presented by their employees reasonably looked
genuine. The easy availability of millions of counterfeit
documents have made a mockery of this process. Compounding the
flawed design of IRCA, first the INS and then U.S. Immigration
and Customs Enforcement failed to vigorously enforce the
employer sanctions law.
Then, in 2006, the Bush administration reinvigorated
worksite enforcement. It placed a new focus on criminal
prosecutions of both illegal immigrant workers who steal
Americans' identities and employers who knowingly employ
illegal immigrants. The number of civil arrests increased from
445 in the year 2003 to 5,184 in the year 2008. And the number
of criminal arrests increased from 72 to 1,103. And the number
of criminal convictions increased from 156 to 908.
The net result of this new strategy was more jobs and
higher wages for American and other legal workers. One employer
subject to a worksite enforcement action raised wages by more
than a dollar an hour and hired 200 legal workers. At another,
400 legal workers applied for the 361 jobs left by deported
illegal immigrants.
As Chairman Smith will elaborate, the Obama administration
has relaxed the get-tough strategy of the Bush administration's
ICE director, Julie Myers. ICE still audits the employment
records of employers, but what happens to the illegal workers
that it uncovers?
Minnesota Public Radio reported about the aftermath of an
audit that identified 1,200 illegal immigrants in well-paying
janitorial jobs. ``The most important rumor to dispel was that
the workers were arrested.'' In the story, a retired ICE
official wondered ``how effective this enforcement will be,
considering the workers are free to move into other jobs.'' And
a representative of the Immigration Law Center believes that
the vast majority of the 1,200 illegal workers will ``probably
try to wait it out, hoping for the laws to change so they can
work here legally.''
The Obama administration's strategy clearly does a grave
disservice to American workers. At today's hearing, we will
hear from both ICE and its critics as to the optimal worksite
enforcement strategy. The result of ICE's efforts must be that
those jobs that are available go to Americans and to legal
residents.
At this time, I would like to yield to my good friend. And,
as I said in my opening statement, I have had the honor of
working with Zoe Lofgren for many years. I have great respect
for her. And while we don't always agree on every issue, I
think we have worked in a very civil way, and our differences
have never been personal.
So, with that, I would yield to my friend and neighbor from
California, Ranking Member Zoe Lofgren.
Ms. Lofgren. Thank you very much. And I want to
congratulate you, Mr. Gallegly, as the new Chair of this
Committee and Mr. King as Vice-Chair and, certainly, Mr. Smith
as Chair of the Committee.
Today's hearing is the first of many I expect we will have
on the role that immigration plays in the U.S. economy and its
impact on American jobs. And I hope and actually do expect, as
you have just noted, that throughout these hearings, as with
the new Congress, our two sides of the aisle will put aside
heated rhetoric and work to solve some of the intractable
problems that the country has been facing for far too long.
I think everyone agrees that our immigration laws are
broken. For decades, these laws have not met the needs of our
country--not of American businesses, American workers, or
American families. And it is these broken laws that have led us
to the morass we now find ourselves in.
Rather than fix those laws, like one would fix a broken
car, some may now be suggesting that we just step on the pedal
harder. But you can't keep enforcing a broken system without
doing real damage. The truth is that continuing to increase
enforcement without reforming the broken system will actually
hurt the economy and American workers. Yes, increased
enforcement may open up a particular job here or there, but
this approach will actually destroy many more jobs than it
creates.
What we often hear from colleagues on the other side of the
aisle is that this issue boils down to simple math: that every
time we find and deport an undocumented worker, we open a job
for a native worker. But this math is bad math. It simply does
not take into account the complex realities of our economy.
We held a hearing last September on our agricultural labor
force, which is composed mostly of unauthorized workers. Under
their simple math, the wrong math, if we just removed these
workers, Americans would run to fill those jobs. But that is
not even remotely true. Experts from all sides agree that, even
in this poor economy, Americans are not returning to the fields
as migrant workers to pick tomatoes, apples, or strawberries.
And the increase in wages necessary to get U.S. workers to go
to the fields as migrants would hike production costs so high
that U.S. food products would no longer be competitive with
imported products. The end result would be the closure of
American farms, a less secure America, and mass offshoring of
millions and millions of U.S. jobs.
Let's be clear here. If we just ramp up enforcement without
reforming the system, job losses in agriculture would not be
confined to the fields. The Department of Agriculture reports
that every on-farm job supports or creates about 3.1 upstream
and downstream jobs--jobs in manufacturing, seed production,
processing, packaging, distribution, and accounting--that are
overwhelmingly filled by United States workers. The truth is
that every time we deport a farm worker, we also deport three
other jobs that are held by Americans.
This is the real math we need to heed. Enforcement without
reform may open up a job here or there, only to destroy four
others over here.
Over the past 4 years, this Subcommittee held dozens of
hearings on our immigration system. We heard time and time
again from economists, business leaders, experts from all
backgrounds and across ideological lines that an enforcement-
only approach is damaging to businesses and workers. Some are
now asking us to pay no attention to that testimony. They are
asking us to simply step on the gas, whatever the damage.
Our laws need to be fixed so that they can work for our
economy, our people, and our country. Yes, we need to secure
our borders and make sure that only authorized workers are
employed in the United States. But we also need an immigration
system that meets the needs of our economy, one that grows when
and where we need workers and shrinks when and where we don't.
Without that, we will keep spending billions of taxpayer
dollars enforcing broken laws.
Some argue we need to enforce our laws and secure our
border before we can ever discuss reforms to our broken system.
But the truth is that every day that passes is a day in which
we pursue an enforcement-only approach, and that is damaging to
our country.
I have additional comments, Mr. Gallegly, but, given that
the bells have rung, I would ask unanimous consent to put the
additional comments in the record. And perhaps we can hear from
some of our witnesses before the vote.
Mr. Gallegly. Without objection.
Ms. Lofgren. I yield back.
[The prepared statement of Ms. Lofgren follows:]
__________
Mr. Gallegly. Now, I would yield to the gentleman, the
Chairman of the full Committee, my good friend from Texas,
Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman.
And Mr. Chairman, congratulations to you on the first
hearing of this Subcommittee. You have mentioned some
compliments directed toward Ms. Lofgren, the gentlewoman from
California, in her previous role as Chair of this Subcommittee.
She ought to reread those comments because they were very
complimentary even though she may have missed some of them.
I also happen to agree with something she said at the very
end of her opening statement, and that is that only authorized
workers should be employed. And we can certainly agree with
that.
I do have an opening statement. I will try to get through
it fairly quickly. And, as you pointed out, Mr. Chairman, I
think we have a couple of votes, but hopefully our witnesses
won't mind waiting for us to vote and return.
With unemployment over 9 percent for 20 months, jobs are
scarce and families are worried. According to the Pew Hispanic
Center, 7 million people are working in the United States
illegally. These jobs should go to legal workers, and securing
these jobs for American and legal immigrant workers should be a
priority of the Federal Government.
The Office of Immigration and Customs Enforcement, ICE,
should enforce the law and conduct more worksite enforcement
activities. Each time ICE arrests, detains, or deports an
illegal worker, it creates a job opportunity for an American
worker. Each time the Department of Justice brings a criminal
action against an employer who knowingly hired illegal workers,
it sends a powerful message that their employment will not be
tolerated.
Unfortunately, worksite enforcement has plummeted under the
Obama administration. Administrative arrests have fallen 77
percent from 2008 to 2010. Criminal arrests have fallen 60
percent. Criminal indictments have fallen 57 percent, and
criminal convictions have fallen 66 percent. And the number of
the investigative hours devoted to worksite enforcement has
fallen by 34 percent in the last 2 years.
How does the Administration justify these policies? With
millions of Americans unemployed, it is hard to imagine a worse
time to cut worksite enforcement efforts by more than half.
ICE will testify today that it has increased the number of
audits of companies' employment eligibility verification forms
they filled out for their employees. The number of audits has
increased from 503 in 2008 to over 2,000 in 2010, and the
amount of fines has gone up, as well.
However, these audits are of questionable benefit. The GAO
has found that, quote, ``ICE has faced difficulties in settling
and collecting final fine amounts that meaningfully deter
employers from knowingly hiring unauthorized workers. ICE
officials told us that, because fine amounts are so low, the
fines do not provide a meaningful deterrent. The amount of
mitigated fines may be, in the opinion of some ICE officials,
so low that they believe that employers view the fines as a
cost of doing business, making the fines an ineffective
deterrent for employers who attempt to circumvent the law,''
end quote.
Stewart Baker, the Department of Homeland Security's
Assistant Secretary for Policy Development in the prior
Administration, said that, quote, ``the fines are ridiculously
low, sometimes less than a New York City parking ticket.''
And what happens to the illegal workers who are seldom
arrested? They go down the street and knock on the door of the
next employer and take possibly another job from an American
worker.
Critics of worksite enforcement claim that illegal
immigrants hold jobs that Americans won't do. But even in the
agriculture industry, where amnesty supporters insist we need
illegal workers, 50 percent of the agriculture jobs are held by
citizens and legal immigrants. Statements that are Americans
are not willing to do these jobs demeans the hardworking
Americans who actually do this work on a daily basis.
Citizens and legal immigrants should not be forced to
compete with illegal workers for jobs. The Administration
should put the interest of American workers ahead of illegal
workers. All the Administration has to do is conduct worksite
enforcement. Twenty-six million Americans who are unemployed or
underemployed are asking the question, ``Mr. President, why
aren't you protecting American jobs?''
Thank you, Mr. Chairman. And I yield back.
Mr. Gallegly. Thank you, Mr. Chairman.
I would yield just a moment to the Ranking Member for a
unanimous consent request.
Ms. Lofgren. Thank you, Mr. Chairman.
I do request unanimous consent to submit a series of
statements prepared for today's hearing from leaders in the
labor, faith, refugee, and immigration advocacy community. And,
in lieu of the time, I would simply submit the lists and
statement to the record.
Mr. Gallegly. Without objection.
[The information referred to follows:]
__________
__________
__________
__________
__________
__________
__________
Mr. Gallegly. I see that Mr. Conyers isn't here, so what I
would like to do, at this point, is introduce our witnesses.
Then we are going to have to recess to go over and vote.
I don't know how many--do you know how many votes we have?
So it is about probably 45 minutes to an hour. So, if you
folks can stand by.
First of all, we are honored to have a very distinguished
group of witnesses today.
Mr. Kumar Kibble is the deputy director of the U.S.
Immigration and Customs Enforcement. He serves as the chief
operating officer for the principal investigative agency of the
Department of Homeland Security. Mr. Kibble began his
government career in 1990 as an infantry officer in the U.S.
Army, 82nd Airborne. He received his bachelor of science degree
from the U.S. Military Academy at West Point.
We are pleased to have you here, sir.
I think most of us know Mark Krikorian. Mr. Krikorian is
executive director of the Center for Immigration Studies, a
nonprofit, nonpartisan research organization in Washington,
D.C., which examines and critiques the impact of immigration on
the United States. He is the author of ``The New Case Against
Immigration, Both Legal and Illegal.'' Mr. Krikorian holds a
master's degree from the Fletcher School of Law in diplomacy
and a bachelor's degree from Georgetown University.
Welcome, Mr. Krikorian.
Mr. Michael Cutler is a retired senior special agent with
the Immigration and Naturalization Service, New York District
Office. He joined the INS in 1971 as an immigration inspector
at JFK airport.
In fact, I think that was one of the first places I met
you, along the line.
Mr. Cutler has served in many positions, including as
senior special agent, and was assigned to the Organized Crime
Drug Enforcement Task Force. Mr. Cutler retired from the INS in
February 2002 after a career that spanned more than 30 years.
And our last witness, Mr. Daniel Griswold, is the director
of the Center for Trade Policy Studies at Cato Institute here
in Washington, D.C. He is the author of the Cato book, ``Mad
About Trade: Why Main Street Should Embrace Globalization.'' He
received his bachelor's degree in journalism from the
University of Wisconsin at Madison and a diploma in economics
and a master's degree in the politics of the world economy from
the London School of Economics.
So you see we have a very distinguished group of witnesses
today. And I wish we could start the testimony now, but because
we are about 7 minutes away from a vote we will recess and
reconvene. And, hopefully, there will be some Members that will
be able to get back.
So, with that, we will recess until we finish voting. Thank
you.
[Recess.]
Mr. Gallegly. I call the Subcommittee back to order.
Thank you for your patience. The storm is moving in, so we
are going to move on as quickly as we can. And we have lost
several of our Members, but we have the most important one,so.
Mr. Kibble, we will recognize you. For the sake of trying
to expedite things, I would ask you to please work with us on
the 5-minute thing, and appreciate your patience. Thank you.
TESTIMONY OF KUMAR KIBBLE, DEPUTY DIRECTOR, U.S. IMMIGRATION
AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY,
WASHINGTON, DC
Mr. Kibble. Chairman Gallegly, distinguished Members of the
Subcommittee, to the extent they are here, on behalf of
Secretary Janet Napolitano and Assistant Secretary John Morton,
I want to thank you for the opportunity to discuss ICE'S
worksite enforcement efforts.
DHS is pursuing an aggressive strategy with respect to
worksite enforcement. Our strategy focuses on employers that
knowingly violate the law, deterring those who are tempted to
violate the law, and offering easy tools, like E-Verify, to
help employers comply. We do this through the robust use of I-9
inspections, civil fines, and debarment.
The success of our approach to worksite enforcement is
clear in the numbers. In fiscal year 2010, ICE opened a record
2,746 worksite enforcement investigations. This more than
doubled the number from 2008. We also issued more notices of
inspection to employers, quadrupling the number from 2008. We
issued a record of final orders directing businesses to pay
fines amounting to just under $7 million; saw a record $36.6
million in judicial fines and forfeitures; and debarred a
record 97 unscrupulous businesses and 49 individuals,
preventing them from doing business with the government.
Our approach also prioritizes the criminal prosecution of
the worst employers that knowingly hire illegal workers; abuse
and exploit their workers; engage in harboring, smuggling, and
trafficking of workers; and also facilitate document or benefit
fraud.
The main reason people come to the United States illegally
is for the opportunity to work. By focusing on employers who
provide jobs to illegal aliens, we are attacking one of the
root causes of illegal immigration. By following our tough
approach, we are creating a culture of compliance--a culture in
which employers seek to get on the right side of the law and
hire lawful workers.
As the clearest example that this approach is working, look
to Tyson Foods. Just last week, Tyson became one of ICE's IMAGE
partners. That program, or the ICE Mutual Agreement Between
Government and Employers, is a partnership that helps big and
small companies maintain a lawful workforce and protect
themselves from fraud.
Tyson is a Fortune 500 company, with 115,000 employees, and
is the world's largest meat processor. They are a leader of
industry. A decade ago, they were investigated and indicted for
their hiring practices. Today, they proudly stand with us as an
example of a company that knows that getting right with the law
is good for business, good for workers, and good for the
country. We at ICE can't wait to find the next Tyson Foods.
In short, our approach is working.
I am aware of the concerns raised about ICE's overall
number of administrative arrests at worksites, and I would
respond with a few points.
First, our number of administrative arrests at worksites
cannot and should not be considered in a vacuum. Our worksite
efforts have been part of a broader enforcement strategy that,
for the last 2 years, has resulted in the removal of more
illegal aliens from the United States than ever before.
Moreover, a record number of those were criminal convicts.
Whether we are apprehending people at worksites or apprehending
them elsewhere, we are apprehending and detaining and removing
more people than ever in the Nation's history.
Second, we are more strategic in our approach than ever. It
costs approximately $12,500 to arrest, detain, and remove an
individual from the United States. So we have focused our
limited resources wisely and successfully removed a record
number of criminals last year. Our approach has made
communities safer.
Finally, we have more resources along the Southwest border
than ever. That is more staffing, technology, and
infrastructure protecting the border and slowing the flow of
illegal immigration.
In short, we are committed to an overall approach to
enforcement that is working. We look forward to continuing to
build on our current successes and working with you through the
remainder of this fiscal year and beyond.
Thank you again for this opportunity, and I welcome any
questions you may have.
[The prepared statement of Mr. Kibble follows:]
Prepared Statement of Kumar Kibble
__________
Mr. Gallegly. Thank you very much, Mr. Kibble. And thank
you for being so succinct with your testimony.
Mr. Krikorian?
TESTIMONY OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR
IMMIGRATION STUDIES, WASHINGTON, DC
Mr. Krikorian. Thank you, Mr. Chairman.
There are 14.5 million Americans looking for work and 26
million who are unemployed or underemployed. Yet, immigration
policy takes no note of these facts.
According to a report just last week from Northeastern
University, over the past 2 years, employment declined in the
United States by more than 6 million jobs, and yet, more than 1
million new immigrants got jobs during that time.
Only about a third of those new immigrant job holders were
illegal immigrants. Now, what that means is that legal
immigration is a big part of this disconnect between employment
and immigration enforcement. But that is not something that
this Administration or any other can deal with on its own.
But the one-third of those new job holders who are illegal
immigrants is a different matter altogether. And the problem
there is not a badly designed immigration system but, rather, a
lack of enforcement of existing laws by the executive branch.
As part of the current Administration's April 2009 worksite
enforcement strategy, real worksite enforcement has declined
significantly, as Chairman Smith spelled out in his opening
statement. What has increased in this area is audits of
employee I-9 forms and the number and total dollar amount of
fines against employers.
Now, such audits and fines are by no means a bad thing, and
increasing them has been a positive step. The problem is, they
are only good as far as they go, and they don't go that far.
By limiting worksite enforcement to the personnel office,
the current strategy foregoes the benefits of a full-spectrum
enforcement approach that includes both audits and raids, both
fines and arrests, focusing on both employers and employees.
One colleague observed to me just yesterday that the current
ICE focus on audits is as effective as the FBI doing gang
suppression by just giving talks at high schools, without
actually arresting any gang members.
The benefits of full-spectrum enforcement are clear from
recent experience. First of all, it opens up jobs for
Americans. As an example there--and I spell it out more in my
written testimony--is the Smithfield pork plant in Tar Heel,
North Carolina, which was raided in 2007. As a result of that
and the removal of illegal workers there, Americans were able
to be hired.
Initially, when the plant opened, American workers were
most of the staff. But, over time, slowly but steadily,
Americans were removed, replaced by illegal workers. And what
happened was, as a result of the raids, just the Black American
share of the workforce went from 20 percent before the raids to
60 percent after the raids.
A second benefit of comprehensive worksite enforcement,
instead of today's more selective and limited approach, is that
it raises the wages of blue-collar American workers. And we
have seen this very clearly as a result of the raids on the six
Swift meatpacking plants in 2006. And what happened after those
raids was that the level of wages and bonuses at those plants
increased by 8 percent as a result of that raid. It was an 8
percent raise for legal workers because of that immigration
raid.
A third benefit of full-spectrum enforcement is that it is
necessary to gather evidence on crooked employers. In other
words, it is tough to go after employers if you are not
arresting and not doing raids and arresting the illegal
workers, who are then able to provide information.
We saw that most clearly in the Agriprocessors meatpacking
plant raid in Iowa. Before the raid, State officials had been
trying to gather information on the various abuses in that
plant and had really gotten nowhere. As a result of the raid,
it tore away the curtain and exposed the plant's squalor and
mass illegality, leading to arrests of management for criminal
child labor and other violations. Merely auditing that plant's
personnel records, while scrupulously avoiding any arrests of
illegal immigrants, might well have meant that, today, that
Agriprocessors plant would still be abusing children on its
factory floor.
And, finally, a full-spectrum worksite enforcement approach
is necessary to turn off the magnet of jobs that attract
illegal immigrants in the first place. The point of enforcement
is not to arrest and deport every illegal worker and punish
every illegal employer. The point is to make it clear to them
that there is a significant chance that could happen, so you
end up with voluntary compliance with the law. This is the way
it works in any other kind of enforcement area--taxes or
traffic laws or what have you.
But if illegal immigrants are not being arrested because we
are not having raids, we don't have a full-spectrum worksite
enforcement, there just isn't that much for workers or illegal
workers or illegal employers to fear. And, in a sense, what we
are doing is we are sending the signal that it is not really
that big a deal to be an illegal alien working or to be hiring
illegal immigrants. And when we send that kind of signal,
illegal workers and illegal employers understand what we are
telling them, and they continue doing what they are doing.
Thank you.
[The prepared statement of Mr. Krikorian follows:]
Prepared Statement of Mark Krikorian
__________
Mr. Gallegly. Thank you, Mr. Krikorian.
Mr. Cutler?
TESTIMONY OF MICHAEL W. CUTLER, SENIOR SPECIAL AGENT (RET.),
IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK DISTRICT
OFFICE
Mr. Cutler. Thank you, Mr. Chairman. I would like to thank
both you and your colleagues for your leadership in immigration
enforcement and for this invitation to be here today.
The effective enforcement of our Nation's immigration laws
and the creation of an immigration benefits program that has
real integrity are vital components of the war on terror and in
efforts to protect our Nation and our citizens from various
transnational criminal organizations such as the Mexican drug
cartels. Simply stated, we cannot protect our Nation or our
citizens from these and other threats while our borders remain
porous and millions of illegal aliens, whose true identities
are unknown and unknowable, live and work in communities
throughout the United States.
Our Nation's immigration laws can only be effectively
enforced if all elements of the enforcement program and the
immigration benefits program operate cooperatively in a unified
system.
The majority of illegal aliens enter our country seeking
unlawful employment. Aliens who run our borders often pay
pernicious smugglers, who may force them to facilitate the
smuggling of narcotics into our country. The revenue that the
smuggling trade provides finances criminal organizations
throughout the world.
Illegal aliens are likely to pay other criminals, such as
fraud document vendors and identity thieves as well, in order
to secure identity documents.
Many illegal aliens are young men who, at least initially,
leave behind their wives and girlfriends. This large population
of illegal aliens provides potential clientele for houses of
prostitution that leads to more crime, more human trafficking,
and more unspeakable exploitation.
Effective law enforcement requires deterrence to be an
integral part of the strategy. Effective worksite enforcement
must seek to deter unscrupulous employers from intentionally
hiring illegal aliens, but it must also seek to deter illegal
aliens from entering our country in the first place looking for
jobs.
The passage of the Immigration Reform and Control Act, or
IRCA, of 1986 included provisions that, for the first time,
deemed the intentional hiring of illegal aliens to be a
violation of law. It represented a balanced approach to
deterring the employment of illegal aliens by penalizing the
employers. Today, however, what we are seeing is an effort to
simply go after the employer and not the illegal alien. So this
doesn't have the balanced approach that the law should
provide--that field operations should provide.
Effective worksite enforcement investigations would take
significant pressure off our Nation's porous borders and would
also staunch the flow each year of tens of billions of dollars
of money that are wired or otherwise transmitted by illegal
aliens from the United States to their home countries, thereby
adding to our burgeoning national debt. This is money that is
not spent in the United States, money that is not invested in
the United States, money that is not earned by United States
citizens or resident aliens.
And at the present time, as we have heard today, so many
Americans are having an increasingly difficult time of trying
to support themselves and their families. Everyone talks about
the need to create new jobs, but if the jobs are created but
then don't go to American citizens, our citizens and our Nation
don't benefit from these new jobs.
While I am not an economist, I am convinced that increasing
resources to the worksite enforcement program would save our
Nation's economy more money than would be invested in such an
increase in resources. An effective worksite program would also
provide important national security and community safety
benefits.
Terrorists and criminal aliens often seek employment as a
means of embedding themselves in a community. Terrorists and
criminals are often described by the jobs that they held at the
time that they were arrested, jobs that provided them with
money, camouflage, and mobility. Aliens engaged in terrorism or
criminal activities often seek to acquire lawful immigration
status by committing immigration benefit fraud. And this is an
issue that I hope that you will delve into in detail in future
hearings.
But it is important to note that, as an INS special agent,
I often apprehended criminal aliens on the jobs where they
worked. These aliens had lengthy conviction records and may
well have been previously deported, but they were working
illegally in jobs that enabled them to hide in plain sight.
Leaders at the DHS often note their concerns about illegal
aliens working at critical infrastructure, and they talk about
airports and military bases and so forth. Well, recently,
officials at the DHS raised concerns about Mumbai-style attacks
being carried out in the United States that would target hotels
or places where large numbers of people congregate. And there
was also stated concerns about an al Qaeda operation that would
seek to poison people. Given that, it would logically follow
that critical infrastructure should also include food-
processing plants.
In my nearly 40 years of involvement with the immigration
issue, I have not seen any Administration distinguish itself by
effectively securing our borders or enforcing our immigration
laws. However, I believe the current Administration has all but
rolled out the welcome mat to illegal aliens, frankly. High-
level members of the Administration have stated that illegal
aliens would not face the threat of arrest in most of these
worksite investigations.
Last week, the Wall Street Journal talked about the
Employment Compliance Inspection Center that is supposed to
facilitate the auditing of I-9's and supporting documents.
Again, going after that is worthwhile, but if you are missing
the idea of arresting the illegal aliens, then you are missing
the boat.
Furthermore, the President and Members of both houses of
Congress have spoken frequently about the need to place illegal
aliens on a pathway to U.S. citizenship, thereby all but
declaring that illegally entering our country should be a
prerequisite for United States citizenship.
I also want to touch briefly on the lawsuit filed by the
Justice Department against the State of Arizona to try to block
Arizona from enforcing its own laws. Again, the message is a
dangerous one, because it offers more encouragement to illegal
aliens and those foreign nationals who aspire to become illegal
aliens in our country.
If morale was low when I was an INS special agent because
of the reasons that we discussed earlier, the lack of resources
and so forth, then I would imagine morale must be incredibly
low at this point in time.
Final point: Prior to the Second World War, the Department
of Labor was responsible for enforcing our immigration laws.
The concern was that an influx of large numbers of foreign
workers would drive down wages and worsen the working
conditions of the American worker. And, indeed, our laws still
reflect that it is illegal to hire foreign workers if, in so
doing, harm is done to the American workforce.
Effective worksite enforcement efforts can protect our
Nation and our workers and turn off the power to the magnet
that draws so many illegal aliens to our country. The time has
long since come for our government to actually provide
resources and leadership to properly enforce these important
provisions of our laws. And I am gratified that you are holding
this hearing.
I thank you for the opportunity.
[The prepared statement of Mr. Cutler follows:]
Prepared Statement of Michael W. Cutler
__________
Mr. Gallegly. Thank you, Mr. Cutler.
Mr. Griswold?
TESTIMONY OF DANIEL GRISWOLD, DIRECTOR, CENTER FOR TRADE POLICY
STUDIES, CATO INSTITUTE, WASHINGTON, DC
Mr. Griswold. Chairman Gallegly, Chairman Smith, Ranking
Member Lofgren, Members of the Committee, thank you very much.
I am confident we all share the goals of reducing illegal
immigration, securing our borders against those who would do us
harm, and promoting economic growth and job creation. With
those objectives in mind, I believe that focusing primarily on
worksite enforcement will continue to be an expensive
distraction until we reform our immigration laws to reflect the
realities of America's 21st-century labor market.
Our policy of relying solely on enforcement of current
immigration law has failed. This is true for both border and
interior enforcement. Since 1992, our spending on border
enforcement has gone up more than 700 percent. The number of
agents at the border has gone up fivefold. Since the
Immigration Reform and Control Act of 1986, U.S. employers have
been subject to fines for knowingly hiring undocumented
workers. Yet, during two decades of increased enforcement, the
number of illegal immigrants in this country has roughly
tripled.
Our enforcement-only approach is at odds with the economic
and demographic realities of our dynamic American economy. Our
economy routinely creates hundreds of thousands of net new jobs
each year that require only short-term, on-the-job training. I
am talking about home health aides, food preparation and
serving workers, retail salespersons, landscaping and
groundskeeping workers, waiters and waitresses.
At the same time, the number of Americans who have
traditionally filled such jobs continues to shrink. Over the
last decade, the number of adult Americans in the workforce
without a high school diploma has dropped by 3 million, and
that number is going to continue to drop. It is good news, but
it adds to this problem.
Immigrants fill the growing gap between expanding low-
skilled jobs and the shrinking pool of native-born Americans
who want to fill them. Immigrant workers enable important
sectors of the U.S. economy, such as retail, agriculture,
landscaping, restaurants and hotels, to expand, to attract
investment, and to create middle-class jobs in management,
bookkeeping, marketing, and other areas that employ native-born
Americans.
It is misleading to assert that every low-skilled immigrant
we can round up and deport will mean jobs for an unemployed
American. The real economy doesn't work that way. Low-skilled
immigrants, whether legal or illegal, do not compete directly
against the large majority of American workers.
American companies hire immigrant workers to fill millions
of low-skilled jobs because there are simply not enough
American workers willing to fill those same jobs. The pay and
working conditions in many of these jobs do not match the
qualifications and aspirations of the large majority of
Americans currently looking for employment in our recovering
economy.
We cannot enforce our way out of unemployment. There is no
causal relationship between the inflows of immigration and
higher overall unemployment in the U.S. economy. If anything,
more aggressive enforcement against low-skilled immigration
will arguably have a negative effect on our economy and the
jobs and incomes of American households.
Removing millions of low-skilled workers from our labor
force through enforcement would reduce the incentives for
investment in the affected industries. It would reduce the
relative job openings in more skilled positions, disrupting
employment for native-born Americans.
In agriculture, for example, the USDA estimates there are
3.1 related jobs off the farm for every job on the farm.
Eliminating the on-farm jobs would put at risk many more jobs
paying middle-class wages and employing native-born Americans.
A 2009 Cato study found that a 30 percent reduction in low-
skilled immigration to the United States through more vigorous
interior enforcement would cause a drop in the incomes of
American households by $64 billion a year. In contrast, the
same study estimated that immigration reform that allowed more
low-skilled immigrants to enter the United States legally could
boost the incomes of American households by $180 billion a
year.
The best approach to reducing illegal immigration would be
to expand opportunities for legal immigration while targeting
enforcement against terrorists, criminals, and others who
continue to operate outside the system.
We know from experience that legal immigration, if allowed,
will crowd out illegal immigration. Here we can learn two
valuable lessons from the Bracero program, which allowed
Mexican workers to enter the United States temporarily from
1942 to 1964.
One lesson is that temporary workers should be given
maximum mobility to change employers. The fatal flaw of the
Bracero program was that it tied workers to specific employers
as a condition of the visa. This gave too much leverage to
employers, resulting in abuses that led Congress to shut down
the program.
The more positive lesson from the Bracero program is that,
for all its shortcomings, it did provide a legal alternative to
illegal immigration.
Early in the 1950's, we were apprehending a million people
a year at the border because the program offered an
insufficient number of visas to meet the labor demands of a
growing U.S. economy. Instead of merely redoubling our
enforcement efforts, Congress dramatically increased the number
of visas to accommodate demand. The result: Apprehensions at
the border dropped more than 90 percent.
Back then, as we could expect now, foreign-born workers
rationally chose the legal path to entry when it was available.
When the Bracero program was abolished in 1964, legal
immigration began to rise inexorably, and that has continued to
the present time.
To sum up, Mr. Chairman, a program of legalization would
transform the enforcement debate. Instead of wasting resources
on a futile effort to root out millions of low-skilled
immigrant workers who are productively contributing to our
Nation's economy, we could focus our enforcement efforts on
apprehending those who want to do us harm.
Large-scale illegal immigration will end only when
America's immigration system offers a legal alternative,
consistent with the underlying realities of our labor market.
Thank you.
[The prepared statement of Mr. Griswold follows:]
Prepared Statement of Daniel Griswold
__________
Mr. Gallegly. Thank you very much, Mr. Griswold.
Mr. Kibble, I was interested in your comments relative to
the significant increase in removals or deportation. Are these
formal deports, or are they voluntary deports, or are they a
letter telling a person that they have to leave, or is it a
green van trip to the border and released? Could you give me a
definition of a removal or a deport?
Mr. Kibble. Sir, when we reference removals, we are talking
to the formal orders of removal as well as voluntary returns.
And when you look at our results over the last 2 years, we have
removed--and this means people leaving the country--we have
removed more than we ever have in our history.
Mr. Gallegly. Well, what is the percentage of voluntary
removals versus formal deports?
Mr. Kibble. I don't have that number readily available.
Mr. Gallegly. I remember listening to Janet Reno not too
many years ago, when she said, in the southern California area,
the U.S. Attorney's district there, that their policy was that
they didn't initiate any formal deports until after there had
been a second felony conviction.
Have you ever heard that before, from a policy standpoint,
of a United States attorney?
Mr. Kibble. I am not familiar with that, sir. But----
Mr. Gallegly. What is the criteria for formal deportation?
Mr. Kibble. If someone is unlawfully in the country, they
enter into proceedings, and they receive their due process.
And, ultimately, they, you know, they may have a----
Mr. Gallegly. So anyone that doesn't agree to voluntary
deportation, you would immediately start the process, keep them
in custody until they were formally deported?
Mr. Kibble. Sir, we would place them in removal
proceedings. However, we have a limited detention space, so we
have to make smart----
Mr. Gallegly. How many show up for their dates, what
percentage?
Mr. Kibble. I don't have that number handy----
Mr. Gallegly. Well, I could just tell you, I had a visit to
Kennedy a few years ago and also to Miami. And when they had
individuals come into the country and they would appeal the
denial of entrance, of those that were considered low flight
risk and were given a date and a paper to appear, the ones that
were considered low flight risk, 94 percent never returned.
That is pretty well-documented, and I did a white paper many
years ago on that. But----
Mr. Kibble. May I respond, sir?
Mr. Gallegly. Sure.
Mr. Kibble. We are essentially resourced to remove roughly
400,000 people a year. So we have tried to take that resourcing
and use it wisely, prioritizing threats to public safety and
national security; border violators, recent border violators;
as well as immigration fugitives and others that try to game
the system in terms of our border controls.
I think every one of those removals----
Mr. Gallegly. I don't doubt that. But ``every one'' and ``6
percent'' is a different situation.
My concern is, what is the real definition of removal? Are
they really removed? Are they given notice? Are they put into
a----
Mr. Kibble. They are removed from the country, sir.
Mr. Gallegly. Okay. What is your recidivism rate? How many
do you--now you have great IDENT system, right? And the IDENT
is pretty conclusive, when you re-arrest someone, it is pretty
easy to tell. Could you tell me if you have ever had anyone
that re-entered the country that had been deported?
Mr. Kibble. Oh, of course we have folks that have re-
entered the country that had been deported, sir.
Mr. Gallegly. More than 10 times, the same person? Ever
heard of that?
Mr. Kibble. I know there have been instances of that.
But, I mean, to the larger point, sir, I mean, we are doing
everything we can with the resources that are available. And we
are breaking records, removing----
Mr. Gallegly. But the question is, a formal deport versus a
voluntary deport, the difference, as I understand it--and
correct me if I am wrong--if you give them the option of
voluntary deportation and then they re-enter the U.S., it is
basically, ``Well, hey, you have to go home again.'' However,
if you have been formally deported and you re-enter the
country, it is a felony; is that not correct?
Mr. Kibble. Yes, sir. I mean, a re-entry after deportation
is a violation----
Mr. Gallegly. Okay, right.
One other quick question before my time runs out. The GAO
has expressed criticism on I-9 audits, saying that businesses
simply view these civil fines as kind of a part of doing
business, just like you would to pay for any other type of
overhead costs.
Would you say that is a fair assessment?
Mr. Kibble. No, sir, I would not. If you look at the fines
as they were a couple years ago, we issued 18 final orders for
about $675,000. That has dramatically increased to----
Mr. Gallegly. But are they----
Mr. Kibble [continuing]. Almost $7 million.
And, sir, the way they are contesting these in court and
entering into settlements and aggressively trying to negotiate,
it is clear to me that they are taking these fines very
seriously.
We have also reformed the system so that there is less room
for mitigation, as we have seen in years past. So these are
meaningful.
Mr. Gallegly. Do you find that courts are usually going the
maximum, or are they a little more lenient with--whether it is
a, let's say, a $500 fine per head or maybe even a $100 fine?
Mr. Kibble. Sir, in the context of civil fines, we are
generally setting those based on the violations that we
identify during our audits. In the context of judicial fines
and forfeitures, there, again, we are breaking records--$36.6
million in judicial fines and forfeitures.
Mr. Gallegly. Has it been effective?
Mr. Kibble. Sir, I believe the strategy is working. There
is always room to continue to mature it. But, to the extent
that we can touch more businesses with both criminal and civil
sanctions and also outreach and training for the employers that
want to be on the right side of the law, we will establish that
culture of compliance that we are looking for.
If I could just address one other point you mentioned, sir,
having to do with the recidivism. Because, again, worksite has
to be looked at in the context of the broader immigration
enforcement strategy. We have unprecedented numbers of
prosecutions for illegal re-entry. In fact, we are using our
own attorneys, almost 55 of them, to help the U.S. Attorney's
Office in prosecuting these violations of re-entry.
Mr. Gallegly. Thank you very much.
You know, I am going to try to lead by example around here,
and I overstayed my red mark, and I apologize for that.
The gentlelady from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman. I just have a few
questions of my own.
First, Mr. Krikorian, just briefly, you, in your testimony
today, discussed a recent study by the Center for Labor Market
Studies at Northeastern University that purported to
demonstrate that recent immigrants were gaining employment
while Americans were losing their jobs. And then you cited a
story by Reuters in your written testimony, not the report
itself.
Have you seen the report itself and analyzed it?
Mr. Krikorian. No. I have looked for it. No, I am not sure
it is--I think they did it for Reuters, so I am not----
Ms. Lofgren. Well, I asked my staff to call the Center and
ask for the report, and they refused to give it to us. And they
said it isn't being made public. I just wondered if you had a
copy----
Mr. Krikorian. No, I do not.
Ms. Lofgren [continuing]. If we could get it from you.
Mr. Krikorian. It looked like--it said ``exclusive for
Reuters,'' so I assume they paid for it or something like that.
Ms. Lofgren. Yeah. I will just advance my view that if
something can't ever be examined by people, I am not going to
rely on it.
Mr. Griswold, we appreciate your testimony. And I am
wondering, the Center for American Progress reported that, in
their analysis, the direct cost on government to deport all
undocumented workers would be $285 billion in 5 years. Now,
that, as I understand it, considered apprehension, detention,
processing, transportation, enforcement costs, but it didn't
take a look at the broader impact, what would the impact be on
the economy, of pulling out 11 million people.
Have you looked at it? Do you have insights that you could
share on what those costs would be to the American public?
Mr. Griswold. Yeah. In a word, the costs would be huge.
It is interesting: The Cato study that I mentioned found a
significant benefit for American households if we had increased
legal immigration. It found a cost of $64 billion a year, just
from reducing low-skilled immigration by 30 percent. Those
costs would increase significantly if we were able to reduce it
even more.
An interesting thing, Ms. Lofgren, is that, 6 months after
the Cato study came out, the Center for American Progress came
out with another study that showed very similar economic gains
from a legalization program. And so, here you have the Cato
Institute--libertarian, free market--and the Center for
American Progress--center-left--coming to the same conclusion,
that low-skilled immigration is good for the U.S. economy. And
suppressing it through, I think, futile efforts, but even if
they could work and remove millions of low-skilled workers, we
would pay a very high price as an economy. And, as you have
pointed out and others have pointed out, it would cost jobs in
upstream and downstream industries, as well.
Ms. Lofgren. Let me ask you this, if I can. You know, I am
of the opinion--and I am glad that Mr. Kibble is here.
I am sorry I missed your testimony. I was detained coming
back from the floor, but I did have a chance to read it and
review it. And I appreciate that you have been given a job to
do, you know, which is to enforce the laws we have. You have
not been asked or tasked to reform the laws that we have. That
is our job. And so, I am not going to criticize you for doing
your job as outlined. But it just seems to me that it is a
losing effort.
I remember the first hearing that we had when I assumed the
Chair of the Immigration Subcommittee and we had the career
head of the border patrol as a witness, who was a very crusty,
interesting guy. And it was his testimony to us that, if we
could get the busboys and nannies out of the line, crossing
illegally in the desert, he would appreciate it, so he could
focus in on the drug dealers and the traffickers and the like.
But he also suggested that we can't repeal the law of
supply and demand. You know, we have failed to reform our laws
so that this immigration system meets our needs, that it serves
America's needs. And, consequently, we have a situation that is
chaotic when we should instead have order.
So I guess this isn't a question, more a statement of
appreciation for you, Mr. Kibble. All of the stats--the number
of people incarcerated--it is unprecedented numbers of people
who have been deported. We are spending more money on the
border today than in the history of the United States. We have
more Border Patrol agents on the border than in the history of
the United States. And yet we have this problem because we have
failed--we, the Congress, have failed--to come to grips with
our need to reform the system so it actually works for
Americans.
And, with that, the light is on. I would yield back, with
thanks for Mr. Kibble and all the other witnesses. We don't see
everything eye to eye, but we do appreciate your volunteering
to testify here before us today.
Mr. Gowdy. [Presiding.] Thank you.
At this point, I will recognize myself.
Special Agent Kibble, help me understand the dichotomy
between misdemeanors and felonies, if they exist, with respect
to immigration violations. Are there felonies and misdemeanors
that employers could be charged with?
Mr. Kibble. Yes, sir. In fact, the strategy factors in--one
of the challenges in terms of criminal investigations of
employer is that, in and of itself, knowingly hiring can be a
misdemeanor offense. When we consider other aggravating
factors, such as other egregious employment schemes that
include harboring, smuggling, trafficking, then it rises to a
felony violation. And, quite frequently, I mean, with limited
resources, working with the U.S. Attorney's offices----
Mr. Gowdy. Well, that is what I want to go to right now.
How many felony criminal matters were opened in 2010 with
respect to employers?
Mr. Kibble. Well, we charged 196.
Mr. Gowdy. A hundred and ninety-six.
Mr. Kibble. I am sorry. What year did you ask, sir?
Mr. Gowdy. Employers.
Mr. Kibble. Last fiscal year, though?
Mr. Gowdy. Yes, sir, 2010. And those were criminal matters
that were opened or those were indictments?
Mr. Kibble. Those were criminal arrests and indictments. If
criminally charged----
Mr. Gowdy. How many matters were opened and declined by the
United States Attorney's Office?
Mr. Kibble. I don't have those numbers, sir, but I can go
back and look into it.
Mr. Gowdy. Well, I guess what I am getting at is I am
trying to understand whether this is a DOJ, a prosecutorial
issue, where they are declining matters that you have
investigated and put time and effort into, or if this is an
administrative decision that has been made, not to go after
employers?
Mr. Kibble. Oh, no, sir. We are pursuing--I have been doing
this for a little while now. As far as criminal charges against
employers, we are pursuing them as aggressively as I have seen
it in my personal experience. And, again, we have record-
breaking numbers to show for that.
Mr. Gowdy. More criminal or civil pursuits?
Mr. Kibble. Well, criminal charges against the employer,
but then also record-breaking achievements in terms of our
civil efforts to removal people from the country.
Mr. Gowdy. Correct me if I am wrong. Employers sometimes
have the option of paying a civil fine and avoiding criminal
responsibility?
Mr. Kibble. Well, sir, it is a multipronged strategy. And,
oftentimes, the employers are in a tough spot in terms of
having to triage and figure out whether documents that have
been provided by the employee--by the illegal worker are, in
fact, correct. So, as in any other white-collar crime
investigation, it takes time to sort through that. And, in many
instances, we may not be able to establish to meet that burden,
in terms of knowledge on the part of the employer.
Mr. Gowdy. Is there a different standard of proof required
for the Administration of a civil fine than a criminal
conviction?
Mr. Kibble. Well, the civil fine, sir, is tied to the
inspection of the Form I-9's. And there are technical and
substantive violations. And after we do an audit, we will work
with the businesses for a period of 10 days to resolve any
technical violations.
But then, if we have substantive violations that relate
to--that make it difficult for us to verify a workforce, then
we can fine for that violation, up to $1,100 a violation.
Mr. Gowdy. How many employers went to the Bureau of Prisons
last year for hiring illegal immigrants?
Mr. Kibble. I don't know--I don't have the conviction of
sentencing stats readily available, sir.
Mr. Gowdy. Guess. Twenty? Ten? Five?
Mr. Kibble. Sir, I mean, we criminally charged 196, but
they are working their way through the process.
Mr. Gowdy. Actual employers, people, not corporations,
people.
Mr. Kibble. No, people. Employers, human resource managers.
Mr. Gowdy. A hundred and ninety-six?
Mr. Kibble. I beg your pardon?
Mr. Gowdy. A hundred and ninety-six in 2010?
Mr. Kibble. A hundred and ninety-six, sir, we criminally
charged.
Mr. Gowdy. You will agree, I hope, that criminal
consequences get people's attention more so than civil
consequences?
Mr. Kibble. Yes, sir, they do.
Mr. Gowdy. There is a full range, a panoply of negative
consequences that go along with a criminal convention that
don't exist with a civil one.
Mr. Kibble. That is correct, sir.
Mr. Gowdy. Are you convinced that your department and the
United States Attorney's Office are as aggressively pursuing
the employers themselves as can be done?
Mr. Kibble. Sir, with the tools that are available,
absolutely.
However, I would add that part of getting to that
deterrence that we were looking for, to the point you are
alluding in terms of the importance of a criminal charge, it is
also important that we touch as many businesses as we can so
that they all feel that, at one point or another, they could be
engaged by ICE. And that is going to get us to a culture of
compliance----
Mr. Gowdy. But you concede with me, as a wonderful law
enforcement officer, which I am sure you are, that nothing gets
people's attention quite like seeing a colleague go to prison,
agreed?
Mr. Kibble. Absolutely. But this is an issue, though, that
spans--that is more complex than that. I mean, we are----
Mr. Gowdy. Tell me how it is more complex. We do it in
every other category of crime. We send people to the Bureau of
Prisons, whether it be for 6 months or 6 years or life. And
that is how we deter criminal conduct.
Mr. Kibble. That is absolutely correct, sir. And that is
why we have record-breaking achievements in terms of our
criminal prosecutions of employers.
My point is, if we really want to deter and create a
culture of compliance much more broadly--that is why the
aggressive use of I-9's are so effective in terms of ultimately
getting these employers, holding them accountable and getting
them on the right side of the law.
Mr. Gowdy. My time is up.
I will recognize the gentleman from Puerto Rico, Mr.
Pierluisi.
Mr. Pierluisi. Thank you, Mr. Chairman.
As my colleagues and I travel around our Nation, we hear a
consistent message from the American people: Fix our broken
immigration system by enacting comprehensive reform.
Sensible worksite enforcement designed to identify and
penalize those employers who violate Federal law is one
important aspect of our Nation's approach to immigration
policy. However, unless we do more, an enforcement-only
approach will hurt the economy and cost American jobs over the
long term.
Although many people would rather not acknowledge it,
undocumented workers play an important role in our economy by
performing jobs that would otherwise largely go unfilled.
Without their labor, for example, a large percentage of
America's farms would close, leading to the loss of millions of
upstream and downstream jobs held by U.S. workers.
The undocumented workers who fill agricultural jobs sweat
and toil for low wages and often work far away from their
families. Because they have no legal status, often they and
their employers do not pay taxes. These workers also have no
rights that they can feasibly exercise, which results in a
lowering of labor standards for all workers, including native-
born American workers.
If we truly want to help law-abiding businesses and protect
the rights of all American workers, we will find a way to bring
undocumented workers out of the shadows and on to the tax
rolls.
The Obama administration should continue to focus its
worksite enforcement on bad-actor employers who exploit the
broken immigration system to undermine their competitors. By
stopping employers who violate immigration and labor laws, our
government would protect all workers, including native-born
American workers, and help level the playing field for honest
businesses.
Illegal immigration is not a problem that happened
overnight, by the way, and we cannot expect the Obama
administration to solve it overnight, especially without reform
of our Nation's immigration laws.
Let me address my first question--and I know time will
probably permit just one for now--to Mr. Kibble.
I know that, in April of 2009, Secretary Janet Napolitano
announced the shift in worksite enforcement strategy. As you
have testified, this strategy included a commitment to
emphasize enforcement against employers who exploit workers.
This makes sense because employers who exploit workers are
trying to game the system. Such employers undercut those who
are trying to play by the rules. This not only harms good
employers, but it drives down the wages and working conditions
for all workers, including immigrants and U.S. citizens alike.
Now, I have a statistic that troubles me. Worksite arrests
have increased from 510 to 4,940 since 2002. That sounds good.
In this same period of time, there have only been 90 arrests of
company representatives.
If we do not hold employers accountable, how can we expect
to end this jobs magnet? So that is one question I raise to
you. I mean, are we really addressing those employers?
And, also, if you can expand on the way that ICE identifies
and targets employers who abuse workers, I will really
appreciate it.
Mr. Kibble. Thank you for the questions, sir.
We are aggressively pursuing criminal sanctions against
employers, particularly with these aggravating factors of
abusing and exploiting the workforce, harboring, smuggling,
trafficking. We are going after them very aggressively. And we
have a number of successes in terms of forced labor and other
schemes that we have broken up.
And, again, I get back to record-breaking results in terms
of our criminal charges against employers--196. It has never
been as high as that.
To your other point, in terms of the human trafficking, DHS
has the Blue Campaign. We have quite a focus on dealing with
human trafficking. And it is important to make the distinction
between trafficking and smuggling. Smuggling is transportation-
based. Trafficking is exploitation-based. So where we find
elements of force, fraud, and coercion, we aggressively pursue
these trafficking investigations.
Now, our investigations start from leads, they start from
tips, particularly with respect to human trafficking. We have
18 full-time victim witness coordinators and 350 collateral
victim witness coordinators. And the point of that is that, to
successfully prosecute a trafficking scheme, it is important to
have a victim-centered approach. Because to the extent we can
enlist the aid of that victim as a witness, we will be able to
more successfully prosecute the trafficker and, therefore,
prevent that from occurring again and again.
Mr. Pierluisi. Thank you.
Mr. Smith. I thank the gentleman from Puerto Rico.
And I would recognize the gentleman from Florida, Mr. Ross.
Mr. Ross. Thank you, Mr. Chairman.
Mr. Kibble, is there any role for State and local law
enforcement, in terms of worksite enforcement?
Mr. Kibble. I mean, to the extent, sir, that, in some
instances--I just came--I was the special agent in charge in
Denver. And we have had instances where State and local
officers, as the front line, may identify schemes or even, in
fact, egregious employment patterns that are referenced, that
are referred to us for further investigation.
Mr. Ross. Is that more the exception than the rule, would
you say, that you would have State and local law enforcement in
that particular capacity?
Mr. Kibble. Well, in terms of classical police, yes. But we
work very closely with a lot of State and local agencies that
can assist us in terms of validating whether a workforce is
authorized or not.
Mr. Ross. The IMAGE program that has been created that
allows for employers to voluntarily participate, how has that
been? Has that been successful, in your experience?
Mr. Kibble. I think it has been very successful. There are
12 best practices that we promote through the IMAGE program.
And the key here is that there are employers that we are trying
to penalize, that we are trying to deter, but there are also
employers that want to do the right thing but they need
assistance in terms of scrubbing the workforce.
So one of the key practices in IMAGE is to promote and
encourage the use of E-Verify, in terms of validating----
Mr. Ross. Right.
Mr. Kibble. That is the best tool available for an employer
to validate whether they have an authorized worker on their
hands or not.
Mr. Ross. Is there anything you would recommend in terms of
incentivizing or, you know, expanding the opportunities for
employers to want to participate in IMAGE?
Mr. Kibble. In IMAGE?
Mr. Ross. Yeah.
Mr. Kibble. Well, the training that we offer, I will tell
you, we have a fairly comprehensive program. Recommending and
encouraging the use of E-Verify is one of them, but we also
offer training in detection of fraudulent documents. And this
is free. We offer training and outreach in sound hiring
practices. We recommend other practices that help to maintain
an authorized workforce. We also provide training in anti-
discrimination to aid the employer, as far as that concern.
And we have offered training to roughly 14,000 employers
through the IMAGE program.
Mr. Ross. And it has been successful?
Mr. Kibble. Yes, we have been pleased with the results.
Mr. Ross. Good.
Mr. Krikorian, how would you respond to Mr. Kibble's
assertion in his preliminary report that, quote, ``Just
targeting the employers who knowingly break the law is a
successful strategy to deter unlawful employment when workers
themselves are not prosecuted and free simply to find new
jobs''?
Mr. Krikorian. Well, I mean, there are two problems with
that.
The first is, unless you are actually arresting the illegal
immigrant workers, you are not creating the environment within
which you can see an attrition of the illegal population. In
other words, they will just walk down the street----
Mr. Ross. And take one job after the next one.
Mr. Krikorian. But the other side of it is that one of the
best ways of getting leads and evidence about crooked employers
is actually to do the raids. In other words, this is why I
referred to that meatpacking plant in Iowa, that the State
authorities had just not been able to, sort of, pierce the veil
and really get effective information on what was going on. It
was only after the arrests.
And they arrested 400 illegal immigrants on a variety of
genuine criminal charges. These were people stealing American
children's identities, ruining their credit histories or, if
they didn't even have credit histories yet, ruining their
futures. Their ability to get student loans in the future would
have been compromised. So these were people engaged in serious
criminal activity.
But then they were able to find out much better what was
going on inside the firm in a way that they just would not have
been able to had they not conducted that raid.
Mr. Ross. You also wrote extensively, I think, about
modifying driver's licenses to get a better and more secure
form of ID. Is that something you can expound on, in terms of
how you think it might be beneficial in worksite enforcement?
Mr. Krikorian. Well, obviously, the key to the I-9 process,
even when it has E-Verify to back it up, is the ID that people
are showing.
Mr. Ross. Right.
Mr. Krikorian. And Congress passed the Real ID Act, and
States have been making real progress in bringing their
licenses up to Federal standards. And the point there is to
make sure that, when you present a document to an employer, you
actually are who you say you are.
And because, frankly, most employers who are employing
illegal immigrants aren't crooks, they don't really know what
they are doing. They may suspect somebody is an illegal
immigrant, but there is a limit to what they can do about it.
That is why we need, sort of across the board, both better
standards for driver's licenses, as well as E-Verify and a
variety of other methods, so that employers will know when a
job seeker is lying to them and when he is telling the truth.
Mr. Ross. Thank you.
I see my time is up.
Mr. Gowdy. [Presiding.] Thank you, Mr. Ross.
The Chair would recognize the gentlelady from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, thank you.
Let me thank the Chairman for holding this hearing, along
with the Ranking Member, and express my apologizes. This is
organizational week, and, as the Ranking Member on
Transportation Security, we were organizing our Subcommittee
agenda for the 112th Congress.
But I do want to thank the panelists for being here and
indicate to some of the Members who are on this Committee that
two of these panelists are old friends. This is dj vu. This is
same story, same place, and same results.
So I really would hope that this Committee would have the
courage of convictions to really do something about immigration
reform. Because, otherwise, Mr. Griswold, we could be here in
2025, speaking the same song--singing the same song, and
speaking it for those of us who can't sing.
So let me start with Mr. Kibble, to ask him--and I am
sorry, Mr. Kibble. How long have you been in your position?
Mr. Kibble. In the position of deputy director?
Ms. Jackson Lee. Yes, sir.
Mr. Kibble. For about 2 months.
Ms. Jackson Lee. Two months, sir. That is okay. You know,
this is a new Administration. And were you associated with ICE
previously?
Mr. Kibble. Yes, I have been in ICE and the legacy Customs
Service before that since 1994.
Ms. Jackson Lee. All right, sir. Would you consider your
work a failure?
Mr. Kibble. No, not at all.
Ms. Jackson Lee. Well, why don't you explain that to me?
Because it hasn't been personalized, but we have characterized
ICE work as a failure. Do you consider that you have not been
steadfastly conforming to the laws of which govern ICE
enforcement, your internal enforcement work?
Mr. Kibble. I would just say, ma'am, that we--you know, in
law enforcement in general, you deal with a world of finite
resources. And, particularly in Federal law enforcement, we
look to target the most effective piece or part of the
enterprise. As we do in drug trafficking, we focus on the
supplier.
Ms. Jackson Lee. To grab you the biggest pull, the biggest
return.
Mr. Kibble. So, in this case, you know, in worksite
enforcement, there is a relentless, a surgical, a laser-like
focus on holding employers accountability and making sure they
are on the right side of the law. Because, in the final
analysis, they are the ones that are supplying the jobs.
So it is just--it is balancing--it is making the most
impact, achieving the greatest good with the resources that are
available.
Ms. Jackson Lee. I compliment you on that, because I will
be the first to raise my hand and say that I was appalled at
the raids. You did that a couple years ago. And there may be
some more discreet ones. And some would argue that that was a
big celebration. In my district, people were falling off
ladders and pregnant women were being trampled. It was not
effective.
What I understand you to say now is that you are
meticulously going to the employer, holding their feet to the
fire, and ensuring that they are complying. Is that my
understanding?
Mr. Kibble. That is correct, ma'am. But an important
component of that strategy, for that to work, to have that
culture of compliance, we have to touch as many businesses as
possible, large and small----
Ms. Jackson Lee. So you need more resources to answer the
call of those who say the employer enforcement is a good thing.
Is that what I hear you saying? Or you have already touched all
the businesses you think you need to touch?
Mr. Kibble. No. No, no, no. We are constantly looking at
ways, and particularly with aggressive I-9 audits, to get to
that culture of compliance, to address as many of those
businesses, so that we can get to that deterrence, that climate
of accountability.
Ms. Jackson Lee. And do you see anything in the Obama
administration, President Obama administration, that
wouldcounter you enforcing the law and being effective in
touching employers and letting them know how serious we are
about focusing on the hiring of documented individuals? Do you
see anything to the contrary?
Mr. Kibble. Ma'am, the key thing for us to do is to just
take the resources that we have, and particularly as a career
officer, to take the resources that are available, the policies
and the laws as we find them, and make aggressive use of them.
Ms. Jackson Lee. But nobody has called you from the White
House or from General Holder's office and said, ``Stop doing
what you are doing''?
Mr. Kibble. No.
Ms. Jackson Lee. All right.
Mr. Griswold, where can we go, seriously, on this issue of
immigration reform? Enforcement is good. I can't imagine that
this Administration is--the Administration has the greatest
number of undocumented coming through and it is an open door.
It is not. But if we don't fix the comprehensive aspect of it,
if we don't regularize individuals, are we going to be here in
2025 like I said?
Mr. Griswold. I think we can make an appointment. If we
just continue with enforcement only, I think we are going to be
here for years and years, wrestling with the same problem.
I think Homeland Security Secretary Napolitano said it
well; it needs to be a three-legged stool. You need to have
smart enforcement. You need to have some way of legalizing
those who are here. And you have to have a robust worker
program so we can accommodate the future labor needs of our
economy.
It is simple supply and demand. We have demand for these
workers. The supply of Americans who have traditionally filled
these jobs is shrinking. Immigrant workers have filled the gap.
We don't allow them to come in legally in sufficient numbers.
It is not that there are no Americans who will do these jobs;
there is just not sufficient number in these industries.
So we need to change our law. Otherwise, we are going to be
wasting billions of dollars, hundreds of people are going to be
dying at the border each year. We need to change our law. And
only Members of Congress can do that.
Ms. Jackson Lee. And I don't want the bad guys to rule.
This kind of process allows bad guys to take over the borders
of Texas, California, Arizona, because they are in charge. The
human smugglers--they are all in charge.
This last point--and I thank the Chairman for his
indulgence--this very last point. Did you propose--and I am
sorry; as I said, I was in an earlier meeting--did you propose
to take away American jobs? Are you intending to take away
American jobs with how you are configuring, reforming the
immigration system? You have to get on the record to say what
you mean as it relates to American jobs and Americans not being
able to have work.
Mr. Griswold. Yeah, quite the opposite. These low-skilled
immigrants complement American workers. They allow middle-
income Americans to work in these important industries. These
low-skilled immigrants actually attract investment. They create
job opportunities in upstream and downstream industries for
middle-class Americans, it has been shown. If we were able to
deport those 7 million or 8 million low-skilled workers in the
workforce, it would be a disaster for the U.S. economy.
Ms. Jackson Lee. I thank the Chairman for his indulgence.
And, Mr. Griswold, I look forward to engaging you.
Mr. Cutler, thank you so very much. You are a longtime
colleague.
And, Mr. Krikorian, we have been together before. We thank
you.
And, Mr. Kibble, thank you so very much.
I yield back.
Mr. Gowdy. Yes, ma'am. I thank the gentlelady from Texas.
And I would like to thank all of the witnesses. The weather
is inclement, the voting schedule is unpredictable, to say the
least. And you have been very patient. And we have all
benefitted from your expertise and your patience and
collegiality with us.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as they can so their answers may be made
part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion into the
record.
With that, again, I would like to thank all the witnesses.
This hearing is adjourned.
[Whereupon, at 3:15 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Letter from Lynn Shotwell, Executive Director,
American Council on International Personnel (ACIP)