Our immigration laws let employers feign innocence

Earlier this summer, President Trump’s secretary of Agriculture, Brooke Rollins, pledged a “100 percent American workforce.” The president really does intend to deport every single person here illegally, she claimed.  

In the meantime, however, if you want to hire someone without the Department of Homeland Security arresting you for it, it’s easy. Just attest, on its one page “Employment Eligibility Verification” form, that you have examined the worker’s documentation, that it looks to you genuine, and that, to the best of your knowledge, this person can legally work in the U.S. Sign that, put it in a drawer, and leave it there forever — or, if you’re unlucky, until U.S. Immigration and Customs Enforcement raids your workplace. If that happens, then after your employee has been whisked away by ICE, just hire someone new using the same form, and put it in the same drawer.

That’s a nice system — if you’re an employer.

OK, sometimes employers suffer consequences for such practices. It is rare, however. In fact, since 1986, Immigration and Customs Enforcement has never criminally prosecuted more than 25 employers in any given year. And of those, only a few have been convicted or served prison time. In fact, knowingly hiring ineligible workers is not even considered a crime until, as Homeland Security puts it in a handbook for employers, there’s “a pattern or practice” of it.

In 2008, ICE raided a meatpacking plant in Postville, Iowa that ended with nearly 400 workers being arrested. Its owner — charged with conspiracy to harbor the undocumented for profit, aiding and abetting document fraud and aiding and abetting aggravated identity theft — was released wearing a GPS ankle bracelet and told not to leave northern Iowa. The immigration charges against him were eventually dropped. 

That’s anecdotal, but indeed, that’s the pattern or practice of enforcement.

Which is not to say no wrists get slapped. When Immigration and Customs Enforcement raided another meatpacking plant in Bean Station, Tenn., in 2018 (97 workers detained, 54 held for immigration proceedings, 10 arrested on federal criminal charges), the company’s owner — charged with wire fraud, tax evasion, conspiracy to harbor illegal immigrants and violating labor and environmental laws — was sentenced to 18 months in the same minimum-security prison camp where Jared Kushner’s father and the former CEO of Enron whiled away their time. And bear in mind, his punishment is widely viewed as among the most severe ever for an employer after an ICE raid.

Under Trump, ICE still likes meatpacking plants. It raided one in Omaha earlier this year and detained 100 workers. “I don’t understand why in the hell they were using false ID when they can get a visa,” its owner claimed, referring to people he’d hired. “I was dumbfounded.”

He didn’t know they were using false ID? The phrase “knowingly hiring ineligible workers” means two things in the legal sense. While it obviously includes a direct awareness that a person isn’t eligible to work, it can also mean constructive knowledge of the same. 

Black’s Law Dictionary defines “constructive knowledge” as knowledge “that one using reasonable care or diligence should have,” while the U.S. Citizenship and Immigration Services defines it as “knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” Then there’s this federal court description of it: “a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment.”

According to the Pew Research Center, there are as many as 8.3 million undocumented people working in the U.S. This gives employers ample opportunity to consciously avoid enlightenment regarding their legal status. Such avoidance, in fact, is standard practice — aided and abetted by the Department of Homeland Security and its one-page form.

Who loses in this state of affairs? About 8.3 million people, who are compelled by it into fear and limbo — and, for some, arrest, prison sentences, upheaval and deportation — while their employers feign innocence.

Either employers and employees should both pay a price, or no one should. Any other practice is unjust.

David Guterson is the author of 14 books, including the novel “Snow Falling on Cedars.”