Over the next two days, Secretary Napolitano will testify before four different congressional committees to discuss the Department of Homeland Security’s proposed budget for 2010.  Given the budget implications on worksite enforcement and the Department’s issuance of new worksite guidelines, the appropriations and authorizing committees should have no shortage of questions.

However, if any member is looking for questions, here are just a few that I would propose:

1.    Given the FY 2010 Budget for Worksite Enforcement, How Does DHS Expect ICE to Increase Enforcement of Employers?

While the Secretary has indicated that worksite enforcement is a top priority for ICE, the proposed fiscal year 2010 budget does not appear to provide for an increase in the program.  Furthermore, when DHS was asked about worksite enforcement at the press budget briefing, the response was simply “can we get back to you on that?”  For this reason, it would be helpful to hear the Secretary explain what resources the Department will dedicate to the worksite program, and as a result, how she expects to have it perform.

2.    Did the Department of Justice (DOJ) Commit to Prosecution of Egregious Employers, and If Not, How Will DHS Get Those Commitments?

The recently released worksite enforcement guidelines indicate that ICE agents should not go forward in a worksite enforcement operation, “absent exigent circumstances,” unless DOJ or a U.S. Attorney’s Office has made a commitment or otherwise agreed to prosecute an employer.

This is great news if Secretary Napolitano has agreement from the Department of Justice that worksite enforcement is a priority, and DOJ is prepared to give those commitments at the outset of a worksite enforcement operation.  One of the biggest difficulties we had during the time I was at ICE was convincing prosecutors at DOJ to bring worksite cases against employers.  In some instances, DOJ attorneys required more proof for worksite cases than for other types of crimes, such as narcotics or traditional white collar crimes.  On other occasions, we were promised action by the U.S. Attorney’s Office that never came.   In most cases, we were continually advocating for criminal cases against employers – at individual U.S. Attorney’s Offices and Main Justice.  This was often an uphill battle, and rarely did ICE get a commitment up front to the prosecution of the employer.

Part of this reluctance is understandable – the INA does not make employment of illegal aliens a strict liability crime.  The government has to prove knowledge.  As such, it is often hard to know whether the government will be able to prove knowledge at the outset of the case, and before the government interviews the key witnesses (in many cases, the aliens) and reviews all the documents.  But, part of this reluctance regrettably stemmed from the failure of DOJ to make worksite enforcement a DOJ priority.  At ICE, we were at the mercy of individual U.S. Attorney’s Offices and their particular priorities.  More often than not, that complicated and lessened the likelihood of successful prosecutions in worksite enforcement cases.

Given the new significant role DOJ has in “green-lighting” particular cases, Congress should ask Secretary Napolitano about what commitments, if any, DOJ has made with respect to worksite enforcement cases.   If DOJ has not made any commitments, the committees should further inquire what steps DHS will take to secure these to ensure ICE’s success.

3.    Is DHS Using Metrics That Just Don’t Add Up?

The new leadership has repeatedly implied that their focus on employers will result in the arrest of more employers than employees.  This metric simply misses the mark.  Such an emphasis also ignores the numbers found in significant charges that have been brought against employers over the past several years.  Take the example of the federal prosecution of IFCO, a large pallet company, for instance.  In IFCO, ICE arrested 1187 workers and twelve managers, and pursued charges against one corporate entity. Some parts of the case are still pending, but nine of the managers have pleaded guilty and IFCO has already agreed to pay more than $20 million to resolve the matter.  That’s a significant case.  Yet, under the new analysis, the IFCO case would be deemed unsuccessful because the agency arrested more workers than managers.  Ridiculous.

There will always be more workers than managers in any company (at least, almost any viable company).  If the new guidelines seek to have ICE arrest more managers than workers, Congress should ask the question:  is Secretary Napolitano serious about this metric, and if so, how exactly does she intend for the agents to do this?  Is DHS shifting the emphasis to smaller businesses (with fewer workers compared to managers), hoping to ignore the workers altogether, or employing some other strategy to accomplish that goal?

4.    What does DHS Intend to Do With Two Proposed Compliance Tools: E-Verify Requirements For Federal Contractors and the No-Match Rule?

The new worksite enforcement guidelines imply that ICE agents should use all available tools to help prosecute egregious employers and create a culture of compliance.  For this reason, it is troubling that DHS has not announced what it will do with two tools that would greatly enhance enforcement and compliance:  the E-Verify Requirement for Federal Contractors and the No-Match Rule.  The committees should ask Secretary Napolitano whether these are tools she is preparing to utilize in her efforts to ensure more targeted enforcement efforts, and if not, why not.

Like the Bush Administration, the Obama Administration recognizes that worksite enforcement is key to stopping the magnet of illegal immigration.  Secretary Napolitano deserves credit for issuing new guidelines that encourage ICE agents to bring cases against egregious employers.  Yet, despite the new guidance, many questions remain unanswered about precisely how ICE’s new implementation of the worksite enforcement guidelines will meet the Department’s stated goals.  Over the next two days, Congressional leaders have a great opportunity – one that shouldn’t be squandered- to get clarity from Secretary Napolitano on this important issue.

Julie Myers Wood blogs about a variety of immigration, national security and transnational crime issues. Read More