From raids to audits: new rule signifies shift in ICE strategy

By Alexa Mencia

On August 5, U.S. Immigration and Customs Enforcement (ICE) agents showed up on the corner of North Milwaukee Avenue and West Belmont Avenue on Chicago’s North Side, where many day laborers wait to be picked up for work.

ICE officials fingerprinted workers outside the Shell gas station, and three were sent to an immigration detention center. Latino and immigrants’ rights groups say this was racial profiling.

Such raids spark uproar from local communities, but aren’t reflective of a recent shift in ICE practices—from workplace raids to audits of employment documents. Immigrants rights advocates have mixed feelings about the change, and some are shifting their strategies accordingly.

Starting August 1, the Department of Justice increased penalties for immigration-related workplace violations, including the unlawful employment of undocumented workers. The Justice Department raised the minimum fine for unlawful employment from $375 to $539 per worker per day, and the maximum from $3,200 to $4,313.

ICE had actually been cutting back on workplace audits over the last few years. The federal agency conducted 3,127 workplace audits in 2013, and only 435 in 2015. But this hike in penalties means ICE has more incentive to conduct employer investigations, and employers are under pressure to avoid hiring undocumented workers.

Now termed “workplace audits,” ICE’s policy can be considered a more sophisticated approach than the often-criticized raids, according to Fred Tsao, senior policy counsel at the Illinois Coalition for Immigrant and Refugee Rights (ICIRR).

“Late in the Bush administration, we saw these huge worksite raids that were grabbing 3-, 4-, 5-, 600 people at a go. They were very high profile… and they got very bad publicity,” explained Tsao. “So, the Obama administration shifted from that to doing the audits, which are kind of a sneaky way to bust the companies without necessarily carrying on operations at the work site that would actually jail the workers.”

In a workplace audit, ICE officials inspect I-9 forms and will notify employers of suspicious documents, inconsistencies and technical or procedural concerns. In many cases, federal “Safe Harbor Regulations” protect employers by recognizing they may not have known of the undocumented status of their workers until notified by ICE. Once ICE warns an employer, they must decide whether to fire the undocumented employees or pay daily fines for each worker.

Jorge Mujíca, strategic campaigns organizer at ARISE Chicago, has seen these workplace audits increase in Chicago, usually in the manufacturing industry or launderers for hotels. Mujíca looks for loopholes to buy time for undocumented laborers facing a workplace audit.

Mujíca uses a memorandum of understanding from the U.S. Department of Labor designed to prevent immigration issues from interfering with labor union organizing over abusive employment practices. The memorandum says that if there is a labor dispute in a workplace that needs to be investigated, then ICE should not be present at that workplace until the investigation is settled.

When ICE issues a warning letter about an impending workplace audit to an employer, Mujíca says the “only solution” is for workers to organize and “create a conflict.”

Mujíca has helped workers file claims of stolen wages—even if there is no evidence, and none is legally needed—in order to stall ICE’s audit so undocumented laborers have more time to move on. “If we were attorneys, we would be disbarred in five seconds, but we are not so, who cares?” Mujíca said while laughing. “We only use a legal loophole.”

Many advocates and officials say that workplace audits are a better approach for removing undocumented workers because they are not sent to detention centers. But Tsao still has concerns that such a policy only increases workers’ vulnerability to abuse.

“They’re still losing jobs and so what’s happening is that a lot of these workers are being driven further underground to maybe even less scrupulous employers or day labor situations,” Tsao explained. “They’re being put into situations where they may have fewer rights.”


Alexa Mencia is a Medill graduate student with a specialization in Social Justice & Investigative Reporting. Follow Alexa Mencia on Twitter @asmencia.

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