Proskauer is pleased to launch a new blog series seeking to separate fact from fiction as the public discourse on immigration issues continues. We will address, among other topics, the actual real world impact of the President’s executive orders; how inspections at ports of entry have changed, and new developments in the trusted traveler programs such as Global Entry.

In this first post, we will address the numerous reports of immigration raids that have appeared in the press and on social media on an almost daily basis since mid-January.  In the past, a raid was understood to be a concerted show of force targeted at a particular location, based upon extensive intelligence gathering over a period of time, leading to the conclusion that there might be a high concentration of undocumented individuals at this particular location.  Many years ago, this could and often would be a public site such as a bus station, an industrial park or any location where undocumented workers were picked up for day jobs.

In the decade prior to the Obama Administration, worksite raids became a popular tool for enforcement for U.S. Immigration and Customs Enforcement (ICE) with perhaps the most notorious such raid taking place at the Agriprocessors Slaughterhouse in Pottsville, Iowa on May 12, 2008.  Some 400 were arrested, and of those, 300 convicted on document fraud charges in “fast-track” removal proceedings completed within a matter of days.  Hundreds of agents supported by helicopters, buses, and vans swooped in on the Pottsville plant that day.

This type of massive high profile event, which probably trampled upon the rights of the undocumented workers, separated many parents from children, creating chaos and disruption to the workers and the employer, was months in the planning.

The Obama Administration turned away from such worksite raids, and focused its enforcement efforts on paper audits of the I-9 forms that all employers must maintain to document that their hires are legally allowed to work and audits of Public Access Files for H-1B visa holders.

The raids of the last several weeks are an altogether different creature.  ICE describes these “raids” as “targeted enforcement operations” that are specifically targeting an individual.

Under the Obama Administration, routine enforcement of the removal provisions of the Immigration and Nationality Act were focused upon criminals and serious immigration offenders with outstanding Orders of Removal, particularly those who had recently arrived in the United States.

Under President Trump’s Executive Order of January 25,2017, “Enhancing Public Safety in the Interior of the United States,” the scope of enforcement has been greatly expanded to include virtually all violators allowing ICE agents to go after the so-called “low hanging fruit” individuals in their databases with minor violations or outstanding orders reporting regularly to ICE or even individuals with employment authorization under DACA, the “Deferred Action for Childhood Arrivals” program instituted by President Obama in 2012, if they have minor criminal violations.

Public awareness of these apprehensions and their high profile has created the impression that a mass series of raids are taking place and that a tsunami of enforcement is swooping down upon the undocumented population.

In actuality, only several hundred individuals have been apprehended and, if we take at face value that more than 600 have been arrested over the last week, and we assume the pace will continue, that would total a little more than 30,000 removals during the course of the year.  Hardly, a dent in the undocumented population, considering that going back to the first days of the Obama Administration, well over 200,000 per year have been removed, peaking in one year to over 400,000.

Of course if the latest rumor vehemently denied by the White House were true, that 100,000 National Guardsmen would be joined to the enforcement effort, the numbers might increase. However, the targeted enforcement being implemented under Trump, according to ICE’s own statements, include those who are bystanders even when they have no criminal convictions.  Specifically, ICE stated, “(t)his week’s enforcement operations were conducted in accordance with routine, daily targeted operations conducted by U.S. Immigration and Customs Enforcement (ICE) fugitive operations teams every day to arrest criminal aliens and other individuals who are in violation of our nation’s immigration laws.”  “Other individuals” is an expansion in enforcement. ICE has explained that during a targeted enforcement operation, they will evaluate “additional suspects” on a case by case basis.  So, although the reports of raids may be technically false – enforcement of the U.S. Immigration Laws has expanded to include a population of undocumented “bystanders” who may be found in the “wrong place at the wrong time.”

What Does this Mean to the Employer

Given that even individuals who have employment authorization may be subject to removal if they have even minor violations, employers can expect that on occasion, a worker properly processed for hire will suddenly become entangled in a removal proceeding and become unavailable for work.

In addition, all the press as to “raids” and the many false rumors of ICE agents lurking in the hallways of hospitals and train stations and malls, continue to contribute to the atmosphere and anxiety amongst the foreign born population, whether or not there is a rational basis to be concerned as to status.  Your foreign born employee population will need to know that you are there to support them.  Even foreign workers who are in valid status and in full compliance will need your reassurance.  And yes, there is a real possibility that over time, ‘the bad old days’ of worksite raids will become a reality once again. We will talk about preparing for worksite raids in a blog to come.