Posted on November 10, 2004

On The Payroll: Illegal Immigrants

Leslie Berestein, San Diego Union-Tribune, Nov. 7

Long before he left his native Guadalajara, Mexico, Ricardo Robles heard he could easily find a good-paying job in the United States.

So it came as little surprise to him that almost as soon as he arrived in San Francisco two years ago, undocumented and penniless, he was earning $10 an hour pouring concrete for a building contractor, helping construct an apartment complex.

He earned more money in a day than he could in a week doing construction work in Mexico. All he had to do was stand on a street corner with other day laborers, and employers came to him. Best of all, he said, they didn’t seem to care about his immigration status.

“They never asked me for my papers,” said Robles, 36, who after a brief visit home was recently in Tijuana, waiting to cross the border again. “It was easy to get work.”

The U.S. government has spent billions of dollars during the past decade trying to deter illegal immigration along the Southwestern border, installing fencing, setting up sophisticated surveillance equipment and hiring thousands of Border Patrol agents.

The centerpiece of this border strategy has been Operation Gatekeeper. After its implementation in October 1994, Gatekeeper largely sealed off the once-busy crossing zones that led into urban San Diego County, pushing immigrant traffic into the desert and mountains. Nearly 3,000 people have died attempting to cross the border illegally since January 1995, many of dehydration and exhaustion along the remote trails now favored by smugglers.

Yet U.S. employers across the country continue to hire undocumented immigrants in violation of federal law, providing an economic incentive that undermines efforts to curb illegal immigration through border enforcement.

Some employers do so knowingly, taking advantage of workers’ illegal status to keep wages low and costs down. Others are duped by job applicants with fraudulent documents or turn a blind eye when presented with them.

Legal loopholes place the burden on immigration authorities to prove wrongdoing on the employer’s part, so relatively few who get caught are penalized. Sanctions against employers who break the law have declined sharply in the past decade, with the number of fines imposed on employers falling nearly 99 percent from 1992 to 2002.

Politically, enforcement is skewed heavily toward the border, not business. Although talk of national security dominated the presidential campaign this year, there was scant mention of enforcing immigration laws in the workplace.

Meanwhile, as the Border Patrol has roughly tripled in budget and size since the early 1990s, so has the undocumented population in the United States. According to the Urban Institute, a Washington, D.C.-based nonpartisan economic and social policy research group, there were about 9.8 million undocumented immigrants living in the country as of last year, up from 3.5 million in 1990.

At least 800,000 people are estimated to enter the country illegally each year. They readily find work in labor-intensive industries such as agriculture, where, according to a federal Department of Labor survey, at least half the work force in the late 1990s was unauthorized to work. They also flock to jobs in construction, manufacturing, meat packing, cleaning, hotels and restaurants, all industries that depend on low-wage help.

“If the federal government really wanted to stop illegal immigration, then they know how to seal a border,” said Lilia Garcia, director of the Los Angeles-based Maintenance Cooperation Trust Fund, a union-funded watchdog group that investigates illegal practices in the cleaning industry. “The hypocrisy is that they allow for a steady stream of migration to maintain these service industries running because these workers are the engines of these industries.”

Finding a way to work

The Immigration Reform and Control Act of 1986 granted amnesty to more than 3 million undocumented immigrants already in the country. It also made it illegal to knowingly hire undocumented workers, establishing penalties that include fines of as much as $10,000 per worker and six months in prison for violators.

But the operative word is knowingly. While job applicants must present identification proving their eligibility to work in the United States, employers are not required to verify its authenticity.

“In 1986, we basically said that you are off the hook if you get documents, which can easily be forged,” said Philip Martin, a University of California Davis expert on immigration and labor issues. “We didn’t quite say that, but it came close.”

Many undocumented workers earn a living in the underground economy, although at least half are thought to be on employer payrolls, having presented phony or stolen Social Security numbers, alien identification cards or driver licenses purchased on the black market.

Some employers are fooled by high-quality fakes, according to immigration officials. Others aren’t but pretend to be.

Those who know their workers are undocumented sometimes take advantage of the situation, knowing the employees aren’t in a position to complain about skimpy wages or unpaid overtime.

In August, a contractor who provided janitors to Target stores agreed in a settlement with the Department of Labor to pay workers $1.9 million in back overtime. In late 2000, janitors working for a contractor who provided employees for more than 600 Albertsons, Vons, Safeway and Ralphs stores in California sued the stores, along with their employer, on similar grounds; a tentative settlement has been reached.

Although the workers’ immigration status was not an issue in either case, there were janitors involved who did not have authorization to work.

One 34-year-old San Diego janitor, who identified himself only as Roberto because of his illegal status, recalls working seven days a week for a year with no overtime, sweeping and mopping grocery store floors. He was eventually given one day off every two weeks.

“You need to work, so you have to take it,” he said.

The cleaning industry is rife with subcontractors who provide a layer of immunity for their clients. After immigration authorities found more than 250 contracted janitors working illegally in Wal-Mart stores last year, Wal-Mart officials denied knowledge of any wrongdoing, even though several of the company’s cleaning contractors had admitted to hiring undocumented workers in the past.

Employers in industries that attract undocumented workers say they do what is required to comply with the law.

“The employers themselves are not standing at the border to decide who should come across and who shouldn’t,” said Eric Larson, executive director of the San Diego County Farm Bureau. “The employers do everything they possibly can.”

But some are all too aware of how their workers entered the Unites States.

While investigating the grocery store contractor last year, Garcia, of the Maintenance Cooperation Trust Fund, came across a suspicious payroll document. Next to a deduction of $200 taken from a janitor’s pay was written “prestamo coyote,” Spanish for “smuggler loan.”

A small employer could easily be bankrupted by fines, so Garcia sees only one explanation for such boldness.

“I think it’s because enforcement is weak,” she said. “There is no fear of government.”

Work-site enforcement

If an employer gets caught, the worst punishment usually befalls the undocumented workers, who are deported. Federal audits of San Diego military contractors turned up nearly 160 undocumented workers during the past year, but none of the contractors was penalized.

Nationwide, work-site enforcement has declined significantly since the early 1990s, according to Department of Homeland Security statistics. Fines imposed on employers for breaking the law dwindled from 1,063 orders in 1992 to only 13 in 2002. Work-site arrests, warnings issued to employers and cases completed also dropped off sharply during this time.

More recently, from 1999 to 2003, criminal employer cases presented for prosecution decreased to 4 from 182. Only two employers in the city of San Diego have been referred to the U.S. Attorney for prosecution since 2000.

Immigration officials say some of the latest numbers don’t reflect investigations still in progress or the recent focus on counterterrorism.

Recent work-site investigations have targeted industries such as airports, power plants and military contractors, which, while they present security risks, do not typically attract undocumented workers. These efforts may not uncover as many violations as audits of “mom and pop” businesses in service industries, said Russ Knocke, a spokesman for U.S. Immigration and Customs Enforcement, which oversees work-site investigations.

Perhaps most tellingly, investigators are spending less time going after employers: Since 1999, investigative work hours dedicated to work-site enforcement have decreased by more than half. Immigration and Customs Enforcement agents spent a total of 471,210 work hours investigating employers in 1999. They spent only 177,975 work hours doing so last year.

Some immigration experts say enforcement is weak because lawmakers find it more politically acceptable to reinforce the border than to crack down on businesses.

“Congress was committed to passing a toothless employer sanctions law,” said Wayne Cornelius, director of the Center for Comparative Immigration Studies at the University of California San Diego. “It was the only way they could get it through. . . There was a lot of pressure from business lobbies, from agribusiness, restaurants, hotels.”

Over the years, politicians have intervened on behalf of a number of employers caught hiring undocumented immigrants. Some employers who have come under fire are generous political contributors, such as Wal-Mart, which has criminal and civil cases pending.

Last month, President Bush signed a Homeland Security budget for fiscal year 2005 that granted $74 million for additional Border Patrol technology, including $10 million for unmanned aerial drones. Only $5 million was granted to strengthen work-site enforcement, a fraction of the $23 million enhancement initially requested. The Border Patrol’s parent agency, Customs and Border Protection, was granted in full its overall budget request for fiscal year 2005. By contrast, Immigration and Customs Enforcement, which has faced spending constraints this year, requested a little over $4 billion but received $3.6 billion.

Priority is given to the border, but it’s not because politicians are soft on business, said Rep. Duncan Hunter, R-El Cajon, a proponent of Operation Gatekeeper.

“I agree that having major busts of employers who have hired illegal immigrants would help cut down the magnet,” said Hunter, who still supports border-enforcement initiatives. “You have to balance those two priorities, but the main priority has to be the border. . . Particularly in this time of terrorism, it is important to have barriers.”

Congress did vote last year to extend a pilot Homeland Security program that allows employers to verify workers’ documents on a federal database at no cost. The program, used in California and five other states, is expected to be available nationwide beginning Dec. 1.

But participation is strictly voluntary. This is perhaps why only 127 employers in San Diego County use it despite the fact that the program has existed in California since the late 1990s.

Some employers have complained of long waits for results, although the program is supposed to verify documents immediately. There also have been reports of inaccuracies.

“For the meantime, having it voluntary is still the preferred way to go,” said Rep. Susan Davis, D-San Diego.

Searching for answers

Numerous guest-worker proposals have been discussed this election year, ranging from a Bush administration idea that would grant foreign workers only temporary stays to Democratic proposals calling for “earned amnesty” for longtime undocumented workers who meet certain criteria.

But regulating the inbound flow of workers will still be difficult without finding a way to reduce the outbound flow from Mexico, where the majority of undocumented immigrants come from. Many are fleeing the effects of economic and trade policies that have failed to produce enough jobs to keep them home and in some cases have cost them their jobs.

“If Mexico were getting a lot richer and cooperated in stopping other people from coming through, that might do something,” said Martin of UC Davis. “But I have a feeling that until we come up with an effective internal strategy, you can’t put it all at the border.”

Until that happens, immigrants who have an economic incentive to cross the border illegally will continue to do so, finding ways around the barriers put up to keep them out.

“There, it’s easy to find work,” said Robles, the hopeful border crosser in Tijuana, pointing north across the fence. “In Guadalajara, there is no work.”