Is the Obama Administration Stalling on 'White Collar' Immigration Crime?

By Marcelo Ballve, New America Media. Posted September 1, 2009.

NEW YORK-- The number of criminal prosecutions initiated by Immigration and Customs Enforcement rose during President Obama's first five months in office.

A majority of those cases were immigration offenses, while one-third of the cases were tied to drug charges, according to data obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

The data caused immigrant advocates to ask whether President Obama's Department of Homeland Security, which oversees the agency, has been slow to realign its immigration enforcement priorities. Many had expected less focus on volume of arrests, and more targeting of high-value cases such as exploitative or abusive employers who hire undocumented immigrants.

In fact, in April, Homeland Security Secretary Janet Napolitano issued new guidelines asking ICE field offices to prioritize criminal investigations of businesses profiting from unauthorized immigrant labor.

It's important to note that TRAC data for ICE-referred prosecutions only cover the first five months of Obama's presidency, January through May, which may not have been enough time for policy changes to take root, says Susan Long, co-director of TRAC and professor at Syracuse University's Martin J. Whitman School of Management.

"In fairness ... any change in policy might take a bit of time," says Long.

In May 2009, there were 2,147 new prosecutions referred by ICE to federal courts. The number represents a 19 percent increase over the previous month and a 30 percent jump over the same period a year before.

At that time, in May 2008, President Bush was being criticized for his hard-line immigration enforcement, including the use of stiff criminal charges against workers in high-profile mass raids like the May 12, 2008 sweep of a kosher meatpacking plant in Postville, Iowa.

Mass raids may have decreased under President Obama, but not the practice of referring thousands of common immigration charges to federal criminal courts.

Sharp increases in ICE-referred prosecutions were seen in different federal court districts between January and May of this year. In New York State's western district, which covers Rochester and Buffalo, the number of prosecutions referred doubled between January and May, to 41 cases, according to TRAC data.

In Arizona, they tripled over the same period, jumping from 104 in January, the month President Obama was inaugurated, to 314 cases in May.

Despite the significant uptick in prosecutions, none of the May 2009 ICE cases targeted employers under the statute that makes it a criminal offense to knowingly hire undocumented immigrants, says Long, co-director of TRAC.

"We're not seeing any volume at all" in employer-focused criminal immigration prosecutions, she says.

ICE says that it is actively pursuing "employers who knowingly hire an unauthorized workforce to bolster their profits," and since October has charged some 100 employers or business owners with immigration violations.

"These cases are white-collar crime cases," says Richard Rocha, ICE spokesperson in Washington, D.C. "It's important to understand those investigations take time."

However, 100 cases represents less than 1 percent of the 13,389 total cases ICE referred to federal prosecutors between October 2008 and May of this year, according to TRAC data.

"Re-entry of a deported alien" was by far the most common lead charge, according to the data. There were 5,982 such cases, accounting for 45 percent of all ICE-initiated federal prosecutions.

ICE has work to do if it is to move away from the "numbers game" of feeding federal courts with routine immigration prosecutions, says Brittney Nystrom, senior legal advisor to the National Immigration Forum, a Washington, D.C.-based group.

"Rather than prosecuting serious crimes, including the gun and drug trafficking and organized crime Secretary Napolitano told the American public she is focusing on, federal lawyers now spend much of their time processing misdemeanor illegal entry cases in an assembly-line fashion," she says.

For advocates, this is only one example of the heavy-handed enforcement tactics clung to by the Obama administration, even as it stalls on a promised overhaul of immigration laws. These tactics include a program known as "287(g)" that delegates immigration enforcement powers to local and state police, which critics say leads to ethnic profiling.

The administration also expanded the E-Verify database through with which employers can check workers' immigration status. E-Verify is criticized by rights advocates for resulting in "false positives"-- U.S. citizens or legal residents being wrongly flagged as unauthorized to work.

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