Thursday, February 14, 2008

Indiana's Proposed Response to Undocumented Immigrants

On Friday February 8, 2008, I had an opportunity to participate in a conversation regarding Indiana Senate Bill 335 (SB335). This bill, which has been passed by the Indiana Senate, aims to address the "problem" of undocumented immigrants in Indiana. While I put the term "problem" in quotes, I don't necessarily disagree that illegal immigration is a problem; however, I'm not sure that the alleged problem that SB335 seeks to address is the same problem caused by illegal immigration, generally. Perhaps, a more thorough discussion of the overall issue of illegal immigration and undocumented aliens would be a good topic for an essay, but I'll (mostly) leave that for another day.

Anyway, during last week's discussion, I and several others asked questions or raised issues concerning SB335. A supporter of the bill with whom we were speaking told us that the bill did not provide for or prohibit some of the things that we raised as concerns. I acknowledged that I had not read SB335 and promised to do so. So, as a follow-up to my promise, I printed out the version of SB335 that passed the Indiana Senate and is now before the Indiana House of Representatives. (Information about the current status of SB335 as well as the current text of the bill can be found on the Indiana Legislative Services Bill Info page for SB335.) Thus, the following is simply my reaction to the contents of the bill as I read through it. Generally, I have not endeavored to elaborate on broader points concerning immigration reform and have, instead, mostly limited my comments to this specific bill and to specific provisions within the bill. That said, I suspect that many of my comments can be extrapolated to the immigration issue in general; however, any such extrapolation should be done with care as I have not endeavored to synthesize my overall thoughts on immigration issues (other than a very brief conclusion related more to SB335 than to immigration reform in general).

(Note that SB335 adds some sections to the Indiana Code and revises others; for the sake of simplicity, I will refer to provisions by the statutory section identified in the current version of the bill.)

Indiana Code §§ 5-2-18-2(3) and (4) would prohibit any governmental body (for example a city government) from restricting another governmental body (specifically including a law enforcement officer) from "maintaining information" or "exchanging information" with other governmental bodies. What I read this provision to really mean is that a city could not set itself up as being "friendly" to or a "sanctuary" for undocumented aliens. Thus, if Bloomington wanted to direct its police officers not to enforce the provisions of the sB335 within Bloomington, this provision would prevent that. On one hand, the idea of uniformity in laws and enforcement of laws is a good thing; on the other hand, I thought that Republicans preferred to give as much local control as possible.

Indiana Code § 10-11-2-21.5 would require the superintendent (I'm not sure if this is a single state officer or a position for each police force; I didn't research the meaning of the term elsewhere in the Indiana Code) to "negotiate the terms of a memorandum of understanding" with the Justice Department or the Department of Homeland Security. The bill goes on to say what is supposed to happen once this memorandum of understanding is negotiated. Oddly, however, the bill never explains what the memorandum of understanding is supposed to say or what the parameters of negotiation are for the superintendent to follow.

Indiana Code § 22-4-14-9 would require a person applying for unemployment benefits to be screened through the federal Systematic Alien Verification of Entitlements (SAVE) program (which, I believe, is now actually referred to as the e-Verify program, as discussed below). At present, I don't know much about the SAVE program. However, a quick review of some literature online, reveals some concerns with the SAVE program. According to The Washington Post:

Reviews of the pilot program have found that though it has the potential to limit illegal immigration, it suffers from serious deficiencies. A Government Accountability Office report issued in August criticized it for its inability to catch identity fraud, for flaws in the databases and for the possibility that employers will abuse the system.

[Tyler] Moran [policy analyst with the National Immigration Law Center] said she is especially concerned by the relatively high error rates when it comes to legal immigrants. Nearly one in three noncitizens the electronic system cannot initially verify are later cleared based on a manual search of the records, according to government statistics.

Even some citizens have had trouble. Fernando Tinoco, a 51-year-old Mexican immigrant, has been working in the United States for three decades and has been an American citizen since 1989. But when he reported for his new job at a Tyson Foods Inc. factory in Chicago in March, an automated search of government records raised questions about his status. Two hours into his first day of work, Tinoco was fired.
In addition, according to a report by the Government Accounting Office entitled "Coordinated Approach to SSN Data Could Help Reduce Unauthorized Work", the program does not include the so-called "earnings suspense file" which includes nearly 250 million entries and which might be more effective for targeted enforcement. Perhaps the SAVE program has been improved since those reports from 2006. I don't know. But I am troubled with relying on a system with a high rate of false positives (or would that be false negatives?) which could deny benefits to people entitled to those benefits or lead employers to fire people who are eligible to be employed. I am also troubled with relying on a system that does not appear to include the best set of data to allow for targeted enforcement.

Indiana Code § 22-5-1.5-1(a) would provide that the provisions of the chapter (to be discussed next) only apply to an employee that is hired after September 30, 2009. I guess that means that employers can stock up on undocumented workers before October 1, 2009. I'm not sure that I understand the purpose of this grace period. I suspect that it is either to allow time for undocumented workers to leave Indiana or to allow employers time to be ready to make use of the new verification systems. If you are undocumented worker and you want to stay in Indiana, you need to be sure that you have a job before October 1, 2009.

Indiana Code § 22-5-1.5-1(b) would exempt certain employers from the provisions of the chapter, including public utilities, hospitals, and nonprofit corporations. So, if I'm reading § 1(b) correctly, public utilities, hospitals, and nonprofit corporations can hire undocumented workers while the for-profit sector cannot. First, I'm not sure that I understand the reasoning for the exclusion. Second, doesn't this simply force undocumented workers who want to stay in Indiana to become hospital workers or employees of nonprofits? It seems to me that hospitals and nonprofits (especially houses of worship) that view compassion among their missions, will find ways to hire undocumented workers who want to stay in Indiana. Do we really want a law that practically forces churches, synagogues, and mosques to become sanctuaries for undocumented workers?

Indiana Code § 22-5-1.5-3 would provide the definition of "employee" for use in Indiana Code § 22-5-1.5. The odd thing about Section 3(a) is that the definition of "employee" is limited to an individual who "works or is hired to work for at least one thousand five hundred hours (1,500) hours during a twelve month period". This definition has several problems. First, if the goal is really to punish employers who hire undocumented workers, why is the hour limit so high? Assuming 52-week year (with no vacations), an undocumented worker could still work over 28 hours per week and not be an employee. Said another way, assuming a 40-hour work week, a person could work 37 weeks without being deemed to be an employee under the bill. Thus, only true "full time" employees would appear to be covered by the bill. I'm not sure how many hours seasonal farm workers, gardeners, or construction laborers work, but my guess would be less than 1,500 (at least in that particular job).

Which raises another issue. The definition does not make clear whether the 1,500 limit is for all work done by a particular employee during the year or only for the work done for a particular employer. If the former, the statute should certainly be clear on this; otherwise, it is just asking for a legal challenge on this point. If the latter, then seasonal employees and employers would appear to be exempt. So to, I imagine, would be businesses that operate through franchises or separate corporate structures for each business establishment. Consider for a moment an undocumented restaurant employee. If the 1,500 is per employer rather than per employee, then the restaurant could probably transfer the employee to another restaurant for half the year, so long as that other restaurant is technically owned by a different owner. (So far as I am aware most chain restaurants are franchised, so that each restaurant is actually a separate business.) Similarly, I can conceive of very easy ways for construction companies to avoid the statute by simply shuffling employees back and forth between related entities.

Whatever the intent of the this provision of the bill may be, it should certainly be clarified so that questions such as those set forth above are addressed before passage rather than being a "loophole" for employers and/or workers to jump through or a dispute to be resolved through costly litigation.

Indiana Code § 22-5-1.5-4(a)(1) would limit the definition of "employer" to a person that a "has a license issued by an agency". Do all business in Indiana need to have "a license issued by an agency"? Off hand, I don't know. If not, I'd be curious to know whether the exclusion of those businesses was intentional or not and, if intentional, why. It may be that, given that the enforcement of the statute relies upon suspending or revoking a license, it might do no good to include non-licensed businesses within the definition.

Indiana Code § 22-5-1.5-4(b) would extend the definition of the "term" (I presume that the "term" in question is "employer" but the drafting of this provision leaves much to be desired) to include "the state, a political subdivision ..., and a self-employed person." Thus, apparently, the license revocation provisions at the center of the bill would also apply to the state, towns, and cities. I'm curious to know how exactly the state enforces this provision against itself. More importantly, the bill also includes "a self-employed person" as an employer. Thus, even small "mom & pop" operations will fall within the scope of the bill.

Indiana Code § 22-5-1.5-5 would provide that the term "knowingly" would have the same meaning as Indiana Code § 35-41-2-2, which, in turn (in part (b)), provides "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." Given some of the issues discussed above and below, the "high probability" standard may be difficult to apply.

Indiana Code § 22-5-1.5-6(b) would provide that the term "license" does not include an occupational or professional license. Thus, it would appear that doctors, lawyers, architects, pharmacists, and others with such licenses could hire undocumented workers without coming within the scope of the bill. I'm not sure what sorts of business have "occupational" licenses (and not business licenses), but it would be interesting to know.

Indiana Code § 22-5-1.5-9 would provide that the term "unauthorized alien" would have the same meaning as in 8 U.S.C. § 1324a(h)(e) which provides:

As used in this section, the term "unauthorized alien'" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.
What I found somewhat odd when looking up this definition was that 8 U.S.C. § 1324a(a) already makes it illegal to "hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien". If we already have federal law on the subject, it would certainly seem to me that Indiana's proposed law would be overstepping the Constitutional limit on the powers of the state in relation to the powers of the federal government.

Indiana Code § 22-5-1.5-10 appears to be the core provision of the entire bill: "An employer shall not knowingly employ an unauthorized alien." Oddly, while "employee" is defined (as discussed above), "employ" is not. Thus, the question is whether or not the employment must meet the criteria of "employee". It seems that this core provision of the bill should be much more closely linked to the term "employee" (if that is the intent) to avoid just these sorts of questions. Also, is the "employment" of a person as a independent contractor considered to be employment under the bill? If not, that would appear to leave a gaping whole in the entire legal scheme.

Indiana Code § 22-5-1.5-11(a) would specifically provide that the obligation of the Indiana Attorney General to investigate a complaint that an employer hired an unauthorized alien would be "[s]ubject to the availability of funds". One thing that proponents of SB335 have claimed is that the bill is all about "the rule of law" yet this limitation on enforcement seems to reduce the validity of that claim. We don't tell the Attorney General that the obligation to enforce other laws is subject to the availability of funds, so I'm not sure that I understand the inclusion of that limitation here, other than to address the suggestion that the state is created an unfunded mandate upon itself.

Finally we come to Indiana Code §§ 22-5-1.5-13 to -25, the actual enforcement provisions of the bill.

Indiana Code § 22-5-1.5-13 would provide the situations under which the Attorney General could notify U.S. Immigration and Customs Enforcement (ICE, the successor to INS) or the county prosecuting attorney. Essentially, it becomes the responsibility of the Attorney General to investigate to determine whether the employer has "knowingly employed an unauthorized alien" and whether any of the statutory defenses available to the employer apply. Two things about this provision cause me some concern: First, remember that § 11(a) limits the obligation of the Attorney General to conduct an investigation on the basis of the "availability of funds". Second, recall the discussion above about the definition of "employee". This provision uses the term "employed". As I mentioned previously, the question becomes whether or not the employment must meet the criteria of "employee". And, once again, does hiring an undocumented worker as an independent contractor qualify as "employed"?

Indiana Code § 22-5-1.5-15 would allow a court hearing an action brought by a county prosecutor against an employer to hold an expedited hearing. While this may sound like a good idea, it is important to recognize that if one hearing is scheduled on an expedited basis, it means that other matters before the court must be given a lower priority. Thus, while the court prioritizes a hearing against an employer for hiring an undocumented worker, other matters before that court, including things like criminal cases, child custody disputes, probate matters, and all other types of legal actions, may be forced to be shuffled on the court's calendar. While immigration may be a critical issue, is an action against the employer so critical that it should trump other matters properly before a court?

Indiana Code § 22-5-1.5-16(a) sets forth the remedies that can be imposed against an employer found to have knowingly employed an authorized alien. Included in the list of remedies is the possibility of ordering the employer to terminate the employment of all unauthorized aliens employed by the employer (§ 16(a)(1)(A)). Does this give the court the power to order an employer to fire an unauthorized alien who is not an employee (for example, a part-time worker)? Does this give the court the power to order an employer to fire an unauthorized alien hired before October 1, 2009 (recall that the provisions of the bill only apply to employees hired after September 30, 2009)? This provision would also allow the court to order the employer to file a quarterly report with the Attorney General regarding each new "individual" (and why is that the word used, rather than "employee"?) the employer hires (§ 16(a)(1)(A)). I presume that someone at the Attorney General's office will need to review these reports; talk about a drain on governmental resources. Finally, § 16(a)(2) would allow the court to order the suspension of the employer's business license for 10 business days. While this may prove to be a deterrent to employers, imagine where the real hardship will fall when this remedy is imposed. I suspect the employer will be in a much better position to weather a 10-day business interruption than will be the employer's legal employees. Query how would you would handle the situation if your employer was forced to cease business operations for 10 days. Could you go 10 days without salary or wages, especially if you had not planned on taking "time off"?

Indiana Code § 22-5-1.5-19 is the real "hammer" of the bill. Under that section, if an employer is found to have knowingly employed an authorized alien for a third time within a ten-year period, the employer's licenses can be permanently revoked. Yet it does not appear that anything in the bill would prevent the employer from simply starting a new business with a new (even slightly different name) and starting over again. Imagine a contractor (John Smith Contractor, Inc.) who gets a third strike and loses its business license. Nothing would appear to stop Mr. Smith from starting a new business (John Smith Contractor II, Inc.) and "continuing" business under that name (John Smith Contractor II, Inc. d/b/a John Smith Contractor, Inc.). A really crafty employer might have a series of successor entities established, licensed, and ready to go, "just in case".

Indiana Code § 22-5-1.5-20 would require a state agency that learns of a court order to suspend or revoke a license to suspend or revoke the license "immediately". Why is this a problem? What about the possibility of an appeal? Is the license suspended or revoked before the employer has had an opportunity to appeal the "conviction"? And what about the suspension or revocation of a license while the employer appeals the constitutionality of the statute, potentially all the way to the U.S. Supreme Court? We may put convicted criminals in jail pending appeal (although it usually depends on the nature of the crime), but we certainly don't execute them before they've had a chance to exhaust their appeals.

Indiana Code § 22-5-1.5-22(a) would provide one of the most problematic provisions of the entire bill (emphasis added):
In determining whether an individual is an unauthorized alien for purposes of this chapter, a trier of fact may consider only the federal government's verification or status information provided under 8 U.S.C. § 1373(c).
What is wrong with § 22(a)? First, just consider for the moment the mere possibility that the federal government's information could be wrong or incomplete. Has the government ever made a mistake? Of course. Yet, according to § 22(a), only the government's information, even if wrong, could be considered. Just imagine an employer brought into court for allegedly hiring an unauthorized alien and bringing to court that alien's validly issued visa or work permit (or, worse yet, proof that the "unauthorized alien" was, in fact, a citizen). But if the bureaucrat who originally entered that data into the federal government's database made a typo so that the government's database did not verify that employee, then the employee will be fired and the employer sanctioned. Shouldn't the court and/or jury be able to consider all of the evidence? Just to add to the confusion that this could all cause, § 22(b) says that the information which is the only information that may be considered creates a "rebuttable presumption"; yet, if that information is the only information that can be considered, how can the presumption be rebutted?

Indiana Code § 22-5-1.5-23 would provide a safe harbor to employers who verify an employee's eligibility with the SAVE program or the e-Verify system (to be discussed below). In other words, so long as the employer checked the employee with e-Verify and received verification, then the employer cannot be sanctioned in the event that it turns out that the e-Verify information was incorrect. I find it odd that the bill explicitly recognizes the possibility of a false positive (that is, a person who is verified by the system but who is not actually eligible for employment) while not allowing for the possibility of a false negative (that is, a person who is not verified by the system but who is eligible for employment). In my opinion, the false negative is a far worse problem (as it would unjustly prevent the employment of a legal alien or citizen) than the potential to accidentally employ someone who is not properly authorized. The bill provides a safe harbor for employers without a corresponding safety net for workers.

I believe that the e-Verify system (also called the "pilot program") is the same program as the SAVE program referred to above, but I'm not entirely clear on this. It is my understanding that the SAVE program has simply been re-branded with the "e-Verify" moniker, but I will readily acknowledge some confusion on this (and that I did not spend too much time researching the issue). Some states, most notably Arizona, have adopted immigration laws that rely upon the e-Verify system. On the other hand, Illinois, has passed legislation that essentially prohibits employers from relying on e-Verify out of concerns about the reliability of the data in the system. The Department of Homeland Security and the State of Illinois are currently litigating this dispute.

Illinois is not alone in expressing concerns about e-Verify. Consider, for example, the following (from the report "E-Verify System: DHS Changes Name, But Problems Remain for U.S. Workers" prepared by the Electronic Privacy Information Center in July 2007 [internal footnotes omitted]):

A broad expansion of E-Verify has severe implications for national and individual security, civil liberties and privacy. At a Congressional hearing in June 2007, the Government Accountability Office detailed the many problems associated. The system is vulnerable to employer fraud or misuse. The databases used by E-Verify are error-filled. Expansion would create enormous backlogs. Also, the cost would be enormous.

By mandating that more than 200,000 federal contractors use E-Verify, DHS will increase the number of employers using the system by more than 1,076 percent. Such a massive expansion would likely overwhelm the system, which is already backlogged by the 17,000 employers currently registered to use the program. Further, only 8,863 registered employers are "active users," defined by DHS as "employers who have run at least one query in fiscal year 2007." This new mandate would effectively increase the number of active users by 2,157 percent.

In August 2005, Citizenship and Immigration Services officials told the Government Accountability Office that a substantial expansion of the program would create significant backlogs in employment verification, in part because of the staff and resources that would be needed for manual verifications and investigations into "nonconfirmations." With 8,863 active users of E-Verify, the Social Security Administration says that "for every 100 queries submitted to the System, SSA field offices or phone representatives are contacted three times," and SSA expects a corresponding increase in workload under a program expansion.

Currently, about 8 percent of queries require manual verification by DHS or SSA. In fiscal year 2006, there were about 1.74 million verifications, which can take up to two weeks to resolve. Imagine the number of manual verifications and "tentative nonconfirmation" investigations that will occur when the number of active users is amplified by 2,157 percent.

DHS estimated that nationwide mandatory use of E-Verify could cost Customs and Immigration Services "$70 million annually for program management and $300 million to $400 million annually for compliance activities and staff," and "costs associated with other programmatic and system enhancements are currently unknown." The cost to SSA of such an expansion is unknown. Currently, SSA spends $5 million to $6 million on E-Verify, but the cost of expansion "would be driven by the field offices' increased workload required to resolve SSA tentative nonconfirmations."

The majority of such "tentative nonconfirmations" occur because of another problem in the E-Verify system: Information in the databases queried is incorrect or untimely, according to DHS and SSA. These databases have high error rates in determining work eligibility status, causing these verification problems and backlogs. In a 1997 report and a 2002 follow-up review, the Inspector General of the Department of Justice found that data from the Immigration and Naturalization Service (the predecessor of U.S. Citizenship and Immigration Services), which E-Verify queries, was unreliable and "flawed in content and accuracy." In August 2005, the Government Accountability Office investigated and found errors in information from Department of Homeland Security databases.

A December 2006 report by the Social Security Administration's Office of Inspector General also found accuracy problems in databases of Citizenship and Immigration Services and Social Security Administration. SSA's Numerical Identification File ("NUMIDENT") is used to check employment eligibility status, but the Inspector General estimated that about 17.8 million records in NUMIDENT have discrepancies with name, date of birth or death, or citizenship status. About 13 million of these incorrect records belong to U.S. citizens. About 15.3 percent of the U.S. workforce is foreign-born, according to the Bureau of Labor and Statistics.

Such erroneous records could lead to "tentative" or "final nonconfirmation" notices for affected employees. These errors have profound consequences for U.S. citizens and documented immigrants. In June, the Government Accountability Office explained that E-Verify still "is vulnerable to employer fraud that diminishes its effectiveness and misuse that adversely affects employees ... such as limiting work assignments or pay while employees are undergoing the verification process." These problems have been highlighted since 2002, yet they remain unresolved.

In 2002, the Immigration and Naturalization Service (now U.S. Citizenship and Immigration Services) commissioned an independent analysis of the employment eligibility verification system. The analysis found that mistakes in the system led to "false negatives," where workers eligible for employment were deemed ineligible. For example, out of a sample of employees who received "final nonconfirmation" notices, 42 percent were "false negatives" and were eligible to work. The report also found that "employers do not always follow Federally mandated safeguards for the ... program." The researchers found that employers took adverse action against an employee because of a "tentative nonconfirmation," though it is illegal.

Thirty percent of pilot employers reported restricting work assignments while employees contest a tentative nonconfirmation. Among the 67 employees who decided to contest a tentative nonconfirmation, 45 percent reported one or more of the following adverse actions: were not allowed to continue working while they straightened out their records, had their pay cut, or had their job training delayed.

Current law also prohibits employers from pre-screening job applicants before making a hiring decision, yet some employers were doing just that. In December 2006, the Social Security Administration's Office of the Inspector General reviewed the employment eligibility verification system and found that 42 percent of employers used the program to prescreen employees, and 30 percent of employers used the program to verify the employment eligibility of their existing workforce. In 2002, the independent analysis found that, "[a]mong a sample of individuals classified on the transaction database as unresolved tentative nonconfirmations, 28 percent said that they did not receive a job offer from the pilot employer." Also, these job applicants were not informed they were being pre-screened through the employment eligibility verification system, and "[c]onsequently, they were denied not only jobs, but also the opportunity to resolve any inaccuracies in their Federal records."

This problem ties in with another found by the researchers; though "procedures were also designed to protect employee rights to resolve verification problems . . . not all employers inform their employees of verification problems." The report stated that, "73 percent of the employees who should have been informed of work authorization problems were not." Because they did not know about the "tentative nonconfirmations," the employees were not able to contest the "tentative nonconfirmation" notices. A failure to contest a "tentative nonconfirmation" results in a "final nonconfirmation" decision against the affected employee. Employers are required to terminate the employment of any individual who receives a "final nonconfirmation."

Eligible workers are not compensated for wages lost because of an incorrect "tentative nonconfirmation" determination. This certainly a nightmare scenario – a person is rejected for a job she was qualified for because the government made a mistake, and she might never learn of this problem. This illustrates the fundamental problem with E-Verify: workers are presumed unauthorized for employment unless they prove otherwise. Currently, the Social Security Administration's Inspector General databases have an error rate of at least 4.1 percent. If each of the 5.9 million employers nationwide used E-Verify for a different employee, then the error rate suggests more than 240,000 eligible workers would receive incorrect "no match" designations. There are about 143.6 million authorized workers nationwide, according to the Bureau of Labor Statistics. Even a one percent failure rate would affect millions of people.

Assuming, for the moment, that the general concepts of SB335 are sound, I am uncomfortable with relying upon government data that may be prone to errors that could jeopardize the ability of people to obtain jobs to which they are entitled. So long as the possibility of a false negative (a nonconfirmation) remains more than a remote possibility, I am troubled by the notion of requiring employers to rely upon that information as a basis for deciding when an employee must be fired.

Indiana Code § 22-5-1.5-24 would give the employer the right to prove that the employer acted in good faith in accordance with the provisions of 8 U.S.C. § 1324a(b). But shouldn't it really be the job of the government to prove that the employer did not act in good faith? Why are we putting the burden on the employer and not on the state. The last time that I checked, we generally don't require people to prove their innocence; rather, as the old cliche goes, in America we are innocent until proven guilty. It seems as if this bill flips that notion of justice on its head.

Indiana Code § 22-5-1.5-25 would require the Attorney General to post on the web information about employers who were sanctioned. While those sanctions may be a matter of public record, do we really want to treat employers, especially employers who may have made a mistake or who may be appealing a sanction, in the same way that we treat convicted sex offenders?

Indiana Code § 22-5-1.5-26 is an odd provision. It states that the bill "does not require an employer to take any action that the employer believes in good faith would violate federal law." Yet the statute does not appear to exempt the employer from prosecution for taking that action. Query whether a court order issued under the immigration bill ordering an employer to fire unauthorized aliens could be enforced if the employer, in good faith, believes that the order violates federal law because of a good faith belief that federal immigration law preempts state law and/or that firing the unauthorized alien would violate a civil rights statute.

Indiana Code § 22-5-1.5-27 is also a slightly odd provision. § 27 requires employers to use the e-Verify system for all employees commencing October 1, 2009. What is odd about the provision is that it requires the employer to use the e-Verify system after hiring the employee. Shouldn't the employer use e-Verify (presuming it is an acceptable verification method) before hiring the employee. Well, it turns out that the e-Verify program itself is, under federal law, not to be used until after an employee is hired. I'm still not sure that I understand why that is.

Indiana Code § 22-5-1.5-30, the last provision in this chapter, is one of those provisions that appears sound on its face, but is, in reality, very problematic. The provision provides that the immigration laws "shall be enforced without regard to race or national origin." What about religion? Sex? Disability? Just imagine the enforcement of the immigration laws only against Muslims. That would not violate the provisions of § 30 but it would still be wrong.

Indiana Code § 22-5-1.7 applies to public contracts for services. It is largely a subset of the provisions of Chapter 1.5 and I elected not to spend any real time examining that part of the bill.

Following these provisions, the bill next addresses offenses that individuals could commit with regard to "Illegal Aliens" (Indiana Code § 35-44-5). Query why the criminal components of the bill refer to "illegal" aliens rather than "unauthorized" aliens as in Chapter 1.5.

Indiana Code § 35-44-5-1 would exempt from the criminal provisions of the law churches or religious organizations, those providing assistance for health care for the treatment of an emergency, a health care provider providing health care services, an attorney providing legal services, or the spouse, parent, or child of an "alien". At least the bill offers a glimmer of humanity by allowing emergency medical attention and allowing "illegal" aliens to obtain health care and legal services without jeopardizing those who provide such services.

Indiana Code § 35-44-5-2 would provide that the term "alien" would have the same meaning as in 8 U.S.C. § 1101(a) which provides that the "term 'alien' means any person not a citizen or national of the United States." Unless I am mistaken, it would then appear that the criminal portions of the bill are not limited to "unauthorized" or "illegal" aliens, but, rather, to any person in the United States that is not a "citizen or national of the United States." In other words, it appears that the criminal provisions of the bill will subject people to possible punishment for their actions with regard to a resident alien, a person in the U.S. on a student or work visa, a tourist, or others who may not be citizens, but who are in the U.S. legally. Again, I query why one part of the bill uses the federal definition of "unauthorized alien" while another portion of the bill uses the federal definition of "alien".

Indiana Code § 35-44-5-4 would criminalize transporting or moving an alien for the "purpose of commercial advantage or private financial gain, knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in United States in violation of law". It seems obvious that this statute is aimed at those who intentionally transport illegal aliens (so called "coyotes"). Yet the bill, as written, seems much broader. For example, would Greyhound be in violation if they transported an alien who was illegal? One might argue that there was "reckless disregard" if Greyhound didn't check whether the person was legally in the U.S. before transporting that person. Another technical flaw in the bill is the phrase "come to, entered or remained". In other words, if a person transports an alien that the person knew came to the U.S. illegally, even if that alien was now here legally, then that person would have committed the crime. Certainly that is not what the law is designed to do. Also, I wonder about the decision to exempt church or religious organizations from this portion of the bill. Isn't that just asking for the establishment of religious organizations whose sole purpose is to transport aliens (the Church of the Holy Transport, for example, with its place of "worship" in an old school bus)? One other concern comes to mind with regard to this provision: If a police officer pulls over a van with 15 Hispanic people crammed into the back, that officer may very well look into the immigration status of those people, perhaps to see if the driver is violating the provisions of this bill. Yet would that officer look into the immigration status of the passengers if they were not Hispanic? That sort of profiling, even if unintentional, worries me.

Indiana Code § 35-44-5-5 would criminalize concealing, harboring, or shielding from detection an alien. The provision uses the same language quoted above in the discussion of § 4. At least the bill exempts parents, children, and spouses from being required to turn each other in to authorities, but it does not expand the exemption to larger family units (grandparents and siblings, for example).

So there you have it. The substance of SB335. Allow me to offer a few concluding thoughts (again without getting into a full-blown discussion of whether immigration reform is necessary or what such reform should look like). Apart from the concerns expressed above, several other potential problems worry me, several of which can be demonstrated through a series of examples.

Consider the following scenario: Husband and wife live together in Indianapolis. Husband is here illegally, while wife is a resident alien. Husband and wife have two children, one 12 and one 4. The 12 year old is also here illegally, but the 4 year old was born in the U.S. and is, therefore, a citizen. In addition, wife's brother, a resident alien and his wife, a citizen, and their children reside with husband and wife. All of the adults are employed, but they need all of their collective income to make ends meet. It appears that SB335 is only aimed at husband and the 12-year old as only they are here illegally. But let's look at what the bill could really do in a scenario like this. First, brother and sister-in-law are not exempted out of the criminal provisions of the statute. Thus, if the authorities were to discover that husband was here illegally, brother and sister-in-law could be prosecuted for harboring an illegal alien. But, you say, they weren't harboring husband for commercial advantage or private financial gain. Oh? Weren't they? If husband is deported, won't that adversely impact the ability of the family to pay their bills? A zealous prosecutor could easily argue that brother-in-law and sister didn't report husband because they needed his income -- a private financial gain. Second, if brother-in-law were to drive husband to a job (as husband probably can't get a driver's license), could brother-in-law be convicted of "transporting" husband (and if you think the answer to that is no, ask whether your answer changes if husband shares with brother-in-law the cost of gas)?

Now, let's move forward to a date after October 1, 2009, and husband needs to get a new job. When he is run through the e-Verify system, it becomes evident that he is illegal. So he is fired. Now, husband is not employable. Well, that is what the bill seems to want as a result. But consider the unintended consequences. If husband is not employable, I guess that he needs to leave the U.S. But that will create a single-parent family. Do we really want to split up families? Should husband take the 12-year old with him? And what happens if wife goes to get a new job and the e-Verify system says that she is not eligible, even though she is legal? Now, she too is not employable. Sure, she can appeal, but query how exactly an unemployed person can afford to appeal while remaining unemployable. Should she be forced to leave the country and take the 4-year old, an American citizen, with her? On the other hand, perhaps husband can convince employer to hire husband to work just 1499 hours a year. As written in the bill, husband, in that situation, would not be an "employee" and employer would appear to be on safe ground.

And what if an employer was sympathetic to their problem or didn't really care and only wanted to make a bigger profit and, therefore decided to hire husband illegally. When employer is caught, employer will be punished. But won't employer's other employees suffer as much, or worse, including employees who did nothing wrong and who aren't here illegally? How is an employee supposed to protect himself from a sympathetic or unscrupulous employer?

It appears to me that immigration reform is probably necessary. But it also appears to me that any immigration reform must be national in scope, not piecemeal and different from state to state. And, to the extent that states are going to enact and enforce their own immigration laws, we really need to be sure that those laws are narrowly tailored to really attack the problem, not cause unintended harm. I'm worried that SB335 will cause far more harm than good.

I think that discussion of the issues that gave rise to SB335 as well as the issues raised by SB335 is good and healthy. I hope that Indiana can continue to discuss those issues. But I don't think that SB335, at least as written, is the best way to address those concerns.

Update: The Indiana House of Representatives heard testimony on SB335 on Wednesday February 13, 2008. During that hearing, many of the concerns that I discuss above were raised. It appears as if the bill may be amended and brought back for another hearing next week. One of the amendments that may be included is a reduction in the number of hours in the definition of "employee" (perhaps reducing the number from 1500 to 500).

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