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DOJ’s Continued Criminal Immigration Enforcement: Implications for Large & Small Employers

White Collar Alert Luke Cass, Peter Asaad, Hector Diaz

On April 11, 2017, then-Attorney General Jefferson B. Sessions, III announced to all federal prosecutors the Department of Justice's ("DOJ)" renewed commitment to criminal immigration enforcement. He advised them of the Department's charging practices for criminal immigration offenses and directed each United States Attorney to designate a Border Security Coordinator to investigate and prosecute immigration offenses. One such coordinator now exists in each of the 93 U.S. Attorney offices located throughout the country. Later, in July of 2017, Attorney General Sessions described criminal immigration enforcement as one of the DOJ's "top priorities." The results have supported the Department's rhetoric. In 2018, immigration offenses topped the list of federal crimes, comprising over 34 percent, according to the U.S. Sentencing Commission's annual report.

The DOJ's immigration efforts have culminated in several raids spearheaded at employers, large and small alike. Last week, federal authorities in Mississippi conducted the largest single-state enforcement action in history and arrested over 680 undocumented workers at various sites across the state. The Special Agent in Charge stated that the government's “worksite enforcement efforts are equally focused on aliens who unlawfully seek work in the U.S. as well as the employers who knowingly hire them.”

This was not the first large-scale criminal immigration enforcement action against larger- sized employers. In 2008, U.S. Immigration and Customs Enforcement ("ICE") raided Agriprocessors, Inc., an abattoir and meat packing plant in Postville, Iowa. Over 900 ICE agents arrested 398 employees for aggravated identity theft, document fraud, use of stolen Social Security numbers, and other offenses.

Small to medium-sized companies face similar risks, and company size, standing alone, does not appear dispositive of whether a company will be targeted. In early 2018, ICE carried out raids at 98 locations of an international chain of convenience stores across 17 states. In 2017, ICE agents raided eight restaurants in Mississippi and arrested 55 individuals suspected of being in the country illegally.

Employers faced with criminal immigration enforcement confront a number of potential offenses, and familiarity with them is essential preparation. Some of the potential violations include: harboring undocumented immigrants (8 U.S.C. § 1324(a)(1)(A)(iii)); encouraging undocumented immigrants (8 U.S.C. § 1324(a)(1)(A)(iv); conspiracy (18 U.S.C. § 371); false statements (18 U.S.C. §§ 1001, 1015); document fraud (8 U.S.C. § 1324c); identification document fraud (18 U.S.C. § 1028); and aggravated identity theft (18 U.S.C. § 1028A).

The penalties for these offenses can be severe. For example, harboring an undocumented immigrant "for the purpose of commercial advantage or private financial gain" increases the penalty to ten years of imprisonment under 8 U.S.C. § 1324(a)(1)(B)(i). Aggravated identity theft carries a statutory mandatory minimum of two years of imprisonment to be served consecutive to another offense. Under the U.S. Sentencing Guidelines, the number of undocumented immigrants involved in the offense corresponds with a greater range of potential imprisonment. Agriprocessors' middle level managers, for example, were convicted of conspiracy, harboring undocumented immigrants, and aggravated identity theft, and its chief executive was sentenced to 27 years of imprisonment.

Bringing criminal charges requires that an employer knew that they were hiring an individual without authority to work in the United States. Often, prosecutors will substitute this knowledge requirement by showing that an employer was "willfully blind" or deliberately shielded itself from apparent evidence of criminality. In effect, the law treats "persons who know enough to blind themselves to direct proof of critical facts" as having actual knowledge of those facts. Prosecutors will seek to use circumstances to show what an employer should have known to prove knowledge in criminal immigration offenses. Apart from criminal exposure, employers may also face civil enforcement action and fines.

Having a working knowledge of potential risks in this burgeoning enforcement area will place companies in a stronger position to respond to emerging criminal and civil immigration issues. Compliance programs that specifically address potential criminal immigration violations and structural mechanisms to identify, monitor, and verify employee background information are some measures that can be used to allow companies to detect violations before they occur. Internal investigations to identify and redress issues are another valuable tool for companies to mitigate risks and proactively respond.

For more information on the DOJ's criminal immigration enforcement efforts, internal investigations, compliance programs, or immigration matters, please contact your Quarles & Brady attorney or: