Tuesday, October 12, 2021: Biden Clipped ICE’s Wings: Homeland Security Memo Redirected Enforcement Efforts Towards “Unscrupulous Employers” and Away From Illegal Aliens…and Ends Mass Raids of Employer Facilities
USDOL Wants Homeland Security to “Buy” Witness Testimony Against Employers By Waiving Deportation Proceedings in Exchange
The Secretary of The Department of Homeland Security (DHS), Alejandro N. Mayork, directed U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) to, in his words, “take actions to promote a fair labor market by supporting more effective enforcement of wage protections, workplace safety, labor rights, and other employment laws and standards.”
The Secretary issued a 3-page Memorandum on Worksite Enforcement (Memo) titled: “The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual.” The Memo reads like a labor manifesto and excoriates unknown and unnamed employers as “unscrupulous” or “exploitive” and places the blame on them for allegedly first attracting and then exploiting illegal aliens:
“…we can maximize the impact of our efforts by focusing on unscrupulous employers who exploit the vulnerability of undocumented workers. These employers engage in illegal acts ranging from the payment of substandard wages to imposing unsafe working conditions and facilitating human trafficking and child exploitation. Their culpability compels the intense focus of our enforcement resources. In addition, unscrupulous employers harm each worker competing for a job. By exploiting undocumented workers and paying them substandard wages, the unscrupulous employers create an unfair labor market. They also unfairly drive down their costs and disadvantage their business competitors who abide by the law. We can most effectively protect the American labor market, the conditions of the American worksite, and the dignity of the individual by focusing our worksite enforcement efforts on unscrupulous employers. This is how we will proceed.”
The Memo then proceeded to set out “Fundamental Principles,” ordered up a “Policy Review,” and issued “Immediate Guidance” (among other things, ending mass raids of employers to arrest and deport illegal aliens).
Fundamental Principles were to:
- “Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents;
- Increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations; and,
- Broaden and deepen mechanisms for coordination between the Department of Homeland Security and the Department of Labor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.” [Editor’s Note: DHS’ concern here is reportedly that the missions of the employment agencies may be adversely impacted if DHS were to deport illegal aliens needed as witnesses at trials U.S. labor agencies were prosecuting.]
Policy Review ordered up:
- a review of several specific policies (and invites reporting of) any policy that “may impede non-citizen workers, including victims of forced labor, from asserting their workplace rights”; and
- the development of agency “plans” which would “…provide for the assistance non-citizen victims and witnesses need to participate actively in the investigations and consider ways to ensure that non-citizen victims and witnesses generally are not placed in immigration proceedings during the pendency of an investigation or prosecution.”
Immediate Guidance ordered:
- DHS to cease mass worksite raids begun in the George W. Bush Administration, and continued in the Obama and Trump Administrations resulting in the arrest and deportation of millions of illegal aliens:
“The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country’s unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even serving as a tool of retaliation for, worker cooperation in workplace standards investigations.” [Editor’s Note: DHS’ true concern here is that the raids were too effective to quickly remove large numbers of illegal aliens from the U.S. and were also often highly publicized as a deterrent ICE thought effective through three presidential administrations to stop further in-bound migration of illegal aliens into the U.S. in search of jobs.]
- DHS to consider on a case-by-case-basis whether to waive deportation of a captured illegal alien as a further remedy for the violation of the workers’ employment law rights (beyond the remedies the underlying labor statute already affords), or in exchange for testimony against the employer a labor agency is prosecuting under its wage protection, or safety or civil rights, etc. authority.
“Requests for prosecutorial discretion. I understand the Department of Labor has recently requested support in certain ongoing workplace standards investigations, including by asking that OHS (sic) consider whether to exercise prosecutorial discretion for workers who are victims of, or witnesses to, workplace exploitation. (emphases added) These individual requests should be considered on a case-by-case basis, weighing all relevant facts and circumstances. In evaluating these requests, the legitimate enforcement interests of a federal government agency should be weighed against any derogatory information to determine whether a favorable exercise of discretion is merited.” [Editor’s Note: DHS was previously known as the “Office” of Homeland Security (OHS) when President Bush (#43) created it within the U.S. Department of Agriculture. The author of the Memo is apparently a long-term veteran of Homeland Security, apparently had a momentary writing lapse and reverted to use of DHS’ original name, and the many reviewers and proofers did not notice in the rush to publish this controversial memo after news of its existence leaked to the press].
Secretary of Labor Marty Walsh released a statement including the comment that the Department of Labor “stands ready to continue and expand our work with the Department of Homeland Security to ensure all people can work free from exploitation and retaliation. Unscrupulous employers can no longer build their businesses on the backs of exploited people.”