Congress has just adjourned without any piece of workable legislation to address our nation’s immigration laws. While Sen. Robert Menendez, D-N.J., introduced legislation in the waning moments before adjournment, many consider it election-driven and not a broadly acceptable solution. Randy Johnson of the U.S. Chamber of Commerce has stated that he hopes that by early next year the Chamber and the AFL-CIO will have agreed on what should be in a comprehensive immigration reform bill. This continuing stalemate is not good news for the restaurant industry.
The hospitality industry, together with the construction and food-processing industries, is a principal target of enforcements of the Department of Homeland Security’s Immigration and Customs Enforcement, or ICE, as well as the Department of Labor. In mid-September, with two weeks to go in fiscal 2010, ICE reported that more than 2,000 inspections of employers had been conducted. This is up from 1,444 inspections in 2009, 503 in 2008 and 254 in 2007.
Criminal arrests of employers were reported by ICE to have reached 170 in fiscal 2010, a record number. There were 114 in 2009, 135 in 2008 and 92 in 2007. Final order penalties against employers had come to $5.3 million for fiscal 2010; this is in sharp contrast with the $1,330,291 in 2009 and $675,209 in 2008.
While the brunt of enforcement has fallen upon employers, there has been an opposite trend with employees. The number of employee arrests has fallen, along with indictments and convictions. As of the end of August, ICE reported that criminal arrests of employees dropped to 245 in 2010, compared with 296 in 2009 and 968 in 2008.
Restaurants clearly are an enforcement target of ICE and will continue to suffer the weight of enforcement without comprehensive immigration reform. If there is any doubt, simply recall the French restaurant in San Diego that the federal authorities are attempting to seize, the restaurant owner in Mississippi sentenced to a year in prison with another year of supervised release, and ICE’s efforts to enter into IMAGE Agreements — ICE Mutual Agreement — with restaurant associations.
This needs to end. While there are some restaurateurs who are acting fraudulently, the vast majority are not. They are simply caught in the complexity of our nation’s — and, more recently, our state’s — immigration laws, and they are not adept in the role of policing immigrants. Many are small employers who make good-faith efforts to cope with an increasing maze of federal, state and local laws while trying to run a business.
The proposals for comprehensive immigration reform so far have been a political football kicked around by our politicians and special-interest groups. There is, however, a potential solution that could depoliticize the current, polarized debate. Consider the following:
1. Secure the borders.
2. Focus on the swift deportation of any illegal aliens who might be a threat to our national security or public safety.
3. Grant legal immigration status to the approximately 11 million to 12 million illegal immigrants who are still in the country, but with one condition: They can never become U.S. citizens, with the right to vote or run for public office, unless they leave the country, return to their home countries and apply through the proper immigration channels to come into the United States. There should be a time limit on this program after which it closes for good.
While this proposal truly has something in it that everyone can dislike, it is a pragmatic approach. Attempting to deport an estimated 11 million to 12 million people is not practical. Deportation proceedings take time and can be costly. In June of this year, according to information compiled by researchers at Syracuse University in Syracuse, N.Y., there were almost 248,000 cases pending in immigration courts across the country, an all-time high, with an average wait time of 459 days. In a June 30 memo, ICE reported it had the capacity to remove annually only about 4 percent of the estimated illegal-immigrant population in the country.
There also are concerns that the illegal-immigrant population, under any such legalization proposal, would take or continue to take jobs from U.S. citizens and those otherwise eligible to work here. While this may be true to some degree, it is not substantially correct. When this issue has been studied, it has been concluded that the vast number of illegal immigrants take jobs at the lower, entry level in our economy, not in the middle or the top — jobs that most Americans shun.
USA Today recently reported an example of this in California, where eligible workers simply do not apply for jobs harvesting fruit and vegetables, even though one out of every eight people in the state is out of work. In short, even accepting that illegal immigrants are, to some degree, contributing to our nation’s high unemployment, is that degree enough to justify the many years and high costs it would take to deport all the illegal immigrants, while restaurants and other employers continue to act as immigration police and face audits, fines and criminal sanctions?
Our nation’s immigration system is broken. The significant resources that our government is devoting to immigration enforcement, fining and criminalizing employers, and deporting workers are resources that are better spent on the regeneration of our economy. From my perspective, with a regenerated economy, my family will have more opportunities to go out to restaurants.
Clyde H. Jacob III is a director with the Coats Rose law firm and heads its New Orleans office. His firm is a member of the Louisiana Restaurant Association, and he is a member of the Chamber of Commerce’s Labor Relations Committee.
