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Enforcement Update: Abercrombie & Fitch Fined Over $1 Million in I-9 Violations and ICE Secure Communities Program - October 27, 2010

Increased enforcement initiatives show no sign of abating anytime soon. There have been a record number of deportations in 2009 and the government is on track to deport more than 400,000 individuals in calendar year 2010.  Enforcement continues to focus on two prongs: employers who knowingly hire undocumented workers and stepped-up enforcement against gang-related violence and felons.

In recent, high-profile cases, ICE (Immigration and Customs Enforcement) has shown that it intends to continue investigating and prosecuting companies that knowingly hire undocumented workers. Abercrombie & Fitch recently agreed to a settlement of more than $1,000,000 for numerous I-9 compliance violations for its retail stores in Michigan. More employer audits are on the way.  In mid-September, 500 "Notices of Inspection" (NOIs) were served to employers in one week and the scope of documentation requested or subpoenaed is expanding. A recent ICE Notice and subpoena requested 11 different immigration and employment documents over a three-year inspection period, including lists of current and terminated employees, copies of quarterly wage and hour reports, tax statements, company hiring policy, and a list of all contractors, recruiters, and temporary employment agencies. Meanwhile, in Los Angeles, the owner and top executives of a metal casting company were arrested and charged with federal crimes for their role in encouraging the acquisition of fake Social Security numbers. The current administration has made also stepped-up enforcement against criminal foreigners through a series of raids, including those on known gangs in major cities across the U.S.

In a related development, the ICE Secure Communities Program, which encourages local law enforcement agencies to cross-check fingerprints and biometrics against a federal database of immigration statuses, continues to expand quickly across the country. Nearly 700 jurisdictions in 32 states have signed on to the program. Secure Communities, however, has come under fire in recent weeks as controversy has arisen over the ability of communities to opt-out of the program. Since its introduction two years ago, the program was widely thought to be voluntary.  However, when Washington, DC, Arlington (VA), and San Francisco recently attempted to opt-out, ICE replied that it was not possible to do so. Since the program relies only on state police to share fingerprint information with the FBI, local communities' choices on whether to participate is essentially moot because they cannot control what state police choose to do with the biometric information. Sounds like this issue has the makings for legal and constitutional challenges. Stay tuned.