Court blocks key immigration rule

Judge scolds Homeland Security for disruptive policy change

October 11, 2007|By NEW YORK TIMES NEWS SERVICE.

A federal judge in San Francisco ordered an indefinite delay yesterday on a central measure of the Bush administration's new strategy to curb illegal immigration.

The judge, Charles R. Breyer of the Northern District of California, said the government failed to follow proper procedures in issuing a new rule that would have forced employers to fire employees if their Social Security numbers could not be verified within three months.

Breyer chastised the Department of Homeland Security for making a policy change with "massive ramifications" for employers, without giving any legal explanation or conducting a required survey of the costs and impact for small business.

Under the rule issued by the Department of Homeland Security, which had been scheduled to take effect Sept. 14, employers would be forced to fire workers within 90 days after receiving a notice from the Social Security Administration that an employee's identity information did not match the agency's records.

Illegal immigrants often present false Social Security data when applying for jobs.

The rule, announced with fanfare in August by Homeland Security Secretary Michael Chertoff, was the linchpin of the administration's effort to crack down on illegal immigration by denying jobs to the immigrants.

It is part of a campaign of stepped-up enforcement since broader immigration legislation favored by President Bush was rejected by Congress in June.

If it took effect, the judge said, the rule could lead to the firing of many thousands of legally authorized workers, resulting in "irreparable harm to innocent workers and employers."

The decision brought a sense of relief to the unusual coalition behind the lawsuit, including the AFL-CIO and the U.S. Chamber of Commerce, normally adversaries.

They had feared the measure would bring mass layoffs in low-wage industries, sweeping up both illegal and legal workers and disrupting the labor force. It was an awkward disappointment for Chertoff, a former federal judge, who was relying on the rule as an enforcement tool since Congress left him with few other options.

Chertoff said the administration was doing "as much administratively as we can, within the boundaries of existing law" to crack down on illegal immigration, but he called on Congress to revisit legislation to give legal status to some illegal immigrants and to impose even tougher enforcement measures.

Some conservative lawmakers, who argue for vigorous enforcement of the immigration laws as a priority, said they were outraged.

The rule establishes steps that an employer must follow after receiving a notice from the Social Security Administration, known as a no-match letter, reporting that an employee's identity information does not match the agency's records.

If the employee could not clarify the mismatch by providing valid information within 90 days, employers would be required to fire the worker or risk prosecution for knowingly hiring illegal immigrants.

Before it took effect, the rule was held up temporarily on Aug. 31 by another judge in the San Francisco court, Maxine M. Chesney, who was sitting in for Breyer at the time.

Yesterday, Breyer ordered a halt to the rule until the court can reach a final decision in the case, which could take many months. He made it clear he is skeptical of many of the government's arguments.

The decision also bars the Social Security Administration from sending out about 141,000 no-match letters, covering more than 8 million employees, which include notices from Homeland Security explaining the new rule.

Other groups bringing the lawsuit include the American Civil Liberties Union, the San Francisco Labor Council and several national and local small business associations.

Breyer found that the Social Security database that the rule would draw upon was laden with errors not related to a worker's immigration status, which could result in no-match letters being sent to legally authorized workers.

"There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days," even if they are legal, the judge wrote.

Lucas Guttentag, a lawyer for the ACLU, said the government had demonstrated "a callous disregard for legal workers and citizens by adopting a rule that punished innocent workers and employers under the guise of immigration enforcement."

AFL-CIO officials had estimated that 600,000 of their members who were legal workers could receive the letters and be vulnerable to dismissal.

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