Duke Law Professor Brandon Garrett on Corporate Criminal Immigration Prosecutions

Immigration laws are criminally enforced not just against individuals, but also against corporations. 

Brandon Garrett
Duke Law School

For individuals, federal immigration prosecutions are a mass phenomenon.

More than a third of the federal criminal docket – nearly 40,000 cases each year – consists of prosecutions of persons charged with violations of immigration rules. 

But prosecutors rarely charge corporations, which are required to verify citizenship status of employees. 

In a new article, Corporate Crimmigration, Duke Law Professor Brandon Garrett finds that under the Trump Administration, there have been only six corporate immigration prosecutions, and the only large cases have been legacy matters from the Obama administration.

By contrast, the Obama Justice Department brought 101 corporate immigration prosecutions and imposed record penalties.

Garrett does not suggest that workplace immigration screening and enforcement, much less criminal enforcement, is desirable. Instead, he contrasts the mass prosecution of individuals, under strict zero-tolerance rules, with the leniency-oriented approach towards corporations that carefully considers collateral consequences.

“If you look at the federal criminal docket, immigration cases dominate in terms of the number of people prosecuted for crimes,” Garrett told Corporate Crime Reporter in an interview last week.  “Most of those are minor offenses. They are often given plea bargains, often for time served in immigration detention before they are deported. Our federal system is increasingly extremely tough on immigration crime.”

“By way of contrast, although many employers are investigated for workplace violations and there was a concerted effort in past administrations to focus on compliance among employers, we have seen a notable drop off in workplace enforcement.”

“There are real questions about whether workplace enforcement is a productive immigration strategy. Certainly workplace raids and the like can end up leading to terrible consequences for employees in terms of their conditions and their pay. All the more reason why you would want an approach that focuses on workers first and compliance rather than criminal consequences.” 

“My goal in writing the article was to highlight that corporate immigration enforcement has changed quite a bit over the last few decades. It has changed in ways that haven’t been focused on. It’s not something that people talk about in corporate crime circles And it wasn’t something that people talked about so much in immigration circles.”    

The politics of this are strange. The Republican view is – crack down on illegal immigration but go soft on corporate crime. The pro-immigration groups would not be in favor of prosecutions of these companies that engage in these policies, would they?

“The politics here are not what you would normally expect,” Garrett said. “It is a quiet subject. It has not attracted a lot of news attention.” 

“There has been some coverage about the drop in prosecutions against major banks. But this has been a backwater area.” 

“But it certainly hasn’t gone unnoticed that record numbers of individual people have been criminally prosecuted using an incredibly harsh tool with detention centers with terrible and dangerous conditions. At a time when our immigration enforcement has never been more inhumane, it is troubling to see leniency for corporate violators.”

What is the corporate crime in the immigration context?

“There are a few different crimes that could potentially apply to employers. The immigration crimes that are most frequently enforced would not come up in a workplace setting. Most immigration enforcement is at the border and relates to the crimes of illegal entry and more so illegal re-entry.”

“Corporations themselves are not crossing the border. Most immigration enforcement is not the kind of thing that could ever be relevant to an employer.” 

“The employer side offenses are in general not as much of a subject for law enforcement, because much of the enforcement is at the border and much of the interior enforcement is through local police who serve as immigration screeners.” 

“But employers are also required to be immigration screeners as well following 1989 legislation after which any employer has to use an I-9 form. That’s the reason why when you get a new job you have to bring a passport or something to document your citizenship.”

“Early on, there wasn’t much of a way to enforce this against employers. If someone brought in a passport or Social Security card or ID that was fake, there was no way for an employer to be sure. Maybe there were other indicators that this is a fake ID. But employers will say  – we had no idea that this paperwork wasn’t valid.”

“It changed over time as the federal government created these immigration verification databases and created more obligations for employers to do more to verify their employees’ identities. There are many problems with those databases. But much of the compliance is around that type of verification.”

“There are also more serious immigration offenses for a pattern or practice of knowingly hiring illegal aliens or having actual knowledge that you are employing non citizens to work or for transporting or harboring illegal aliens. But those more serious offenses aren’t as much of a subject of larger scale employment enforcement. The enforcement is around verification of the status of employees.”

Arguably if we were serious about stemming the tide of illegal immigration, corporate crime enforcement would be the way to go because the majority of immigrants come here for employment.

“There are questions about whether you want to be criminalizing workplace conduct.There are concerns that this would only place employees in a more precarious position. Some immigration advocates have raised real concerns that if you are criminalizing workplace verification, then employers can threaten to not just report their employees for potential deportation but for potential criminal prosecution. And that can be a hammer to prevent employees from complaining about unsafe workplace conditions or non-payment of wages.”

“There are serious concerns about the power imbalance between employers and non citizen employees. What you don’t want is for enforcement to make those power imbalances even worse.”

[For the complete q/a format Interview with Brandon Garrett, see 34 Corporate Crime Reporter 23(13), Monday June 8, 2020, print edition only.]

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