Federal judge blocks crackdown on illegal immigrants' employers
San Francisco Chronicle | October 10, 2007
By Bob Egelko
A federal judge in San Francisco barred the Bush administration today from threatening to prosecute businesses for knowingly employing illegal immigrants if they fail to fire workers whose Social Security numbers don't match government records.
U.S. District Judge Charles Breyer issued a nationwide preliminary injunction barring the government from enforcing the so-called no-match rule, which was scheduled to take effect last month but was blocked by temporary restraining orders from Breyer and another judge. Today's order remains in effect until a suit by labor unions challenging the rule goes to trial sometime next year or until a higher court intervenes.
The rule, if implemented, "would result in irreparable harm to innocent workers and employers," Breyer said.
The administration had planned to send letters this fall to 140,000 employers with a total work force of more than 8 million. According to the government, those employers typically had at least 10 workers whose Social Security numbers on W-2 tax forms did not match the government's database.
The letters would give the employer 90 days to resolve the discrepancy and an additional three days for an employee to submit a new, valid number. After that, an employer who failed to fire the worker would be subject to civil fines or criminal prosecution under a 1986 law that prohibits businesses from knowingly employing illegal immigrants.
In their lawsuit, unions said the no-match rule would lead to widespread firings of legal employees, including hundreds of thousands of union members. They said the government and employers commonly make clerical errors that lead to no-match letters, and that name changes for reasons including marriage and divorce often prompt similar confusion.
Many innocent workers would be unable to locate records within sprawling federal agencies and clear up discrepancies within 90 days, the unions said.
The Service Employees International Union, a plaintiff in the suit, praised the ruling.
"The federal court has seen the administration's Social Security 'no-match' regulations for what they are - an illegal, ill-conceived measure that would threaten thousands of innocent workers and lead to discrimination and massive workforce disruptions," the union's executive vice president, Eliseo Medina, said in a statement.
Homeland Security Secretary Michael Chertoff, whose agency issued the rule, said the government would consider its options, including an appeal to the Ninth U.S. Circuit Court of Appeals in San Francisco.
The premise of the rule is that "employer diligence will make it more difficult for illegal aliens to use a fraudulent Social Security number to get a job," Chertoff said in a statement. He said the ruling was "another reminder of why we need Congress to enact comprehensive immigration reform."
Breyer did not decide the merits of the lawsuit, which claimed the new rule was unauthorized by law. But he said unions and business groups that supported the challenge had raised serious questions about the legality of the Bush administration's proposal.
Among other things, he said, immigration officials "did not supply a reasoned analysis" for their decision to reverse a decade-old government policy of not prosecuting employers on the basis of a discrepancy in a worker's Social Security number.
Since at least 1997, Breyer said, the government has assured businesses that a no-match letter, by itself, did not amount to official notice of unauthorized employment that could be grounds for prosecution. He said the Bush administration abruptly reversed course with the new rule, which was enacted in August 2006 but put on hold until a comprehensive immigration bill died in Congress this year.
"Needless to say, this change in position will have massive ramifications for how employers treat the receipt of no-match letters," Breyer wrote.
In addition, Breyer said, Homeland Security lacked legal authority for a statement in the letter that assured employers that the government would not sue them for discrimination if they fired workers because of unresolved no-match letters.
The judge also said he had "serious doubts" about the department's assertion that the new rule would not impose a significant burden on small businesses.
Breyer rejected unions' argument that the 1986 law imposed no duty on employers to verify their workers' immigration status after they were hired.
He said employees and businesses would be harmed far more by enforcement of the disputed rule than any hardship the government would suffer from a delay.
"There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days, even if the employees are actually authorized to work," Breyer said.
