Arizona employers will be required to use a federal electronic system under the new employer sanctions law starting January 1. Marie Sebrechts of the U.S. Citizenship and Immigration Services discusses what resources are available to help employers understand the system as well as what they need to know about it.
Jose Cardenas:
Good evening, I'm José Cardenas. Welcome to Horizonte. The Mayor of Phoenix makes a decision to change police immigration-enforcement policy. Plus, two new lawsuits to tell you about -- one filed against Arizona's employer sanctions law -- the other targeting Sheriff Joe Arpaio. And, details about the e-verify program that all Arizona businesses will be required to use under the new law. That's next on "Horizonte".
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Jose Cardenas:
Phoenix Mayor Phil Gordon announced last week changes to Phoenix police operations order 1.4, which prevents police from routinely asking people about their immigration status. He said he could no longer support the 20-year-old policy. A four-man advisory panel was given the task to develop a new policy -- which should allow police to notify Immigration and Customs Enforcement when any law has been violated by a person police suspect to be an undocumented immigrant. Joining me to talk about the decision on a new policy is one of the people appointed to the panel, former Arizona attorney general Grant Woods.
Jose Cardenas:
Grant, thanks for joining us on Horizonte.
Grant Woods:
Sure.
Jose Cardenas:
This is not a new topic for you. We're going back 20-years to the old policy, we had had the Chandler roundup which I think was one of the reasons why the original Phoenix police policy was adopted.
Grant Woods:
I think they've been sensitive to that. Phoenix police has been pretty clear that they did not want to have any chance of what happened in Chandler happening in Phoenix. And what happen in Chandler is that the police department there did a joint operation with border patrol with no training whatsoever, by the way, and when we got involved in, that when I was attorney general, we discovered that people were being pulled over in their cars, people were being stopped for one reason and one reason only, because they were brown-skinned and speaking Spanish. They were being pulled over outside of markets, grocery stores that catered to Spanish speakers. It's certainly only on their appearance in their cars. And that's obviously wrong. And it shouldn't happen. So they wanted to make sure that that never happened. Now the mayor wants to take another look at that. He doesn't want that to ever happen. But is there some sort of middle ground? Can we do more to make sure the people who are here illegally who commit illegal acts are in fact ultimately deported.
Jose Cardenas:
Well, in part because of the position your office took on the chandler roundup and for other reasons you've long been regarded as a friend of the Hispanic community. That community has reacted rather strongly and negatively to the Mayor's announcement. Has any of that rubbed off on you?
Grant Woods:
It has. I have read some of the letters that city received, and some of them are from people I know and respect very much. I was a little surprised at how strongly they reacted. And so yeah, of course we have to listen to that. We're listening to, in a public forum situation, to what everybody has to say. I don't think anybody has made up their mind on this yet. We don't have a lot of time. But we have a little bit of time. We're certainly going to listen to everybody. We don't want -- we want to have a more realistic policy. But at the end of it all we cannot have a situation that encourages the sort of behavior we saw in chandler.
Jose Cardenas:
You've got a December 31st deadline. What progress have you made toward meeting that deadline?
Grant Woods:
Well, you know, we've met amongst ourselves. We met with the Mayor, we met with the police chief. We met with the police union on the street and we started to talk to people in the community and just be there and listen and hear their own experiences and hear what their concerns are. So I think we're making pretty good progress.
Jose Cardenas:
Grant, I've got the order 1.4. And I know you're not in a position to speak for the entire panel, and presumably you haven't made up your mind either what parts might or might not be changed. But I just want to go through them and get your sense for what might change. And what it says is, number one, officers will not stop persons for the sole purpose of determining immigration status. Do you anticipate that would change?
Grant Woods:
That won't change.
Jose Cardenas:
Number two, officers will not arrest a person when the only violation is the infraction of a federal immigration law.
Grant Woods:
That's not going to change either.
Jose Cardenas:
Number three, officers will not contact I.C.E../border patrol for the sole purpose of interpreting.
Grant Woods:
I think that's up for grabs. That's something that we've heard from the union that the officers would like to have that available to them. We haven't yet. But that's an issue I guess.
Jose Cardenas:
That would be more of a resource issue, wouldn't it? If the city of Phoenix had interpreters they could provide them. Number four, officers will not notify I.C.E./border patrol of status when they think they are witnesses of a crime.
Grant Woods:
That will not change.
Jose Cardenas:
When contacted with family disturbances?
Grant Woods:
We're looking at that. That's a tough area. The concern again is if you loosen up that at all you could create a situation where generally a woman would not feel comfortable calling the police if she was here illegally, even if she was being abused.
Jose Cardenas:
That would be the victim situation.
Grant Woods: Right.
Jose Cardenas: I also have some concern about a spouse being deported because of the --
Grant Woods:
That's right. That's right. Exactly. She might be worried about herself or she might say, hey, I don't like this guy's roughing me up. But on the other hand, I don't want him just completely removed from the picture. That would be the equivalent for a legal citizen, a woman saying, well, I'm going to call on my spouse, and if they come he may be gone forever.
Jose Cardenas:
So this one might not get changed, either.
Grant Woods:
Might not.
Jose Cardenas:
What about the enforcement of minor traffic offenses? Under the current policy they're not supposed to call I.C.E.
Grant Woods:
That's something -- I think that's the most difficult area is what do we do about traffic stops. And on the one hand, you just give unlimited discretion? Or do you say, absolutely no, you can't ever inquire? Or is there some sort of middle ground that would help us protect against pretext stops or people being stopped supposedly because they committed a traffic violation, but the reality was it was because of the color of their skin.
Jose Cardenas:
What would be wrong, though, with a flat prohibition on calling I.C.E. when it truly is a minor traffic offense?
Grant Woods:
Well, I think the problem is that the officers talk about, some of them, is that let's say I pull a guy over on a traffic -- legitimate traffic deal. Let's say he ran a red light. And when I pull him over he has all sorts of indicia of being here illegally and maybe even being a bad guy. He has the tattoo, he has all sorts -- they can articulate it. Under that circumstance, what's wrong with checking. That's what they're going to say. And they take it the next step. And that is, what happens, then, how do we explain, then, to the mother or father of the child who later was abused or sexual assaulted by that person, of the widow of the man who was killed by that person? What do we say when they say, wait a minute. You had them? You had them stopped legitimately? You had reason to believe they were here illegally and you did nothing? You didn't make a phone call? This is the problem we're confronting. It's not an easy issue I think with traffic.
Jose Cardenas:
But in the absence of that other indicia would you think for other minor traffic offenses I.C.E. should be called?
Grant Woods:
I personally don't think so.
Jose Cardenas:
Lastly when the person or persons is or are seeking medical treatment.
Grant Woods:
No. Absolutely not.
Jose Cardenas:
It then goes to talk about circumstances under which it might be appropriate to call I.C.E. critics of the mayor's position say that profiling is inevitable. What's your view on that?
Grant Woods:
Well, here's what we have to wrestle with. We don't want profiling. We're against profiling. It's wrong. We have profiling today in this country, unfortunately. There's some cops who would pull people over because they are African-American or for whatever reason. We work against that. We train against that. You try to identify the people. You try to get them out of the department. Nobody wants those people around. Having said, that we don't just completely stop all officers when the vast majority of them are great people and doing a good job. Because of that few who profile, we don't -- we don't put restrictions on everybody else. Okay? So that's one side of the argument. The other side is, look, this is Arizona. This is -- right now we're talking about Phoenix, Arizona. And part and parcel of being an Arizonan is Mexico, Mexican-Americans, people who have lived here, who have some sort of Mexican heritage, who have been citizens of this state and this country longer than most of the Anglos who are here. And we don't want to create a situation where they are going to be pulled over for whatever reason and asked for their I.D., asked for the -- we don't want that. Because again in our state, I mean, that would be a tremendous burden and a negative thing to happen to so many people. So we're trying to find a balance, if there is one. Ultimately if there isn't one then we shouldn't do it.
Jose Cardenas:
We'll have to leave it on that note but I'm sure progress. Former attorney general Grant Woods. Thanks for being on Horizonte.
Grant Woods:
Thank you.
Jose Cardenas:
Late last week, U.S. District Judge Neil wake tossed out the lawsuit challenging Arizona's employer sanctions law. The federal judge's ruling said the groups and businesses had sued the wrong people, and suggested the lawsuit was premature because there is no evidence anyone has been harmed because the law had yet to take effect. This week a new lawsuit was filed, naming new defendants and new complaints. Joining me to talk about the new employer sanctions lawsuit is attorney Lou Moffa with Ballard Spahr, who represents the plaintiffs in the case.
Jose Cardenas:
Mr. Moffa, thanks for joining us on Horizonte.
Lou Moffa:
My pleasure.
Jose Cardenas:
My understanding actually is you're the lead attorney in both the lawsuits we want to talk about. But let's talk about first about employer sanctions. What is the ruling a surprise?
Lou Moffa:
A surprise, yes, in a sense that we thought -- and we still think we had a valid basis for jurisdiction at federal court. We believed we sued the right people.
Jose Cardenas:
That meaning the attorney general.
Lou Moffa:
Right.
Jose Cardenas:
And now the judge has said you should have sued the county attorneys.
Lou Moffa:
Right.
Jose Cardenas:
Which you've now done.
Lou Moffa:
We have now done that.
Jose Cardenas:
Have you added additional complaints?
Lou Moffa:
We added additional facts. The judge said that he didn't believe there were enough facts alleged to show there was a real threat of a real injury or real enforcement of the statute. And we added facts to the complaint and in our motion to show that there is a real threat of enforcement.
Jose Cardenas:
Now, this is -- there's been some discussion in the papers about an employer who says that they've got people who are on their payroll who aren't here legally, and they are fearful of prosecution. Is that factual basis?
Lou Moffa:
We have submitted an affidavit from an employer, submitted on a john doe basis anonymously at the moment, alleging that he has an undocumented worker in his employ now and he intends to keep him employed.
Jose Cardenas:
How quickly do you expect a new ruling on the new laws?
Lou Moffa:
We've asked the judge to issue a temporary restraining order, which generally he would have a hearing on that sort of request within 10 days of filing at least. We expect to hear from him any day now on when a hearing will occur, and we would expect him to rule at that hearing.
Jose Cardenas:
So you think you'll have something in place before the end of the calendar year?
Lou Moffa:
If we're successful we will.
Jose Cardenas:
Now, what about the other arguments that were made but the judge didn't address? The issues on the merits, pre-emption.
Lou Moffa:
He didn't address any of the issues on the merits or any of the constitutional claims we raised as to why the law is not valid. And we are hopeful that when he does get a chance to do that that we will prevail.
Jose Cardenas:
Now, with respect to the lawsuit, any other additional facts that make it different from what you filed before that make you more confident you'll prevail?
Lou Moffa:
No. This was really a procedural ruling on constitutional issues of jurisdiction. Whether the court can actually hear our claims and rule on our claims. He did not rule on the merits. He didn't indicate anything about the merits other than to suggest that e-verify system does impose a burden on employers.
Jose Cardenas:
Now, one of the things that was reported in news papers at the hearing was the statement by one of the lawyers -- I don't think he was representing your clients, perhaps he was -- but that the new law applied to existing employees. And that seemed to take the judge by surprise and some of the other participants. Your thoughts on that.
Lou Moffa:
The law as it's written can be interpreted to mean that it applies to all employees.
Jose Cardenas:
So what could employers do to deal with that situation?
Lou Moffa:
Well, that's tough. That's why we said the law is invalid, because by strict interpretation of the Arizona law, employers would have to use the e-verify system for their entire work force. But under federal law you can't.
Jose Cardenas:
And so that's one of the defects that you're challenging.
Lou Moffa:
Sure. That's a conflict, a clear conflict between federal and state law. When there's a conflict federal law prevails.
Jose Cardenas:
Let's talk now about the new lawsuit you filed this week against the sheriff's department. What can you tell us about that?
Lou Moffa:
We filed a lawsuit against the sheriff's office and against the county who employed the sheriff's office as a result of what we believe is racial profiling by the sheriff's officers in their enforcement of federal immigration law.
Jose Cardenas:
We're talking about the traffic stops in Carefree and so forth.
Lou Moffa:
Cave Creek, carefree, the protesters at Pruitt's, all those things. There are incidents that have come to our attention, and one we've detailed specifically in this complaint and others that are alluded to where it appears at least that sheriff's officers are stopping people and asking them about citizenship for no reason.
Jose Cardenas:
Now, we asked the Sheriff's office for a statement, a response, to the new lawsuit. And what they said is "the sheriff's deputies acted in a professional and appropriate manner under the memorandum of agreement." They're referring to their agreement with I.C.E. What's your response to that?
Lou Moffa:
Let me tell you what they did and you can tell me whether they acted appropriately. What they did to Mr. Ortega was a passenger in the vehicle, which was his only offense. The fact that he is Hispanic and does not speak English. He's a retired schoolteacher from Mexico. He's here legally. He had a visa. He had all the proper paperwork on him. Yet the sheriff's officers made him exit the vehicle, questioned him at length, put him against the car, handcuffed him, brought him to jail and brought him to I.C.E. headquarters downtown where they finally -- when the I.C.E officers, the federal officers reviewed his paperwork they set him free nine hours later.
Jose Cardenas:
Well, what could the sheriff's department do that would be compliant with their agreement with the I.C.E. memorandum?
Lou Moffa:
Well, they're supposed to be specially trained officers who know how to look at immigration documents and determine whether someone is here legally or not, first of all. So regardless of -- let's not talk about the stop first. Can we talk about when they reviewed his documents it should have been obvious like to the I.C.E. officers this man was here legally and there was no reason to detain him. Secondly, they shouldn't have asked him any questions. There wasn't a reasonable suspicion he'd committed a crime.
Jose Cardenas:
If he would have been a driver there would have been a basis for asking the question this is?
Lou Moffa:
Possibly. It depends. In this instance the driver was Anglo, they stopped him for a traffic violation and he didn't get a ticket.
Jose Cardenas:
What relief are you asking for in the lawsuit? Assumably damages for your individual client. But beyond that, what changes would this effect if you were successful?
Lou Moffa:
We want them to comply with their agreement that they made with I.C.E., which requires them to follow the department of justice guidance on racial profiling and law enforcement, which the bush administration issued in 2003. And that requires them to follow the constitution, to respond to everyone's fourth amendment rights, to only stop people and ask questions about immigration when they have reasonable suspicion that that person is here illegally or has committed a state crime under state law and things of that nature. When they're in the normal course of their duties if they come across people who have violated state law, under their choir about immigration status at that point.
Jose Cardenas:
That would include traffic violations?
Lou Moffa:
It could include traffic violations, yes.
Jose Cardenas:
We're out of time. I'm sorry. I'm sure we'll be hearing a lot about this lawsuit. But Lou Moffa, thanks for coming.
Lou Moffa:
Thank you.
Jose Cardenas:
Under the employer sanctions law, Arizona businesses will be required to use e-verify -- the online federal employment eligibility program -- when they hire new employees starting January 1st. Here is a look at the system.
Mike Sacueda:
Business owners and those representing business owners gather at the state capitol for a chance to learn about the basic pilot program now called the e-verify system shortly after the passage of the employer sanctions law. That law is scheduled to go into effect January 1st. It penalizes employers who knowingly hire illegal immigrants with loss of their business license. Use of the e verify system will give people cover under the law. It vary fight people's identity and social security number. Use is voluntary. We're told that web-based system is easy to use and provides results within 3 to 5 seconds after the person's data that has been entered. In 92% of the cases e-verify will tell employers that person they hired is eligible to work. 8% of the time a tentative non-confirmation is received and the new employee has eight government business days to correct a non-match which may be the result of a name change or an error in a birth date. Those at the meeting were also told training takes about two hours and that system is ready to handle up to 7 million employers. Also the ability to detect fraudulent documents has been beefed up, with the photo verification system and the ability to catch multiple uses of a social security number.
Jose Cardenas: W
ith me to talk about some details of the program is Marie Sebrechts -- from the U.S. Citizenship and Immigration Services. Marie, we hat you on before to talk about this. The January 1 deadline is looming. People are more interested in what you have to say about e-verify. Just a quick primer. Some of the concerns, let's try and address them. One was that system would be overloaded with all the new people who have to use the system.
Marie Sebrechts:
Right. I actually have heard that a lot myself, that people are worried it would be overloaded. I think people need to remember that in fact we anticipated that this would be a federally mandated program for the entire nation. So the program has been load-tested throughout the past year and a half, meaning that we have pushed it to an extreme to make sure that it can handle many, many more inquiries and registrations than we currently have. The current capability before we add any new hardware would allow us to have 25 million inquires. At this point during the past year, despite the huge growth in the number of employers who have signed up, we've only had 3.5 million.
Jose Cardenas:
What have you seen in the state of Arizona?
Marie Sebrechts:
Arizona actually is very interesting. We have now in this state surpassed every other state in the number of employers who are signed up for e-verify. We currently have about -- a little more than 6,000 employers who are signed up out of the 35,000 nationwide.
Jose Cardenas:
And you anticipate a big jump but the system should still be able to handle it after January 1st?
Marie Sebrechts:
Absolutely.
Jose Cardenas:
Now, state law basically makes this mandatory. But that's not the federal requirement, is it?
Marie Sebrechts:
That's correct. It is not a federally-mandated program, other than in certain instances for some federal employers and people who have been designated because of problems they've had in terms of their hiring practices in the past. But in general it's a voluntary program.
Jose Cardenas:
Except for Arizona employers. Because of the state's statute--
Marie Sebrechts:
Because of the state statute. I think it is important that people also understand that this is a system that's only used for new hires. So you actually don't need to sign up for this program in many such time as you're doing hiring.
Jose Cardenas:
Now, we just had the attorney on representing the plaintiffs suing to stop enforcement of Arizona's employer sanctions law. The concern there is that the statute also applies to existing employees. And you're saying you can't use this system --
Marie Sebrechts:
Actually e-verify is only for new hires. When an employer signs up for it and they sign the memorandum of understanding in order to use it, they agree that they will only use it for new hires. It will only be used after someone is actually hired, and that it will used within three days of when they start working, and that system will be used in the same manner for all new hires, citizens and noncitizens.
Jose Cardenas:
How hard is it to sign up?
Marie Sebrechts:
Oh, signing up is very easy. It's a matter of just a few minutes to do the initial signup.
Jose Cardenas:
And then to do an actual verification?
Marie Sebrechts:
Verification takes second. In between the sign-up and the verification you do have to do a tutorial, the person who is going to be using the system.
Jose Cardenas:
For the first time around.
Marie Sebrechts:
For the first time around you have to do a tutorial which basically talks about the way that system can be used legally and the reasons for that. So that you don't discriminate between different employees.
Jose Cardenas:
And some people have expressed concerns about errors in the system that would result in people who are here legally and are permit today work not being allowed to work.
Marie Sebrechts:
Right. We actually have not faced that situation. I think that's a little bit more, again, of misunderstanding. What happens is that about 93% of the inquiries that go in are responded to immediately. But after that, you get what are called tentative non-confirmations. That is not a time when a person, an employee, would be let go or would stop training or anything else. In fact, it's illegal to do that. A tentative non-confirmation means that there is -- the first one would mean that there is something wrong in the social security administration profile of this person. What we found is most times that problem is naturalized U.S. citizens who have not notified the social security administration that they are now naturalized, which means they no longer need employment authorization documents because they're U.S. citizens.
Jose Cardenas:
I understand that the system doesn't determine immigration status. It simply tells you whether somebody is eligible to work here in the United States, is that right?
Marie Sebrechts:
Absolutely. It is not an immigration determination. It's not designed to determine the status or report on status, immigration status. It is only to tell you whether or not somebody is authorized to work in the United States.
Jose Cardenas:
So for example somebody here on a student visa that does not allow them to work, they're here legally but this system would tell an employer you can't hire them.
Marie Sebrechts:
You can't work. That's it. They wouldn't tell you they're legally here or not. They just are not allowed to work here.
Jose Cardenas:
Any other misconceptions about e-verify that you've heard?
Marie Sebrechts:
I think you hit on the biggest ones that people are worried about the system not, you know, -- I'm sorry. That people are worried about the system knocking out people who actually can legally work. And that's not the case at all. People don't understand that when you get a tentative non-confirmation, what happens is that system generates a letter which goes for the employee --
Jose Cardenas:
You will be able to --
Marie Sebrechts:
The employee is allowed to -- is given instructions actually how to go to the social security administration and fix it.
Jose Cardenas:
We'll have to leave it on that. I'm sure we'll have you again as a guest after January 1st.
Marie Sebrechts:
Thank you so much.
Jose Cardenas:
And thank you for watching our show tonight. I'm Jose Cardenas. Have a good evening.
Marie Sebrechts :U.S. Citizenship and Immigration Services;
