for employer sanctions, employers are not required to screen employees to determine their immigration status. Although INS asks employers to screen employees voluntarily, it does not give them any guidelines under this program to ensure that screening techniques are not discriminatory. Secondly, the employer's consent may not be truly voluntary.62 If an employer refuses to consent, the memorandum suggests that such refusal will be grounds to stake out that business and to attempt to apprehend employees who may be undocumented. 63 Examination of these employees would be expected to provide the necessary information to obtain a warrant to search the establishment.

The continuation of "Operation Cooperation" could result in employment discrimination.64 For example, certain preemployment inquiries attempting to verify the immigration status of prospective employees, particularly if they are directed only to selected ethnic or racial groups, may well violate Title VII or State fair employment practice laws.65 No attempt has been made by INS officials to ensure that "Operation Cooperation" protects job applicants from discrimination based on such unlawful employment practices. At the Los Angeles meeting, Joseph Sureck, then Los Angeles INS District Director, said, "We want. . .[employers]. . .to go to FEPC [Fair Employment Practices Commission] to determine the proper questions to ask."66 He also said that he was unsure what constituted permissible preemployment inquiry, testifying: ". . .I am not

62 On the issue of consent, the INS asserted:

As to the statement that an employer's consent may not be truly voluntary, in many cases INS is in possession of evidence establishing probable cause to support the issuance of a search warrant at the time voluntary cooperation of the company is solicited, thereby obviating the necessity for such consent.

Leonel Castillo, Commissioner, Immigration and Naturalization Service, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Sept. 28, 1979 (hereafter cited as Castillo Letter).

The Commission does not agree that the possession of evidence allegedly establishing probable cause is sufficient to obviate the necessity for consent unless, as prescribed by the fourth amendment, a neutral and detached magistrate has had an opportunity to weigh that evidence to determine whether probable cause exists and whether a search warrant should be issued. Probable cause is a determination that should be made by an impartial judicial officer, not by an INS law enforcement officer. (For a more detailed discussion of INS area control operations and the fourth amendment, see chapter 6 of this report.)

63 In commenting on this section of the report, the INS stated:

It follows, logically, that if a company does not participate in "Operation Cooperation," where appropriate arrangements are made to determine whether undocumented aliens are employed by the company, that routine area control operations may be used to make that determination pursuant to the Service's authority granted by section 287 of the Immigration and Nationality Act, 8 U.S.C. 1357. Castillo Letter.

The Commission in no way suggests that INS officers do not have authority, without warrant, "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States," 8 U.S.C.

really certain about this; because it is a little confusing to me. . .I cannot speak with absolute certainty."67 These statements emphasize the absence of INS verification guidelines to safeguard the employment rights of individuals and point out the potential employment discrimination that could result from continued use of "Operation Cooperation" as an enforcement technique.

The voluntary nature of employer cooperation with INS is called into question by the testimony of George Lundquist, manager of the Edinburg Manufacturing Company plant in Pharr, Texas. He testified that he had initially consented to participate in the "Denver Project," as "Operation Cooperation" is known in that area, but that subsequent withdrawal from the program resulted in an INS raid on the plant.

Before participation in the "Denver Project," Mr. Lundquist said, relations between the company and INS had been friendly, and the company had cooperated with INS in the investigation of several employees. On those occasions the INS would call the employee into a private office for interrogation.69 After those investigations, INS officers returned and asked Mr. Lundquist to cooperate in the questioning of all plant employees, the "Denver Project." Mr. Lundquist testified that he agreed to cooperate because he did not want employees to be late for work or to be delayed in getting home after the working day and because he thought the questioning would not interrupt the smooth opera§1357(a)(1) (1976), or "to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of the immigration laws," 8 U.S.C. §1357(a)(2)(1976). But the Commission is of the view that such actions of the INS should be conducted in accordance with the fourth amendment to the Constitution. (See chapter 6 of this report for a detailed discussion on the application of the fourth amendment to INS area control operations.)

64 In conducting its immigration study, the Commission did investigate the potential for employment discrimination under the proposed employer sanctions legislation. Witnesses at the Commission hearing and regional open meetings noted the potential discrimination that could result from employer attempts to verify the immigration status of employees under such a law. No investigation, however, was undertaken to substantiate whether employment discrimination has actually occurred under "Operation Cooperation." But because "Operation Cooperation" is similar to the employer sanctions proposal (both involve a program for the verification of the immigration status of employees) and because it does not contain guidelines for the prevention of employment discrimination, the Commission believes that it offers the same potential for employment discrimination that an employer sanctions law would.

65 Leach Testimony, Washington Hearing Transcript, p. 40; Wilson Testimony, Los Angeles Open Meeting Transcript, p. 275; Garcia Testimony, Los Angeles Open Meeting Transcript, pp. 273-74.

66 Joseph Sureck, testimony, Los Angeles Open Meeting Transcript, p. 512.

tion of the plant. He stated that the INS officers agreed to verify the employees "a little bit at a time."" Sixty employees were randomly selected for the first screening.

Mr. Lundquist said that the first attempt to verify the lawful status of employees, however, was:

really disruptive. . . .There. . .[were] fantastic anxiety levels. Where things were normally running smoothly at 10 minutes after 7, there was no flow. There was lots of discussing, lots of talking, lots of-just nervousness. It took about 20 minutes, 30 minutes for them to check these 60 people."1

Because the four INS officers did not "get to check people as they were coming through the timeclocks," they "went up and down this line checking documentation" after the factory began operation.72

During this survey, INS agents brought one employee to the plant office and asked that she be fired." The employee, who had been with the company for "several years" and "had [a] vested interest in our profitsharing, vacation, holiday pay, etc.," was lawfully entitled to work and remain in the United States under a Federal court order entered in a class action, Silva v. Levi. 75 She had in her possession a letter from her attorney stating that she was a member of the protected class in Silva v. Levi. Mr. Lundquist said that the INS officers insisted upon her termination "although it was not illegal for me to employ her and they could not deport her if I was to cooperate and terminate her." At this point he refused to fire the employee and withdrew the participation of the plant in the verification program after his Dallas office informed him that "[w]e don't have the right to give away

70 Ibid., p. 8.

71 Ibid., p. 9. " Ibid., pp. 8-9.

73 In a letter to the Commission, the INS disputed the testimony of plant manager George Lundquist that requests for the termination of an individual's employment are made under "Operation Cooperation." It stated:

"Operation Cooperation" does not contemplate, and INS does not request, the discharge of anyone employed at a place where an area control operation is carried out. If the alien is deportable, he or she is simply removed to the local INS office or given a specific date to report to such office. No steps are taken to sever the employment of a person other than the removal of the deportable alien. Castillo Letter.

"Lundquist Testimony, Texas Open Meeting Transcript, vol. 3, p. 9. 75 Silva v. Levi claimants, Western Hemisphere nationals residing in this country before Mar. 11, 1977, and registered for an immigration visa with an American consul prior to Jan. 1, 1977, are lawfully entitled, under a judicial order, to remain in the United States pending the issuance of available recaptured visa numbers that would allow them to adjust their immigration status. The Silva v. Levi case was a class action challenging

Soon after this confrontation, the INS obtained a search warrant (as the Western Region memorandum indicated would be done under "Operation Cooperation" where consent was refused) and conducted a "factory survey"" of the plant, arresting 14 of the 938 employees, all of whom were later released from detention at the INS office. None of the 14 employees, although aliens, was deportable.80

The voluntary nature of the cooperation was also called into question at the Los Angeles open meeting on immigration. Antonio Rodriguez, of the Immigration and Labor Action Center of Los Angeles and the Los Angeles Center for Law and Justice, testified:

With respect to the alleged cooperation by most employers, I think that we should on the other hand explain what happens if there is no cooperation and how employers are placed under the gun. If when INS shows up at a factory, demands entry-if the employer refuses to allow them in, agents block all exits while other agents go back and obtain a warrant.

What that means is that, since all exits are blocked, no worker, no one from inside the factory, can go out of that factory, unless at the risk of having his fourth amendment rights violated and at the risk of being arrested; that is, in order to leave the factory, one is going to have to answer questions regarding citizenship, regarding manner of entry, etc. .

No one can leave. We have seen cases where as much as 3 to 4 hours were taken in order to get

the policy of charging Cuban refugees who had received adjustment of status under the Cuban Adjustment Act to the annual Western Hemisphere immigration quota. The court held that the policy was contrary to law and denied other Western Hemisphere nationals the opportunity to be considered for the 144,999 visa numbers granted to Cuban refugees and charged to the Western Hemisphere quota. As a result, the court ordered that those 144,999 visa numbers be recaptured and made available to Western Hemisphere nationals residing in the United States so that they could adjust their status. Until those visa numbers are exhausted, Western Hemisphere nationals within the protected class residing in this country are not subject to deportation and have authorization to seek employment. Silva v. Levi, No. 76 C 4268 (N.D. Ill. Apr. 1, 1978), entered final order sub nom. Silva v. Bell, No. 76 C 4268 (N.D. Ill. Oct. 10, 1978).

" Lundquist Testimony, Texas Open Meeting Transcript, vol. 3, p. 10. 77 Ibid.

"Ibid., pp. 14-15.

"Factory surveys are one type of area control operation conducted by INS officers. The legality of such enforcement techniques is discussed in chapter 6 of this report.

80 Lundquist Testimony, Texas Open Meeting Transcript, vol. 3, pp. 11, 20-21.

a warrant, and during that time, no one from the factory was able to leave.81

The final step in "Operation Cooperation" procedures, as disclosed in the INS memorandum, is the notification of employers by mail "as to the names of the [undocumented] aliens who were found in his employ."82 These letters potentially could be used to establish the necessary "pattern or practice" for prosecuting employers for violations of an employer sanctions law that might later be enacted by Congress. As stated in the memorandum:

The purpose of notifying employers of the identity of these [undocumented] aliens is that in the event of the enactment of a law imposing sanctions against employers of [undocumented] aliens, this office will have evidence of such employment practices on the part of a large number of employers in this area.83

This point was reiterated by the INS Western Regional Counsel, who testified at the Los Angeles open meeting that: "If sanctions such as these letters [Operation Cooperation] were ever enacted into law, then this would be the first bite that the employer would get without getting the possibility of any proceedings against him."84

Summary

The foregoing discussion points up the fact that the flow of illegal migrants has resulted in proposals being advanced that are designed to reduce the flow but that, in the judgment of the Commission, raise serious questions about the undermining of civil liberties. The Commission does not believe that, serious as the adverse impact of the undocumented workers may be on the employment opportunities of some citizens and legal aliens, the Nation is warranted in traveling a path which could result in depriving all citizens of civil liberties. The Commission does not believe that the ends that would be achieved justify the proposed means.

This does not mean that the Commission believes that the Nation should settle for the status quo. As indicated earlier, the Commission believes that action can and should be taken on both domestic and foreign policy fronts designed to reduce the number of undocumented workers who are in jobs that

1 Antonio Rodriguez, testimony, Los Angeles Open Meeting Transcript, pp. 343-44.

2 Philip H. Smith, Assistant District Director for Investigations, Los Angeles INS District Office, memorandum to INS Western Regional Commissioner, Mar. 14, 1977, p. 2.

would otherwise be occupied by citizens or legal resident aliens.

Findings and Recommendations Summary Finding: Although the exact nature and degree of the impact of undocumented workers on the American economy is unknown, most immigration experts agree that it is an issue of serious national concern and that there is an adverse impact on domestic unemployment for some of our citizens and legal residents. They are, however, divided on the manner in which to address the issue. Sharp divisions occur over the need for and/or efficacy of employer sanctions legislation as a unilateral solution to the undocumented worker issue. There is greater agreement on the negotiation of bilateral agreements between the United States and the major source countries to reduce the number of undocumented workers entering this country and to address and help remedy some of the economic conditions and factors that encourage the migration of citizens from the source countries to the United States in search of employment opportunities as a more equitable and effective solution.

Finding 5.1: The extent to which undocumented workers displace citizens and resident aliens from jobs will be increased if some employers are free to exploit them, for example, by paying them less than the minimum wage, because undocumented workers are afraid to assert their rights.

Recommendation 5.1: The Department of Labor should vigorously enforce the Fair Labor Standards Act and other labor laws to ensure that neither citizens nor aliens are required to work under unfair working conditions and to minimize job displace

ment.

Finding 5.2: The number of undocumented workers can be reduced by more effective immigration law enforcement, through the hiring of additional personnel and through the use of more modern law enforcement technology, such as computerized arrival-departure records. The Commission believes that such an improved law enforcement effort can be accomplished without the dilution of individual civil rights.

Recommendation 5.2: The Congress should appropriate additional funds to the Department of Justice in

63 Ibid.

"Bernard Karmiol, testimony, Los Angeles Open Meeting Transcript, p. 567.

order that the Immigration and Naturalization Service can more effectively enforce the immigration laws by expanding its work force and having available more modern law enforcement technology.

Finding 5.3: There are precedents for the development of working agreements to deal with the population flow between the United States and the major source countries for undocumented workers. It is recognized that the negotiation of such agreements must be linked with other outstanding issues between the United States and the source countries, the resolution of which would be to the advantage of all parties. Also, programs of economic cooperation and development can be worked out in such a way that they further develop the resources required to reduce the need for citizens in source countries to seek work in the United States.

Recommendation 5.3: The President should seek bilateral or multilateral agreements or compacts with the major source countries for undocumented workers in order to reduce and regulate the population flow between those countries and the United States.

Finding 5.4: An employer sanctions law would be an unjustifiable imposition of law enforcement duties upon private persons and corporations, with undesirable consequences not only for the employer but for the due process rights of job applicants. Moreover, increased employment discrimination against United States citizens and legal residents who are racially and culturally identifiable with major immigrant groups could be the unintended result of an employer sanctions law.

If sanctions against the employment of undocumented workers are enacted, unintentional employment discrimination against current or prospective employees by employers, even when they act in good faith, may not be preventable. Bona fide job applicants who are "foreign looking" or "foreign speaking" may be denied employment because employers are unable to make determinations of lawful immigration status. The inability to screen employees properly may result from inadequate employer resources for verification of status, insufficient verification guidelines, or the inability or unwillingness

† Commissioners Stephen Horn and Frankie M. Freeman have dissented from this recommendation. For their comments, see "Additional Statement by Vice Chairman Stephen Horn" and "Separate Statement of Commissioner Frankie M. Freeman."

of employers to interpret or evaluate an individual's immigration status.

Increased enforcement efforts by Federal civil rights agencies have been proposed as a remedy for potential employment discrimination resulting from an employer sanctions law. However, the time, effort, sophistication, and expense typically required of a complainant to pursue an employment discrimination case to a successful conclusion are such that very few cases of discrimination would be redressed. Moreover, after-the-fact remedies are rarely adequate to compensate American citizens and legal residents for the discrimination that prevents them from the full emjoyment of and participation in our democratic society.

Recommendation 5.4:† Congress should not enact an employer sanctions law.

Finding 5.5: The development and implementation of a compulsory national identity card system or a compulsory national work permit system has been proposed as a tool to deal with some of the problems involved in implementing an employer sanctions law.

Studies by government commissions raise serious. doubts relative to the possibility of developing a secure, tamperproof national identity card or work permit which would eliminate the market for false documentation, whether forged, lost, or stolen.

An even more fundamental objection, however, is that the availability of such a national identity card would provide a tool that could be used to violate the right to privacy of the individual.

Recommendation 5.5: Congress should not enact legislation for the development and implementation of a compulsory national identity card or work permit system.

Finding 5.6: INS currently conducts a program to verify the immigration status of employees which does not have adequate guidelines to protect current or prospective employees from employment discrimination.

Despite the unresolved national debate over employer sanctions, the INS has instituted a program, known in some areas as "Operation Cooperation" or the "Denver Project," to dissuade employers from hiring undocumented workers. Participation in this program is not always voluntary. Failure to cooper

Commissioners Stephen Horn and Frankie M. Freeman have dissented from this recommendation. For their comments, "Additional Statement by Vice Chairman Stephen Horn" and "Separate Statement of Commissioner Frankie M. Freeman."

ate in this program can subject a business establishment to a disruptive INS raid or area control operation, which in turn may subject employees to violations of their constitutional rights (for example, see chapter 6 of this report for a discussion of fourth amendment problems in INS area control operations).

More important, "Operation Cooperation" contains no safeguards to protect employees from unfair

• Commissioners Stephen Horn and Frankie M. Freeman have dissented from this recommendation. For their comments, see "Additional Statement

employment practices which have been or will be adopted by employers under the program. This leaves the program open to the same types of employment discrimination that might result from an employer sanctions law.

Recommendation 5.6: INS should terminate use of programs such as "Operation Cooperation."

by Vice Chairman Stephen Horn" and "Separate Statement of Commissioner Frankie M. Freeman."