Obama's Immigration Enforcement Policy in Limbo

What exactly is the policy of the Department of Homeland Security regarding work-site immigration raids?

No one knows for sure. It is very much a work in progress. That is the takeaway from recent events and a recent visit that Homeland Security Secretary Janet Napolitano paid to the editorial board of the San Diego Union-Tribune.

This much we do know: Napolitano is not happy with the policy she inherited from the Bush administration. That policy basically consists of Immigration and Customs Enforcement agents raiding workplaces, rounding up illegal immigrants wholesale, and deporting them to their home countries while letting employers off scot-free. Napolitano wants to target employers and focus most of the enforcement to immigrant criminals -- that is, those who may have broken a local or state law in addition to entering the country illegally. And, according to a recent article in the Washington Post, until the specifics of a new policy are hammered out, the secretary has put the brakes on further raids.

"Sending 40 or 50 agents in with full gear to pick up a dozen or two dozen illegal immigrants at a work site, to me is not the best and most effective use of our immigration enforcement abilities," Napolitano told the editorial board. "And particularly when there's no strategy to get the actual employer who's making money off of this."

So far, so good. Napolitano is right to go after employers. It was shameful that the Bush administration turned a blind eye to bosses while busting the workers. The problem is that Napolitano hasn't been clear about what exactly is going to happen if and when the raids resume. The big question is this: what's going to happen to the ordinary workers, those who aren't wanted for violating some other law?

Napolitano is more interested in going after smugglers than illegal immigrants.

"To me," she said, "the smart way to enforce the immigration law in terms of the workplace is to aim at that part of the illegal labor market as opposed to just collecting stats on how many workers we've picked up."

That is just as well. Napolitano's stats aren't so good.  Consider what happened in Bellingham, Wash., the site of the first workplace raid carried out under this administration. This month, it was reported that ICE released more than two dozen illegal immigrants apprehended in that raid and even gave them work permits so they could stay in the country, get new jobs, and help with an investigation of the employer whose plant was raided. The work permits expire when the case is closed.

Still, I can't imagine that ICE agents would -- as a matter of policy -- walk into a business that was hiring illegal immigrants, arrest the employers and a spattering of immigrant criminals, and leave the other immigrant workers behind. That would be politically toxic. Imagine the outcry on talk radio and in the conservative blogosphere. That kind of change in policy just won't fly.

Besides, under the 1986 Immigration Reform and Control Act, law enforcement authorities can't build criminal cases against employers unless they prove that management knowingly hired illegal immigrants. They can't do that unless they prove the workers are, in fact, in the country illegally.

Put it all together and it's obvious what would happen if there were more raids: everyone in the wrong would get arrested.

Fine. That's as it should be. Enforce the law.

The only reason the administration hasn't said so publicly is because it's likely to enrage some of the president's left-wing supporters, including immigrant activists and civil libertarians. Actually, come to think of it, there may be another reason. If the administration starts indiscriminately rounding up illegal immigrants in workplace raids, it will openly contradict what candidate Barack Obama said while he was running for president. When speaking to Hispanic groups, Obama lamented when "communities are terrorized by ICE immigration raids -- when nursing mothers are torn from their babies, when children come home from school to find their parents missing."

That could get embarrassing. It is no wonder that the Department of Homeland Security seems paralyzed. When it comes to workplace raids, it has lots of options -- all of them bad.