State begins citing businesses under immigration law

GreenvilleOnline.com
October 25, 2012

Written by Tim Smith, Staff writer

COLUMBIA — Orin McCammon said he had heard something about E-Verify in the news, the federal electronic database used to verify new hires, but didn't think it had anything to do with his business.

That is until a state auditor last month visited Cedars Homeowners Association in North Charleston, where he works, and asked to see paperwork related to the Association's hirings since July.

The Association then became one of the first seven employers in South Carolina to be cited for violating the state's newest tweaks to its immigration law, which requires all new employees, other than farm laborers, ministers and domestic servants, to be verified through the federal database.

First-time violators are placed on probation for a year, must file quarterly reports and have their names posted on the state Labor, Licensing and Regulation website.

"I thought it was something applicable to large organizations," McCammon told GreenvilleOnline.com. "We probably employ one to three people normally."

According to LLR, the agency last year cited 396 businesses across the state for various infractions under the previous version of the state's immigration law. LLR auditors found 171 businesses from January through June who did not use E-Verify but were given a pass under a provision that exempts those caught in the first six months.

Sen. Larry Martin, a Pickens Republican who chairs the Senate Judiciary Committee, said despite the differences in numbers between the old and new law, he believes the new law is doing its job to keep employers honest and chase away illegal immigrants.

"It's really working out pretty well," he said.

But some in the Hispanic community disagree, arguing the law was aimed at a small number of illegal immigrants who mostly left the state anyway because of the Great Recession.

"This law was a waste of my taxpayers' money," said Gregory Torrales, president of the South Carolina Hispanic Leadership Council. "We could have spent that money better. It was feel-good legislation."

Frank Knapp, CEO and president of the South Carolina Small Business Chamber of Commerce, said the law is another burden for the state's small businesses.

"It was an extra burden on small businesses that don't need extra burdens put on them," Knapp said. "The state is making a policy and making small businesses implement the policy for something that politicians wanted. And that just doesn't seem fair at all."

In addition to requiring employers use E-verify for new employees, the new law also creates a state immigration police force that has been up and running since July.

And that unit has run across criminal activity involving immigration laws that has grown, said it's director, Lt. E.C. Johnson.

The unit of six officers spread throughout the state is not after people who might be in the country illegally, Johnson said. Rather, the unit's aim is those participating in criminal activity involving the violation of the state's immigration laws, such as falsifying identification documents or using falsified paperwork to get hired.

The officers respond to requests for investigation by law enforcement and by citizens, Jonson said.

"It has been really busy," he said.

Other provisions of the law have been struck down by the courts. The U.S. Justice Department and the American Civil Liberties Union challenged South Carolina's law last year, which had been modeled after Arizona'a law, arguing it was unconstitutional and would spawn racial profiling.

U.S. District Judge Richard Gergel subsequently blocked three provisions. Those included requirements for immigrants to carry registration papers on them and to allow police to check the status of anyone they stop or arrest for something else, provided they held a reasonable suspicion the immigrants were in the country illegally.

The U.S. Supreme Court subsequently ruled that states have the right to allow status checks, a provision of Arizona's immigration law. But the provisions blocked by Gergel are still on hold pending the outcome of an appeal by the state.

Johnson said there are still 17 other provisions of the law that are valid, plus prior laws that were not challenged.

He said his officers have made "a number of arrests." But Sherri Iacobelli, a spokesman for the state Department of Public Safety, which houses the unit, said the agency will not release exact numbers because of the sensitivity of the issue.

"This unit is so new," she said. "Because of the sensitive nature, because we are working with ICE (U.S. Immigration and Customs Enforcement), we're not going to get into specific numbers. The director is just not comfortable with that at this point."

Johnson said officers have arrested immigrants on both misdemeanors and felonies but all of the charges related to violations of immigration law. He said his unit, which works with ICE, does not respond to complaints that someone suspects a work crew has illegal workers.

"We're not going after anybody who is not involved in criminal activity," he said. "If you're not involved in criminal activity, no matter who you are, you're not going to see us."

Those who suspect a resident is an illegal alien can contact federal immigration authorities, he said. His unit relies on the U.S. Immigration and Customs Enforcement agency solely to determine whether anyone is in the national illegally and consults with the agency in its investigations.

Lawmakers appropriated $1.3 million for the unit last year, which was to pay for Johnson, an administrative assistant and 10 officers, as well as benefits, training and equipment. But the money would only stretch for six officers, Johnson said. He said there is enough work for 10 officers. But Iacobellii said officials want to see what happens over the course of the year before requesting more.

"As it gets up and running, it's going to become more obvious what resources we have as opposed to what we need," she said. "Right now it's still so new. I think that's something the director would consider down the road based on what the need is."

Local law enforcement can already contact ICE if they suspect someone involved in a crime is in the country illegally, Johnson said. His officers are used more to investigate situations in which police suspect violations of the immigration law.

Far from seeing problems associated with illegal immigration dip as a result of the economy, Johnson, who has been in law enforcement more than 30 years, says he believes they have increased.

"Being in law enforcement as long as I have been in law enforcement, I don't really see a difference for anything that has been less," he said. "It's remained consistent and as a matter of fact has grown. I think the activity level of violations has increased somewhat."

Johnson said the violators are not all from one country or even all from Latin America.

"The violations we've seen are multinational," he said. "The violations are not confined to any one region of the world."

Torrales said only about 1 percent of Hispanics in the state are undocumented. And he believes it is a waste of resources to create a state police force to go after immigration violators.

"We aren't Arizona," he said. "We aren't Texas. We're not a border state to another country. While we need immigration reform, we need proper immigration reform and we need it at the national level."

He said rather than spend so much money enforcing a state immigration law, lawmakers could do more good spending the money to create new jobs and assist businesses.

"I'd rather us spend our money on the 250,000 who are unemployed," he said.

Martin said lawmakers are somewhat restricted in what they can do by court rulings. He said federal immigration officials have ended a program used to train local law enforcement to enforce immigration law on behalf of the federal government, a decision which he said might only be reversed by a new administration.

He said he does not believe the program for checking businesses is either too harsh or too lenient.

Martin said the Supreme Court's ruling did not allow states to assess businesses financial penalties, finding that was the province of federal authorities. So he said lawmakers removed fines from the law.

According to LLR, last year the state assessed almost $1 million in fines on businesses violating the previous immigration law. But all but about $8,000 of that was waived because they were first-time offenders.

The current law is just as lenient for those running afoul of the immigration statutes for the first time. Those caught a second or subsequent time not submitting new employees through the federal database can have their right to conduct business in the state suspended for 10-30 days. The auditing program costs about $250,000 a year, Knight said, which is paid for using licensing fees and revenue collected by LLR.

From Jan. 1 through Aug. 31, Knight said, state auditors checked or attempted to check on 3,124 employers. Of that number, 1,092 did not hire anyone during that time period, 1,799 verified hires using E-Verify and 233 hired workers without using the federal database, Knight said. Most of those, however, occurred in the first six months and were not penalized.

Knight said the figures amount to a 92 percent compliance rate. He said many of the 62 employers not using E-Verify caught after July 1 hired their employees before July, meaning they were ineligible for penalties.

"We're finding that when we cited an employer for a violation, they are immediately enrolling in E-Verify," he said.

Martin said the idea of checking businesses is not to catch violators but to encourage all employers to use the federal database.

"They're in the business of encouraging compliance," he said. "And particularly in dealing with employers, many of whom are small employers, that for whatever reason don't know they are supposed to be E-Verifying their employees."

Martin said even during periods of last year when the old law no longer was being enforced and the new law had not yet started, he believes most businesses were using the federal database. He said he believes most of the businesses not following the law are small businesses that may not know about it.

Several small business owners or managers who asked not to be identified out of a fear of retaliation, said they did not know about the E-verify requirement in the law. Almost all of the businesses first cited by the state appear to be small businesses, including a pizza place, the homeowners association, a heating and air repair company and an electric business.

Martin said he does not believe the penalties handed first-time offenders are painful for businesses.

"I don't think that's unfair punishment," he said. "If they went out and took no action, they very well might ignore it. I have had it suggested to me that we eviscerated the law last year when we made those changes. We did what we had to do to comply with the Supreme Court changes. There is teeth in this law. There is substantial teeth in this law. We're just not able to raise the money in fines we did in 2008 because the Supreme Court says you can't."

Knight said the other point the audits make is that South Carolina's businesses are still not hiring.

"That's what we're finding a lot in the first months of the law," he said. "Particularly for small employers, they don't hire often anyway and in this economy they've not been doing very much hiring."

Martin said he believes both the new law and the economy have reduced the problem of illegal immigration.

"I think there were some illegal immigrants who left who went from community to community trying to find work and then moved on," he said. "I think they said South Carolina is pretty serious about enforcing the law. I think there is a little bit of that and a little bit of the poor economy that came to play. I don't hear it quite the way I did hear it three or four years ago, particularly before the Great Recession began. But I still hear it somewhat."