Leiden Law Blog

With Liberty and Background Checks for All

With Liberty and Background Checks for All

America's immigration reform dilemma is not a puzzle to be solved. It is a broken machine which truly cannot be fixed. In trying to prevent the employment of undocumented workers, indeterminate solutions are met with equally as ambiguous attempts at controlling the risks foreign workers are believed to potentially pose. Policy-makers and government officials try to put on their scientist hats and experiment with what, they think, will make things "better" in solving the immigration problem. But, the dim reality is that there is no cure-all solution to deep-seated socio-economic structural issues. As comprehensive immigration reform is difficult, risk-prevention mechanisms tend to be the cop out for avoiding the burdens of necessary complex and costly systematic change. In terms of unemployment and immigration troubles in the US, the E-Verify program is marketed as one of these quick-fix solutions.

In light of the "crimmigration crisis" as defined by Stumpf, the lines between criminal law and immigration law are becoming blurred. Criminal offenses by non-citizens are being remedied with immigration deportation measures, civil violations translated into removal-worthy criminal offenses, and immigration agency regulation paralleling that of criminal law enforcement. In an era of modernisation, post-hoc approaches to crime prevention via sanctioning and sentencing are no longer sufficient. We have shifted to an ever-growing reliance on getting upstream of crime before it has the chance to happen by living in, as Zedner asserts, a pre-crime world. The old crime, harm or wrong done with ordering practices after the fact, is  now replaced by the new crime which is just the risk itself. This risk is irrespective of the actual statistical probability of that crime happening or not. With the heavy reliance on employment identity checks, it is also the biased assumption that immigrants and undocumented workers have greater criminal propensity.

One Nation under Data

We now live in a world where precaution through prevention is propelled by an engine of technological innovation. But the irony of this transformation, as Beck reminds us, are the incalculable consequences of such unleashed modernity. By use of interconnected databases, identity cards, pre-screening techniques, and multi-levelled surveillance mechanisms, we are bestowed with an abundance of personal information housed in data. Personal liberties are sacrificed for the exchange of privileges, disclosure traded for membership, and surveillance tolerated for efficiency. In order to get anywhere, you have to go through the system. Individual identity is no longer confirmed by the self, but via the legitimisation of digitally verified means.

The inability to calculate the probability of crime happening or not, or who may or may not actually be likely to commit such crime, gives rise to superficial attempts to do so. In the end, we can't sit around and do nothing can we? As potential risk is not easy nor accurate to mathematically formulate, hoarding data is an effort to overcompensate for the realistic limits of risk-prevention. Regardless of the fact that we cannot define exactly how dangerous the situation is, discourse about the "immigration crisis" continues and public hysteria ensues. In order to appease the public, the government tries to control the uncontrollable and prepare for the unknown. But, this ambiguity also offers widened discretion. Fostering a heavy reliance on inductive reasoning to sort the perceivably "good" from the "dangerous" into groups. This filtering often carried out behind bureaucratic black box paperwork-processing, under the guise of "risk prevention" masking implicit prejudice, and carried out by the use of technologies we blindly trust. Therefore, the electronic mechanisms that confirm identity also foster exclusion.

Access Denied

E-Verify is touted as a "must have service for the 21st century." It's free, quick, easy to use, and, for employers, it is assured as "really nothing different" than traditional I-9 employment eligibility forms. Republican lawmaker Lamar Smith from Texas said in reference to advocacy for nationwide expansion of E-Verify in the HR 1772 bill that  "There is no other legislation that can be enacted that will create more jobs — maybe millions more — for American workers." Well, the reality is not that simple. Smith marketed the proposal as a "jobs bill," and in his charaded act, explained with conviction that those working illegally are the reason why Americans are in short-supply of open positions. But the fact of the matter is truly about immigration exclusion. It is yet another attempt to put a band aid on the wounds of America's broken immigration system meanwhile further marginalising those already pushed to the fringes of society. The bill also skirts around a less-discussed point of contention: the resurrection of criminal background checks which "ban the box" initiatives were promisingly trying to abolish.

Smith's logic is that an job vacated by an undocumented worker makes space for an American citizen, and strategic signage of "We use E-Verify" placed in business windows will deter potential hires who are believed to be ineligible, though no objective evidence supports these claims. Hereby Smith is forgetting several crucial factors: the state of the economy, job willingness, and the consequences of employment overhaul. The agricultural industry would crumble as the vast majority of workers are undocumented and spaces would be left vacant. Immigration enforcement is now put in the hands of employers who are also criminalised if they hire undocumented workers. Only by the use of E-Verify can employers defend themselves against unlawful hiring. This creates new incentives for exploitation and opens gateways for new discriminatory hiring practices. Business-owners may hire undocumented workers under the table to get around the liability posed by the E-Verify system. Moreover, employers may avoid offering job opportunities to those whom they think may be work ineligible to try to prevent any potential complications in the hiring process.

Therefore, it is worthwhile to question the irony that Conservatives, who are usually so concerned about the overreach of government on business regulatory practices, are now welcoming E-Verify with open arms. In the process of "opening up jobs" as Smith advocates in his "jobs bill," he tends to disregard the resulting consequences for those who become jobless. E-Verify has even made its way into a mobile app. If future employers can have quick and easy access to one's personal history including: marital status, property ownership, and criminal history information, it begs the question as to who else can freely do so? Instead of another whitewash attempt to make up for economic, institutional, and systematic failures by the use of "risk prevention" steered by stereotypes, let us be reminded of the definition of work and what it means to be an ideal employee. Work is reflected in ability, not outward identity and reliability in present ambition, not in probabilistic prediction.

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