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Sunday, December 4, 2016

Making America’s Homeland Safe Again


To:   Trump Transition Team
Re:   Making America’s Homeland Safe Again
From: Tommy Eden, Partner, Constangy, Brooks, Smith & Prophete, LLP; Constangy Immigration Practice Group and ABA Labor and Employment Section; Workplace Immigration Committee

Recognizing the Problem: foreign workers illegally migrate to the United States looking for jobs in sectors that American workers have been pushed out of or abandoned. American employers have for decades sought cheap labor in manual labor occupations, typically in agriculture and construction. This has led to the creation of an underground black-market economy: 1) where workers are sometime taken advantage of; 2) unsafe working conditions can occur; 3) gangs, prostitution and cartels can thrive; 4) American craft workers disappear; and 5) families are torn apart.  Fake IDs are rampant and the Form I-9 process in its current state is ineffective because the chances of any one employer being caught by ICE hiring those not lawfully in the country is extremely slim. Employers do not see hiring illegals as a crime, or not patriotic, but merely as the cost of doing business when there is an ICE audit. Federal criminal proceedings brought against an employer are extremely rare, as are criminal prosecution of alien criminals as occurred under the Bush Administration. In the states where E-verify is mandated, workers merely migrate to states where it is not.

Possible Solutions: demand reduction by American employers is the absolute linchpin of any program to reduce the draw to this country for illegal aliens. Call it A WALL OF EMPLOYER REJECTION by America’s employers who love their country. E-Verify is the most effective system devised to keep American employers accountable. Coupled with the new smart electronic Form I-9 effective 1.21.17 (please add electronic signatures), and some type of biometric identification system would present a formidable barrier to employers seeking to de-fraud the system. It would be a massive employer educational/indoctrination to train and migrate employers nationwide to use the electronic Form I-9 and E-Verify, but it must be done. 

Experiments by Several States:  in 2012 Alabama faced such a momentous task after the passage of  HB 56 Beason-Hammon Alabama Taxpayer and Citizen Protection Act spearheaded by Rosemary Elabash, Alabama Director of the National Federation of Independent Businesses, there were at least five major listening sessions for employers across Alabama of 300 to 500 employers represented. All of the major Alabama associations were enlisted and I was privileged to be one of the attorneys on the speaking panels and created a compliance blog at . It was a Herculean effort, but in the end an accountable immigration verification system was brought to the State of Alabama with mandated E-Verify for all employers. Memorandums of Understanding were entered into between ICE and the sheriffs’ departments throughout the State of Alabama. Other states making similar pushes are reflected on the attached Chart developed by the Practical Law Institute.

Model for Moving Forward:  most small employers throughout America receive their compliance information from voluntary associations they join, not from the government. Almost every segment of society in America has associations that supply information and train their members on a multitude of compliance topics.  Enlisting the goodwill and support of these associations, with a firm effective date, with adverse consequences for non-compliance, proved to be invaluable in Alabama to a successful program rollout. There is a high rate degree of trust between associations and their members.  In Alabama, Rosemary and I worked with Dr. Gary Lemme of the Alabama Cooperative Extension System, and Alabama Commissioner of Agriculture and Industries John McMillian, to help film and publish compliance solutions for thousands of employers. Coordination on a national basis of the employer association community, and Cooperative Extension Systems, would again appear to be a wise cost-effective method to rollout mandated E-Verify for all employers. The development of common training templates, video resources, Apps, listening sessions, social media, and on hands training using vocational colleges would appear to be a workable approach.

Carrot and Stick Approach with Employers: the offering of some type of tax incentives to early adopter employers, together with a spike in ICE desk audits, highly publicized factory raids, criminal prosecution of guilty employers, would appear to be the right kind of carrot and stick approach to start building a WALL OF EMPLOYER REJECTION. That coupled with President Trump taking to his bully pulpit against America’s employers who say they love their country, but hire illegals would be a great one to punch approach.

Strategy to Empty America’s Prisons: One of main beefs that American employers will have is no one to pick fruits, harvest tomatoes and lay concrete. Presently American has the largest prison population in the world. I have served as a volunteer in a prison ministry for 2 years through Church of the Highlands and these are my observations: 1) that 90% of those in prisons arrived there because of abuse of drugs or alcohol and drug related crimes; 2) that America has a tremendous able bodied workforce behind its prison walls that is eager for freedom that work brings and many have learned trade skills; 3) employers need an excuse to hire ex-offenders such as tax credits and unemployment premium tax holidays; 4) corrections should move to the community level with split sentencing, local tough love judge supervision, drug treatment courts, mental health treatment courts, veterans courts, and restorative justice training and coaching teamed up with local faith based non-profit institutions to bring peace between offenders and victims; and 5) wide spread use of drug free workplace programs to create a barrier to drug use in the workplace and place offenders hired to work on a last change agreement, along with drug treatment programs, may be a workable solution to helping them deal with addiction and becoming productive tax paying citizens. 

Local Sheriffs are the Missing Enforcement Key: I recently set down in a meeting at the Lee County Republican Party Executive Committee and began talking with my friend and fellow committee member Lee County Sheriff Jay Jones and explained that I was drafting a position paper on the Alabama immigration experience and what suggestions he might offer to strengthen the system.  His immediate response was “interesting that you raise the subject because just this week an official from the Montgomery ICE office had approached him about having one of deputies trained under Section 287(g) Delegation of Immigration Authority program.” It was explained to Jay that ICE works closely with federal, state and local law enforcement partners in this mission. The 287(g) program, one of ICE's top partnership initiatives, allows a state or local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement within their jurisdictions. Fact Sheet at The only department in Alabama who has entered into an MOU thus far is the Etowah County Sherriff Department. Jay was eager to look into entering the program until he learned that there was no federal reimbursement for the time of his deputies to perform the background check duties of an ICE officer, who typically drives in from Montgomery. So if funding per background inquiry that results in a successful detention could be arranged in the MOU, the possibly of having a virtual ICE presence in every county in America might become a reality. Who better than local sheriffs know the bad actors in their community and desire to make those community safe again. And there are Sheriffs associations in every State who could endorse the 287(g) program.

Please let me know how I, or our firm, might be of service to the incoming Trump Administration.
Questions:              Tommy Eden, Esq.
                               334.246.2901 office direct
                               205.222.8030 cell
                               Constangy, Brooks, Smith & Prophete, LLP
                               3120 – Suite D
                               Frederick Road                           

                 Opelika, AL 36801