On Oct. 10, federal judge Charles R. Breyer of US District Court in San Francisco granted a preliminary injunction barring the Department of Homeland Security (DHS) from launching a planned crackdown on workers whose social security numbers don't match the Social Security Administration (SSA) database. At an earlier hearing on Oct. 1, a day after immigrant workers and their supporters demonstrated in front of San Francisco's federal building to protest the crackdown, Breyer had extended a temporary restraining order for 10 days. His Oct. 10 injunction blocks implementation of the plan until the court makes a final ruling in a lawsuit on its legality.

The crackdown, announced by Homeland Security Secretary Michael Chertoff on Aug. 10 with new rules originally set to take effect Sept. 14, involves mailing "no-match" letters to 140,000 US employers, warning them that they must resolve questions about their employees' identities or fire them within 90 days. If they fail to do so, employers could face stiff penalties, including fines and even criminal prosecution. The federal government has mailed out "no-match" letters since 1994, but in the past employers weren't required to take action and did not face liability.

The lawsuit against the plan was brought on Aug. 29 by the AFL-CIO and local labor organizations, who were joined on Sept. 11 by the US Chamber of Commerce and trade associations for the agriculture, restaurant and construction industries, and on Sept. 13 by UNITE HERE and the United Food and Commercial Workers union. The national American Civil Liberties Union (ACLU), its Northern California chapter, the National Immigration Law Center and two private law firms are representing the plaintiffs. (Washington Post, Oct. 11; Blog by Jennifer Chang of ACLU Immigrants' Rights Project, Sept. 14; AFL-CIO, ACLU & NILC press releases, Oct. 1, 10; David Bacon, Sept. 30)

The plaintiffs convinced the judge that the SSA database includes so many errors that its use in firings would unfairly discriminate against tens of thousands of legal workers, including native-born and naturalized US citizens, and cause major workforce disruptions that would burden companies. "There can be no doubt that the effects of the rule's implementation will be severe," Breyer wrote, resulting in "irreparable harm to innocent workers and employers."

"The government's proposal to disseminate no-match letters affecting more than eight million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers," wrote Breyer. "Moreover the threat of criminal prosecution... reflects a major change in DHS policy." Breyer also said that the government may have ignored a 1980 law, the Regulatory Flexibility Act, that requires it to weigh the cost of imposing new regulations that would significantly burden small-business owners.

Chertoff expressed disappointment with Breyer's injunction and said the administration will continue to aggressively enforce immigration laws while considering an appeal, which plaintiffs' attorneys said could take at least nine months. Judge Breyer was appointed by President Bill Clinton in 1997 and is the brother of Supreme Court Justice Stephen Breyer.

SSA database errors have also hampered DHS' efforts to promote the Basic Pilot Program (now known as E-Verify), a system it launched in 1996 which employers can use voluntarily to verify the social security numbers of new hires. A report provided to Congress showed that between June 2004 and May 2006, the program erroneously rejected 11% of foreign-born US citizens and 1.3% of authorized immigrant workers. That error rate led Illinois governor Rod Blagojevich to sign state legislation in August barring Illinois companies from participating in the program until it is 99% accurate. (Washington Post, Oct. 11)

From Immigration News Briefs, Oct. 28

See our last post on the immigration crackdown.