Above the Law?

Please note: This blog post was originally published on Wednesday, May 12, 2010.

Tomorrow, on May 13, the Senate Finance Committee will take up the nomination of Alan Bersin to be the Commissioner of Customs and Border Protection (CBP), an agency with a staff of 57,000 and a budget of $11 billion. As the nation’s “border czar”, Bersin would be responsible for enforcing our immigration laws. As a matter of fact, Bersin is already serving as the CBP Commissioner as a recess appointment. However, he has yet to be confirmed by the Senate.

Mr. Bersin has a well-deserved reputation as a tough prosecutor. From 1993 to 1998, he was the de facto head of Operation Gatekeeper, a Clinton-era initiative which massively increased border enforcement on the U.S.- Mexico border near San Diego. As a U.S. Attorney, Mr. Bersin’s office criminally prosecuted hundreds, if not thousands, of Mexicans who illegally crossed the border into the U.S. One of the side-effects of these criminal prosecutions and increased border enforcement were approximately 500 deaths per year of illegal border crossers as the flow shifted from California to the deserts of Arizona.

With Congress calling for ever tougher enforcement of our immigration laws, one would think that Mr. Bersin would be a shoe-in for Senate confirmation. However, documents released by the Senate Finance Committee today reveal what might be a problem for Mr. Bersin tomorrow.

Mr. Bersin and his wife have three children, and have employed 10 different nannies to care for them. Were the nannies all legal to work in the U.S.? According to what Mr. Bersin told the committee staff, they were. So, what’s the problem?

Given Mr. Bersin’s credentials as a tough enforcer of immigration laws, the Bersins certainly were careful to verify the legality of each of these nannies using the legally-required I-9 (Employment Eligibility Verification) form within three days of their hire, as required by the Immigration Reform and Control Act of 1986, correct?

This is where things go a bit awry.

According to a memorandum composed by the committee staff, when Mr. Bersin was first interviewed by them in August 2009, he stated that he had completed an I-9 for the family’s current nanny. However, when he was later asked about this in writing, Mr. Bersin responded as follows: “If I stated that Ms. S had an I-9 in August 2009, then I misspoke and apologize for any misunderstanding.” Subsequently, Mr. Bersin provided the committee staff with an I-9 for the nanny dated November 12, 2009.

Also, during his August 2009 interview, Mr. Bersin informed the staffers that he and his wife had hired three nannies. However, the staffers learned the number was actually ten, six since 2006. In a “due diligence” meeting with the staffers on March 17, 2010, Mr. Bersin acknowledged the additional employees.

There was some claim raised, and later dropped, by Mr. Bersin that the nannies where “independent contractors” so that I-9s were not required.

So what’s the bottom line? As stated by the committee staff memo, “Mr. Bersin did not timely or completely prepare and maintain Forms I-9 for any of the ten household employees he employed as required by law.”

Should Mr. Bersin be confirmed as the CBP Commissioner? Should President Obama immediately withdraw his nomination? We leave this to the Senate and President Obama to decide what to do.

However, in our opinion, Mr. Bersin’s responses to the questions posed by the committee staffers, given his record as a “no-holds-barred” prosecutor of immigration law violators, reveal a lack of candor, and are the latest example of the hypocrisy of our nation’s “enforcement-only” approach to our immigration nightmare.

The men and women who were prosecuted, convicted of federal crimes, and imprisoned as a result of Operation Gatekeeper were, for the most part, seeking to enter the U.S. for the same reasons as did most of our grandparents, to find employment and a better life for their families. The same for those who died in our deserts trying to avoid detection and criminal prosecution.

These people pick our crops, serve us in hotels and restaurants, work in our factories, and care for our children and our elderly parents. We benefit from their labor, yet instead of changing our laws to enable them to work legally in the U.S., we treat them as criminals.

I am a former INS prosecutor, yet I’ve always known this to be true. My wish is that tomorrow, both Mr. Bersin and the members of the Senate Finance Committee will use this hearing to reflect upon the hypocrisy of our current immigration laws and start to see beyond our present “enforcement-only” approach. Then again, maybe I am dreaming…