Corporations are complaining that now that the law is sometimes being enforced, they don't know what to expect:

The size and nature of the IFCO case have thrown a spotlight on how aggressively ICE has been cracking down on U.S. corporations, and on how varied — some say inconsistent — its legal approaches can be. Pressured by conservative groups like the Federation for American Immigration Reform, former president George Bush called for more work site enforcement. ICE answered the call, with a bold shift in its workplace actions and the penalties it seeks. In response, the number of work site arrests has exploded tenfold since 2003.[When it had dropped to a very low level.] ICE also increasingly sought controversial asset forfeitures from companies, as it did with IFCO. ICE uses the money to purchase equipment and conduct investigations.

But if company executives think they can suss out ICE's next move, they're wrong. In fact, execs caught with illegal workers have no idea what ICE will do to them or ask of their company, says Josie Gonzalez, managing partner of the Pasadena, Calif., firm Gonzalez & Harris, who has been an immigration attorney for 30 years. "You just keep your fingers crossed," Gonzalez says. "It would be a great idea if [ICE] would provide guidelines on what factors support criminal prosecution over civil penalties," she says, or how it calculates financial penalties. The new Obama administration has pledged to reform immigration law, but its response to the economic crisis has demanded most of its attention.

An analysis by Corporate Counsel of dozens of major work site cases supports Gonzalez's contentions. The study reveals that ICE is nothing if not unpredictable. Sometimes the agency brings civil charges and other times criminal ones. Sometimes top-level executives are arrested and charged, while other times ICE charges lower-level managers. Cases can be settled — but owners also are dragged into court. Often, the penalties are in the millions of dollars.

For example, in March 2005, Wal-Mart Stores Inc. agreed to an $11 million civil settlement after signing a "consent decree" without admitting guilt for using illegal janitorial workers. No one at Wal-Mart was criminally charged. A company spokeswoman, Michelle Bradford, says it has since adopted a stringent program of double-checking employment eligibility and monitoring the compliance of third-party vendors.

Only five months after the Wal-Mart civil settlement, ICE raided the offices of the Golden State Fence Co. near San Diego. Unlike the civil outcome in the Wal-Mart case, the fence company owner and his top executive were criminally charged. The owner finally reached a court-approved plea bargain two years later in which he forfeited $4.7 million in profits to ICE. The U.S. Attorney sought jail time, but the judge sentenced the owner and his top hand to probation.

Then, last year, ICE adopted a new tactic: deferred and nonprosecution agreements. ICE settled three cases in 2008 with such agreements, including IFCO, where the top executives were not criminally charged, but lower-level supervisors were. Some other work site cases in 2008, though, saw owners and top executives criminally charged with everything from hiring and harboring illegal aliens to money laundering and racketeering. At least one company, Agriprocessors Inc., a kosher meat packer in Postville, Iowa, went into bankruptcy after ICE raided it in May 2008. Its chief executive, the son of the owner, was criminally charged. Seven other companies have recently been debarred from doing business with the government.

How does a company know what to expect? It doesn't. And ICE likes it that way.

Paul Gleason, associate legal adviser in ICE's law department, admits that legal approaches vary widely. But that's no different from a criminal tax or other case, he insists. Gleason explains that the approach depends on a number of factors, including the strength of the case, the company's willingness to cooperate, and the legal proclivities of whichever U.S. attorney is involved. "Every case is different," Gleason says. "So I can't give you a straight answer."

Criminal law expert Rachel Barkow, a professor at New York University School of Law, says ICE and the U.S. Department of Justice could be more transparent about their activities without compromising their cases. Barkow, faculty director of New York University's NYU's Center on the Administration of Criminal Law, says the government should discuss "how decisions get made in each U.S. Attorney's Office, whether the office follows written or unwritten guidelines, and who makes decisions about such things as charging, cooperation, and sentencing."

Barkow adds, "Currently, though, [Justice] won't talk about any of this, making it all but impossible for researchers to analyze and evaluate how things are working." [Feds Seize Assets of Companies Suspected of Hiring Illegal Aliens, By Sue Reisinger, Corporate Counsel, April 21, 2009]

Of course, it also makes it harder for companies to game the system. I'm not worried about the companies that are hiring illegals, but I wish the government would stop playing both sides. In addition to ICE, there's a Federal agency called The Office of Special Counsel for Immigration-Related Unfair Employment Practices [OSC] whose mission is to prosecute employers who are too agressive in asking for green cards, on the off-chance that they'll discriminate against Mexican-Americans and legal immigrants.