This provision of federal immigration law needs to be changed.
In a sharp illustration of how the federal government refuses to play by the same rules as everyone else, the Denver Sheriff’s Department has agreed to pay a $10,000 fine for making U.S. citizenship a qualification for being hired as a deputy sheriff.
The eight-page settlement agreement was signed by Sheriff Patrick Firman and Alberto Ruisanchez, the deputy special counsel in the Office of Special Counsel for Immigration-Related Unfair Employment Practices in the Civil Rights Division of the U.S. Justice Department.
The Sheriff’s Department agreed to not only pay the $10,000 fine, but agreed to go through all job applications received from noncitizens after Jan. 1, 2015, and offer them the “opportunity to complete the application/evaluation process for the deputy sheriff position” with “no consideration” of their citizenship status.
One of the sillier requirements in the settlement agreement is that the Sheriff’s Department post “an English and Spanish version of the Office of Special Counsel ‘If You Have the Right to Work’ poster … in all places where notices to employees and job applicants are normally posted” and also to provide a copy of the poster in the “applicant’s preferred language.” You can see that poster in Arabic here.
You have to wonder whether the DOJ Special Counsel realizes or cares about the fact that if the English comprehension skills of an applicant to be a deputy sheriff are so poor that he requires the “OSC Poster” in his “preferred language” in order to comprehend what it says, he may have a bit of difficulty being an effective law enforcement officer—and that such poor language skills could endanger the safety of the public and the deputy.
The law that the Denver Sheriff’s Department supposedly violated is 8 U.S.C. §1324b, which makes it unlawful “to discriminate against any individual [except for illegal immigrants] with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment … because of such individual’s citizenship status.”
In other words, if someone is a noncitizen who is legally in the country and has a work authorization from the Department of Homeland Security, that person cannot be discriminated against in the employment context.
However, there are some very big exceptions. For example, Section (a)(4) specifically provides that it is not a violation of the statute to “hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.”
There is no indication that the Obama Justice Department has any evidence that any noncitizens who may have applied were better qualified than the deputies hired by Denver since Jan. 1, 2015.
There is also an exception that allows the hiring of only citizens if it is required “in order to comply with law, regulation, or executive order, or required by federal, state, or local government contract, or which the attorney general determines to be essential for an employer to do business with an agency or department of the federal, state, or local government.” The exception for required compliance with a “law, regulation, or executive order” does not say a federal “law, regulation, or executive order.”
Thus, local and state governments would seem to have the ability to get around this statute—and the attention of the Civil Rights Division—by passing a law, issuing a regulation, or executing an executive order that makes citizenship a requirement for hiring law enforcement personnel.
Given the importance of the job done by law enforcement officers throughout all levels of government to protect the public from those who would harm them, ranging from common criminals to the terrorists who have killed many Americans inside our country in recent years, requiring citizenship seems like a basic, commonsense qualification.
The federal government certainly thinks so—because it does not apply this statute to itself. If you want to be a special agent for the Federal Bureau of Investigation, which often works closely with local law enforcement, including sheriff’s departments like Denver’s, the FBI website specifically says that you “must be a United States citizen.”
The same is true of the U.S. Secret Service, which routinely discriminates against noncitizens in a manner that no doubt horrifies the DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices. The website for the Secret Service says that all candidates for employment, whether in the Uniformed Division or as special agents, “must be U.S. citizens.”
Oh, and by the way, all of the DOJ lawyers whose names are on the settlement agreement with the Denver Sheriff’s Department? They are also no doubt U.S. citizens. How do I know that? As a current job listing on the USAJOBS website for a position inside the Civil Rights Division explains under key requirements: “You must be a U.S. Citizen or National.”
If an employer hires a noncitizen legally in the country who is permitted to work, no one questions that employers should not be able to discriminate against that employee in wages, benefits, and the other accoutrements of employment.
However, employers should not be prohibited from doing what is best for “the general welfare” of Americans—hiring U.S. citizens over visitors to our country, who are only our guests.
This provision of federal immigration law needs to be changed. It is a matter of basic fairness and ensuring that all Americans are gainfully employed so that they—and their families—can engage in the “pursuit of Happiness,” a fundamental truth that we hold to be self-evident.