Justice appeals court ruling on Social Security no-match letters

On behalf of the Homeland Security Department, the Justice Department on Tuesday appealed a federal judge's injunction against a joint Homeland Security-Social Security Administration initiative that would require employers to validate employees' Social Security numbers when they don't match the names and numbers in agency records. Otherwise, employers could be held accountable for hiring illegal workers.

Judge Charles Breyer of the U.S. District Court for the Northern District of California in October issued the temporary injunction barring the government from mailing 140,000 so-called no-match letters to employers alerting them to discrepancies. Under a new rule established by DHS, employers would have 90 days to reconcile the data.

Last week, Justice filed a motion with the district court saying it would revise the rule, titled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, to analyze the economic impact of the rule and its effect on small business-omissions the district court criticized when issuing the injunction.

In his ruling, Breyer said the injunction was necessary to prevent "irreparable harm" while the court considers a lawsuit brought by the American Civil Liberties Union, the U.S. Chamber of Commerce and a consortium of labor unions and immigrant rights groups.

Homeland Security Secretary Michael Chertoff chided the ACLU in his blog Tuesday, citing the group's "giddy" headline on a press release last week that declared "Government Abandons Current No-Match Rule Harmful to Legal Workers."

"Far from abandoning the rule, we're going to fight hard to make it effective," Chertoff wrote. "[The ACLU] opposes virtually every measure-including this one-to enforce America's immigration laws."

"Secretary Chertoff should worry more about fixing his agency than attacking its critics," said Lucas Guttentag, an ACLU attorney involved in the case and director of the organization's Immigrants' Rights Project.

"The only wishful thinking is DHS' willful refusal to recognize that 70 percent of the errors in the database are of U.S. citizen workers. That is the fundamental flaw that no amount of rhetoric can fix," Guttentag said, adding the agency should abandon the rule altogether. "Any new no-match rule based on that flawed database is like putting lipstick on Frankenstein," he said.

Chertoff disputes the ACLU's position that the no-match rule hurts legal workers. "It specifically tells employers that they should not fire employees on the basis of no-match letters alone. The lack of a match could reflect a clerical mistake or some other innocent explanation, rather than a nefarious attempt to evade our immigration laws."

"The no-match rule shows employers and workers how to correct this discrepancy - and it gives them a full three months to do it. Businesses that follow the procedures in the rule will have a safe harbor from enforcement action. Those that ignore no-match letters place themselves at risk and invite suspicion that they are knowingly employing workers who are here illegally," Chertoff said.

Social Security has been mailing no-match letters for several years in part to make sure files are updated correctly when workers' personal information changes, often as the result of a change in marital status. This would have been the first mailing that linked mismatched numbers to potential illegal workers, and it included guidance for employers explaining Homeland Security's new safe harbor rule.

The lawsuit "has been good for dishonest businesses who deliberately hire illegal workers," Chertoff said. "That's why -- contrary to ACLU fantasies -- we're not going away."