Budgeting for

A Path to
Better Performance

Committee on Estimating Costs of Immigration
Enforcement in the Department of Justice

Steve Redburn, Peter Reuter, and Malay Majmundar, Editors

Committee on Law and Justice

Division of Behavioral and Social Sciences and Education


Washington, D.C.

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Committee on Estimating Costs of Immigration Enforcement in the Department of Justice Steve Redburn, Peter Reuter, and Malay Majmundar, Editors Committee on Law and Justice Division of Behavioral and Social Sciences and Education

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THE NATIONAL ACADEMIES PRESS 500 Fifth Street, N.W. Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Gov- erning Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engi - neering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. This study was supported by Contract Number DJJ09-C-1916 between the National Academy of Sciences and the U.S. Department of Justice. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the U.S. Department of Justice. International Standard Book Number-13: 978-0-309-22122-1 International Standard Book Number-10: 0-309-22122-6 Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W., Lockbox 285, Washington, DC 20055; (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area); Internet, http://www.nap.edu. Copyright 2011 by the National Academy of Sciences. All rights reserved. Printed in the United States of America Suggested citation: National Research Council. (2011). Budgeting for Immigration Enforcement: A Path to Better Performance. Committee on Estimating Costs of Immi- gration Enforcement in the Department of Justice. S. Redburn, P. Reuter, and M. Majmundar, Eds. Committee on Law and Justice, Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press.

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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal govern - ment on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its mem - bers, sharing with the National Academy of Sciences the responsibility for advis - ing the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Charles M. Vest is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the fed - eral government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineer- ing communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Charles M. Vest are chair and vice chair, respectively, of the National Research Council. www.national-academies.org

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COMMITTEE ON ESTIMATING COSTS OF IMMIGRATION ENFORCEMENT IN THE DEPARTMENT OF JUSTICE PETER REUTER (Chair), School of Public Policy and Department of Criminology, University of Maryland FRANK D. BEAN, Center for Research on Immigration, Population and Public Policy, University of California, Irvine JONATHAN CAULKINS, Heinz College and Qatar Campus, Carnegie Mellon University SUSAN E. CLARKE, Department of Political Science, University of Colorado, Boulder WAYNE A. CORNELIUS, Center for Comparative Immigration Studies, University of California, San Diego VICTORIA A. GREENFIELD, Department of Economics, U.S. Naval Academy JOHN R. HIPP, Department or Criminology, Law and Society, University of California, Irvine DOUGLAS S. MASSEY, Office of Population Research, Princeton University DORIS MEISSNER, U.S. Immigration Policy Program, Migration Policy Institute C. RICHARD NEU, The RAND Corporation, Mexico City, Mexico PIA ORRENIUS, Department of Research, Federal Reserve Bank, Dallas ROBERTO OSEGUEDA, Office of Research and Sponsored Projects, University of Texas, El Paso JEFFREY S. PASSEL, Pew Research Center, Pew Hispanic Center, Washington, DC CRISTINA RODRÍGUEZ,* Harvard University School of Law and New York University School of Law MARC R. ROSENBLUM, Domestic and Social Policy, Congressional Research Service, U.S. Congress PETER H. SCHUCK, Yale Law School, Yale University STEVE REDBURN, Study Director MALAY MAJMUNDAR, Program Officer DANIELLE JOHNSON, Senior Program Assistant ALAN B. RHINESMITH, Consultant *Resigned January 2011 to accept an appointment at the U.S. Department of Justice. v

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COMMITTEE ON LAW AND JUSTICE 2011 JAMES Q. WILSON (Chair), Clough Center, Department of Political Science, Boston College, and Pepperdine University PHILIP J. COOK (Vice Chair), Sanford Institute of Public Policy, Duke University CARL C. BELL, Community Mental Health Council, Inc., Chicago, IL ROBERT D. CRUTCHFIELD, Department of Sociology, University of Washington, Seattle GARY LAFREE, Department of Criminology and Criminal Justice, University of Maryland JANET L. LAURITSEN, Department of Criminology and Criminal Justice, University of Missouri GLENN C. LOURY, Department of Economics, Brown University CHARLES F. MANSKI, Department of Economics, Northwestern University TRACEY L. MEARES, Yale Law School, Yale University TERRIE E. MOFFITT, Department of Psychology, Duke University RUTH D. PETERSON, Department of Sociology, Criminal Justice Research Center, Ohio State University ROBERT J. SAMPSON, Department of Sociology, Harvard University JEREMY TRAVIS, John Jay College of Criminal Justice, City University of New York DAVID WEISBURD, Department of Administration and Justice, George Mason University PAUL K. WORMELI, Integrated Justice Information Systems, Ashburn, VA JANE L. ROSS, Director BARBARA BOYD, Administrative Associate vi

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Preface B order enforcement to control illegal immigration has been a promi- nent U.S. public policy issue for 20 years. Over those two decades there has been a huge increase in the federal resources devoted to deterring, apprehending, and punishing illegal immigrants, predomi- nantly at the border with Mexico. Most of the increased resources in recent years have gone to agencies in the U.S. Department of Homeland Security (DHS). The U.S. Department of Justice (DOJ) is often seen as playing catch-up in handling the numerous detainees apprehended by DHS. This panel was formed in response to a congressional concern about how well DOJ was preparing its congressional requests for border enforcement resources. Budgeting is difficult under most circumstances, given that it is about projecting needs 18 to 24 months in advance. It is made even more complex when the agency has to anticipate not only the effects of actions by another agency in the future, but also the influence of changing labor market conditions in Mexico and the United States, which are important drivers of the number of immigrants trying to enter this country illegally. This report aims to provide a better understanding of the context in which budget decisions are made for DOJ’s immigration enforcement functions and how that shapes the budgeting challenge. On behalf of the committee, I thank the many individuals and organi- zations who assisted us in our work and without whom this study could not have been completed. The committee relied heavily on two key staff members: Steve Redburn both provided excellent guidance in our dealing vii

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viii PREFACE with agencies and contributed a great deal to drafting and redrafting the text. Malay Majmundar was responsible for much of the original research and legal analysis that was critical to our work, as well as drafting two chapters of the report. We also thank Danielle Johnson for her excellent management of our meetings, mailings, and all other administrative tasks. Alan B. Rhinesmith, a former deputy associate director of the U.S. Office of Management and Budget (OMB) and a former senior policy adviser to the Congressional Oversight Panel of Congress, was commissioned to write a paper on recent experience in budgeting that contributed signifi - cantly to Chapter 5. We also thank several other researchers for their com- missioned contributions to the writing, data analysis, and case studies: Adam Boessen, in the Department of Criminology, Law, and Society at the University of California, Irvine; Micah Gell-Redman, in the Department of Political Science at the University of California, San Diego; Annie Miller, in the Department of Political Science at the University of Colorado; and Doralina Skidmore and Grant Wille, at the James E. Rodgers College of Law at the University of Arizona. We are grateful for the assistance of Professor Gabriel (Jack) Chin of the University of Arizona College of Law in connection with our field work in the Tucson area. Others who provided valuable assistance to the committee at vari- ous stages of its work include Penny Fleming, Financial Liaison Office, Administrative Office of the U.S. Courts; the late Judge John M. Roll, Chief U.S. District Judge, Tucson, Arizona; Jolene Lauria-Sullens, DOJ Deputy Assistant Attorney General and Controller; Karin O’Leary, Bud - get Director; Sennen Salapare and others on the budget staff of the DOJ, Justice Management Division; Carl Caulk, U.S. Marshals Service, DOJ; Jim Boden and staff, OMB; Steve Mertens and staff, OMB; Juan Osuna, DOJ; Michael Hoefer and John Simanski, Office of Immigration Statistics, DHS; and John Schultz, Office of the Director, Immigration and Customs Enforcement, DHS. Many individuals at the National Research Council (NRC) assisted the committee. We thank Kirsten Sampson Snyder, who shepherded the report through the NRC review process, Eugenia Grohman, who edited the draft report, and Yvonne Wise for processing the report through final production. This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with pro- cedures approved by the NRC’s Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the

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ix PREFACE integrity of the deliberative process. We thank the following individuals for their review of this report: Lenni B. Benson, professor of law, New York Law School; Asa Hutchinson, senior partner, The Asa Hutchinson Law Group, PLC, Rogers, Arizona; Daniel A. Nussbaum, Department of Operations Research, Naval Postgraduate School, Monterey, Califor- nia; Anne Joseph O’Connell, professor of law, Boalt Hall, School of Law, University of California, Berkeley; Rosalie Liccardo Pacula, co-director, RAND Drug Policy Research Center, senior economist, RAND Corpora- tion, and faculty research fellow, National Bureau of Economic Research; Anne Morrison Piehl, Department of Economics and director, Program in Criminal Justice, Rutgers University, and research associate, National Bureau of Economic Research; Irene Rubin, professor emerita, Division of Public Administration and Department of Political Science, Northern Illinois University; and Mary C. Waters, M.E. Zukerman professor of sociology, Department of Sociology, Harvard University. Although the reviewers listed above have provided many construc- tive comments and suggestions, they were not asked to endorse the con- clusions or recommendations nor did they see the final draft of the report before its release. Emmett Keeler of the RAND Graduate School and the University of California, Los Angeles, and John E. Rolph at the University of Southern California oversaw the review of this report. Appointed by the NRC, they were responsible for making certain that an independent examination of this report was carried out in accordance with institu - tional procedures and that all review comments were carefully consid- ered. Responsibility for the final content of this report rests entirely with the authoring committee and the institution. Finally, I thank my colleagues on the committee for their enthusiasm, hard work, and collaborative spirit in writing this report. Peter Reuter, Chair Committee on Estimating Costs of Immigration Enforcement in the Department of Justice

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Contents Acronyms xiii Summary 1 1 Introduction 5 Enforcement Responsibilities: Overview, 5 Study Background and Committee Charge, 7 Study Approach and Report Structure, 10 2 Exploring the Budgeting Problem 13 Bases for Budget Estimates, 13 Budget Preparation Process, 23 3 Recent Patterns of Unauthorized Immigration 25 Stocks and Flows of Unauthorized Immigrants, 25 Demographic History and Profiles, 28 Cross-Border Flows of Mexican Migrants, 32 Demographic Trends in Mexico, 36 Conclusion: Implications for Budgeting, 38 4 The Immigration Enforcement System 39 Overview, 40 Operational Objectives, 41 Enforcement Pipelines, 45 xi

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xii CONTENTS Immigration-Related Criminal Charges—Regional Variations in Enforcement, 58 Discretion, Constraints, Adaptation, and Coordination, 64 Conclusion, 70 5 Budgeting for DOJ Immigration Enforcement 73 Recent History: Overview, 74 The Budget Development Process, 89 The Broader Budget Context, 91 6 Budgeting Challenges 95 Why All Budgeting Is Hard, 96 The Particular Challenges of Budgeting for Immigration Enforcement, 99 Conclusion, 114 7 Conclusions and Recommendations 117 Conclusions: What Has Been Learned, 118 Recommendation, 125 Appendixes A Immigration Policy Timeline 129 B Efforts to Model Workload and Resource Requirements 139 C Biographical Sketches of Committee Members and Staff 147 References 153

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Acronyms ACAP Alien Criminal Apprehension Program ADAA Anti-Drug Abuse Act AEDPA Antiterrorism and Effective Death Penalty Act AFF Asset Forfeiture Fund ATF Bureau of Alcohol, Tobacco, Firearms, and Explosives BIA Board of Immigration Appeals BOP Bureau of Prisons CAP Criminal Alien Program CBP U.S. Customs and Border Protection DEA Drug Enforcement Administration DHS U.S. Department of Homeland Security DOJ U.S. Department of Justice ENOE Encuesta Nacional de Ocupacion y Empleo EOIR Executive Office for Immigration Review FBI Federal Bureau of Investigation FEDSIM Federal Systems Integration and Management Center GAO U.S. Government Accountability Office (formerly U.S. General Accounting Office) GDP gross domestic product GPRA Government Performance and Results Act of 1993 xiii

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xiv ACRONYMS GPRAMA GPRA Modernization Act of 2010 ICE U.S. Immigration and Customs Enforcement IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act INA Immigration and Nationality Act INEGI Instituto Nacional de Estadística y Geografía INS Immigration and Naturalization Service IRCA Immigration Reform and Control Act of 1986 IRP Institutional Removal Program MMFRP Mexican Migration Field Research Program MMP Mexican Migration Project NAFTA North American Free Trade Agreement NSEERS National Security Entry-Exit Registration System NTA Notice to Appear ODO Office of Detention Oversight ODPP Office of Detention Policy and Planning OFDT Office of the Federal Detention Trustee OFO Office of Field Operations OJJDP Office of Juvenile Justice and Delinquency Prevention OMB U.S. Office of Management and Budget OPA Office of Pardon Attorney OTMs undocumented immigrants other than Mexicans PTS Prisoner Tracking System SAUSA(s) Special Assistant U.S. Attorney(s) SAVE Systematic Alien Verification for Entitlements SERA structured expedited removal advisement process SEVIS Student and Exchange Visitor Information System SSA Social Security Administration TRAC Transactional Records Access Clearinghouse USAO U.S. Attorney’s Office USCIS U.S. Citizenship and Immigration Service USMS U.S. Marshals Service US-VISIT U.S. Visitor and Immigrant Status Indicator Technology VCCLEA Violent Crime Control and Law Enforcement Act