Summary

Immigration enforcement is carried out by a complex legal and administrative system, operating under frequently changing legislative mandates and policy guidance, with authority and funding spread across several agencies in two executive departments and the courts. The U.S. Department of Homeland Security (DHS) is responsible for conducting immigration enforcement both at the border and in the United States; the U.S. Department of Justice (DOJ) is responsible for conducting immigration removal procedures and criminal trials and for prosecuting people charged with immigration-related crimes. In Congress, three separate appropriations subcommittees have jurisdiction for elements of the immigration enforcement system.

The House Appropriations Subcommittee for Commerce, Justice, and Science, concerned that budget requests for immigration enforcement had not been well supported in recent years, directed DOJ to enlist the National Academy of Sciences to recommend improved budgeting for immigration enforcement.

FINDINGS AND CONCLUSIONS

Apprehensions by DHS and decisions about how apprehended individuals are handled largely drive the demand for DOJ’s enforcement activities. These decisions include potential prosecutions by U.S. attorneys and status determinations and removal orders by immigration judges, as well as administrative decisions on the number subject to pretrial deten-



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Summary I mmigration enforcement is carried out by a complex legal and admin- istrative system, operating under frequently changing legislative man- dates and policy guidance, with authority and funding spread across several agencies in two executive departments and the courts. The U.S. Department of Homeland Security (DHS) is responsible for conducting immigration enforcement both at the border and in the United States; the U.S. Department of Justice (DOJ) is responsible for conducting immigra - tion removal procedures and criminal trials and for prosecuting people charged with immigration-related crimes. In Congress, three separate appropriations subcommittees have jurisdiction for elements of the immi- gration enforcement system. The House Appropriations Subcommittee for Commerce, Justice, and Science, concerned that budget requests for immigration enforcement had not been well supported in recent years, directed DOJ to enlist the National Academy of Sciences to recommend improved budgeting for immigration enforcement. FINDINGS AND CONCLUSIONS Apprehensions by DHS and decisions about how apprehended indi- viduals are handled largely drive the demand for DOJ’s enforcement activities. These decisions include potential prosecutions by U.S. attorneys and status determinations and removal orders by immigration judges, as well as administrative decisions on the number subject to pretrial deten - 1

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2 BUDGETING FOR IMMIGRATION ENFORCEMENT tion, incarceration, or requiring court security and transportation by U.S. marshals. Decisions by DHS to allow fewer apprehended immigrants to be returned to their countries of origin voluntarily without civil or crimi- nal processes have increased the workload of DOJ’s parts of the immigra- tion enforcement system, despite a sharp decline in total apprehensions. The flows of unauthorized entrants across the southern U.S. border have declined since 2000, most likely as a result of changes in U.S. eco- nomic conditions and Mexican demography, among other factors. The increased probability of or greater severity of sanctions for those appre - hended has not been a major cause of the decline. Budget decision making is hampered by lack of analysis about the actual deterrent or other effects of specific sanctions or other DHS and DOJ actions. In 2003-2010, only a few sizable adjustments were sought to the origi - nal appropriated amounts to DOJ, in spite of significant changes in work- load demands. This lack of requests for changes appears to reflect in part the ability of administrators at both national and local levels to adjust their operations to whatever level of resources is available. That is, prob- lems in estimating resources for immigration enforcement are more likely to manifest themselves as changes in operations (and possibly service quality and enforcement effectiveness) than as requests for supplemental appropriations or other spending adjustments. The accuracy and timeliness of budget estimates—developed up to 2 years in advance of the fiscal year for which appropriations are made—are affected by all the usual limitations of any financial forecast and by some limitations specific to estimating resource needs for immigration enforce - ment. The complexity of the immigration enforcement system also limits the utility of standard modeling methods for predicting budget demand. DOJ confronts at least five technical challenges to modeling its resource needs for immigration enforcement that are specific to the immi- gration enforcement system: 1. the nonlinearities arising from the nature of “queuing” for ser- vices at various points in the enforcement process; 2. adaptive behavior by both enforcement agencies and immigrants; 3. jurisdictional complexity and dispersal of decision-making responsibility; 4. uncertainty from sources out of DOJ’s control such as DHS policy shifts and changing migration patterns; and 5. the limits of available data on costs and effectiveness. Therefore, in responding to its charge to “develop a robust approach or model to predict future DOJ costs . . .” and having concluded that it is impractical now or in the foreseeable future to specify and estimate a

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3 SUMMARY statistical model of the enforcement system useful for budgeting, the com- mittee undertook to describe a new approach to budgeting for immigra- tion enforcement, requiring new data and analyses and new institutional relationships and procedures. (See Box 1-1 in Chapter 1 for the complete Statement of Tasks.) RECOMMENDATIONS Despite the inherent limitations, budgeting for immigration enforce- ment can be improved by changing the method for budgeting. Improve- ment should be measured not simply by whether estimates included in budget requests prove sufficient to support planned and proposed operations, but also by the contribution to better decisions about the cost- effective use of resources to achieve the stated objectives of immigration enforcement policies. Both technical and institutional changes in budgeting procedures can improve budget estimates and contribute to better performance. Techni - cally, further development and use of data on individual case histories of those subject to enforcement can shed light on relationships between cur- rent and alternative resource uses and system performance. Institution - ally, as systems are integrated within DHS and if DHS and DOJ develop procedures for sharing case history information, system flows can be constructed and used for analysis by each department, or the two jointly, of the cost-effectiveness of different methods and strategies for immigra - tion enforcement. RECOMMENDATION 1: As a step toward collaborative planning and budgeting, the Department of Justice and the Department of Homeland Security should establish policy-level procedures to plan and coordinate policy planning and implementation to improve performance of the immigration enforcement system and to gener- ate better information to improve estimates of resource require - ments for system components. RECOMMENDATION 2: On the basis of a recurring policy-level review and guidance, the Department of Justice and the Depart- ment of Homeland Security, in consultation with staff of the federal courts, should coordinate their preparation of annual budget sub - missions and estimates for presentation to the Office of Manage - ment and Budget. RECOMMENDATION 3: The Department of Justice and the Department of Homeland Security should accelerate their design

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4 BUDGETING FOR IMMIGRATION ENFORCEMENT of an integrated capacity to track cases and project immigration enforcement activity—including the volume and timing of major flows—based in part on frequently updated analyses that integrate case histories of people encountered as illegal entrants or residents and the progress and disposition of each case. RECOMMENDATION 4: The Office of Management and Budget should direct the Department of Justice and the Department of Homeland Security to coordinate their policy development, plan- ning, and budget development processes to ensure that resource requirements match policies and strategies chosen to achieve specified performance targets and to increase the productivity of resources dedicated to immigration enforcement. RECOMMENDATION 5: The administration should consider using the requirements of the Government Performance and Results Mod- ernization Act of 2010 to establish one or more cross-cutting federal priority objectives related to immigration enforcement and border security; to assign a lead person responsible for these objectives; and to develop strategies, plans, reporting, and budgeting require - ments needed to support accomplishment of these objectives. RECOMMENDATION 6: The staff of the congressional appropria- tions subcommittees with funding responsibility for the Depart - ment of Justice, the Department of Homeland Security, and the ele - ments of the courts that are part of the enforcement system should consult with each other regularly as they develop their annual bills.