7

Conclusions and Recommendations

Despite the challenges of producing reliable estimates of resource needs for the components of the immigration enforcement system for which the U.S. Department of Justice (DOJ) is responsible, the committee has identified specific opportunities to improve estimates of resource needs. In addition, we see opportunities to improve the use of available resources through analysis of the relative effectiveness of alternative ways of applying budget resources. A new approach to budgeting may allow those resources to be applied more effectively to limit illegal immigration and achieve other policy goals.

To improve budget estimates and to support better decisions about the use of budget resources, the committee proposes elements of a new model of budgeting for DOJ immigration enforcement, including changes in the procedures used to develop budgets. The committee’s recommended approach relies on new data and analysis, focuses on improving the effectiveness of enforcement efforts, and offers DOJ more flexibility in deploying whatever level of resources is available (through appropriations) as an alternative to either seeking supplemental resources or adapting procedures in ways that may degrade performance. Given the shared responsibility of DOJ and the U.S. Department of Homeland Security (DHS) for the enforcement system, greater collaboration across DOJ components and between DOJ and DHS—beginning with early discussion of pending changes in policy or practice and including greater sharing of information during the budget process—can be expected to improve bud-



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7 Conclusions and Recommendations D espite the challenges of producing reliable estimates of resource needs for the components of the immigration enforcement system for which the U.S. Department of Justice (DOJ) is responsible, the committee has identified specific opportunities to improve estimates of resource needs. In addition, we see opportunities to improve the use of available resources through analysis of the relative effectiveness of alter- native ways of applying budget resources. A new approach to budgeting may allow those resources to be applied more effectively to limit illegal immigration and achieve other policy goals. To improve budget estimates and to support better decisions about the use of budget resources, the committee proposes elements of a new model of budgeting for DOJ immigration enforcement, including changes in the procedures used to develop budgets. The committee’s recom- mended approach relies on new data and analysis, focuses on improving the effectiveness of enforcement efforts, and offers DOJ more flexibility in deploying whatever level of resources is available (through appropria - tions) as an alternative to either seeking supplemental resources or adapt- ing procedures in ways that may degrade performance. Given the shared responsibility of DOJ and the U.S. Department of Homeland Security (DHS) for the enforcement system, greater collaboration across DOJ com - ponents and between DOJ and DHS—beginning with early discussion of pending changes in policy or practice and including greater sharing of information during the budget process—can be expected to improve bud- 117

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118 BUDGETING FOR IMMIGRATION ENFORCEMENT get decisions for both departments and may lead to more cost-effective use of the funds expended by each. CONCLUSIONS: WHAT HAS BEEN LEARNED Budgeting for immigration enforcement in DOJ involves several unusual and challenging issues. Over the past 10 years or so, apprehensions of unauthorized entrants and residents have fallen substantially. Rates of net illegal entry are now near zero. This downward trend would be expected to reduce demand for the immigration enforcement functions that DOJ administers, but that has not occurred. As detailed in the previous chapters, the demand for those immigration enforcement-related functions has increased, as has the cost per apprehension and removal. The increases in costs reflect policy changes aimed at imposing increased consequences on illegal entrants and more aggressive inter- nal efforts to identify and remove illegal residents. Those policies have resulted in higher proportions of those apprehended being subject to civil or criminal prosecution, detention, incarceration, and/or administra- tive removal. These historically specific factors, however, may give little indication of the trend in future demand for DOJ enforcement when, for instance, U.S. economic conditions improve. Nature of the Budgeting Challenge Although Congress, in its request for this study, indicated that the Department of Justice has had unusual difficulty in formulating its bud - get requests for immigration enforcement, only in a few instances in the past 10 years has an apparent underestimate of funding requirements led to significant requests for supplemental funding or other sizable adjust - ments. Only on two occasions, both associated with reorganization of immigration enforcement responsibilities in DOJ, were major adjust- ments made to its original funding request. Rather, DOJ has adjusted its operations to meet the changing demands on its parts of the enforcement system. Nonetheless, a distinct budgeting problem complicates DOJ immigra- tion enforcement efforts. Surges in DHS resources and changes in federal enforcement policies, strategy, and tactics—usually at DHS initiative—are major sources of unanticipated demands, with consequences for DOJ’s responsibilities. The volatility of apprehensions and policies that drive the demand for DOJ enforcement services is often greater at a local or regional level than at a national level. Unanticipated demands for DOJ’s services have immediate and direct

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119 CONCLUSIONS AND RECOMMENDATIONS consequences for how enforcement is conducted, commonly leading to adjustments in operations to ensure that funding limits are not exceeded. Changes in operations resulting from unanticipated resource constraints have, on occasion, degraded the quality of operations and may have impeded the effectiveness of enforcement efforts in limiting or reducing illegal immigration. CONCLUSION: Problems in estimating resources for immigra- tion enforcement are more often likely to manifest themselves as changes in the level or character of enforcement activity than as requests for supplemental appropriations or other adjustments to initial spending authority. Such adjustments have implications for enforcement effectiveness. The inherent characteristics of the immigration enforcement system documented in this report, as well as the long lead times inherent in budgeting, cast doubt on whether it is possible to rely on the projection of past trends in activity or to use more complex statistical models to improve estimates of the system’s future resource needs. The immigration enforcement system will continue to evolve in unpredictable ways that can change resource requirements substantially over periods as short as 1 or 2 years. Moreover, the system is complex and pervaded by discretion at regional and local levels. Discretion allows administrators and decision makers to adapt to limits on local resource limits and changes in demand for their services in varied and hard-to-anticipate ways by handling fewer cases or handling them differently. These adaptations have consequences for the system. Adapting to fixed resources by increasing backlogs or minimizing consequences for violations of immigration law may actu- ally reduce effectiveness in achieving the aims of enforcement. Bottle- necks and case backlogs arising from mismatches between mandates and resources may impede or alter enforcement. The likely effects include at least temporary local reductions in the effectiveness of enforcement efforts unless there are compensating efficiency gains. Yet whether or not adaptation helps to maintain system performance, such adjustments make it hard to define, much less to estimate, the proper level of funding to provide to each system component. DOJ’s budget history shows a striking capacity to adapt or “make do” with the available resources. Making do, while admirable, can affect the system in perverse ways as noted throughout this report. Ad hoc adapta- tions in one arena may impinge elsewhere and generate inefficiencies. The committee had neither the time nor resources to directly measure the effect of budget stresses and subsequent adjustments on the effective-

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120 BUDGETING FOR IMMIGRATION ENFORCEMENT ness of the system or its components in contributing to goals of immigra- tion enforcement policy—such as reducing illegal entry or ensuring fair and prompt adjudication of charges and status. In fact, as discussed in Chapter 6 and below, the information on outcomes of enforcement activ- ity needed for such analysis is not yet available in a form suitable for analysis. Nor, has improved performance been a major focus of budgeting for immigration enforcement. Because the enforcement process involves important sets of activities in two departments, isolating the effects on enforcement outcomes of changes in policy or activity in one or more components will be challenging even when better information on the determinants of variations in performance becomes available. CONCLUSION: The enforcement system’s capacity to adjust opera- tions is useful for dealing with changing and varied conditions, but it impedes the ability of budget analysts and planners to assess future resource requirements. CONCLUSION: Because resource requirements cannot be reliably estimated 18 to 24 months in advance of when they will be used on the basis of past trends or using a formally specified statistical model, better data and other approaches are needed to improve estimates. Opportunities to Improve Estimates and Mitigate Surprises Despite the difficulties of budgeting for immigration enforcement, the committee sees opportunities to reduce the number of surprises in the system and to mitigate the effects of those that remain. DOJ’s estimates of future resource needs might be “good” or “bad”—that is, more or less accurate—given the information at hand, but even a “good” estimate can result in an eventual discrepancy because external forces, such as changes in policy or exogenous factors, might yield surprises. The U.S. Office of Management and Budget (OMB), in weighing tradeoffs across agencies, might request more—or less—funding; or Congress might appropriate a different amount. The story, however, does not end there. The ways in which DOJ and its constituent parts respond to shortfalls—or carry- overs—can feed back into the system to make the gap larger or smaller. Two kinds of responses are possible: ad hoc and coordinated. And such responses can occur at various points in the process. Initially, at least, one way to improve the system is through improved collection, organization, and use of data, particularly for case histories of people encountered or apprehended as illegal entrants. Another way is through improved coordination and communication among those who set policy

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121 CONCLUSIONS AND RECOMMENDATIONS direction; those who budget for component activities; and, at a local level, between the people who implement policies for the system’s com- ponents. Improvements in all three domains—information, coordination, and communication—could be mutually reinforcing, with the potential to create a “virtuous cycle”: better information can contribute to better coor- dination and communication and better coordination and communication can yield better information. Together, these improvements could reduce the number of surprises that affect the system’s operation and contribute to better responses to further surprises when there are local shortfalls or carryovers. On a more technical level, improved estimates can be obtained at the outset—when budget estimates are first developed—by a deeper understanding of how exogenous factors, policy, and administrative practices play out over time at different activity levels. Such understand- ing requires careful attention to bottlenecks and other constraints in each locality and insight into the various ways that both unauthorized immigrants and enforcement agencies and staff may adapt; the former adapting to changes in policy and on-the-ground conditions and the lat- ter adapting to changes in demands for their services. For this purpose, a well-elaborated model of flows through the system—also requiring better data—can be especially helpful. Budget and policy planners, armed with a simple flow model informed by estimates of how people with specified characteristics have been or will be treated at various points in the process, could conduct such analy- ses (although not fully quantifiable and ever evolving) to simulate how specific changes—such as a surge of unauthorized immigrants, changes in enforcement targets, or a new enforcement initiative—will ramify through the system. Such analyses could improve resource planning and alloca - tion whenever there are changes in immigrant flows. In initial estimation, gains can be made both by improving analysis and redefining “surprises” as “information” to feed into analysis; at the operating level, gains can be made by helping to identify circumstances when independent responses (by one agency or in one area) will be problematic. Our analysis suggests that reported statistics on enforcement activity may understate the level and misrepresent the relative components of that activity, which would make them misleading indicators of demand for both DHS and DOJ services. We compared summary data for fiscal 2008- 2010 case histories provided by DHS with published DHS statistics on “deportable aliens located” and other activity measures: that comparison suggests that the published data exclude a substantial number of cases. For example, the published data apparently exclude people apprehended by the Office of Field Operations (OFO) of the Immigration and Customs Enforcement (ICE) agency, which adds more than 200,000 to the approxi -

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122 BUDGETING FOR IMMIGRATION ENFORCEMENT mately 1 million annual totals for each of those years. Such discrepancies from the omission of OFO/ICE and some ICE apprehensions from the numbers would likely distort activity estimates at a regional or local level, which in turn would distort the profile of geographic distribution, activity trends, and overall volumes for purposes of estimating the potential flow of cases to DOJ’s agencies. Improved data on case histories and analysis with those data to relate policies, strategies, and resource use to achievement of specific policy out- comes would help policy officials and planners better predict how their policy and budget decisions are likely to play out through the system in terms of increased backlogs, changes in marginal costs, and other needed policy or budget adjustments. As discussed in Chapter 6, the committee’s examination of case his - tory data obtained from DHS suggests it may be possible with more work to construct complete histories of how those with particular characteris - tics and personal histories are handled by the enforcement system and their various outcomes. Moreover, DHS is now able to establish with some confidence the unique personal identity of each person apprehended, based on electronic fingerprints and iris scans. The DHS case histories data provided to the committee lack important information about certain processing steps and still are in need of further validation. Even so, they suggest the current feasibility of producing a base of information about case flows and outcomes that can illuminate system dynamics. More work is needed to integrate case records pulled from both departments’ administrative records and to combine these with personal histories of each person’s previous encounters with law enforcement. In the near future, a variety of analyses can be conducted of the ways people move through the system, based on current or alternative policies and given workload constraints of the system at various procedural steps. Such analyses may eventually include, for example, “what if” analyses of the effects of different enforcement procedures and strategies—such as the imposition of increased “consequences”—on resource needs of system components and, eventually, on outcomes. Such analyses would help policy makers and budget planners understand how and why the process treats differently immigrants with various characteristics, (i.e., age, country of origin, previous encounters with U.S. immigration or law enforcement) across time and within and across jurisdictions, and how those treatment differences affect their incentives, for example, to attempt another illegal entry. Such analysis can also show how differ- ences in enforcement methods and strategies affect the achievement of enforcement policy objectives, including reduction in unauthorized immi- gration, apprehension, and fair and prompt adjudication of charges and

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123 CONCLUSIONS AND RECOMMENDATIONS status. Estimating the separate effects of specific policies and practices is challenging, of course, but more such “what if” analyses will be possible once the existing case histories are completed and made available for this purpose. CONCLUSION: As the Department of Homeland Security (DHS) systems become more integrated and if DHS and the Department of Justice can develop procedures for timely recording and sharing of information about the movement of people through the system, a richer picture of immigrant flows through the enforcement system can be constructed. CONCLUSION: A new, fuller picture of system flows can be used as a starting point for “what if” analyses and estimation of how prospective changes in policy or practice may affect resource requirements. Opportunities to Identify Better Resource Uses As discussed in Chapter 6, an important budgeting task is to identify alternatives for more effective use of limited budget resources. And as discussed in Chapter 3, the available evidence casts doubt on the effective- ness of existing approaches to limiting unauthorized immigration. The absence of information to link resource uses with performance indicators makes it impossible to assess the effectiveness of enforcement policies. Without the ability to relate costs to performance, it is not pos - sible to determine whether resources are being used effectively or, more importantly, how they could be used more effectively to achieve the leg- islated goals of immigration enforcement. The first step to improve this situation would be for policy makers to identify a set of appropriate goals and measured outcomes for government policies to control immigration. For any given set of specified enforcement goals, DOJ can develop a range of performance and efficiency metrics to assess how effectively it is achieving those goals. With the minor exceptions noted in Chapter 6, DOJ has not set explicit near- or long-term outcome goals for its own enforcement efforts, nor have DHS and DOJ collaborated to establish policy goals and performance measures for their combined efforts. (DOJ is developing a new strategic plan for the fiscal 2013 budget.) Recently, DHS Secretary Napolitano dis- missed the current measures used to assess the effectiveness of DHS bor- der security efforts as inadequate for that purpose; that action may help set the stage for interdepartmental agreement on new goals and targets.

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124 BUDGETING FOR IMMIGRATION ENFORCEMENT CONCLUSION: Absent a clear statement of what federal immi- gration enforcement policies seek to accomplish and adoption of appropriate measures to assess whether those policies are being met, policy makers and budget planners lack a firm basis for esti - mating the effects of varying resource levels and uses on the per- formance of both the Department of Homeland Security and the Department of Justice components of the immigration enforcement system. Although the DHS and DOJ components of the enforcement system are separately administered and funded, they are meant to function as a single system. Thus, better coordination and communication within DOJ and between DHS and DOJ is necessary to improve both the accuracy of budget estimates and the probability that program resources will be used effectively and appropriately to meet policy objectives. Eight years after the transfer of the former Immigration and Natural - ization Service responsibilities to DHS, DOJ’s planning and budgeting for immigration enforcement programs continues to be hampered by limited coordination between the two departments. There is an absence of formal procedures for timely sharing of information about policy shifts, budget requests, and changing conditions affecting resource needs and limited capacity to build, maintain, and apply a complete, integrated database of how individual cases are handled in the enforcement process. The two departments have sometimes attempted to coordinate their policies and plans at higher levels, but they have not developed a com- mon enforcement strategy, targets, or estimates of resource needs. A more systematic collaborative approach to planning and budgeting for the immigration enforcement system could yield large gains in resource effec - tiveness in immigration enforcement policy. New opportunities are available to improve cooperation and institute new procedures to plan and budget for the entire immigration enforce- ment system. The Government Performance and Results Act Moderniza - tion Act of 2010 provides a set of new tools for use by agencies sharing responsibility for a common mission or set of objectives to jointly plan and budget to improve their performance.1 The act requires OMB to identify, 1 P.L. 111-352, passed in December 2010 and signed by President Obama on January 4, 2011, makes significant changes to the Government Performance and Results Act of 2003 (P.L. 103- 62), which requires executive agencies to prepare strategic plans and to develop and publish annual performance plans and annual reports on their performance. The new act modifies these requirements and codifies structures established to implement the 1993 act in an effort to strengthen the use of performance information for budgeting and managing. One new element is the emphasis on planning by multiple agencies around missions and objectives that cut across organizational boundaries.

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125 CONCLUSIONS AND RECOMMENDATIONS in consultation with Congress, a set of cross-cutting, outcome-focused “federal priority goals” that will be the focus of cross-cutting analysis and joint planning, budgeting, and reporting on progress. This new set of procedures will be used selectively beginning with development of the fiscal 2013 budget. Linked to the budget process, these requirements provide an opportunity to formalize interdepartmental collaboration to improve performance, as appropriate: this could be a spur for DHS and DOJ to plan and budget together for their shared immigration enforce- ment responsibilities. CONCLUSION: Given the division of administrative responsi- bilities for immigration enforcement between the Department of Homeland Security and the Department of Justice and given that the effectiveness of enforcement efforts is a combined result of their separate activities, performance is likely to be improved by coor- dination of planning and budgeting between the two departments. Even with technical improvements in budgeting and better coordina- tion in the preparation of estimates and prospective analysis of the effects of changes in policy or practice, there will still be budget surprises, but their effects can be mitigated in other ways. For example, Congress could grant administrators more flexibility in the use of budget authority to shift resources among alternative uses through broadening the range of permissible uses of some budget accounts. This approach was the basis for establishing the DOJ Office of Detention Trustee Program and account to centralize responsibility for detention administration and spending. Appropriations language could balance any increase in discretion over use of funds with limits on the range of eligible uses, reporting require- ments, or other controls. RECOMMENDATIONS Improved budgeting for DOJ immigration enforcement can improve performance of the larger enforcement system shared with DHS. In brief, an improved budgeting process would include • reliable and accurate data on how cases are handled in the enforce- ment system and how their handling is affected by national and local resource constraints and decisions; • clearer specification of the expected results of national immigra- tion enforcement policies and how achievement will be measured; • better information about policy performance and more timely sharing of that information between DHS and DOJ;

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126 BUDGETING FOR IMMIGRATION ENFORCEMENT • closer policy coordination between DHS and DOJ, in consultation with the federal courts on issues related to court capacity and procedure; and • collaborative planning and budgeting around selected cross- cutting priority objectives for border security and immigration enforcement. The committee offers six recommendations for an improved approach. 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. The policy-level group responsible for coordination would receive regular, consolidated reports from senior administrative personnel for each border sector and other regions on performance, resource con - straints, and other operational obstacles in order to improve operational results. The policy group would request ”what if” analyses to estimate the effects of planned or potential changes in policy, practice, or exogenous factors on the volume and character of immigration enforcement activity and flows of cases, using these analyses as a basis for resource estimation. 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. This approach can be supported by specific technical changes in the way budgets are developed. RECOMMENDATION 3: The Department of Justice and the Department of Homeland Security should accelerate their design 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.

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127 CONCLUSIONS AND RECOMMENDATIONS Using this shared analytical capacity, the two departments should jointly develop and maintain a quantified flow model representing immi - gration enforcement activity—including the volume and timing of the major sequences of activity. Policy officials of the two departments could jointly develop “what if” scenarios to estimate the effects of planned or hypothesized changes in policy, practice, or exogenous factors, as dis- cussed above. And the two departments could jointly report on perfor- mance, resource constraints, and other operational obstacles to improved results by DHS and DOJ personnel in each border sector and other regions with high immigration enforcement activity. In addition to the above recommendations to the Department of Jus - tice and the Department of Homeland Security, we offer recommenda- tions for other agencies that contribute to the budget for immigration enforcement. RECOMMENDATION 4: The U.S. Office of Management and Bud- get 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. The OMB elements that are responsible for budgeting and manage- ment of the two departments should consider conducting combined reviews of their budget submissions that pertain to their shared respon - sibility for 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.

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128 BUDGETING FOR IMMIGRATION ENFORCEMENT The recommended institutional and technical improvements to the budget process can reduce—but not eliminate—the uncertainties that cause estimating errors and needs for revised budgets or at least tem - porary operational adjustments for major components of the immigra - tion enforcement system. While they cannot be eliminated, the effects of estimating errors on system performance could be mitigated if the congressional appropriations committees provide greater administrative flexibility to the departments to reallocate resources while increasing accountability for achievement of specified performance targets. A range of mechanisms balancing greater flexibility with accountabil- ity for results could be considered. The committee suggests the admin - istration and the appropriations subcommittees assess, for example, whether a broadening of the authorized uses of funds appropriated to the Office of the Federal Detention Trustee would provide greater flexibil- ity to reallocate resources in response to unanticipated needs and would further consolidate accountability for resource allocations. Such a change in account structure can be expected to reduce the number of requests for supplemental or adjusted appropriations. In sum, the committee recommends a set of actions—both technical and institutional—to contribute to better budget estimates and resource application, contributing to better performance of the immigration enforcement responsibilities shared by DOJ and DHS.