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2
Exploring the Budgeting Problem
A
s noted in Chapter 1, the committee’s first task was to try to deter-
mine why annual funding requests from the U.S. Department of
Justice (DOJ) have repeatedly turned out to be inadequate. The
answer proved to be more complicated than many may suppose.
BASES FOR BUDGET ESTIMATES
The accuracy and timeliness of budget estimates—originally prepared
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 immi-
gration enforcement.
Any budget estimation is subject to errors caused by imperfect infor-
mation about the future. Already observable influences on resource
requirements may have lagged effects that are hard to estimate. For partly
demand-driven services, such as detaining and processing persons appre-
hended as alleged illegal immigrants, the services demanded may be
subject to rapid, unpredictable changes. An example would be an unex -
pected surge of illegal immigration, leading to more apprehensions of
persons identified as illegal entrants, leading to subsequent increases in
demand for the services of U.S. marshals and U.S. attorneys, additional
hearings before immigration judges, additional pretrial detention facilities
for those charged with felonies, and more occupants of federal prisons.
The factors determining fluctuations in illegal entry, such as changes in
13
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14 BUDGETING FOR IMMIGRATION ENFORCEMENT
economic conditions, are not fully understood and cannot be forecast.
Other sources of demand may be predictable, such as the introduction of
new technology to aid in detection and personal identification, changes in
policy that increase the personal costs of apprehension, or new patrolling
or other tactics that contribute to a higher number of apprehensions. All
can contribute to increased demand for DOJ enforcement-related services.
Workload Hypothesis
A reasonable hypothesis on which budget estimates might be based
is that when resources are increased for efforts to detect and apprehend
illegal immigrants—either as they enter the United States or through
enforcement efforts such as checks on the status of workers or of people
taken into custody for other reasons—the result will be, with some time
lag, increased numbers of people who are subject to legal procedures.
Those legal procedures range from review of status, to felony prosecu-
tion and pretrial detention and transport, to sentencing to federal prison.
Higher volumes at the “front end,” when the U.S. Department of Home-
land Security (DHS) has responsibility, may lead to higher volumes later
at the “back end,” when DOJ has responsibility.
We can examine this hypothesis in light of recent trends. Since its
establishment, DHS has received large increases in its immigration
enforcement budgets, especially for the Customs and Border Protection
(CPB) service; see Figure 2-1. CPB’s functions include not only immigra -
tion enforcement, but also other enforcement related to control of the
movement of goods and of illicit products including illegal drugs. In
addition to the near doubling of the agency’s budget between 2004 and
2010, the then-separate Customs and Border Patrol agencies had received
substantial funding increases in the decade prior to DHS’s creation.
Contrary to the committee’s hypothesis, above, during the fiscal 2004-
2010 period the budget increases for DHS enforcement were accompanied
not by increases in the number of people apprehended as illegal entrants
but by a sharp drop in those numbers; see Figure 2-2.1 This trend might be
partly a result of more effective interdiction that in turn resulted in fewer
initial or repeated attempts to enter the United States illegally. Or it might
reflect changes in economic and social conditions on either side of the
border and other factors that led to fewer attempts to enter the country.
1 The counts of deportable aliens located do not include significant numbers apprehended
at ports of entry by U.S. Customs officials or apprehended by nonfederal law enforcement
agencies and subsequently removed by DHS’s Immigration and Customs Enforcement
(ICE) agency. The excluded numbers might make an important difference in the time trends
shown; this data issue is discussed in Chapter 4.
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15
EXPLORING THE BUDGETING PROBLEM
$10,000
9,000
8,000
CBP
7,000
Millions of Dollars
ICE
6,000
5,000
4,000
3,000
2,000
1,000
0
2004 2005 2006 2007 2008 2009 2010
Year
FIGURE 2-1 Net budget outlays for Customs and Border Protection and Immigra-
tion and Customs Enforcement agencies.
NOTES: CBP = Customs and Border Protection, ICE = Immigration and Customs
Figure 2-1
Enforcement.
SOURCES: Data from U.S. Office of Management and Budget (2005, 2006, 2007,
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2008, 2009, 2010, 2011).
vector editable
1,600,000
1,400,000
1,200,000
Deportable aliens
located, DHS
1,000,000
Number
Border Patrol
800,000
apprehensions,
Southwest sectors
600,000
400,000
200,000
0
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
Year
FIGURE 2-2 Deportable aliens located and Border Patrol apprehensions.
NOTE: DHS = U.S. Department of Homeland Security.
SOURCE: Data from U.S. Department of Homeland Security (2011d).
Figure 2-2
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16 BUDGETING FOR IMMIGRATION ENFORCEMENT
A drop in apprehensions accompanied by more spending to interdict
and arrest illegal residents will naturally cause the cost per apprehension
to rise, even if it may increase deterrence. The combination of higher
spending and fewer apprehensions after 2000 means that average DHS
spending for each deportable alien located increased in just 5 years by
more than 300 percent, from less than $8,000 per apprehension to nearly
$28,000.
A lower volume of DHS apprehensions would seem to imply less
demand for the enforcement-related functions performed by DOJ compo-
nents such as the Office of Detention Trustee, U.S. marshals, immigration
judges, U.S. attorneys, and the Bureau of Prisons. But, while apprehen-
sions were declining, activity levels for other components of the enforce-
ment system were either stable or rising; see Figure 2-3. These trends were
largely the result of DHS-initiated emphasis on “enhanced consequences”
for people who were apprehended. That is, a higher percentages of those
apprehended were either brought before an immigration judge (a civil
proceeding that leads in many cases to a removal order) or prosecuted in
federal courts for immigration violations, which requires pretrial deten-
tion and involves more work for the U.S. marshals, U.S. attorneys, and
250,000
Removals by
immigration judges
200,000
Expedited removals
Number
by DHS
150,000
USMS, immigration
offense bookings
100,000
USAO, criminal
immigration cases
50,000 filed
0
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
Year
FIGURE 2-3 Trends in immigration enforcement activity.
NOTES: DHS = U.S. Department of Homeland Security, USAO = U.S. Attorney’s
Office, USMS = U.S. Marshals Service.
SOURCES: Data from U.S. Department of Homeland Security (2011b); U.S. De -
Figure 2-3
partment of Justice (2011a, 2011c); and U.S. Department of Justice, Justice Manage-
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ment Division (personal communication).
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17
EXPLORING THE BUDGETING PROBLEM
2010
2009
2008
2007
2006
Year
USAO, criminal immigration cases led
2005 USMS, immigration o ense bookings
Expedited removals by DHS
2004
Removals by immigration judges
2003
2002
2001
0.00 0.05 0.10 0.15 0.20 0.25 0.30 0.35 0.40
Ratio of Enforcement Actions to Apprehensions
FIGURE 2-4 Ratios of enforcement activity2-4 redrawn suspected illegal aliens
Figure to total
apprehended.
NOTES: The ratios are not exact measures of the proportions each year because
there may be a significant time lag between apprehension and civil or criminal
procedures and outcomes. As a result, enforcement activities may be recorded 1
or more years after apprehension. DHS = U.S. Department of Homeland Security,
USAO = U.S. Attorney’s Office, USMS = U.S. Marshals Service.
SOURCES: Data from U.S. Department of Homeland Security (2011b, 2011d);
U.S. Department of Justice (2011a, 2011c); and U.S. Department of Justice, Justice
Management Division (personal communication).
possibly the Bureau of Prisons. (See Chapter 4 for a more detailed descrip-
tion of the operation of the immigration enforcement system.)
The sharp rise since 2001 in the proportions of people apprehended
as suspected illegal aliens subject to either civil or criminal processes is
shown in Figure 2-4. Removals implemented administratively by DHS
also have increased as a proportion of apprehensions from 5 percent or
less prior to 2005 to more than 20 percent in 2010.2 In prior years, many
more people were simply released at the border without further conse -
quences rather than being subjected to civil or criminal processes.
Policy Effects
As detailed below, this recent change is part of a broader policy shift
intended to increase the personal cost and sanctions for illegal entry,
2 See note to Figure 2-4 on the possible effects of time lags on enforcements.
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18 BUDGETING FOR IMMIGRATION ENFORCEMENT
thus helping to deter future attempts. So, the potential demand for DOJ
enforcement functions and resulting resource needs have not been a sim-
ple function of the number of apprehensions but, rather, a function of
changes in policies and practices determining how those apprehended
would be processed. So, for example, if policies to deter unauthorized
immigration are effective, then the demand for DOJ services and budget
resources may decline. Changes in policy and practice affecting DOJ’s
components of the enforcement system are largely the responsibility of
DHS, which may or may not take into account their implications for DOJ’s
enforcement responsibilities.
The level of activity of the civil process to determine status of people
charged as illegally in the United States can be measured by the number
of cases completed annually by the immigration courts. This number
increased from 2003 to 2010 by about 16 percent; see Figure 2-5. Crimi-
nal proceedings can be measured by the numbers of people booked by
U.S. marshals for immigration offenses, including simple misdemeanor
charges for border crossings and more serious felony charges. These book-
ings increased by more than 180 percent from 2003 to 2008 and remained
at about that level for the following 2 years; see Figure 2-6.
400,000
350,000
300,000
Number
250,000
200,000
150,000
100,000
50,000
0
2003 2004 2005 2006 2007 2008 2009 2010
est.
Year
FIGURE 2-5 Immigration matters completed by the Executive Office for Immigra-
tion Review (EOIR).
SOURCES: Data from the U.S. Department of Justice (2011a) and U.S. Department
of Justice, Justice Management Division (private communication).
Figure 2-5
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EXPLORING THE BUDGETING PROBLEM
100,000
90,000
80,000
70,000
Number
60,000
50,000
40,000
30,000
20,000
10,000
0
2003 2004 2005 2006 2007 2008 2009 2010
Year
FIGURE 2-6 Persons booked by the U.S. Marshals Service for immigration
offenses.
SOURCE: Data from the U.S. Department of Justice (2011c).
Figure 2-6
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These data demonstrate that overall activity for the DOJ compo-
nents of the immigration enforcement system—both civil and criminal—
increased even as DHS apprehensions fell sharply. The increase in crimi-
nal immigration cases was most dramatic, imposing burdens not only on
the Office of the Federal Detention Trustee (OFDT), U.S. marshals, and
U.S. attorneys, but also on the federal courts, whose budget is separately
appropriated.
Budgets for the DOJ components of the enforcement system were
increasing over the same period as those for DHS, but not so dramatically.
Annual budget authority provided for the Executive Office for Immi-
gration Review (EOIR) increased almost 60 percent, from $188 million
in 2003 to $298 million in 2010. For the same years, funds available for
immigration-related expenses (based on the percentage of immigration-
related detentions in the same years) of the OFDT (which also allocates
funding for U.S. marshals) increased 250 percent, from $152 million to
$541 million.
Agencies can respond to rising service demands not only by seeking
budget increases, but also by adjusting how they use resources. In fact, we
have observed that the administrative system responsible for immigration
enforcement has flexibility at many points to adapt its administrative
priorities and procedures to handle both surges in service demand and
unexpected resource shortfalls. Often these decisions are made locally in
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20 BUDGETING FOR IMMIGRATION ENFORCEMENT
response to local conditions. Although this flexibility and adaptation make
the system more resilient in the face of potential resource constraints, over
time they complicate the task of estimating the “true” resource require-
ments to sustain operations. Thus, budget estimators have to predict
not only demands generated by external factors and changes in national
policies, but also how the components of the system in different regions
will respond if resources are higher or lower than the demands seems to
require. If they are interested also in performance, they also need to con-
sider and estimate how differences in resources will affect enforcement.
Adjustments can affect cost per unit of service. For example, changes
in the kinds of people referred for civil or criminal processing may affect
the resources required if more detainees are charged with felony offenses
rather than misdemeanor offenses. Such a change can result either from a
change in the mix of people apprehended or changes in policies regarding
how alleged offenses are handled. Changes in cost may result also from
administrative changes, efficiencies arising from advances in technology
or practice, or changes in staffing. As a result of these and other influ -
ences, the “efficiency” of the system as measured by average processing
costs, may change over time.
Adjusting to Workload Changes
Up to a point, agencies can adjust to increased workload by finding
ways to handle more cases with the same resources. In the face of higher
demand for pretrial detention and related costs funded by OFDT, the
average annual cost of those services remained about the same (adjusting
for inflation), rising from less than $6,000 per detainee in 2004 to about
$6,400 per detainee in 2009; see Figure 2-7. On the civil side, processing
costs per case increased as EOIR’s spending per matter handled rose from
slightly more than $600 per matter in 2003 to more than $800 in 2010; see
Figure 2-8.
The adjustment for immigration judges was somewhat different. The
ratio of immigration proceedings completed to the number of full-time
equivalent immigration judges rose from fewer than 400 per judge in
2000-2003 to more than 600 per judge in 2008 and 2009. Even so, the num-
ber of cases pending before the immigration courts rose; see Figure 2-9.
Further analysis might show in more detail how these and other compo -
nents of the enforcement system have adjusted to increased demand by
changing their methods of operation, mix of staffing, or use of technology.
To appreciate the nature of the budgeting challenge, however, it is enough
to recognize that many such adjustments occur.
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21
EXPLORING THE BUDGETING PROBLEM
$8,000
7,000
6,000
Dollars per Detainee
5,000
4,000
3,000
2,000
1,000
0
2004 2005 2006 2007 2008 2009 2010 est. 2011 est.
Year
FIGURE 2-7 Cost per immigration detainee by the Office of the Federal Deten -
tion Trustee.
SOURCE: Data from the U.S. Department of Justice, Justice Management Division
(personal communication).
$900
800
Figure 2-7
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700
vector editable
600
500
Dollars
400
300
200
100
0
2003 2004 2005 2006 2007 2008 2009 2010 est.
Year
FIGURE 2-8 Budget obligations per immigration matter completed by the Execu-
tive Office for Immigration Review.
SOURCE: Data from the U.S. Department of Justice, Justice Management Division
(personal communication).
Figure 2-8
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22 BUDGETING FOR IMMIGRATION ENFORCEMENT
300
250
Pending Cases (in thousands)
200
150
100
50
0
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Year
FIGURE 2-9 Cases pending before immigration courts.
SOURCE: Data for the Executive Office for Immigration Review are from the
Transactional Records Access Clearinghouse (TRAC) at Syracuse University, as
reported in Kerwin et al. (2011).
The Purpose of Budgeting
Taking a broader view of the purpose of budgeting, it is important
to consider the combined effects of resource levels, policies, and sys -
Figure 2-9
tem adjustments on what is accomplished, measured not just in terms
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of outputs (such as numbers of cases handled) but also in terms of the
vector editable
probable effectiveness of efforts to control illegal immigration. Although
it is beyond the scope of this study to determine how best to measure
effectiveness, policy makers need different measures of effectiveness both
to set funding levels and to provide policy guidance to the operating
components of the system about how they can best use their resources.
Properly understood, meeting the budgeting challenge means not
merely improving the reliability of budget estimates, but also being able
to relate changes in budgeted levels to changes in both outputs and effec-
tiveness under specified policies. To measure effectiveness, policy makers
must first specify their objectives in terms that will allow the results of
their enforcement efforts to be measured. Currently, agreement and clar-
ity are lacking regarding the goals of immigration enforcement policies or
how these should be measured, posing a fundamental obstacle to realistic
budgeting (see Alden and Roberts, 2011, pp. 19-26). If there were agree-
ment on the policy goals and the measures to be used to achieve those
goals, then budgeters would be in a better position to specify funding
levels for the policies and activities needed to achieve a specified level
of performance, based on their estimates of the effects that enforcement
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EXPLORING THE BUDGETING PROBLEM
programs and strategies would have on the outcomes of greatest inter-
est, such as reducing or deterring illegal entry. Over time, estimates of
resource requirements would reflect policy makers’ assessments of the
results of their policies and programs and their decisions about how
resources could be best used to improve the outcomes they seek.
BUDGET PREPARATION PROCESS
As noted above, budget estimates are made as much as 2 years before
the time funds will be needed. They are naturally subject to initial error
and may also need later revision on the basis of better or more recent
information. Apart from changes in the operating environment and poli-
cies, the character of the budget process itself—both technical estimating
procedures and its institutional aspects—may affect the accuracy of esti -
mates of resource needs. Moreover, because of larger budget constraints
and past decisions about priorities, currently budgeted amounts may not
match estimates of resource needs derived from an estimating procedure
that does not account for how administrators have adjusted their opera-
tions to past funding constraints or may adjust to future funding changes.
Institutional factors complicate budgeting for immigration enforce -
ment. Budget requests are typically developed first by departmental com-
ponents using a variety of statistical techniques and judgments and then
reviewed at three separate levels, first within DOJ and DHS and later at
the U.S. Office of Management and Budget (OMB). For the immigration
enforcement system, estimates for major components are developed more
or less separately and in parallel by the two departments.
The process increased in complexity when DHS was established in
2003. That action created divided responsibility for preparing and review-
ing budget estimates between two cabinet agencies, posing a new poten -
tial barrier to communicating and to assessing how changes in policy or
practice in one part of the enforcement system may affect others. And in
Congress, separate appropriations subcommittees now review and autho-
rize DHS and DOJ spending. The division of decision-making responsibil-
ity in both the executive and legislative branches makes it more difficult
to coordinate budget preparation and review for components of the immi-
gration enforcement system that were once housed together at DOJ (in the
Immigration and Naturalization Service [INS]).
It is apparent from the language of the charge to the committee that
Congress was concerned in 2008 about the possible effects of greatly
increased funding for DHS functions on the demand for DOJ services.
As already discussed, this effect is substantial; unfortunately, however,
it is not straightforward. Moreover, it seems plausible that the challenge
of coordinating budget requests as well as other coordinating challenges
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24 BUDGETING FOR IMMIGRATION ENFORCEMENT
may have been complicated by the split of immigration enforcement func-
tions in 2003 between the two departments. Those charged with preparing
budget estimates for DOJ enforcement programs may not have informa -
tion available to DHS about immigration flows or about deployments,
policies, or strategies that DHS is adopting that could change the numbers
of those apprehended or the proportion who are arrested and charged
rather than simply released or repatriated without formal charges: as
discussed above, those DHS deployments, policies, and strategies would
generate demand for DOJ-funded enforcement programs. If DHS policies
and practices change, this can quickly change demand for DOJ services.
If there is little advance notice of the change, this may make it impossible
for those preparing or reviewing DOJ budget estimates to take the change
into account. Thus, what may appear to be estimating errors may actually
result from changes in resource needs that arise after budget or appropria-
tions decisions have been made.
