4

The Immigration Enforcement System

This chapter describes the U.S. immigration enforcement system. Although its functions and activities are administered separately by various components of the U.S. Department of Homeland Security (DHS) and the U.S. Department Justice (DOJ), in conjunction with the federal courts, it is best understood as a single system, albeit one that is highly fragmented and disjointed. The committee recognized at the outset that it would need to understand and describe the system as a whole in order to address its charge of improving budgeting for DOJ’s immigration enforcement functions.

Our description of U.S. immigration enforcement is intended to capture not only the way the enforcement system was designed to function, but also how it actually operates. In 2010 and 2011, committee members and staff visited the El Paso, Tucson, and San Diego border sectors, where they interviewed (among others) officials from DOJ, DHS, and state and local law enforcement; public defenders; federal district, magistrate, and immigration court judges; and immigration advocates. The information and insights from those interviews are reflected throughout this chapter. Although the resulting portrait is hardly definitive, it identifies the characteristics of the system most salient for budgeting.

The committee also sought to use data provided by two DHS components—the Office of Immigration Statistics and Immigration and Customs Enforcement (ICE) to create individual case histories for apprehended immigrants moving through different components of the immigration enforcement system; unfortunately, the available data did not



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4 The Immigration Enforcement System T his chapter describes the U.S. immigration enforcement system. Although its functions and activities are administered separately by various components of the U.S. Department of Homeland Security (DHS) and the U.S. Department Justice (DOJ), in conjunction with the federal courts, it is best understood as a single system, albeit one that is highly fragmented and disjointed. The committee recognized at the outset that it would need to understand and describe the system as a whole in order to address its charge of improving budgeting for DOJ’s immigration enforcement functions. Our description of U.S. immigration enforcement is intended to cap - ture not only the way the enforcement system was designed to function, but also how it actually operates. In 2010 and 2011, committee members and staff visited the El Paso, Tucson, and San Diego border sectors, where they interviewed (among others) officials from DOJ, DHS, and state and local law enforcement; public defenders; federal district, magistrate, and immigration court judges; and immigration advocates. The information and insights from those interviews are reflected throughout this chapter. Although the resulting portrait is hardly definitive, it identifies the char- acteristics of the system most salient for budgeting. The committee also sought to use data provided by two DHS components—the Office of Immigration Statistics and Immigration and Customs Enforcement (ICE) to create individual case histories for appre- hended immigrants moving through different components of the immi - gration enforcement system; unfortunately, the available data did not 39

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40 BUDGETING FOR IMMIGRATION ENFORCEMENT allow us to do this. In the course of working with these data, however, we discovered significant differences between the data that were given to the committee and official (and published and commonly used) data on apprehensions. Although this chapter makes extensive use of official data, their limitations (discussed below) should be kept in mind. OVERVIEW The number of would-be migrants who seek entry to the United States (as to other wealthy destination countries), whether on a tempo - rary or permanent basis, far exceeds the number of visas that Congress has authorized. This gap leads inevitably to unauthorized flows and visa overstays and necessitates an effective immigration enforcement system. Immigration enforcement activities, however, require agents not only to prevent and remove unauthorized immigrants, but also to admit and facilitate legal migration flows for tourism, education, business, and other activities in the United States. The U.S. immigration system is highly complex. It involves scores of legal visa categories, dozens of grounds for removal, and various oppor- tunities for unauthorized immigrants to seek discretionary relief from enforcement actions in administrative and judicial forums. At most points in the enforcement system, moreover, agency personnel and officials can exercise discretion in the use of their authority. Today’s immigration enforcement system reflects important policy innovations, decisions, institutional changes, and political events that have developed over almost one-half century, dating back to the Immi- gration and Nationality Act of 1965, which ushered in the modern era of immigration law and policy. Appendix A provides a timeline of the post- 1965 statutory, policy, and administrative changes that are most relevant to current enforcement challenges and to the budget-relevant interactions between DOJ and (since 2003) DHS. More recently, the aftermath of the events of 9/11 and their interaction with changes in the 1996 immigra - tion law have been of overarching importance in understanding today’s immigration policy and operational landscape. Because the 9/11 hijackers had entered the country with properly issued visas, immigration issues became irrevocably linked with anti- terrorism and national security. The calls for secure borders were wide- spread and urgent, and immigration enforcement became understood as a front-line measure that had to be strengthened to protect the country. Thus, immigration functions were largely incorporated in the new cabi - net agency, DHS, border-related resources grew dramatically, and the interoperability of federal databases—including data collected and man - aged by immigration agencies—became broadly available for immigra-

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41 THE IMMIGRATION ENFORCEMENT SYSTEM tion enforcement purposes, including by state and local law enforcement agencies. The substantial resources and new policy importance of immigration enforcement followed statutory changes in immigration law that date back to 1988. They culminated in new provisions in the 1996 legislation that significantly (and retroactively) broadened the grounds for removal of noncitizens who had committed crimes. Tougher laws, combined with record-high levels of unauthorized immigration until the beginning of the severe economic recession in 2008, have resulted in immigration enforce - ment mandates and needs that are far greater today than those historically characteristic of immigration law and policy. OPERATIONAL OBJECTIVES Today’s immigration enforcement system is commonly understood as having three primary objectives: prevention, removal, and deterrence. Prevention The enforcement system seeks, first, to prevent the entry of illegal immi- grants. Noncitizens seeking admission to the United States are required to apply abroad for an immigrant or nonimmigrant visa or to obtain a waiver through the Visa Waiver Program: prevention begins during this initial, external application process. Visa applicants are required to visit a U.S. consulate, to be interviewed by a visa officer, and to provide biometric data (fingerprints and a digital photograph) that link the applicant to electronic records that are rechecked when the person arrives in the United States. Travelers from the 36 countries that participate in the Visa Waiver Program are typically exempted from prescreening at a U.S. consulate, but they must apply on-line for authorization to enter the United States, and they must obtain a visa if their planned visit to the United States will exceed 90 days. An additional round of screening occurs at legal ports of entry, where field operations officers from DHS’s Customs and Border Protection (CBP) agency review travelers’ documents for compliance with regulatory cri- teria and, in certain cases, recheck travelers’ biometric data, which is added to DHS’s U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) system. This review at the port of entry may include more extensive “secondary” inspection of a traveler’s eligibility to enter. CBP’s Border Patrol also prevents illegal entries between ports of entry by maintaining a mix of physical barriers (including pedestrian fences and vehicle barriers), surveillance technology (including visual and infrared cameras, motion detectors, underground sensors, aircraft, and

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42 BUDGETING FOR IMMIGRATION ENFORCEMENT radar), and personnel at and near U.S. borders to detect and apprehend immigrants as they attempt to enter illegally or shortly after they have done so. Removal The second major goal of immigration enforcement is to remove unau- thorized residents and other deportable noncitizens from the country.1 According to the DHS Yearbook of Immigration Statistics (U.S. Department of Homeland Security, 2011d), in fiscal 2009 and 2010 approximately 90 percent of deportable immigrants apprehended by DHS were located by the CBP Border Patrol, and the rest were located by ICE.2 Around 97 percent of the deportable immigrants apprehended by the Border Patrol were located in the Southwest sectors of the United States. Historically, interior enforcement relied primarily on a “task force” model, in which agents from ICE (or its predecessor the Immigration and Naturalization Service [INS]) apprehended suspected unauthor- ized immigrants through sweeps of agricultural areas and other busi- ness establishments suspected of hiring them. In addition to targeting unauthorized workers, ICE began in 2003 to deploy “Fugitive Operations Teams” to locate, arrest, and remove noncitizens who had been charged with immigration violations and then either failed to appear at an immi- gration hearing after being released on bail or failed to leave the country after being ordered to do so. More recent efforts to strengthen interior enforcement have empha- sized “filters” to screen for potentially removable aliens who come into contact with federal, state, or local criminal justice systems. ICE’s Crimi- nal Alien Program (CAP),3 which evolved out of two INS programs from 1 U.S. immigration law establishes several conditions that make aliens inadmissible and subject to exclusion at a port of entry, including because they are likely to become a public charge or because they have committed certain types of crimes, as well as conditions that make them deportable, including because they are in the country illegally. Several classes of noncitizens may be subject to deportation even though they entered the country legally, including students, temporary workers, and other legal immigrants who violate the terms of their visas and lawful permanent residents who commit “aggravated felonies” or other crimes that make them ineligible for U.S. residence. In 1996, the exclusion and deportation processes were combined into a single “removal” procedure (see discussion below). 2 CBP apprehensions do not include apprehensions by CBP agents at ports of entry, and deportable aliens located by ICE do not include arrests under the 287(g) program (which deputizes local officials as federal immigration agents; see below) or other arrests of deport - able aliens by federal, state, or local law enforcement agencies. 3 CAP issued 164,296 charging documents as an initial step for formal removal in 2007, 221,085 in 2008, 232,796 in 2009, and 223,217 in 2010 (U.S. Department of Homeland Security, 2008, 2009, 2010b, 2011b).

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43 THE IMMIGRATION ENFORCEMENT SYSTEM the 1980s, operates in jails and prisons to check the immigration status of arrestees as they are booked into the facilities and to ensure that remov- able aliens are transferred to ICE custody for removal when they complete their sentences.4 The Bush and Obama Administrations have instituted two additional jail-screening programs: section 287(g) and Secure Communities. Under the section 287(g) program, established in 1996 but primarily imple- mented since 2005, state and local law enforcement agents receive ICE training and supervision to conduct CAP-type screening in jails. About 10 percent of 287(g) program activities consist of task force enforcement through traffic stops or other community interventions instead of, or in addition to, jail screening.5 Under the Secure Communities Program, established in 2008 and slated to expand to every state and local jail in the country by 2013, arrestees’ fingerprint data are automatically checked against national immigration databases as part of the booking process. Centralized ICE screeners forward information about potentially remov - able aliens to local ICE officials, who may contact local jails to take cus- tody of and deport arrestees following completion of their jail sentences. 6 In 2011, DHS announced that it did not need the approval of state gover- nors to operate the program in their states (Bennett, 2011). Between 30 to 50 percent of the unauthorized immigrants in the United States are estimated to be visa overstayers (Pew Hispanic Center, 2006), although ICE has allocated only about 3 percent of its investigative work hours to this category of illegal residents. Approximately 8,100 over- stayers were arrested from fiscal 2006 through 2010. In the absence of a comprehensive biometric entry and exit system for identifying overstays, DHS’s efforts to identify and report on overstays have been hindered by unreliable data (U.S. Government Accountability Office, 2011). Even if a good entry-exit system were in place, however, the pursuit of individual overstayers may still be an inefficient use of ICE resources in comparison with, for example, denying unauthorized immigrants access to the labor 4 A federal statute generally requires undocumented residents to complete their criminal sentences prior to being deported (Schuck, 2011). 5 As of October 2010, ICE had 287(g) agreements with 69 state and local law enforcement agencies (U.S. Department of Homeland Security, 2010a). Although this number represents a relatively small share of the more than 3,000 law enforcement jurisdictions in the country, it includes a number of large jurisdictions such as the city of Los Angeles and Harris County (Houston), Texas. 6 In fiscal 2010, 49,432 aliens were removed based on matches made through Secure Com - munities, up from 14,353 in fiscal 2009. As of June 2011, the Secure Communities identifica - tion system covered 74.7 percent of the foreign-born noncitizen population in the United States, an increase from 31 percent in fiscal 2009 (U.S. Department of Homeland Security, 2011c).

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44 BUDGETING FOR IMMIGRATION ENFORCEMENT market through a mandatory employer verification system (see discus - sion below). Deterrence The goal of prevention and removal policies is to raise the cost of unauthorized migration and the probability of apprehension at the border or in the U.S. interior, in order to reduce the expected benefits (or increase the expected costs) of such migration. These policies thereby contribute to a third enforcement goal: deterrence of potential illegal entrants and overstays. The immigration system promotes deterrence though a “con- sequence delivery system” (see, e.g., Fisher, 2011). Rather than simply returning unauthorized immigrants to their countries of origin, this policy seeks to subject immigrants to additional immigration penalties, criminal charges, or even time in jail or an immigrant detention facility. In the case of unauthorized Mexican immigrants, the policy also may include taking them to remote locations in Mexico, making it more costly to make a new attempt at illegal entry. As noted in Chapter 3, although increased border enforcement has successfully increased border crossing costs, the deter- rent effects have been small. The consensus appears to be that, as long as migrants can quickly find employment, they are able to finance more costly crossings by borrowing. Hence, an additional strategy for deterring illegal migration has been to more effectively block unauthorized immigrants’ access to labor mar- kets and federal and state welfare programs, further reducing the ben - efits of illegal migration. Employers are required to confirm the identity and eligibility of new workers by checking their driver’s licenses and Social Security cards or other documents and (in some cases) checking the information against federal databases of legal workers. ICE agents audit employer records to verify that employers have made a good-faith effort to comply with these requirements: employers who knowingly hire or employ unauthorized immigrants may be subject to civil fines, and employers accused of a pattern or practice of employing unauthorized workers may face criminal charges. Worksite enforcement, by and large, does not play a major role in apprehensions. Most recently, under guidelines issued to ICE field offices in 2009, agents have been instructed to pursue evidence against the employers of illegal workers before going after the workers (Thompson, 2009). In addition, since 1996, officials who provide federal welfare bene - fits and certain state benefits must use DHS’s Systematic Alien Verification for Entitlements (SAVE) system to confirm the citizenship or lawful immi- gration status of recipients and to screen out unauthorized immigrants,

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45 THE IMMIGRATION ENFORCEMENT SYSTEM temporary migrants, and recent lawful permanent residents, all of whom are ineligible for most federal welfare benefits. ENFORCEMENT PIPELINES The fundamental question for the immigration enforcement system is how to balance the goals of prevention, removal, and deterrence with procedural guarantees designed to produce fair and accurate decisions and minimize administrative costs. The U.S. system seeks to strike this balance by sorting aliens into one of three main enforcement “pipelines”: see Figure 4-1. These pipelines, in ascending order of seriousness of sanc - tions, are voluntary return, formal removal, and criminal charges. 1. Under voluntary return, unauthorized immigrants are permitted to return to their country of origin with minimal detention and judicial processing (usually without an appearance before a DOJ immigration judge; see discussion below) and no additional sanc - tions. The authority to grant voluntary returns rests with DHS and, under certain circumstances, with immigration judges. 2. Formal removal occurs through a removal order issued by an immigration judge (“standard removal”) or by a DHS supervi- sor (“accelerated removal”). Unauthorized immigrants under formal removal orders are required to leave the country imme- diately and are subject to additional sanctions related to future entry. Noncitizens may be detained during removal proceedings (at DHS expense7), and in accelerated removal proceedings they usually have to be detained while their removal is pending. Under standard removal proceedings, noncitizens may appear before an immigration judge (with cost implications for DOJ) to petition for relief from removal; under accelerated removal noncitizens typi- cally do not appear before a judge. (For this reason, noncitizens in accelerated removal proceedings usually have short detention periods.) The decision to assign immigrants to standard and accel- erated removal proceedings is made by DHS. 3. Immigration-related criminal charges may be brought against unauthorized immigrants, requiring an appearance before a mag- istrate or district court judge. Criminal charges involve prosecu- tion and detention at DOJ expense. The authority to bring crimi - nal charges rests with DOJ, although misdemeanor cases brought through Operation Streamline (see below) are typically initiated 7 See Schriro (2009) for a comprehensive review and evaluation of the ICE detention system.

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46 BUDGETING FOR IMMIGRATION ENFORCEMENT by DHS. DHS attorneys also can be deputized by DOJ to pros- ecute Operation Streamline cases (in which case the costs of pros - ecution—but not detention—are borne by DHS). Although felony cases can only be prosecuted by DOJ (at DOJ expense), DHS may still play an important role in initiating these cases. Immigrants apprehended by local law enforcement officials and through jail screening programs—such as CAP, Secure Communities, and 287(g)—will either be subject to some form of accelerated removal, appear in a standard removal hearing before an immigration judge, or be granted voluntary return. The decision about which approach will be taken depends on the nature of their offense and potential eligibility for legal relief. The committee had hoped to provide a quantitative analysis of flows through the various pipelines. However, as is discussed in Chapter 6, further work is still needed for the production of complete case histories of unauthorized immigrants apprehended by and moving through the enforcement system. The following sections describe these pipelines in greater detail: who may be placed in each pipeline; how people enter and move through each pipeline, including the type of process they receive; how many unauthor- ized immigrants fall into each of these categories; and the impact of each enforcement pipeline on DOJ’s resources. Figure 4-1 shows these pipelines D H S A p p re h e n s i o n Voluntary Returns Criminal Charges Formal Removals • Voluntary departure • Criminal entry • Withdrawal of applica on for • Criminal re-entry admission • Smuggling Standard Removal Accelerated Removal • Expedited removal • Administra ve removal • Reinstatement of earlier order of removal FIGURE 4-1 Enforcement pipelines. See text for discussion. Figure 4-1 R02094 vector editable

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47 THE IMMIGRATION ENFORCEMENT SYSTEM schematically. Some of the operational information comes from the com - mittee’s two site visits and interviews, discussed in Chapter 1. Voluntary Returns Unauthorized immigrants and other potentially removable aliens may be eligible for one of two forms of voluntary return, by withdrawal of their application for admission or by acceptance of voluntary departure. Noncitizens who are denied admission at ports of entry may be granted a withdrawal of application for admission under §235(a)(4) of the Immigra- tion and Nationality Act (INA). Withdrawal of application is granted at the discretion of the DHS sector supervisor: it is usually granted in cases in which a person’s visa is invalid, but the person did not knowingly attempt to enter illegally or engage in visa fraud. People who are permit - ted to withdraw an application for admission in these cases are required to depart immediately, but are not placed in formal removal proceedings or subject to additional penalties. Most undocumented immigrants who are potentially subject to removal also may be eligible to receive voluntary departure (commonly referred to as voluntary return) under §240B(a) of the INA, either in lieu of facing formal removal charges or at the conclusion of a removal proceeding and instead of receiving a final order of removal. In practice, voluntary returns are most frequently granted at the discretion of a CBP supervisor to Mexicans who are apprehended within 100 miles of the U.S.-Mexico border. They are returned to a port of entry under CBP super- vision and at CBP expense on the same day as their apprehension.8 Volun- tary return also may be granted by an immigration judge or DHS sector chief during removal proceedings or after an unauthorized immigrant has been issued an order of removal. In these cases, the people who accept voluntary departure must agree to pay their own return expenses, may be required to post a bond to guarantee their exit, and, when they are in their home country, to visit a U.S. consulate to have their return certified. To be eligible for voluntary return, immigrants must not have seri- ous criminal records, must not be considered a threat to public safety, and must not already be facing immigration charges.9 In the case of 8 Undocumented immigrants other than Mexicans (“OTMs” in ICE jargon) apprehended by CBP at or near the border are usually placed in formal removal proceedings (see below) and then transported by air to their country of origin. 9 Specific requirements are that the person may not previously have been convicted of an aggravated felony; may not have engaged in terrorist activity or been associated with ter- rorist groups; may not previously have accepted voluntary departure and failed to depart; and, in the past 10 years, may not have failed to appear at a removal hearing after proper notice of removal charges.

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48 BUDGETING FOR IMMIGRATION ENFORCEMENT withdrawal of application for admission, the unauthorized immigrants must demonstrate the intent and the means to depart immediately and must establish to the satisfaction of the apprehending agents that the withdrawal of application is in the interest of justice. Voluntary return is akin to a plea bargain in criminal proceedings. An immigrant who is offered voluntary return may reject the offer in favor of formal removal proceedings and thereby have the opportunity to petition for relief from removal and the right to remain in the United States. For an undocumented immigrant, the main advantages of voluntary return are that it does not trigger pre- and post-order detention associated with formal removal, and it does not carry the added penalty of prohibitions on future immigration. For DHS, voluntary return offers the most efficient mechanism for returning unauthorized immigrants because those who accept it minimize detention and administrative costs. Because those who accept voluntary return from the interior (i.e., not right along the border) agree to pay their own return expenses, they also minimize transportation costs. DHS must weigh these benefits against the risk that the people who accept voluntary return will not actually leave the country since undocumented immigrants who accept voluntary return are seldom supervised during the period allotted for their departure.10 And because voluntary return does not carry additional penalties, it also has no additional deterrent effect beyond the cost to the immigrant of being returned. About 90 percent of all of deportable immigrants located since 1980 have been allowed voluntary return: see Figure 4-2.11 Although the abso- lute number of voluntary returns has fallen sharply from 1.2 million in 2004, more than 91 percent of those apprehended during the 2004-2010 period were still granted voluntary return. Note that it is possible for voluntary returns in a given year to exceed 100 percent of “aliens located” because DHS’s count of “aliens located” excludes aliens apprehended at ports of entry and aliens apprehended by law enforcement agencies other than DHS, and also because of time lags between aliens’ apprehensions and their formal removal: see Box 4-1. The high rates of voluntary return seen in Figure 4-2 appear to be at odds with the increased emphasis placed on formal removal and other forms of enhanced consequences for apprehended aliens (see discussion below). This apparent discrepancy is likely a function, in part, of the recentness of CBP’s focus on “consequence delivery” (i.e., the voluntary 10 Unauthorized immigrants who accept voluntary return and fail to depart are subject to formal removal and a civil fine of up to $500 per day, and they are ineligible to be granted voluntary return in the future. 11 The voluntary return data include withdrawals of application for admission.

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49 THE IMMIGRATION ENFORCEMENT SYSTEM 2,000,000 120 1,800,000 100 1,600,000 1,400,000 80 Number 1,200,000 Percentage Voluntary returns as 1,000,000 60 percentage of aliens located Deportable aliens located 800,000 Voluntary returns 40 600,000 400,000 20 200,000 0 0 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 Year FIGURE 4-2 Deportable aliens located and voluntary returns, 1980-2010. SOURCE: Data from DHS Yearbook of Immigration Statistics (U.S. Department of Homeland Security, 2011d). return rate may very well be lower in fiscal 2010 and fiscal 2011) and of the undercount of apprehensions in DHS data. However, the committee was unable to resolve its questions about the persistently high rate of voluntary returns. Formal Removals Any immigrant who is inadmissible under INA §212(a) or deportable under INA §237(a) is subject to formal removal from the United States 12 (see Figure 4-1). Unauthorized immigrants under a final order of removal are ordered to leave the United States, and (at the discretion of an immi- gration judge or ICE administrator) may be detained until their departure. 12 Removable individuals include, among others, aliens who have been convicted of seri - ous crimes, aggravated felonies, drug offenses, or crimes of moral turpitude; aliens who have engaged in terrorist activities or otherwise threaten U.S. security interests; aliens pres - ent in the United States without having been legally admitted or paroled; and those with invalid or expired documents or who have violated the terms of their visas.

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62 BUDGETING FOR IMMIGRATION ENFORCEMENT neys. Still, staffing levels for legal assistants are regarded as inadequate, even though the supporting role that they play is critical; it was suggested to the committee that allocating additional resources for legal assistants might be politically less “sexy” than hiring more attorneys. USMS, which does not have discretion over the volume or composi- tion of its workload, is one of the DOJ components that has been especially pressured by the surge in prosecutions. Detention is costly from a budget perspective, and detention facilities are almost always at or near capacity; the committee was also informed that the health care costs of detainees are of significant concern. An equally great (if not greater) challenge for USMS has to do with the personnel required to transport prisoners to and from the federal courthouse. Not only can detention facilities be located several hours away, but the physical infrastructure of the courthouse can also make it challenging for USMS to process detainees.24 For example, detention cells (which are usually at capacity) are located far away from the courtrooms, and there is only a single small elevator that can be used to move the prisoners. Felony prosecutions, which can require multiple trips for prisoners between the detention facility and the courthouse, are more burdensome for USMS than misdemeanor prosecutions under Operation Streamline, which entail fewer procedural steps. Even though USMS is under considerable stress and strain, the situ - ation does not yet seem to have become unmanageable. The number of Operation Streamline misdemeanor prosecutions in Tucson has been capped at 70 a day, a number that was the product of negotiations between the late Chief Judge Roll and local officials from USAO and DHS. The con- straints and bottlenecks faced by the various actors in the immigration enforcement system were taken into account in negotiating that number. Although some would like to increase the number of program prosecu- tions to 100 a day, many others believe that moving from 70 to 100 cases would destabilize the system. Short of that, USMS, working in concert with the judicial system, appears to have routinized its misdemeanor caseload—the operations at the Tucson courthouse were described to the committee as a “well-oiled machine.” Felony prosecutions, however, are significantly more cumbersome and do not appear to be the object of systemwide negotiation: it was even suggested that the Border Patrol may be responding to the cap on Operation Streamline misdemeanor prosecu- tions by bringing more immigration cases to USAO as felonies. Continued increases in the number of felony prosecutions may prove correspond- ingly burdensome for USMS. 24 The committee was also told that the situation in El Paso was similar.

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63 THE IMMIGRATION ENFORCEMENT SYSTEM El Paso In El Paso, Operation Streamline is referred to as being part of a “zero tolerance policy,” with apprehended immigrants being prosecuted at very high rates. According to local officials, about two-thirds of apprehended immigrants were prosecuted in fiscal 2010. USMS in El Paso faces many of the same challenges as USMS in Tucson, and, as in Tucson, cooperative relationships among judges and between attorneys play an important role in helping the system to operate smoothly. In contrast to Tucson, Border Patrol counsel in El Paso do not assist USAO in handling Operation Streamline misdemeanor prosecutions, even though USAO accepts essentially all of the cases presented by the Border Patrol. Moreover, court proceedings for these cases tend to be completed more quickly than in Tucson (resulting in shorter “time served” for defen- dants), and USAO operates without the benefit of “fast track” procedures for felony cases. It was suggested that the relatively low level of appre - hensions in the El Paso sector (see Figure 4-6) help account for many of these differences.25 And perhaps even more so than in Tucson, the resources and pros- ecution capacity of USAO in El Paso have managed to keep pace with the volume of cases that it has committed to pursue. Its capacity is such, in fact, that at one point it allegedly sought to charge all first-time illegal reentry cases as felonies, but backtracked from doing so when the public defender’s office responded by counseling defendants to ask for trial, which would have overloaded the system. Now, only repeat offenders with criminal backgrounds are charged with felonies, the overwhelming majority of whom plead guilty. San Diego In contrast to El Paso and Tucson, Operation Streamline has not been implemented in San Diego. The resource constraint that is cited most often is the number of beds available to hold undocumented immigrants for criminal prosecution. Because of high real estate prices, the cost of incarceration is said to be significantly higher in San Diego than in other districts. It was suggested to the committee that the number of available beds would have to be doubled in order to accommodate all of the cases that could be prosecuted under the current set of criteria used by USAO. As a result of this constraint, the number of prosecutions is dictated by 25 Given the simple nature of routine immigration cases, USAO in El Paso has also adopted a “horizontal” organizational structure rather than the “vertical specialization” structure that would be typical in offices that did not have such high-immigration workloads.

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64 BUDGETING FOR IMMIGRATION ENFORCEMENT the beds available for detention rather than by changes in patterns of immigration. There are differing views as to why the San Diego sector has not participated in Operation Streamline. Some people told the committee that federal authorities, aware that resource constraints would prevent the program from being fully implemented, have chosen not to impose an unworkable program. Other people told the committee that the fact that San Diego has not officially adopted the program has little practical importance, because the basic Operation Streamline principle of privileg - ing criminal prosecution has long been the norm in San Diego, a principle is now reinforced by the “consequence delivery system” being imple - mented in the sector by DHS. USAO prosecutes cases up to the number of available beds in federal detention facilities, and shuffling prisoners among those facilities is one of USMS’s main challenges. As in Tucson and El Paso, USAO also accommodates the priorities of DHS. For example, in recognition of the importance that CBP has placed on document fraud (in particular, the fraudulent use of U.S. passports), USAO will take those cases even though the crimes involved are less severe than those that are typically prosecuted in San Diego.26 DISCRETION, CONSTRAINTS, ADAPTATION, AND COORDINATION As indicated in the discussion above, bureaucratic discretion, institu - tional constraints and bottlenecks, organizational adaptation, and policy communication and coordination are important features of Operation Streamline and immigration-related criminal prosecutions. However, these features also loom large in other parts of the immigration enforce- ment system, potentially complicating efforts to effectively estimate bud - get needs for immigration enforcement. Discretion Given the decentralized federal structure in which immigration enforcement operates and the nature of the tasks performed, there are many points of discretionary decision making within the enforcement sys- tem. As a result, the system can appear to be less coherent and consistent in implementation than it is in design. In the Tucson sector, for example, ICE appears to be focused on appre- 26 In order to prosecute beyond the capacity of USAO, CBP also works with the California Department of Motor Vehicles to identify types of document fraud that can be prosecuted under state law.

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65 THE IMMIGRATION ENFORCEMENT SYSTEM hending as many immigrants as possible, regardless of their “priority” level. It was suggested to the committee that ICE was subject to political pressure to “keep the numbers up” despite declining levels of immi- gration, causing it to “dig deeper” into prison populations to look for removable noncitizens. However, according to a policy that has been known variously as “prosecutorial discretion,” “nonpriority status,” and “deferred action,” ICE is not actually obligated to put all undocumented immigrants who are suspected of being deportable into removal proceed- ings (Legomsky and Rodriguez, 2009). In 2011, the assistant secretary of DHS for ICE, issued three memoranda that sought to clarify the role of ICE agents, investigators, and attorneys in exercising prosecutorial discre- tion on a case-by-case basis with regard to the apprehension, detention, and removal of aliens (Morton, 2011a, 2011b, 2011c). The guidelines in these memoranda encourage deportation efforts to remain focused on high-priority cases and to take account of various mitigating factors. However, the memoranda may not actually materially diminish or con- strain the discretion of ICE agents at the local level. Similarly, Border Patrol and CPB agents have considerable discretion in granting voluntary return (with their decisions reviewed by second- line supervisors) and, more generally, in determining how apprehended immigrants will be processed. The nature of this discretionary decision making is nicely illustrated by a laminated card that is handed out to Border Patrol agents in the Tucson sector. One side of the card lays out the various steps of the “Evaluation Process” for apprehended immigrants, which include checking the appropriate records, reviewing the person’s criminal and immigration history, reviewing the “nexus” of the person, 27 classifying the person,28 and reviewing “consequence delivery.”29 The other side of the card is a “Consequence Delivery System Guide,” which consists of a chart that attempts to rank a variety of enforcement options according to the classification of the apprehended alien.30 Like the ICE memoranda discussed above, the guide appears to be advisory rather than obligatory. 27 Nexus options include “Criminal Organization,” “Target/Focus Area,” and “Targeted Demographic.” 28 Entrant classification options include “First Apprehension,” “Family Unit,” “Second/ Third Apprehension,” “Persistent Alien,” “Suspected Guide/Mule,” “Targeted Guides,” and “Criminal Alien.” 29 Reviewing consequence delivery includes evaluating “Previous Actions,” “Expected Outcomes,” and “Possible Path Forward.” 30 The guide also notes that “[t]he combination of any of the above consequences is encour- aged, especially when the best/most effective consequence cannot be applied. . . . This chart is Not meant to be inclusive of every illegal alien arrested or consequence available, as there will be special cases in each category.”

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66 BUDGETING FOR IMMIGRATION ENFORCEMENT Discretionary decision making by DHS agents takes place in, and can be influenced by, a framework of incentives and performance measures. For example, although voluntary returns are systematically recorded by DHS and leave a “paper trail,” they are still less administratively demand- ing than other enforcement pipeline options. The committee was told in Tucson that, all else being equal, Border Patrol agents may find voluntary returns to be relatively more appealing than other options. Nevertheless, DHS has made a conscious and concerted effort across sectors to reduce the relative frequency of voluntary returns. In Tucson, the committee was told that CBP has issued a directive to grant fewer voluntary returns; in San Diego, that one metric of success for CBP is the ratio of expedited removals to voluntary returns, with a strong prefer- ence for the former; and in El Paso, that officers need to justify their use of voluntary returns. The committee was also told in El Paso that ICE counsel are rewarded according to the number of formal removals that they affect, and the dangerousness of those removed. It may be operation- ally easier to move away from voluntary returns in a context of declining apprehensions, which may be one reason why voluntary returns are still more common in the Tucson sector than in El Paso (where voluntary returns are limited to “humanitarian cases,” such as family reunifications involving minors). Immigration judges also have substantial authority and discretion over how removal hearings are conducted and the outcomes of those hearings. In El Paso, the committee was told that the performance of immigration judges is measured by professionalism (i.e., the number of complaints), timely adjudication, and not being overturned on appeal. Nevertheless, in Tucson the decisions of immigration judges on such issues as cancellation of removal were criticized for being highly variable, and the committee also heard criticisms about the bonding process being highly discretionary and inconsistent.31 It was also suggested to the com- mittee in El Paso that immigration judges with prosecutorial backgrounds are more likely to side with the government. In August 2011, DHS announced that it would form an interagency working group with DOJ to review the cases of about 300,000 people cur- rently in deportation proceedings. Under this policy, deportations would be suspended on a case-by-case basis in “low-priority” cases, such as those involving immigrants who do not have criminal backgrounds and were brought to the United States as young children. The working group will initiate a similar case-by-case review for new cases placed in removal proceedings, and it will also issue guidance on exercising prosecutorial 31 For a discussion and empirical analysis of adjudicatory inconsistencies and variability in the immigration enforcement system, see Ramji-Nogales et al. (2007).

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67 THE IMMIGRATION ENFORCEMENT SYSTEM discretion for compelling cases (Napolitano, 2011; Pear, 2011; Preston, 2011). Although this policy initiative is based on similar principles of pros- ecutorial discretion outlined in the ICE memoranda discussed above, it is broader in jurisdictional scope, going beyond ICE. It also has a retrospec - tive dimension that is more than just exhortatory and may systematically affect the ways in which front-line agents exercise discretion. Much will depend on how the policy is implemented and how it informs and influ- ences the choices made by agents and officials across the various sectors. Institutional Constraints and Bottlenecks Although DOJ is not responsible for the detention costs of aliens who are brought before immigration judges, it is nevertheless affected by the availability of DHS detention bed space because it can affect the volume of cases heard by immigration judges. In El Paso, for example, DHS detention capacity has been greatly expanded, but there has not been a corresponding increase in resources for immigration courts. Because of the availability of detention space in El Paso, immigration judges are hear- ing the cases of detainees who have been brought in from other parts of the country, including from California and New York. Referrals from the Secure Communities Program and local law enforcement have also been growing rapidly, which has resulted in higher workloads and growing backlogs for immigration judges. In El Paso, the committee was told that an initial appearance before an immigration judge can take more than 30 days, cases are taking longer to resolve, and that there is a growing discrepancy between the time to resolution of cases in the detained and nondetained dockets: detained offenders are seeing their cases resolved in 4-8 months while nondetained cases are taking 2-4 years. In El Paso and Tucson, asylum cases were noted to be especially difficult and time consuming.32 Immigration adjudications may be affected by case processing con- straints in other agencies. In San Diego, for example, the committee was told that immigration judges cannot act until DHS has taken fingerprints and done background checks, which can take weeks or months. Simi- larly, the committee was told in Tucson that the division of the bonding process among CBP, ICE, and the immigration courts may produce gaps in needed information and that, more generally, the information systems and technology that DHS has in place in its detention facilities may not always be adequate for processing cases expeditiously. 32 InSan Diego, the committee was told that the most rapidly growing category of cases consists of migrants who crossed the border without documents at a port of entry and then asked for asylum.

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68 BUDGETING FOR IMMIGRATION ENFORCEMENT With regard to interior enforcement (i.e., enforcement that does not take place at the border), the decision to seek 287(g) agreements with ICE may be influenced by not only local political pressures (Capps et al., 2011), but also by logistical considerations. El Paso and San Diego, for example, have chosen not to seek 287(g) agreements because the federal government does not reimburse for costs, and local officials instead find it more cost-effective to allow ICE agents to have access to jails as they do under the Secure Communities Program (El Paso and San Diego Site Visits). In the absence of 287(g) agreements, local law enforcement can still exercise their discretion to call Border Patrol or ICE agents if a person’s undocumented status comes to light during initial questioning. However, the downside of not participating in programs like 287(g) is that in rural areas away from the border, federal agents may not be available to pick up apprehended immigrants, who are then often released. Institutional Adaptation and Innovation There is considerable potential for institutional adaptation and inno - vation in the face of resource constraints and other bottlenecks. It should also be noted, however, that these organizational responses can have (sometimes adverse) administrative and legal implications for immigrants being processed by the enforcement system. “Quick courts” in the Tucson sector are a good example of institu- tional adaptation by immigration courts. There are about 30 quick court cases a day, and they tend to be relatively uncomplicated. Immigration judges receive charging documents for newly apprehended immigrants in the morning and hold hearings in the afternoon; the immigrants are advised of their rights en masse and then come to immigration court two at a time. Getting the paperwork ready for these cases is a very labor- intensive and time-sensitive process, and it requires a very close work - ing relationship with the Border Patrol (which perceives quick court as a supplement to Operation Streamline). Judges can determine the time allotted for trials and have the discretion to set the limit, process, and criteria for quick courts. Aside from quick courts, some judges take the initiative to provide detainees with a printed list of the things that they need to bring with them the next time they come to court. Failure on the part of the detainees to provide this information can delay the hearing process and extend the time spent in detention; immigration attorneys claim to see a difference in the court calendars of immigration judges who do and do not use these forms. The committee was also told about a more systematic adaptation, known as the Institutional Hearing Program, which enables DHS to save

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69 THE IMMIGRATION ENFORCEMENT SYSTEM on detention costs by allowing immigration judges to hold hearings in prisons while deportable criminal aliens are still in state custody. In order to minimize DHS detention costs and unnecessary restric - tions on liberty, immigration judges may also order individuals who are removable to participate in an electronic monitoring program or some other alternative-to-detention program while awaiting a final adjudica - tion. Under such programs, ICE uses technology (electronic monitoring) and case managers to track aliens in removal proceedings. As many as 94 percent of the people in alternative-to-detention programs appear at their removal proceedings, and the cost of monitoring aliens in these programs is about one-fourth the cost of traditional detention (U.S. House of Rep - resentatives, 2006). Communication and Coordination The decentralized and discretionary nature of the immigration enforcement system, with adaptive responses that are often piecemeal and ad hoc, can make it difficult for system actors to communicate and (even more importantly), to coordinate their work. The fact that DHS’s own information systems may often be inadequate (as mentioned above) can make coordination with DOJ that much more difficult. These prob- lems are only exacerbated by different lines of bureaucratic accountability and the divergent incentives faced by various actors. The committee was told in Tucson and San Diego that even within DHS, there can be a lack of coordination and cooperation between ICE and Border Patrol, and the different data-gathering and reporting systems in DHS may also be inad - equately harmonized (see Box 4-1). These intraagency incongruities can make interagency collaboration that much more daunting. Even though there are few formal incentives for coordination and cooperation, informal cooperation among multiple agencies has been essential to the operation of programs such as Operation Streamline. However, the existence of cooperation and trust often stems from long- term working relationships on the ground and may be predicated on the orientation of individual leaders; these ties can all too easily be disrupted by (among other things) the rapid turnover of personnel, which is not uncommon in the immigration enforcement system. Existing levels of cooperation and coordination may be sufficient to keep the system from “crashing,” but more may be required to achieve higher standards of performance and better outcomes.

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70 BUDGETING FOR IMMIGRATION ENFORCEMENT CONCLUSION The description of the U.S. immigration enforcement system in this chapter highlights certain system characteristics that are relevant to the problem of estimating the resources required for its effective performance. First, it is a decentralized system in which important decisions are del - egated to the regional level and, then, to operating, front-line personnel who in many cases have to exercise discretion in real time and in difficult situations. The ways in which system actors exercise discretion may be influenced—although not necessarily entirely determined—by an array of formal incentives and guidelines and informal administrative and politi - cal pressures. Second, the immigration enforcement system is generally “stove - piped,” both at headquarters and (perhaps to a lesser extent) at the local, district, and sector levels. That is, separate agencies tend to make separate policies, sometimes but not usually in systematic coordination with one another. It is also important to distinguish between informal and ad hoc cooperation between DHS and DOJ personnel at the field level, and coor- dination between DHS and DOJ as a whole. Third, many operational priorities and, sometimes, general policies are shaped by practical resource limits and localized bottlenecks, such as limited courthouse space or bed space. To some extent, the decentralized and discretionary nature of the system allows local administrators—to some extent—to adapt to those constraints given current resources rather than simply waiting for more budgeted resources to arrive. Fourth, the ability to quantify the flows of apprehended immigrants through the enforcement system and, therefore, to understand more fully the basis for those flows is limited by incomplete data on the subsequent handling and disposition of individual cases. Without such case histories, it is very difficult to determine—let alone anticipate—the specific pipeline implications of, for example, increased apprehensions through the Secure Communities Program, technical innovations that make it easier to effi - ciently identify and locate visa overstayers, or systematic changes in the exercise of prosecutorial discretion by front-line agents. Moreover, there are marked discrepancies between published (and widely used) statistics on apprehensions and the data on apprehensions that were supplied to the committee, and these national-level discrepancies may be even more pronounced at the regional/sector level. All of this suggests that many of the planning and budgeting decisions with regard to immigra- tion enforcement might be based on information that is inadequate and incomplete. Finally, the system’s policies and operations are continually evolv- ing, both in response to changing external conditions and in response to changing political judgments. External factors, such as changing flows of

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71 THE IMMIGRATION ENFORCEMENT SYSTEM undocumented immigrants, can interact with the complex system in ways that are difficult to predict. For example, even though apprehensions have fallen during recent years, the demands on other system components have still generally risen, largely because of efforts to impose greater personal consequences on illegal immigrants and to thereby deter their efforts to enter or reenter. So far, the effects on the enforcement system of this strate- gic policy shift have been mitigated by the decline in apprehensions. Con - versely, a future surge in apprehensions might quickly strain the capacity of many agencies and create pressures to either increase resources rapidly or abandon the policy of enhanced consequences. As explored in the following chapters, all of these system character- istics have implications for budgeting. Taken together, they pose a great challenge to those who would use simple rules of thumb or standard statistical techniques to forecast activity levels and resource needs even 1 or 2 years in advance. A different approach may help, and that is the focus of the rest of this report.

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