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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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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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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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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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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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