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Introduction

This report is about how to improve budgeting for the federal immigration enforcement system, specifically focusing on the parts of that system that are operated and funded by the U.S. Department of Justice (DOJ). Policy makers and others who are interested in how the nation’s immigration enforcement system is organized and operates also will find it useful because understanding how to budget for that system requires a full description of how it operates and the environment in which it operates.

ENFORCEMENT RESPONSIBILITIES: OVERVIEW

Immigration enforcement is carried out by a complex legal and administrative system, operating under frequently changing legislative mandates and policy guidance, with authority and funding spread across several agencies in two executive departments, DOJ and the U.S. Department of Homeland Security (DHS), and the courts.

Since establishment of DHS in 2003, enforcement responsibilities that were previously a responsibility of the Immigration and Naturalization Service in DOJ have been divided. At that time, the main responsibility for identifying and apprehending suspected illegal entrants or residents1

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1In this report, we use the terms “illegal,” “unauthorized,” and “undocumented” interchangeably to refer to noncitizens who are in the United States without legal authorization. The Immigration and Nationality Act uses the term “alien” to refer to all noncitizens, but in deference to sensibilities about that term, we follow Stephen Legomsky in minimizing its use (see Legomsky and Rodriguez, 2009).



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1 Introduction T his report is about how to improve budgeting for the federal immi- gration enforcement system, specifically focusing on the parts of that system that are operated and funded by the U.S. Department of Justice (DOJ). Policy makers and others who are interested in how the nation’s immigration enforcement system is organized and operates also will find it useful because understanding how to budget for that system requires a full description of how it operates and the environment in which it operates. ENFORCEMENT RESPONSIBILITIES: OVERVIEW Immigration enforcement is carried out by a complex legal and administrative system, operating under frequently changing legislative mandates and policy guidance, with authority and funding spread across several agencies in two executive departments, DOJ and the U.S. Depart - ment of Homeland Security (DHS), and the courts. Since establishment of DHS in 2003, enforcement responsibilities that were previously a responsibility of the Immigration and Naturalization Service in DOJ have been divided. At that time, the main responsibility for identifying and apprehending suspected illegal entrants or residents 1 1 Inthis report, we use the terms “illegal,” “unauthorized,” and “undocumented” inter- changeably to refer to noncitizens who are in the United States without legal authorization. The Immigration and Nationality Act uses the term “alien” to refer to all noncitizens, but in deference to sensibilities about that term, we follow Stephen Legomsky in minimizing its use (see Legomsky and Rodriguez, 2009). 5

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6 BUDGETING FOR IMMIGRATION ENFORCEMENT was given to the new department: those functions were combined with the previously separate customs enforcement and border protection func- tions in the Customs and Border Protection (CBP) service. At the same time, investigative, detention, and other policing functions were placed in a new Immigration and Customs Enforcement (ICE) unit in DHS. DOJ retained responsibility for civil and criminal proceedings regarding the legal status of people apprehended and possibly subject to removal from the United States. Five major DOJ components are responsible for enforcement activities: 1. The immigration judges who conduct civil proceedings and a separate appeals process are under the Executive Office for Immi- gration Review (EOIR). 2. Funding and financial oversight of pretrial detentions is the responsibility of the Office of the Federal Detention Trustee (OFDT). 3. The U.S. Marshals Service (USMS) provides transportation, hous- ing, and court security for criminal proceedings involving ille - gal entrants; housing and transportation costs are reimbursed through annual agreements with OFDT. 4. The U.S. attorneys, as part of their broader responsibilities, may prosecute illegal immigration cases in their districts through the federal courts. 5. The Bureau of Prisons (BOP) houses those convicted of immigra- tion offenses. For fiscal 2011, the committee estimates that combined obligations for the immigration enforcement responsibilities of these five components totaled more than $2 billion.2 (A more detailed description of the roles and relationships among these five major DOJ components of the federal immigration enforcement system is provided in Chapter 4.) Because of the scale of immigration activities and the need to respond to varied local conditions, operational units (e.g., individual U.S. attor- ney’s offices and Border Patrol offices) are given substantial autonomy to set priorities, develop strategies, and coordinate with other units and other actors in their local jurisdiction. Both the character of illegal immi - gration and enforcement priorities have changed frequently and often with little warning. Budgeting for such a system is challenging. And in Congress, responsibility for funding is divided among three appropria- tions subcommittees in both the House and the Senate. 2 This estimate is derived from documentation and personal communication from DOJ’s Justice Management Division; see Chapter 5 for detail.

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7 INTRODUCTION STUDY BACKGROUND AND COMMITTEE CHARGE The origins of this study lie in the frustration of congressional appro - priators for DOJ with the reliability of information on which they must base their decisions about annual spending amounts authorized and appropriated for immigration enforcement. Unexpected changes in the amounts requested, either after the initial request or after the year’s appropriation has been made, require DOJ to either seek additional resources from Congress or to reprogram its funds (shift resources within the department’s appropriation), often on short notice and possibly to the detriment of other DOJ missions. If these adjustments are not made, proper execution of the DOJ’s enforcement mission may be hampered. Therefore, the appropriations committees wanted to determine whether better methods can be found to annually estimate and justify the resources needed by DOJ, thereby minimizing the need for subsequent adjustments. The congressional complaint can be found in language of the report accompanying DOJ’s fiscal 2009 appropriations that mandated this study (110th Congress; Commerce, Justice, Science, and Related Agencies Appro- priations Bill, House Report 110-919, Department of Justice, Title II). Immigration workload—DOJ’s budget request fails to articulate, or account for, the increased resource requirements that result from other agencies’ activities. This is particularly true with respect to immigration, where the Department has been repeatedly forced to redirect internal resources in order to provide necessary judicial support and basic care for aliens turned over to DOJ by DHS. The practical effect of these redirections has been cuts to non-immigration programs at DOJ. In order to accurately estimate the magnitude of these funding pressures, a methodology is required to create defensible fiscal linkages between DHS activities and DOJ costs. The Department is directed to contract with the National Academy of Sciences to develop, test, and select a budget model that accurately captures these fiscal linkages and leverages them into an esti - mate of DOJ’s immigration-related costs. The specific tasks in the charge for the committee’s work are listed in Box 1-1. As it developed its work plan, the committee refined its under- standing of what was required to fully respond to its charge and, as a result, carried out four additional major tasks. 1. First, because we discovered that basic information did not exist, we undertook to describe how the current enforcement system, including the DHS components that affect DOJ, is defined by law and how it actually operates. 2. Second, given this description, we identified limitations in the available data on DOJ immigration enforcement activity levels

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8 BUDGETING FOR IMMIGRATION ENFORCEMENT and costs and how those data are and have been used to develop estimates for the President’s budget. 3. Third, in part because we could not fully address one element in our charge (see below), we undertook to develop an alternative approach to estimating DOJ resource requirements under varied assumptions about how policy and practice affect apprehension volumes and patterns, in different places and over time. This approach included possible ways that DOJ and DHS could work together to improve their capacity to achieve their stated policy objectives, thereby using budgeted resources in more cost-effec- tive ways. 4. Fourth, we assessed the potential value of the committee’s recom- mended approach to improving estimates of resource require- ments and providing cost-effective use of limited resources. Consistent with our charge, the committee tried to understand the characteristics of the U.S. immigration enforcement system well enough to judge what can and cannot be done to improve budgeting for DOJ’s immigration enforcement resource requirements. On the basis of that understanding, the committee has addressed congressional concerns by offering practical advice on how budget procedures can be improved. BOX 1-1 Statement of Tasks • escribe the kinds of data that are needed to support a method to esti- D mate increased/decreased budget costs and identify the sources, com- pleteness, reliability, and accessibility of such data at the federal, state, and local levels. • evelop a baseline of information on federal budgetary costs of current D enforcement efforts for DHS and DOJ in selected jurisdictions. • evelop a robust, flexible approach or model to predict future DOJ costs D at different levels of prosecution and incarceration, under varied assump- tions about the manner of implementation and the affected population in different places and over time. • ssess the predictive capacity, reliability, and limitations of such estima- A tion approach or model, identifying principal factors likely to affect its accuracy and utility for budgeting. • raw conclusions and make recommendations about the need for new D or modified data collection and programs and further improvements in estimating methods to support improved estimates of the budgetary cost effects of changes in immigration enforcement policy and variations in administrative practice.

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9 INTRODUCTION One element of our charge (the third listed task; see Box 1-1) was to provide a “robust, flexible approach or model to predict future DOJ costs at different levels of prosecution and incarceration, under varied assumptions” about the operation and environment of the immigration enforcement system, to be used for budget estimation. The committee began its work fully intending to carry out this task by specifying and estimating a quantitative statistical model of the federal immigration enforcement system. However, after gaining a solid understanding of how the immigration system operates and after much deliberation, we concluded that building a quantitative model of the system’s behavior that would be useful for budgeting was impractical, both now and in the foreseeable future. The committee’s findings and analysis that underlie this conclusion are detailed in Chapter 6. Instead, in response to that task, the committee provides a “robust model or approach” by outlining a new approach to budgeting for immigration enforcement, requiring new data and analyses and new institutional relationships and procedures. Its pro- posed budgeting approach and the evidence and reasoning that led to it are presented in Chapter 7. The committee was also charged with assessing the predictive capac- ity, reliability, and limitations of its recommended estimation approach or model and noting factors likely to affect its accuracy and utility for budgeting. The committee was able to respond in part to this task. As explained in Chapter 7, the committee concludes that its recommended approach will lead over time to improved budget estimates, but it cannot quantify the expected outcomes. Moreover, the measure of improvement in budgeting approach is not simply whether estimates included in bud - get requests prove sufficient to support planned and proposed operations although that is always a primary concern of budgeters and appropria- tors. Budgeting is also a process designed to ensure that resources are provided and allocated in the ways most supportive of the public mission and policy objectives. Therefore, improvement also can be measured by more cost-effective use of resources to achieve the stated objectives of immigration enforcement policies, that is, by improved services qual- ity and better results consistent with the aims of policy, which is better performance. Without itself conducting cost-effectiveness analyses of par- ticular operations (which was outside the committee charge, time, and resources), the committee has tried to identify technical and institutional changes in budgeting procedures likely to improve both budget estimates and the enforcement system’s performance. The committee’s efforts to understand the complexity of the budget - ing challenge posed by both technical and institutional limitations, as well as characteristics of the immigration enforcement system, are presented in Chapters 2-6. Our approach is described below.

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10 BUDGETING FOR IMMIGRATION ENFORCEMENT STUDY APPROACH AND REPORT STRUCTURE The committee began its work by reviewing the history of budgeting and appropriations for the immigration enforcement system. We reviewed the amounts provided to both DHS and DOJ for their functions and dis- cussed the procedures used to develop and justify estimates with many of those involved, including budget officials at DOJ and each of the five major departmental components involved in immigration enforcement. The committee began by researching possible reasons that initial esti- mates of resource needs, as measured by the Department of Justice’s annual funding requests, were later seen as inadequate and revised. The answer proves to be less than straightforward, as explained in Chapter 2. To gain insights into the particular challenges faced by DOJ in devel - oping estimates of resources for immigration enforcement, the committee determined that it was necessary to understand and describe in some detail the operation of the entire federal immigration enforcement system. To this end, committee members and staff visited two border sectors: El Paso, Texas, and Tucson/Nogales, Arizona. In each case, they observed operations at the border and elsewhere in the system and talked at length with officials and staff of the federal agencies, as well as a variety of local officials and others, including people in local government and those who work with illegal immigrants during the enforcement process. In addition, committee members and staff reviewed research and the latest statistics on patterns of illegal immigration. The analysis of the dynamics of illegal immigration is presented in Chapter 3. Building on initial visits, during a second set of visits to the two bor- der sectors mentioned above and one to the San Diego, California, sector, committee members and staff engaged in further in-depth discussions with local officials and others to understand their roles, how they interact with the system, the degree of discretion they are able to exercise, and the resource and other constraints and incentives that affect their administra - tive decisions and operations. On these visits, they spoke with a broader range of local informants, including local public officials and those who work with and advocate for undocumented immigrants. Combining this information with a review of applicable laws and regulations, documents, and previous research characterizing the enforcement system or elements of it, a narrative and graphic description of the system and its operation was developed. Additional case material was developed by the committee members and staff on how important initiatives that affect demand for both DHS and DOJ resources, such as Operation Streamline and Secure Communities, are being administered in different locations. The aim of the resulting “case studies” is to further illuminate and illustrate con - cretely the characteristics of the enforcement system (especially in the

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11 INTRODUCTION places that account for most current activity) that have to be addressed when developing a robust approach to budgeting for that system. The product of this research and analysis is the description of the enforcement system that is provided in Chapter 4. We believe it to be the first comprehensive, if somewhat stylized, description of how that system operates, including estimates of the various ways those encountered by DHS and identified as illegally in the country have been processed in recent years. Although this description cannot be regarded as definitive, given the continually changing and geographically decentralized nature of the system and limitations of the committee’s methods, it is nonetheless revealing and useful for the study purposes. To understand in greater detail the history of budgeting that gave rise to the congressional complaint and the issues of limited information and institutional coordination that can affect the reliability of budget estimates, the committee and staff interviewed budget officials and docu - ments for the DOJ components of the system, as well as staff of the U.S. Office of Management and Budget (OMB) and of the relevant congres- sional committees. The product of these interviews is the narrative in Chapter 5, a short history of revised and supplemental appropriations requests and justifications, reprogramming of resources within DOJ, and appropriators’ subsequent actions since 2003. This history sheds light on both the technical and institutional problems that budgeters have faced and how they have coped with them. It also suggests ways the process can be improved. Building on descriptions of the enforcement system and the budget process, the committee then attempted to specify all major sources of difficulty and uncertainty that face those making policy, budget, and operational choices for immigration enforcement. This analysis not only defines the limits of what can be expected of the budget process, but also the best opportunities to improve it. This work is presented in Chapter 6. Analysis of the budget challenge provides insight into how to improve budget estimates for the enforcement system’s components and how to improve planning and analysis of how resources and policies could be adjusted to improve policy outcomes. These analyses are the basis for the committee’s conclusions and recommendations in Chapter 7. We have concluded that a new budgeting approach is needed. This new approach needs to recognize the complexity, dynamism, and adaptability of the enforcement system; properly relate the enforcement system’s resource requirements to policy objectives and desired outcomes; and allow policy makers and planners in both departments to jointly assess how alterna - tive resource levels and uses may improve resource use and ultimately contribute to better achievement of the aims of policy makers. The paths to improved budgeting recommended by the committee include ways

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12 BUDGETING FOR IMMIGRATION ENFORCEMENT to improve data and analysis, to produce new information, to make bet - ter use of information and analysis for planning and budgeting, and to improve communication and coordination among those who share responsibility for providing resources and setting policies to improve the effectiveness of the U.S. immigration enforcement system.