Budgeting for Immigration Enforcement A Path to Better Performance (2011) / Chapter Skim
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4 The Immigration Enforcement System
4 The Immigration Enforcement System
Pages 39-72
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From page 39... ...
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.
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From page 40... ...
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.
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From page 41... ...
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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From page 42... ...
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.
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From page 43... ...
. 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)
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From page 44... ...
. 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.
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From page 45... ...
and no additional sanc tions. The authority to grant voluntary returns rests with DHS and, under certain circumstances, with immigration judges.
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From page 46... ...
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 unauthorized 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.
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From page 47... ...
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)
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From page 48... ...
About 90 percent of all of deportable immigrants located since 1980 have been allowed voluntary return: see Figure 4-2.11 Although the absolute 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.
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From page 49... ...
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.
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From page 50... ...
Undocumented immigrants under formal removal orders also face the additional penalty of being ineligible to receive a visa 13 DHS detention is mandatory for most individuals removable on crime-related grounds, aggravated felons, individuals removable on terrorism grounds, arriving noncitizens subject to expedited removal, and individuals awaiting the execution of final removal orders.
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From page 51... ...
. The number of formal removals has increased over the past two decades from an average of 22,000 per year during the 1980s, to 79,000 per year during the 1990s, to 238,000 per year during the 2000s, and it continues to trend sharply upward: see Figure 4-3.
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From page 52... ...
. Although this proportion does not precisely measure the percentage of undocu mented immigrants apprehended in a given year who are removed, it may be roughly interpreted as DHS's "removal rate."14 Defined this way, 14 The "removal rate" as defined here is not exactly the percentage of aliens apprehended that is removed, because it is based on the number of deportable aliens located reported
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From page 53... ...
. Given the stakes, undocumented immigrants in formal removal proceedings are entitled to certain due process protections, which constitute the "standard removal process" (see Figure 4-1)
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From page 54... ...
, which may conduct a de novo review of legal and discretionary determinations but is prohibited from reversing an immigration judge's findings of fact unless they are "clearly erroneous." If the BIA affirms the removal order, the immigrant may appeal the order to the appropriate federal circuit court of appeals. At each stage of this process, an immigrant who is not subject to manda tory detention may be ordered by an immigration judge to be detained by DHS while the removal proceeding is pending.15 Accelerated Removal Congress has sought to reduce the costs and delays of formal removal by limiting due process protections in certain categories of cases in which removability is relatively clear.
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From page 55... ...
(In the Tucson sector, more than 50 percent of removal proceedings initiated by the Border Patrol are expedited removals.) Without them, immigration court dockets would be even more backlogged than they are now.
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From page 56... ...
in DOJ is responsible for the man datory detention of immigrants subject to criminal immigration charges; USMS does not have facilities of its own, so it leases beds in existing facilities. Unauthorized immigrants subject to criminal prosecution are automatically placed in formal removal proceedings20 at the conclusion of their criminal sentences,21 and they are then transferred from USMS detention to DHS detention and remain in DHS detention until their deportation.
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From page 57... ...
in DOJ, federal district court judges, and Border Patrol supervisors in the Del Rio Border Patrol sector of the western District of Texas in December 2005. Under this program, which has since expanded to eight Border Patrol sectors in four federal court districts, USAO files criminal charges against as many immigrants as possible who cross the Southwest border illegally.
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From page 58... ...
district Number courts for immigra on offenses 50 30,000 Pe y offense defendants disposed of by U.S. magistrate judges -- percentage immigra on offenses 40 Criminal defendants terminated in U.S.
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From page 59... ...
Figures 4-7a, 4-7b, and 4-7c show the very different levels and trends in immigration misde meanors and felonies in the El Paso, San Diego, and Tucson sectors.23 In El Paso, the number of immigration misdemeanor cases (indicated by "petty offense defendants disposed of by U.S. magistrate judges")
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50 15,000 Petty offense defendants disposed of by U.S. magistrate judges -- percentage judges -- percentage immigration magistrate immigration offenses offenses 40 Criminal defendants terminated in U.S.
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From page 61... ...
Tucson In general, Border Patrol agents have considerable discretion over how Operation Streamline is implemented, and their criteria for enforce ment may change frequently. For example, enforcement may be geographically targeted, so that all apprehended aliens along a particular segment of the border are sent into the program.
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From page 62... ...
Although some would like to increase the number of program prosecutions 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 prosecutions by bringing more immigration cases to USAO as felonies.
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From page 63... ...
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.
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From page 64... ...
, 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 enforcement system, potentially complicating efforts to effectively estimate bud get needs for immigration enforcement.
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From page 65... ...
However, the memoranda may not actually materially diminish or constrain 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 secondline supervisors)
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From page 66... ...
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 preference 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.
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From page 67... ...
Because of the availability of detention space in El Paso, immigration judges are hearing 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.
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From page 68... ...
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 laborintensive 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)
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From page 69... ...
Under such programs, ICE uses technology (electronic monitoring) and case managers to track aliens in removal proceedings.
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From page 70... ...
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.
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From page 71... ...
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.
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