Shifts In The US Immigration Enforcement System

Tuesday, July 14, 2015
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The US immigration debate often feels like the movie Groundhog Day because the same arguments and legislative proposals are replayed in an endless loop. Yet even though the national conversation about immigration policy remains almost unchanged during the past twenty-five years, the immigration enforcement system has been transformed. In general, the system has gone from informal returns of people apprehended at the southwest border to formal removals of people apprehended at the border and in the US interior. This transformation has been driven by changes to US immigration law—chiefly the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)—and by massive new investments in immigration enforcement personnel, infrastructure, and technology.

In 1996, the United States shifted from returns to removals, a technical but significant change. IIRIRA rewrote the Immigration and Nationality Act’s (INA’s) deportation provisions, making it easier for immigrants to be formally removed, as opposed to deportation via informal return. In the twenty-five years before 1996, just 3 percent of all people expelled from the United States were formally removed (under legal provisions that at the time were known as “deportation” and “exclusion”), versus 97 percent who were informally returned. The proportion jumped to 13 percent in the first decade after IIRIRA’s passage, 40 percent when President Obama took office in 2009, and an all-time high of 71 percent in 2013.

These statistics are important because removal carries stiffer penalties than return. Removal is a formal administrative process that involves a legal ruling against a noncitizen. Non-citizens removed from the United States are ineligible to receive a visa to reenter the country, including tourist or temporary worker visas or lawful permanent resident (LPR) status for at least five years, in some cases permanently.  A noncitizen who reenters the United States following a removal order is subject to felony criminal charges and may be imprisoned for two or more years, depending on the original grounds for removal. Under the older rules, deportees were required to leave the country but were not subject to additional consequences or enhanced penalties.

The 1996 reforms and these recent trends have been a source of confusion in the US immigration debate. The number of noncitizens removed from the United States has increased in sixteen out of eighteen years since IIRIRA was passed: President Bush presided over more removals than any of his predecessors, and President Obama has broken Bush’s record. At the same time, however, apprehensions at the southwest border have fallen to their lowest level in forty years, leading to many fewer returns there. As a result, although total removals are at an all-time high, total deportations (i.e., removals plus returns) are at a forty-year low. Importantly, both of these trends reflect tough enforcement: deportations are low because strengthened enforcement (among other factors) has caused fewer people to immigrate unlawfully, resulting in falling apprehensions;  removals are high because a growing proportion of those who are apprehended are subject to high-stakes enforcement.

Before IIRIRA, almost all formal removals (then known as deportations) involved appearing before an immigration judge. The judicial removal process, both before and after 1996, is a civil legal proceeding in which the government (represented by an Immigration and Customs Enforcement [ICE] attorney) argues for a noncitizen’s expulsion; the noncitizen may present evidence and arguments to be considered for relief from removal on humanitarian or other legal grounds. Immigration hearings in which people contest their removal may be spread out over multiple appearances and may take months or years to resolve.

A primary goal of the 1996 law was to streamline the process by permitting immigration enforcement agents to execute removal orders themselves (i.e., without an immigration hearing). IIRIRA created new expedited removal (ER) proceedings for certain unauthorized immigrants who are unlikely to be granted relief from removal because they are apprehended during an illegal entry, and it revamped reinstatement of removal proceedings for immigrants who have been previously ordered removed. The proportion of removals resulting from one of these nonjudicial proceedings increased from 3 percent in 1995 and 1996, to 48 percent in 1998, and a record-high 83 percent in 2013.

These nonjudicial removal proceedings are one of the most important legacies of the IIRIRA, for they allow the Department of Homeland Security (DHS) to execute removals much more efficiently. Faster removals minimize the time immigrants are detained, an outcome that is attractive on its own merits (i.e., because unauthorized immigrants have not been convicted of a crime, making detention problematic) and one that greatly reduces the direct costs of removal. A strong case can be made that first-time crossers apprehended at the border should be subject to a more streamlined enforcement process than, say, a long-settled immigrant with strong ties to a US family and community.

Yet fast-track removal proceedings raise important questions about due process and immigrants’ ability to petition for humanitarian relief. The INA allows certain immigrants who have been persecuted or fear persecution to be granted asylum in the United States, but expedited removal proceedings include limited opportunities to identify and protect those with such claims. Nor does the law allow most immigrants facing reinstatement to reopen the earlier removal order, even if their material circumstances have changed. Fast-track removal proceedings have also contributed to creating a large class of previously removed immigrants who have never gone before an immigration judge but whose enforcement record may make them ineligible for relief under a future immigration reform bill.

New Investments and Tough Enforcement Policies Have Transformed the Southwest Border

The last three decades—and particularly since the 9/11 terrorist attacks against the United States—have seen dramatic changes at the southwest border. Total spending on border security (including immigration and customs enforcement) increased from $1.3 billion in 1986 to $12.4 billion in 2014. At the same time, the Border Patrol expanded from 3,243 to 21,391 agents, and more than 650 miles of fences and vehicle barriers were installed along high-traffic parts of the border.

In addition to these increased resources, U.S. Customs and Border Protection (CBP) and partner agencies have implemented important policy changes during the last decade or so. First, CBP has increased the number of border crossers charged with the federal crimes of illegal entry and illegal reentry and therefore subject to incarceration. (These laws have been on the books since the 1920s but were rarely prosecuted until recently.) Border crossers may be prosecuted in a standard manner in federal district court, and CBP has also worked with certain courts to develop the “Operation Streamline” program, an expedited hearing process in which groups of defendants are charged at once, usually based on prearranged plea bargain agreements. With these efforts, the number of federal immigration charges brought in border districts increased from 15,392 cases in 1997 (1 percent of border apprehensions that year) to 90,067 in 2013 (22 percent of apprehensions).

A second change in border policy is CBP’s expanded use of expedited removal. Before 2002, ER was reserved for those found inadmissible at ports of entry, but DHS published a pair of notices in the Federal Register in 2002 and 2004 to expand ER to immigrants arriving by sea and then to anyone without proper documents apprehended within a hundred miles of the land border and within fourteen days of an illegal entry. As a result, the number of people CBP removed through ER increased from 40,651 in 2003 (4 percent of CBP apprehensions that year) to 182,011 in 2013 (43 percent of apprehensions).

More generally, the border is the epicenter of DHS’s overall effort to replace low-stakes informal returns with a range of high consequences, including formal removal (both ER and reinstatement), criminal charges, and lateral repatriation (in which people are deported to locations different from their points of entry). Overall, the proportion of southwest border apprehensions who were informally returned fell from more than 90 percent in the first half of the 1990s, to 82 percent in 2005, and to just 9 percent in 2013.

For years, most experts agreed that border enforcement had a minimal impact on unauthorized immigration because few immigrants were apprehended; those who were usually reentered the United States after being deported. Yet although border enforcement will never push illegal entries down to zero, it is increasingly clear that the sustained investments and policy changes of the past three decades have had an impact. Recidivism rates are falling, evidence of immigrant deterrence is rising, and southwest border apprehensions (a proxy measure of attempted entries) hit their lowest level in forty years in 2011, part of an overall downward trend since 2000 that goes beyond the business cycle. Despite signs of economic recovery, apprehensions were flat or continued to fall in eight out of nine Border Patrol sectors in 2012-14, with the lone exception being the Rio Grande Valley sector, where most new arrivals were Central American children and families seeking humanitarian protection, rather than traditional unauthorized immigrants.

Interior Enforcement Has Also Increased Since 9/11, but the Obama Administration Has Narrowed Its Focus

Alongside these changes at the border, DHS has also invested heavily in interior immigration enforcement in the post-9/11 period. ICE’s Detention and Deportation Program (now known as Enforcement and Removal Operations) has seen its budget grow from $413 million in 1998 to $2.6 billion in 2014; its personnel grew from 3,400 to 7,662 during the same period.

On top of these increases, ICE has implemented and expanded three programs that reach into immigrant communities. Beginning in 2003, ICE created the Fugitive Operations Program, consisting of task forces that pursue certain at-large removable immigrants. Second, beginning in 2006, ICE substantially expanded the §287(g) program, a partnership program between ICE and certain state and local law enforcement agencies. Most recently, since 2008, ICE has implemented the Secure Communities program, which automatically provides ICE with fingerprint records of individuals being booked into state and local jails. Local ICE field offices may use the information to request that arresting agencies hold removable immigrants so that ICE can take custody and initiate removal proceedings.

These investments have also paid off, as interior apprehensions (i.e., apprehensions occurring other than at the border) increased from 123,000 in 1998 and 115,000 in 2003 to 320,000 in 2008. At the same time, however, although programs like Secure Communities are often described as tools to promote public safety by targeting dangerous criminals, much of the growth in interior removals has consisted of unauthorized immigrants who had never been convicted of a crime or have only been convicted of minor offenses. Under the Bush administration, for example, interior removals of people convicted of violent crimes increased from 6,300 in 2003 (the first year for which detailed data are available) to 30,000 in 2008, but interior removals of noncriminals grew from 13,000 to 73,000 in this period.

The Obama administration took steps during its first two years to limit interior removals of most noncriminals and in 2010 published new enforcement priorities, under which the administration has substantially reduced interior removals and has restricted removals almost entirely to three priority categories: recent illegal entrants, people with previous removal orders, and people previously convicted of a crime. Thus, between 2011 and 2013 the total number of interior removals fell from 188,000 to 131,000, and all but 4,000 removals in 2013 fell into one of the administration’s priority categories.

Finally, the Obama administration announced a series of additional reforms in November 2014 to further limit removals of noncriminals from within the United States. The announcement included refinements to the 2010 enforcement priorities and the termination of the Secure Communities program in favor of a more targeted information-sharing program with local law enforcement agencies. Most important, the president expanded a 2012 program to affirmatively protect certain unauthorized youth from deportation and announced a new program to protect certain unauthorized parents of US citizens and LPRs, with the two programs covering about 5.2 million unauthorized immigrants.

Taken together, the record of the past twenty-five years represents substantial changes to the US immigration enforcement system. Immigrants crossing the border are more likely to be apprehended and face much stiffer penalties, particularly following multiple apprehensions. Since 9/11, ICE also has unprecedented reach into immigrant communities, though the Obama administration has taken steps to scale back certain interior enforcement programs. Increasingly sophisticated identification systems mean that DHS can identify and track unauthorized immigrants as they move throughout the immigration enforcement and criminal justice systems.

What is less clear is how to assess the price of these gains and which of these enforcement tools are cost-effective. Apart from the direct costs to tax payers of CBP’s $12 billion budget, the concentration of resources at the border has an impact on the environment and on a range of quality-of-life issues for border communities. Immigration prosecutions are especially significant in this regard, as immigration cases accounted for 26 percent of all defendants in federal district court in 2013, up from 11 percent in 1997, were 63 percent of defendants in federal magistrate court, up from 15 percent. These numbers raise questions about whether immigration enforcement distracts from other prosecution priorities. Within the United States, apart from ICE’s $5.6 billion budget, the impact of enforcement on immigrant communities has been even more profound, leaving millions of families, many of which are mixed-status, in a state of uncertainty and vulnerability. The comingling of immigration controls and the criminal justice system arguably has further adverse effects for community policing and public safety.

In light of these costs, a second set of questions centers on what additional enforcement measures can realistically be expected, or demanded, as preconditions for comprehensive legislation to rationalize legal visa channels and legalize certain unauthorized immigrants, a policy package most Americans support. The southwest border has become a near zero-tolerance zone, where additional investments between ports of entry already offer declining returns. (Much less is known about illegal entries through ports of entry—an issue that calls out for more transparency and research.) In the interior, the lesson of the recent period is that enforcement capacity already exceeds political will. That reality has caused presidents and members of Congress from both parties to resist investments in worksite enforcement—long recognized as the largest gap in the current system—until a deal can be struck on new employment-based visas; it has now caused President Obama to take additional steps to shield millions of unauthorized immigrants from deportation. Despite these questions, however, broader immigration reforms still face a difficult uphill climb in Congress; further investments in border and interior enforcement will likely continue to dominate the immigration debate.


Further Reading:

Deportation and Discretion: Reviewing the Record and Options for Change, by Marc R. Rosenblum and Kristen McCabe, October 2014.

The Deportation Dilemma: Reconciling Tough and Humane Enforcement, by Marc R. Rosenblum and Doris Meissner, April 2014.

Marc R. Rosenblum is deputy director of the Migration Policy Institute's US Immigration Policy Program, where he works on US immigration policy, immigration enforcement, and US regional migration relations. He was involved in crafting the Senate's immigration legislation in 2006 and 2007 and in 2009 served as a member of President-Elect Obama's Immigration Policy Transition Team. Rosenblum earned his BA from Columbia University and his PhD from the University of California San Diego.