Within days, the Obama administration is expected to reach a milestone that has brought fear and anger to immigrant communities: A record 2 million removals since taking office. At the same time, the administration gets unyielding criticism and charges of failure to enforce immigration law from enforcement-minded congressional leaders for its actions to shield from deportation hundreds of thousands of unauthorized immigrant youth and others.
How are these two seemingly contradictory realities possible?
The answer is that the U.S. immigration enforcement system has been transformed over the last two decades, leading to vastly greater enforcement capacity and—under President Obama—more focused targeting of enforcement efforts. As documented by the Migration Policy Institute in past and forthcoming research, three developments have been particularly important in bringing about a formidable new immigration enforcement machinery.
First, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) rewrote the laws governing the deportation process (renamed “removal” in the new statute). Most importantly, IIRIRA created and revised two forms of summary removal: expedited removal for recent border crossers and reinstatement of removal for people previously deported. These measures allow noncitizens to be removed without appearing before an immigration judge, and they make them ineligible for almost any form of relief from removal regardless of their equities in the United States. In 1996, approximately 97 percent of those removed from the United States were ordered deported by a judge; by 2012 that proportion had plummeted to 25 percent, one of the findings in our forthcoming report that examines the current record on deportations, as well as the past statutory, policy, and programmatic practices that have resulted in today’s removals system. Procedures that bypass hearings and judges move cases quickly, allowing enforcement officers to repatriate far greater numbers than before.
Second, enforcement resources—people, infrastructure, and technology—have surged since the 1990s, particularly in the post-9/11 period. With the support of successive administrations and Congresses of both parties, overall funding for immigration enforcement rose from $1.2 billion in 1990 to $17.7 billion in 2013, more than an eight-fold increase when accounting for inflation. The Border Patrol, for example, has grown from about 3,700 agents to more than 21,000 during this period. A system that had been seriously under-resourced is now well equipped to manage the nation’s border and other immigration enforcement requirements.
Third, investments in modern technologies have transformed Border Patrol and U.S. Immigration and Customs Enforcement (ICE) operations at the border and within the United States. Biometric fingerprint equipment and integrated immigration and law enforcement databases across federal, state, and local enforcement agencies now make it possible to reliably identify returning unauthorized immigrants and noncitizens convicted of a crime.
Together, these three sets of changes have boosted the system’s baseline enforcement performance by unprecedented orders of magnitude.
Against this backdrop, the major policy innovation that is new under the Obama administration has been to make the immigration enforcement system more strategic, through updated guidance on the use of prosecutorial discretion. In a March 2011 memorandum, citing the need to use limited resources most effectively, ICE identified three priority categories for deportations:
In mid-2012, the administration also asserted prosecutorial discretion with the creation of the Deferred Action for Childhood Arrivals program, which has provided protection from deportation for more than 521,000 unauthorized immigrant youth brought to the United States as children.
ICE reports that 98 percent of its removals met one or more of the priority levels in 2013. Thus, it has successfully implemented the 2011 enforcement priorities, and can make the case that it is targeting enforcement to the highest priorities and asserting discretion—a development that administration supporters have repeatedly sought.
Still, DHS is deporting close to 400,000 people per year. On this scale, even highly focused enforcement has a substantial impact on immigrant communities, prompting the charge by Obama’s historic allies that the president is the “deporter in chief,” enabling a system that rips families apart. Indeed, with illegal immigration flows at a 40-year low, most unauthorized immigrants—including a substantial share of people intercepted at the border—have lived in the United States for years and have deep ties to the country.
Nonetheless, the fact that DHS is narrowly targeting enforcement to identify and remove the highest-priority cases has led enforcement hardliners to accuse the administration of not doing enough to go after low-priority cases. Because adherents of this critique include some members of Congress whose cooperation is critical to achieving the White House’s broad goal of enacting immigration reform, the administration finds itself in a particularly difficult, no-win position.
These cross-cutting pressures are at the heart of the administration’s current review of its deportation policies. How can a system that is predicated on repatriating people to deter illegal immigration and uphold the integrity of the nation’s immigration laws also minimize the impact of enforcement on U.S. citizen and legal resident families, employers, and communities?
Whatever answer the administration ultimately gives is all but certain to disappoint protagonists on both sides and keep the issue of deportation alive and controversial until the real solution—a rationalized, updated immigration law—is one day politically possible.
Marc R. Rosenblum is Deputy Director of the Migration Policy Institute’s U.S. Immigration Policy Program, and MPI Senior Fellow Doris Meissner directs the program and is former Commissioner of the U.S. Immigration and Naturalization Service.