CIS

Deportation Basics – How Immigration Enforcement Works (or Doesn’t) in Real Life

Introduction

Many people, including, surprisingly, those whose occupations might bring them into contact with federal officers who enforce immigration laws,1 don’t seem to have a clear notion of how removal proceedings2 against an alien take place, and exactly what “due process” means in that context.

For instance, state and local police and prosecutors often do not charge or will move to dismiss charges against an alien, once Immigration and Customs Enforcement (ICE) officers or agents express interest in removal, in the mistaken belief that once ICE takes custody of the individual, he (or she) will be forthwith whisked to a bus, plane, or train, and unceremoniously shoved across the border or dropped into the midst of his (or her) country of origin. Such notions are greatly mistaken.

This Backgrounder describes the enforcement actions that take place prior to, and that result in initiation of, removal proceedings, one form of which is a hearing before an immigration judge.3

It spells out the cumbersome and dysfunctional process and also includes a set of recommendations to improve the system, all of which can be accomplished with the agency’s regulatory process, without the need for legislative action.

Here are some of the key observations of this report:

•A large percentage of aliens flee from removal proceedings — perhaps as many as 59 percent of all those released to await hearings. On a cost basis from the alien’s perspective, this makes sense. If you are in proceedings and have little chance of relief, why not treat the bond money (if it’s even required) as the cost of having been caught, and then flee, hoping to stay under the radar for as long as possible, perhaps until the next amnesty?

•Though fashionable in the Obama administration, the exercise of “prosecutorial discretion” is problematic for ICE field officers. If the alien that they decline to remove goes on to commit a heinous act, they could be subject to lawsuits from victims and will be held accountable by their own agency (even if agency leadership encourages them to use the tool).

•Even in today’s technology-driven world, charging an alien with immigration violations is a paperwork-intensive, cumbersome process that requires agents to fill out nearly 20 different forms each time.

•ICE officers are supposed to consider two key factors in determining whether to detain or release an alien in proceedings — if the alien is a flight risk and if he is a risk to the community. The latter factor obviously is given serious consideration, but it is equally obvious from the large number of absconders that officers don’t give the same weight to the likelihood of flight, especially considering the scarcity of funded detention space.

•The Immigration and Nationality Act (INA) provides for several types of due process for aliens, depending on their circumstances of arrival and stay. The law does not require that all removals be ordered by an immigration judge.

•The option of Voluntary Return, where the alien requests to be returned home in lieu of removal proceedings, is not really “voluntary,” but is beneficial to the alien because it carries fewer consequences if the alien returns illegally. It also has become subject to overuse or misuse in recent years as a tool to increase the volume of removals, at the expense of more formal methods of removal that have more deterrent value.

•Immigration law provides for seven ways to remove an alien, which are explained in the report. Four of these options are relatively efficient, but used less frequently. If ICE chose to expand their use, the workload of the immigration court could be reduced and the immigration enforcement system would be less dysfunctional.

•The total number of apprehensions of illegal aliens by immigration enforcement agencies is less than half of what it was five years ago. For instance, the drop in apprehensions by Customs and Border Protection (CBP) is often explained by improvements in border security; however, this rationale is suspect, as has been pointed out by the Rand Corporation in a study of border metrics.4 But ICE apprehensions also have dropped steeply, although there has been only a modest drop in the size of the illegal population inside the United States.

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