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THE DEPORTATION DILEMMA Reconciling Tough and Humane Enforcement

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THE DEPORTATION DILEMMA Reconciling Tough and Humane Enforcement THE DEPORTATION DILEMMA RECONCILING TOUGH AND HUMANE ENFORCEMENT By Marc R. Rosenblum and Doris Meissner with Claire Bergeron and Faye Hipsman U.S. IMMIGRATION POLICY PROGRAM THE DEPORTATION DILEMMA Reconciling Tough and Humane Enforcement Marc R. Rosenblum and Doris Meissner with Claire Bergeron and Faye Hipsman April 2014 Acknowledgments Immigration enforcement—in the United States, our hemisphere, and around the world—has been a central interest of the Migration Policy Institute (MPI) since its founding in 2001. We are grateful to our many colleagues at MPI with whom we have worked and debated enforcement and related issues over these years. We also owe debts of gratitude to those in government—past and present—academia, the nongovernmental sector, and elsewhere for their willingness to share their knowledge and perspectives. The ongoing dialogue across sectors that characterizes our work challenges us to continually sharpen our thinking and re-examine our ideas. We hope that spirit of inquiry is reflected in this work. We would especially like to acknowledge Muzaffar Chishti, our colleague who is Director of MPI’s office at New York Uni- versity Law School. His understanding of immigration law and its practical application and derivations are encyclopedic. His feedback on this work has been invaluable. Similarly, thanks to Randy Capps, another MPI colleague, whose insights based on field research of several immigration enforcement programs has been exceptionally helpful. We are also the beneficiaries of careful reading, reactions, and advice from several anonymous reviewers, whose comments improved the work significantly. We thank them all. We are particularly grateful for the support provided by Michelle Mittelstadt, MPI’s Director of Communications. Her contributions extend well beyond customary editing, publication, and dissemination. Her scope of knowledge and depth of experience in the immigration world are unparalleled. We value her experienced judgment on the issues, as well as her full engagement in the teamwork required to produce MPI publications such as this one. We also deeply appreciate the leader- ship and freedom to explore that our outgoing and incoming MPI Presidents, Demetrios Papademetriou and Michael Fix, provide every day in every way. Their commitment to careful research, evidence-based analysis, and independent thinking set standards of excellence that we value and work hard to achieve. Kristen McCabe provided timely and highly skilled research assistance, and we thank Rebecca Kilberg for her careful eye for layout and design. Finally, we thank our funders for their generous support of MPI and their continuing confidence in our work and contribu- tions. The encouragement and interest we receive from the Carnegie Corporation of New York, the Ford Foundation, the MacArthur Foundation, the Open Society Foundations, Unbound Philanthropy, and for this project, the ILGWU Heritage Fund, have been essential to this and so many other MPI efforts. © 2014 Migration Policy Institute. All Rights Reserved. Cover Design and Typesetting: Rebecca Kilberg, MPI Cover Photo: Courtesy of U.S. Immigration and Customs Enforcement No part of this publication may be reproduced or transmitted in any form by any means, electronic or mechanical, including photocopy, or any information storage and retrieval system, without permission from the Migration Policy Institute. A full-text PDF of this document is available for free download from www.migrationpolicy.org. Information for reproducing excerpts from this report can be found at www. migrationpolicy.org/about/copyright-policy. Inquiries can also be directed to: Permissions Department, Migration Policy Institute, 1400 16th Street, NW, Suite 300, Washington, DC 20036, or by contacting [email protected]. Suggested citation: Rosenblum, Marc R. and Doris Meissner with Claire Bergeron and Faye Hipsman. 2014. The Deportation Dilemma: Reconciling Tough and Humane Enforcement. Washington, DC: Migration Policy Institute. Table of Contents Acknowledgments ............................................................................................................................. ii Executive Summary .........................................................................................................................1 A. The Deportation Dilemma ..........................................................................................................1 B. Key Drivers of the Rise in Deportations ..................................................................................2 C. The Rise in Deportations: Key Trends .......................................................................................3 D. Enforcement Results at the Border and in the Interior ........................................................4 E. Enforcement Priorities and Discretion: How Have They Worked Overall? ....................6 F. Impact of Enforcement on Immigrant Communities ............................................................6 G. Policy Levers to Influence the Deportation System ..............................................................7 H. Conclusion .......................................................................................................................................9 I. Introduction ................................................................................................................................10 II. Deportation Drivers: IIRIRA and Pipelines for Removal ........................11 A. The Judicial Removal Process ..................................................................................................12 B. Nonjudicial Forms of Removal..................................................................................................14 C. Informal Returns ..........................................................................................................................15 D. Immigration-Related Criminal Charges ..................................................................................16 III. Deportation Drivers: Congressional Appropriations .................................17 IV. Deportation Drivers: Executive-Branch Implementation and Key Enforcement Trends .......................................................................................19 A. Rising Removals as Apprehensions Decline ...........................................................................20 B. The Expansion of Nonjudicial Removal Pipelines ................................................................24 C. The Intersection of Immigration Enforcement with the Federal Criminal Justice System ...............................................................................................27 D. Continuity and Change: Enforcement Priorities and Prosecutorial Discretion .............30 E. The Effects of Enforcement Priorities and Prosecutorial Discretion on the Deportation System ........................................................32 F. DHS Enforcement Priorities and Prosecutorial Discretion: How Have They Worked? ...........................................................................................................38 G. The Impact of Deportation Policies on Immigrant Communities ....................................40 V. Policy Levers to Influence the Deportation System ..................................43 A. Reforms to U.S. Immigration Law ............................................................................................44 B. Changes to Immigration Enforcement Appropriations........................................................44 C. Executive Actions .........................................................................................................................46 VI. Conclusion ....................................................................................................................................52 Appendices ............................................................................................................................................54 Works Cited .........................................................................................................................................59 About the Authors ..........................................................................................................................66 MIGRATION POLICY INSTITUTE Executive Summary More than 4.5 million noncitizens have been deported from the United States since Congress passed sweeping legislation in 1996 to toughen the nation’s immigration enforcement system. As a result, the pace of formal removals has quickened tremendously over the intervening years, rising from about 70,000 in 1996 to nearly 420,000 in 2012. Three factors have been the key drivers of deportation1 policies during the last two decades: passage of major new laws expanding the grounds for removal and speeding the removals process; sizeable, sustained increases in immigration enforcement personnel, infrastructure, and technology; and operational and policy decisions by three successive administrations to shape enforcement outcomes. The result has been the removal of a record number of unauthorized immigrants and other removable noncitizens. Deportation under the current administration represents a story of both continuity and change. The administration inherited—and further expanded upon—unprecedented capacity to identify, apprehend, and deport unauthorized immigrants. Nearly as many people were formally deported during the first five years
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