A New Paradigm for Humane and Effective
By Peter L. Markowitz
This report suggests a new paradigm for interior immigration enforcement in the United States that strives to be more humane, in that it does not subject
individuals or communities to unnecessary suffering; more effective, in that increased compliance with the law can be realistically and efficiently achieved; and
more just, in that people can, in practice, obtain the rights and enjoy the privileges the rules afford.
A goal of the immigration enforcement system, like that of all enforcement systems, is to maximize compliance with the law. Doing so will require, first and
foremost, a legal scheme that allows for realistic, sensible pathways to comport one’s conduct with the law. The absence of such a realistic scheme is why,
during the course of ICE’s 17-year existence, compliance with immigration law has gone down, not up. Since its creation, ICE’s budget has increased 150
percent, with immigration enforcement spending far outpacing the U.S. inflation rate and the growth of the federal budget as a whole in recent decades.
Meanwhile, based on the government’s own most recent estimates, since the creation of ICE, the undocumented population has grown by 70 percent. The nation’
s immigration courts also have accumulated an unprecedented and unmanageable million-case backlog. Contrary to the rhetoric of some immigration
restrictionists, that growth in the undocumented population and backlog in the immigration courts cannot be explained by an increase in unauthorized
immigration, as the rate of unauthorized migration has been declining during ICE’s lifetime. To be sure, detentions and deportations have skyrocketed since ICE’s
creation, but detentions and deportations are means, not ends. Just as the goal of criminal justice systems is to reduce crime rates, not to maximize
incarceration, policymakers must judge the effectiveness of America’s immigration enforcement system on the ultimate measure that matters: compliance with
immigration law. By that measure, while ICE’s heavy-handed tactics have succeeded in terrorizing communities and dividing the nation, they have failed as a
law enforcement strategy. Thus, anyone who cares about fiscal responsibility or effective law enforcement—not simply those who care about immigrant
communities—should be eager to rethink the United States’ immigration enforcement strategy.
The new immigration enforcement paradigm proposed here requires that America radically rethinks the “substantive rules” to be enforced, which dictate who
can be penalized for immigration violations and what penalties can be imposed; the “mechanics of enforcement” used to increase compliance with such
substantive rules without putting people in cages and tearing apart hundreds of thousands of families each year; and the “procedural rules” governing
enforcement, which guarantee a fair system consistent with the norms of due process. Of course, interior immigration enforcement does not operate in a
vacuum. Other components of the immigration system, such as border enforcement, future flow rules, and legalization programs, significantly affect the dynamics
of interior enforcement. These aspects of the immigration system are in equally desperate need of reform but are beyond the boundaries of this report.
This report makes several recommendations that, collectively, would facilitate a dramatic paradigm shift in the nation’s approach to interior immigration
Revising the substantive rules of immigration enforcement:
Simplify and streamline deportation grounds. Policymakers can significantly improve the efficiency and fairness of this system by replacing the current tangled
scheme, which includes more than 200 different grounds for removal, with a simple inquiry into whether someone entered the country unlawfully or violated the
terms of their authorized entry, usually by staying beyond their authorized period.
Restore individualized discretion. Policymakers can further streamline proceedings and ensure that judges are empowered to deliver justice by replacing the
current convoluted “relief” inquiry, which is comprised of a dizzying web of overlapping, though significantly underinclusive, defenses to deportation, with a
simple proportionate sentencing phase. In this sentencing phase, an immigration judge could consider all relevant factors in an efficient summary proceeding to
determine the appropriate penalty based on the individual circumstances, just as criminal court judges do countless times each day.
Make lawful permanent residence truly permanent. Many Americans may be shocked to learn that a significant percentage of individuals facing deportation are
not undocumented but are, in fact, lawful permanent residents (LPRs), also known as green card holders, who have already gone through a thorough legal vetting
process. LPRs are the class of noncitizens with the deepest ties to the United States and share unique rights and obligations otherwise restricted to citizens,
such as draft registration and the right to serve in the military, which make their connections to the nation particularly strong and their removals particularly
End the ahistoric entanglement between criminal and immigration law. The current entanglement between immigration and criminal law, where a vast array of
mostly minor criminal convictions are now routinely used to trigger removal proceedings, is a sharp break from historic norms. Despite its intuitive appeal, the
novel entanglement between criminal and immigration law has proved impracticable and an impediment to justice. Using criminal convictions as the front-end
trigger for deportation has led to the most complex and cumbersome legal issues in modern immigration law and to a system of double punishment that is
inconsistent with U.S. constitutional norms.
Revising the mechanics of immigration enforcement:
Reduce reliance and spending on failed punitive enforcement strategies. The pattern of throwing ever-increasing billions of tax dollars16 at ICE’s mass
detention and deportation regime can no longer be justified. The unprecedented investment in punitive enforcement strategies during ICE’s nearly two decades of
existence is a failed experiment that has caused untold suffering in communities and failed to increase compliance with immigration law.
Increase compliance through cooperative enforcement strategies that give individuals a fair chance to comply with the law. The trend among other federal
agencies is increasingly to help regulated entities come into compliance, rather than to punish noncompliance. The same humane and effective strategy could be
employed in the immigration arena because a significant percentage of undocumented individuals are in fact eligible for legal status. Instead of needlessly
funneling these individuals into removal proceedings, the immigration system should give them a fair chance to affirmatively apply for the forms of legal status
that Congress made available to them.
End the one-size-fits-all reliance on deportation by creating new scalable alternative penalties for immigration violations. One primary driver of the cruelty of
the immigration enforcement system is that current law only gives immigration judges a single penalty in their immigration toolbox—deportation—and that penalty
is grossly disproportionate to the overwhelming majority of immigration offenses. A just enforcement system must also include a range of scalable penalties—
such as fines, community service, treatment programs, or probationary periods—that can be adjusted to match the severity of the violation and the
circumstances of the individual.
Replace preemptive immigration detention with proven alternative mechanisms to promote appearance and compliance with court orders. Virtually every other
federal agency in the administrative state has found a way to enforce its civil administrative scheme without putting people in cages. There is no reason why
deportation proceedings, or even the deportation process itself, must begin with handcuffs. In place of inhumane, costly, and unnecessary detention, the federal
government can ensure appearance and compliance with court orders by providing counsel and support for those who need it, through proven community-based
management programs, as well as incentives for compliance and reentry services for those who ultimately face deportation.
Revising the procedural protections underlying immigration enforcement:
Create a federal public defender system for indigent individuals facing deportation. There is no other arena of American law where people are forced to litigate
for their liberty against trained government prosecutors, without any legal assistance whatsoever. Recent research shows that as many as 44 percent of
unrepresented immigrants receive removal orders not because they do not have a legal right to remain in the United States but because they cannot vindicate
that right without the help of a lawyer. Due process requires that indigent individuals facing removal have the right to appointed counsel.
Ensure impartiality and minimize political influence over immigration judges by creating independent Article I immigration courts. Under current law,
immigration judges are appointed by and answerable to the attorney general, who also serves as prosecutor, defending deportation orders in federal court. The
dual conflicting roles of adjudicator and prosecutor and the political influence of the current structure have been weaponized in recent years, undermining even
the pretext of independent, impartial decision-making. Impartial merit-based decision-making can best be ensured by making immigration courts, like the Tax and
Bankruptcy courts, independent Article I courts, which are established by and answerable to Congress, not the president or his attorney general.
Full realization of the paradigm shift in interior enforcement this report proposes will require significant legislative reform, which should be a high priority for the
incoming Biden administration and Congress. However, regardless of the prospects for such near-term congressional action, it is critical that thoughtful
policymakers and advocates work now to develop a clear vision for the immigration enforcement system the nation needs to build. Absent that clear vision,
reform efforts will remain vulnerable to dismissive critiques, and politicians, rather than impacted communities, will be left to identify the goals of reform.
Moreover, some important components of these recommendations could be implemented by the Biden administration alone through key near-term executive
reforms. Specifically, the Biden administration would not need Congress to implement prosecutorial discretion guidelines that deprioritize enforcement against
LPRs or others who fall outside the removal scheme set forth below, to disentangle immigration and criminal enforcement, to shift away from a punitive
enforcement model and toward a cooperative compliance enhancement mode, and to begin winding down the immigration detention system and scaling up
access to counsel programs. Implementing such executive reforms, while clearly and forcefully articulating a vision for a new humane, effective, and just
immigration enforcement paradigm, would not only improve the function of the immigration enforcement system immediately but would also lay the policy and
political groundwork for the eventual legislative reform to come.
Rethinking the mechanics of immigration enforcement
In recent decades, heavy-handed punitive enforcement is the only model of immigration enforcement Americans have seen across this country. As a result,
detention and deportation are the only immigration enforcement tools most Americans know. However, there are other tested and proven enforcement strategies
available. Even in criminal justice systems, there are increasing examples of successful, though still insufficient, moves away from overly punitive enforcement
strategies and toward diversionary and community-based programs that help individuals comply with the law rather than merely punishing noncompliance. The
nation needs a new paradigm for the ways it enforces immigration laws—a paradigm that is more humane, significantly less expensive, and simultaneously more
effective at increasing compliance with immigration law. The mechanics of such an enforcement paradigm could be built around the four central pillars
Pillar 1: A dramatic reduction in the funding and scale of punitive enforcement
The contemporary scale of detentions and deportations in the United States is unprecedented. In the 20th century, the United States removed, on average, fewer
than 25,000 people per year. In comparison, in the 21st century, U.S. Immigration and Customs Enforcement has removed more than 300,000 people per year. In
1985, the daily population of detained immigrants was roughly 2,000. By 1994, the population rose to about 6,000; by 2001, the population surpassed 20,000; and
by 2008, the population reached 33,000 individuals in immigration detention on any given day in the United States. In 2019, ICE established a new record daily
population of 52,000—a startling 2,500 percent increase since 1985. The enormous scale of detentions and deportations in the contemporary immigration system
is neither a necessary nor a normal feature of immigration enforcement in the United States. Indeed, at the outset of the 1980s, the nation had no significant
permanent immigration detention facilities at all.
ICE’s stated goal from the outset was, and remains, to deport every single person who is potentially subject to deportation. This goal, and the unprecedented
billions in tax dollars devoted to it, has been the driving force behind the massive scale of punitive immigration enforcement in the 21st century. However, 100
percent enforcement is an unwise and unrealistic goal and not the way effective enforcement schemes operate. A smart enforcement scheme must identify its
optimal scale by balancing the societal costs of punitive enforcement against the marginal additional compliance such enforcement can achieve, and the
societal benefits associated with that additional compliance. For example, in some enforcement contexts, such as enforcement of safety norms by the Nuclear
Regulatory Commission, extremely high levels of enforcement are necessary because even low levels of noncompliance risk significant harm to society. There
is growing consensus in other areas—such as tax law, as well as the regulation of marijuana, sex work, or quality-of-life crimes—that the cost and collateral
harms associated with high levels of punitive enforcement, the low deterrent value of severe enforcement, and the relatively minor injuries to society
associated with noncompliance lend support for low punitive enforcement levels.
The same is true of immigration enforcement. On one side of the equation, the human and fiscal costs of excessive punitive enforcement are immense. On the
other side of the equation, the societal harms associated with unauthorized immigration are clearly contested in the political arena. However, the overwhelming
weight of the evidence demonstrates that immigrants, including undocumented immigrants, pose no heightened risk of criminality and, in the long run,
undocumented workers are a critical net benefit to the U.S. economy. Moreover, even if there were significant levels of harm from noncompliance, high levels of
punitive enforcement are only justified if they actually work at reducing noncompliance. In fact, the weight of the evidence suggests that ICE’s heavy-handed
tactics are of limited deterrent value. Accordingly, the first pillar underlying a new just, humane, and effective immigration enforcement paradigm is a dramatic
reduction in the unprecedented billions of dollars currently allocated to ICE and the resultant scale of punitive enforcement efforts.
Pillar 2: A mandatory preference for compliance assistance over punitive enforcement
While a radical reduction in punitive enforcement is a critical component of developing a new workable immigration enforcement paradigm, that reduction alone
will not increase compliance with immigration law. In place of detention and deportation, the United States needs a new mechanism to drive up compliance.
Cooperative enforcement is the strategy increasingly favored by administrative agencies outside the immigration context. Instead of punishing noncompliance,
agencies should work to assist regulated entities to come into compliance through education, outreach, and flexible implementation. This is the approach favored
by U.S. agencies such as the Occupational Safety and Health Administration, the Securities and Exchange Commission, the Environmental Protection Agency,
and the Food and Drug Administration when they encounter a corporation in violation of their regulatory scheme. The people subject to potential immigration
enforcement should be entitled to the same opportunities to come into compliance that are afforded to the corporations regulated by these agencies.
Unfortunately, the current immigration enforcement regime has it entirely upside down. There are large categories of individuals who are both subject to potential
deportation but also eligible to obtain some form of legal status—such as someone who overstays their visa but is married to a U.S. citizen. According to one
study, approximately 14 percent of undocumented individuals are currently eligible for a pathway to lawful permanent residence. When lesser immigration
benefits that provide temporary protection from deportation, such as Temporary Protected Status and Deferred Action for Childhood Arrivals (DACA), are included,
the percentage could be even higher. Moreover, a critical component of cooperative enforcement strategies is flexibly interpretation of legal requirements to
allow maximum opportunities for individuals to come into compliance. Adopting this approach in the immigration arena could dramatically increase the category
of individuals affirmatively eligible for legal status.
However, instead of diverting people with pathways to lawful status out of the deportation process, ICE routinely pursues deportation proceedings before
providing these individuals the opportunity to apply for the benefits that Congress has made available to them. Or worse, ICE diverts people who have applied
for lawful status into the removal system. The unnecessary cruelty of subjecting such individuals to detention and deportation ultimately drives up costs and
drives down compliance. Enforcing the law is not just about imposing the harshest possible penalty available. Enforcing the law must also mean giving people
the benefits that the law provides. Accordingly, the second pillar requires that individuals must be afforded an opportunity to pursue any available affirmative
pathways to status before punitive enforcement proceedings can be initiated.
Prosecutorial discretion has been the mechanism traditionally used to select between cooperative and punitive enforcement. However, for decades now,
through Democratic and Republican administrations alike, ICE’s prosecutorial discretion practices have failed to realize the value of cooperative enforcement.
Accordingly, in place of individualized prosecutorial discretion, the system needs a mandatory preference for helping individuals come into compliance when
legal pathways are available. This can be done through a new “Intent to Initiate” Protocol, which would mean that, before the initiation of removal proceedings,
individuals would receive a notice of intent to initiate. The notice would inform the noncitizen that, if they believe they are eligible for any affirmative pathway to
legal status, they must initiate the relevant affirmative application within 180 days or some other fixed reasonable period of time. Government-funded legal
services would be available to assist individuals in screening for eligibility and preparing such applications. Punitive enforcement proceedings could only be
initiated thereafter if the affirmative application process resolved negatively or if an individual did not file an application within the prescribed period. This
innovation would drive down costs and drive up compliance rates. The enormous expenses of detention and deportation would be replaced by an increased
revenue stream from affirmative applications, and compliance rates would rise as individuals gained lawful status through affirmative applications. Moreover,
this system would help improve the workability of the historically overburdened immigration court system by removing cases involving low-priority individuals
whom Congress deemed entitled to legal status.
Pillar 3: Ensure proportionality by creating new scalable consequences
There will of course be some individuals who have no pathway to legal status. Even if new measures dramatically reduce the scale of punitive enforcement, as
discussed in Pillar One, and give individuals a genuine opportunity to come into compliance with the law, as discussed in Pillar Two, some subset of individuals
will still face enforcement proceedings in immigration court. The problem is that immigration judges currently have only a single penalty they are permitted to
impose—deportation—and that penalty is grossly disproportionate to the overwhelming majority of immigration offenses. A binary choice between no penalty and
the harshest possible penalty is not the way an effective enforcement system works. That binary choice makes the U.S. immigration system function like a
medieval criminal justice system, where the only two choices were no penalty or the death penalty. Worse still, based in large part on changes to immigration
laws in the 1990s, in many circumstances, immigration judges lack the authority to even consider whether deportation is appropriate based on the individual
circumstances of the case. Instead, mandatory deportation is now a common outcome for many immigrants. That is why immigration judges routinely lament the
way their hands are tied, requiring them to impose deportation orders that they believe are unnecessary and unjust.
Accordingly, the third pillar dictates that when punitive enforcement is pursued, immigration judges must have available to them a set of scalable penalties that
could be imposed in lieu of deportation when appropriate. Compliance with such penalties would then open up a pathway to permanent lawful status. Fines are
one such scalable penalty and are used pervasively in other administrative contexts. While the experience of widespread overuse and misuse of fines in the
criminal justice system counsels in favor of caution,48 it seems intuitive that virtually anyone faced with the choice between a reasonable fine (tethered to an
individual’s financial means) or deportation would opt for the former. Indeed, as recently as 2001, there was a provision in immigration law that permitted large
categories of undocumented immigrants to pay a fine of $1,000 to open up a pathway to legal status. The program was highly successful at helping individuals
gain legal status, and many in the immigrant rights movement have advocated for its reinstatement. To be clear, in this system, fines would be used as an
alternative to deportation orders, not as additional penalties. Moreover, fines should not be the only scalable penalty available. When appropriate, immigration
judges should likewise be empowered to order that individuals complete treatment programs, community service, or probationary periods to become eligible for
legal status in lieu of deportation.
Some will understandably bristle at the very concept of a penalty for migration. Penalties are usually used to punish individuals who cause others harm. That
concept of penalties is at odds with the reality of a parent who brings their child to the United States fleeing gang violence or an individual who enters the United
States as a visitor, falls in love with an American, and fails to leave within the time prescribed by law. Indeed, there is a vast body of literature that documents
the net positive impact of migration on the United States as a whole. Moreover, there is an undeniable hypocrisy in punishing migration in a system where the U.
S. economy is dependent in critical ways on immigrant labor, including labor from undocumented immigrants, but provides no viable pathway for low-wage
immigrant workers to migrate lawfully, or even for many highly skilled and highly educated workers to remain. The central problem in these scenarios, however,
is defects in the criteria for lawful admission to the United States; such individuals should have lawful pathways available to them. Fixing the admission criteria
for the future flow of immigrants is a critical priority, but it is beyond the scope of this report. What is undeniable is that every enforcement system in American
law, even those that prioritize cooperative enforcement, includes some scheme of penalties for noncompliance. Thus, while penalties need not, and should not,
be the central feature of an immigration enforcement system, they will inevitably remain a component of that system.
Pillar 4: Replace immigration detention with humane and effective alternatives
While American society has grown numb to the wanton cruelty of unnecessarily jailing immigrants—many of whom pose no risk of flight or danger to the
community and whose families also suffer the trauma of the separation—it is, in fact, a dramatic break from historical practice. As discussed above, for the
majority of U.S. history, detention was not a significant feature of interior immigration enforcement. For most of this country’s history, enforcement proceedings
and even the deportation process itself were initiated with notices, not arrests, and the nation can return to that norm without undermining the integrity of the
The historic use and scale of detention in the contemporary immigration enforcement system is driven more by the financial interests of the private prison
industry and the states and localities that rent out their jails to ICE than by any legitimate policy interest. This is not to suggest that the immigration court system
has not struggled to ensure the regular appearance of some individuals in proceedings. It has—and indeed, nonappearance rates were a driving force behind the
advent of the law requiring mandatory detention for many facing removal, which was passed in 1996. However, the massive expansion of immigration detention
since that time has failed to fix the problem, as the rate of nonappearance today is identical to the rate in 1996.58 The data demonstrate that, even with
unprecedented investment, detention cannot ensure regular appearance because it is impracticable and inhumane to lock up all those facing deportation. Once
again, ICE’s mass detention strategy has simply failed to deliver results.
So while the problem of nonappearance in immigration court is real, detention is not the solution. Accordingly, an effective enforcement scheme must replace
failed immigration detention with humane alternatives that can achieve what the expansion of detention has not: the regular systemwide appearance of
individuals in immigration court. Thus, the fourth pillar of the new enforcement paradigm proposed here is to eliminate preventative immigration detention and
construct humane and effective alternatives to ensure appearance and compliance.
That effort begins with counsel. Unlike in criminal court, there is no recognized legal right to appointed counsel in immigration court.60 There is no other arena of
American law that requires individuals, including young children, to litigate for their liberty against trained government prosecutors without any legal assistance
whatsoever. The absence of appointed counsel in deportation proceedings is a stain on the American judicial system and offends the most basic notions of due
process. Less intuitive, however, is the impact that the absence of counsel has on appearance rates. But study after study has demonstrated that the most
important way to improve appearance rates in immigration court is to ensure individuals have lawyers. For example, the most recent publicly available data
show that virtually every family (99 percent) released from immigration detention that had a lawyer showed up for all of their immigration court hearings. In
contrast, those without lawyers were significantly less likely (76 percent) to appear consistently. In addition, last year, the overwhelming majority (93 percent) of
in absentia removal orders—orders issued when someone fails to appear in court as required—were issued against unrepresented individuals. It is no mystery
why lawyers improve appearance rates. Lawyers help ensure that individuals have accurate information, and reminders when necessary, about the time and
place of hearings. Lawyers also remove the terror of walking into an unfamiliar courtroom alone and of litigating in one of the most complex arenas of American
law, against trained government prosecutors, without any legal training and often in a language the individual does not understand. Accordingly, ensuring the
appointment of government-funded counsel for indigent individuals facing deportation is a critical step toward ensuring regular appearance in immigration court.
In addition, community-based management programs, which provide supportive services to those who need them, can promote regular appearance in court
without detention. Studies of dozens of alternative-to-detention programs have demonstrated average compliance rates of 90 percent or higher, with some as
high as 99 percent. Notably, these are not programs that merely replace brick-and-mortar detention with virtual detention through dehumanizing electronic
monitoring, nor are these the problematic programs administered by the same private prison industry that is responsible for the profit-driven growth of
immigration detention. These results have been achieved with supportive services from community actors working in the best interests of the noncitizens they
support. Moreover, because such programs are dramatically less expensive than detention, if lawmakers redirect a portion of the billions of dollars now spent
on immigration detention to community-based management programs, agencies could provide such supportive services to all those who need it and thereby
increase the system’s overall court appearance rate dramatically.
There is good reason to believe that those same steps—counsel and community management—will also help ensure compliance with removal orders. In
addition, compliance rates within the much smaller group of individuals under this new system who would receive deportation orders can be further bolstered by
providing affirmative incentives for those who voluntarily comply. Canada has experimented with financial inducements of up to $2,000 for such voluntary
compliance,68 which could be both effective and cost-efficient since the United States spends, on average, $12,000 per deportation. Other inducements for those
who promptly and voluntarily comply with deportation orders—including reduced wait times for lawful readmission and continued access to earned domestic
benefits such as Social Security—could also be powerful tools to promote compliance. Finally, applying lessons from the criminal justice system regarding the
power of reentry services could further increase compliance. Providing supportive services—such as housing assistance, job placement, and mental health
services—to help individuals reintegrate into their countries of origin would reduce the brutality of deportation and ease the terror that leads some people to
resist compliance with deportation orders.
Rebuilding the mechanics of the U.S. immigration enforcement system around these four pillars would help ensure a more humane, more just, and ultimately
more effective enforcement system. But reforming the mechanics of the system alone is insufficient. To realize these goals, policymakers must simultaneously re-
envision the system’s substantive and procedural rules.
Rethinking the substantive rules governing immigration enforcement
Under the current regime, the immigration enforcement system is so incapable of delivering just and humane outcomes that many people of good conscience
reject the very goal of increasing the system’s effectiveness. That is why reforming the mechanics of immigration enforcement alone is insufficient and why it
must also include rethinking the substantive rules. These are the rules that dictate who can be subject to immigration enforcement, what types of violations
could trigger enforcement action, and how to determine the appropriate penalties for such violations. The defects in the current substantive scheme are vast but
fall primarily into four categories: the unnecessarily cruel outcomes; the random and haphazard manner in which enforcement occurs; the misguided
entanglement with criminal justice systems; and the scheme’s hyper-complexity, which has tied the immigration and federal court systems in knots. These
defects can be remedied in large part by enacting the substantive rules proposed below, which would be significantly less complex and, as a result, more
efficient and effective than the current system. In addition, they limit that class of individuals potentially subject to removal, excluding the categories of
noncitizens with the deepest ties to the nation, for whom deportation would be most painful and disruptive. Finally, these measures would ensure that
immigration judges are empowered to evaluate the full circumstances of each case in a streamlined proceeding that is both more efficient and more capable of
delivering just and humane outcomes.
Identifying the defects in the current substantive immigration enforcement regime
It is difficult to overstate the cruelty of the contemporary immigration enforcement system. It is a system where toddlers stand alone in immigration court against
trained government prosecutors. It is a system where long-term lawful permanent residents with children, grandchildren, businesses, and communities that
depend on them can be deported based on a single decades-old offense as minor as simple possession of a small amount of marijuana. It is a system where
immigration judges are, in most cases, prohibited from even considering the impact that deportation would have on children and families. The idea that no one
should face deportation in a system this broken should be intuitive.
A significant component of the system’s cruelty is the randomness with which it operates. There are an estimated 24 million noncitizens living in the United
States—including both LPRs and undocumented immigrants. While the public generally perceives of deportation as a punishment for unlawfully entering the
country, that is but one of more than 200 different removal grounds that exist in current law. As professors Adam Cox and Cristina Rodríguez wrote in The Yale
Law Journal, “Congress’s radical expansion of the grounds of deportation” means that in addition to the millions of undocumented individuals subject to
deportation, more than 4 million, or one-third of all LPRs, are now also deportable at the whim of federal immigration authorities. However, in practice, even with
unprecedented expenditures, the United States can deport only a few hundred thousand individuals per year. With such a large swath of the noncitizen population
potentially subject to deportation, and without any systematic strategy or means to select enforcement targets, individuals enter the immigration enforcement
system largely by happenstance. As a result, for noncitizens and their families, life in the United States is like walking through an open field in a thunderstorm.
Enforcement is so random and unlikely that it rarely serves a deterrent function, yet it is present and severe enough to be a constant source of terror that
operates with the cruelty and unpredictability of a lightning strike.
Beyond its cruelty and haphazard operation, the contemporary immigration enforcement system has been burdened by an unprecedented entanglement with state
criminal justice systems. While deportation proceedings are purportedly civil, the area where removal grounds have expanded most dramatically in recent
decades involves the categories of criminal convictions that can trigger deportation. The large majority of criminal convictions that can now trigger removal
involve petty incidents such as low-level shoplifting, simple possession of marijuana, unlicensed street vending, and turnstile jumping. Long-term LPRs, also
known as green card holders, are most often the subject of such removal charges, and they can face deportation based on such minor incidents even decades
after they occur and even based on changes to immigration law that occurred long after their convictions. The disproportionality in permitting such crimes, which
often do not result in any jail time at all in the U.S. criminal system, to trigger a lawful resident’s lifetime of exile from their family and home in the United States is
self-evident. But disproportionality is only part of the story. Regardless of the severity of the crime, imposing deportation for criminal convictions is akin to
imposing a second punishment. Subjecting noncitizens to such double punishment in removal proceedings, which lack the constitutional protections afforded in
criminal proceedings, offends basic notions of equality and fair play.
Moreover, the entanglement of federal immigration enforcement and state criminal justice systems has undermined the effectiveness and fairness of both
systems. The entanglement has created a rift between immigrant communities and local police that has been detrimental to public safety and has increasingly led
localities and states to refuse to assist in federal immigration enforcement efforts. On the federal side, the entanglement has imported the defects and racial
disparities of the criminal justice system into deportation proceedings. In addition, regardless of one’s view of the merits of such entanglement in theory, relying
on criminal convictions as triggers for removal has proven entirely unworkable in practice. Multiple U.S. Courts of Appeals have recognized that, because all 50
states have their own unique criminal codes, the legal analysis necessary to determine whether a conviction under a particular state criminal statute satisfies a
federal definition of a deportable offense “is overly complex and resource-intensive and often [leads] to litigation and uncertainty.”86 The result is a legal scheme
that is enormously difficult to navigate for courts and litigants alike.
While the criminal-immigration intersection is perhaps the most extreme example, it is by no means the only example of the hyper-complexity of the current
substantive enforcement regime. Removal proceedings begin with a determination of “removability.” With more than 200 different potential removal charges,
many involving the labyrinthian criminal-immigration analysis, this phase of the proceedings alone can devolve into protracted litigation. However, in the
majority of cases—those involving charges of unlawful entry or overstaying a visa—this determination can be relatively straightforward. If an individual is
determined to be “removable,” proceedings advance to a second phase wherein the noncitizen is required to identify if there is any form of “relief from removal”
to which they are entitled. There is a long list of various forms of relief and waivers, including, but not limited to: cancellation of removal for certain permanent
residents, cancellation of removal for certain nonpermanent residents, adjustment of status, asylum, withholding of removal, protection under the Convention
against Torture, special immigrant juvenile status (SIJS), 212(c) relief, registry, 212(i) waivers, 212(h) waivers, U visas, and T visas. Each form of relief has its
own, often complex, eligibility criteria and some also require collateral legal proceedings before federal immigration agencies or state courts. Identifying an
appropriate form of relief, and determining and establishing eligibility for such relief, can thus be a convoluted and complex task that is often impossible to
accomplish while detained and unrepresented. In addition, because there is no graduated penalty scheme—it is deportation or nothing—unlike in virtually every
other arena of litigation, there is no opportunity for negotiated settlements or plea bargaining. As a result, immigration judges must hold trials (referred to in
immigration court as “individual hearings”) and/or issue contested legal decisions in the large majority of cases. The resultant complexity and inefficiency have
been primary factors in creating the million-case backlog that is currently crippling the immigration enforcement system.
Layered on top of these substantive defects is a serious and growing challenge to the legitimacy and objectivity of the immigration courts. Immigration judges
are appointed by and answerable to the attorney general, who also serves as prosecutor, defending deportation orders in federal court. These dual conflicting
roles, and the ultimate presidential control over the immigration “police,” prosecutors, and judges, present a substantial impediment to the independence of the
immigration courts. The problem is long-standing but has grown more profound in recent years. As one immigration judge has explained, the attorney general’s
control over immigration courts “curtail[s] Immigration Judge decisional independence [and] threatens the very foundation upon which the Immigration Court
system is based.” Ultimately, the current system has subjected judges to political and prosecutorial pressures that undermine the fairness of the system.
Collectively, these factors mean that enormous resources are expended on an extraordinarily inefficient enforcement scheme that delivers largely random
results untethered to societal notions of justice and human decency. It is a scheme that has been ineffectual at increasing compliance with immigration laws and
has made the limited legal rights prescribed by Congress unavailable to beneficiaries on a reliable basis.
Envisioning a humane, just, and effective substantive enforcement scheme
In constructing new substantive rules to be employed in enforcement proceedings, it is essential not to lose sight of the fact that, pursuant to Pillars One and Two
of the recommendations above related to the mechanics of enforcement, such proceedings would be a significantly less prominent feature of the nation’s
immigration enforcement system. Many individuals who today would land in removal proceedings would avoid such proceedings altogether because they would
be able to avail themselves of affirmative pathways to status or because their cases would not be sufficient priorities to warrant utilization of the system’s
significantly scaled-back punitive enforcement resources. But inevitably, in some smaller category of cases, punitive enforcement would still be deemed
appropriate. Accordingly, it is critical to redress the cruelty and dysfunction of the current enforcement regime. This could be achieved in large part by
implementing a new two-phase process for immigration enforcement proceedings that is much simpler, much more efficient and easier to navigate for courts and
litigants alike, and that is much more capable of delivering just and humane results.
TO BE CONTINUED...
A street mural includes a depiction of the U.S. and Mexican flags attached.
Introduction and summary
In recent decades, detention and deportation have become the entirety of America’s
immigration enforcement strategy. This will strike many, perhaps even most,
Americans as both intuitive and inevitable. How else is the nation to enforce its
immigration laws? But U.S. Immigration and Customs Enforcement’s (ICE) mass
detention and deportation strategy is, in fact, both a sharp break from historic norms
and neither the only, nor the most effective, way to enforce immigration law. As a
result of ICE’s unprecedented mass deportation agenda, the United States now
spends more on federal immigration enforcement than on all federal criminal law
enforcement combined, and has removed more than twice as many people in the first
two decades of the 21st century as in the entire previous history of the United
States. The brutality and enormous investment in immigration enforcement have
created a well-documented humanitarian disaster that has increasingly driven the
American public to reject ICE’s heavy-handed tactics. However, less well-recognized
are the ways in which that agency’s enforcement-only approach has utterly failed as a
law enforcement strategy.