Issue spotlight: prioritization and data sharing—12-18-20

Immigration news, in context

This is the sixty-first edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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From the BORDER/LINES team, we wish you a safe and joyful holiday season. This will be our last edition of 2020, and we’ll be back in the new year with fresh analysis in what will no doubt be an interesting year for immigration policy.

This week’s edition:

How internal immigration enforcement works is largely dependent on two things: how executives deploy the limited enforcement resources available to them in the form of prioritization schemes that emphasize or deemphasize the populations targeted for detention and removal proceedings, and the local and state data available to them to assist in this enforcement. We take a look at the history of this decision-making, how it changed under both Obama and Trump, and what may happen in the future.

Legal background

It’s long been understood that the current immigration statutory framework bestows the executive with broad enforcement discretion in various ways. The most obvious are the forms of relief and agency decision-making that are explicitly laid out in law, for example the ability of immigration judges to issue cancellation of removal and adjust the status of previously undocumented individuals, or other immigration officials to parole people into the country. There are processes in place for federal officials to decide whether or not to exercise this discretion, and their right to do so is generally uncontested given that it is codified.

Then there is the discretion that can be introduced by interpreting the law as written, by layering the regulatory scheme on top where statutes seem inconclusive or ambiguous, teasing out additional authorities. For example, the law makes mention of noncitizens who “shall be detained” pending a removal proceeding, but the executive ultimately has a good amount of leeway in deciding whether this is necessary or not, and can apply standards across the board for how to interpret these directives from Congress. The right to step in and regulate via agency decision-making where Congress has not been explicit is generally considered unreviewable by the courts under what’s known as the Chevron deference after a landmark 1984 Supreme Court case. The courts can, of course, step in if they consider that the agencies are not following an adequate process to reach these determinations, or are otherwise violating the law.

Finally, there is the discretion inherent in the ability to simply not apply enforcement consequences to certain groups of people (or theoretically to everyone), which is where things get a bit more legally complex. Deferred action programs like DACA use this type of authority, which is just that: a discretionary deferral of the enforcement action that is otherwise statutorily mandated. This discretion exists throughout both the criminal and civil systems, with immigration enforcement being the latter. In the former, prosecutors are of course always making decisions about who and who not to charge. A policy-level deferral program is just taking this individual decision-making and setting categories for across-the-board exercise of discretion.

Writ large, a degree of this discretionary action is considered necessary and appropriate; as the Supreme Court majority wrote in the 2012 decision of Arizona v. United States, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials... Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” The question is whether an expansive enough interpretation violates the executive’s responsibility to enforce the laws. So far this argument has failed with the DACA litigation, and didn’t necessarily work with DAPA, whose defeat was more along the lines that the law didn’t allow benefits like work authorization to be granted to people unlawfully present, not so much that the government had to put them in removal.

A prioritization hierarchy like we will discuss below doesn’t even go as far as a formal program like DACA, but simply states that departmental resources will be spent on the detention of certain people and not others. This is a 

As far as data-sharing, the Department of Homeland Security has taken the tack that existing law (specifically, 8 U.S.C. § 1722(a)(2) and (5)) establishing an interoperable data system between the FBI and DHS de facto creates a pipeline of local criminal justice data from states and municipalities to its immigration enforcement components for use in their operations. What can change is the extent to which the department will use this data pipeline, and the extent to which localities will cooperate with these activities beyond what they’re obligated to do.

Courts have ruled that compliance with detainers seeking release information and that local officials hold people past their standard release dates, which DHS is permitted to issue, is voluntary, and in fact some localities have gotten in legal trouble for honoring them. Other voluntary assistance includes the 287(g) program, which permits local law enforcement officials to essentially become deputized as federal immigration enforcement, and which currently exists only for detention officials like corrections officers and sheriff’s offices.

How we got here

One of the reasons we started BORDER/LINES was to remind readers that while the Trump administration’s immigration policies may be unprecedented, these policies also rely on decades of bipartisan legislation and rule-making intended to limit immigration to the U.S. Trump is not the first president to detain migrant families; he is not the first to conduct mass workplace raids, nor is he the first to preside over tens of thousands of deportations. The mechanisms that allow the Trump administration to essentially break immigration policy as we know it were put into place under previous presidents. Trump is taking the deportation machine to its logical extreme, but the machine existed long before he was in office.

At the same time, there’s no denying that the Trump administration has radically altered nearly every aspect of our immigration system, from the courts to the border. Practically on day one of Trump’s presidency, ICE shifted its enforcement priorities. Officers were now required to target “all removable aliens encountered in the course of their duties.” According to the Migration Policy Institute, that was the first time the federal government issued such broad priorities for the arrest and deportation of immigrants—but MPI also notes that during the early years of the Obama administration, “unwritten policies … allowed ICE officers just as broad discretion in their enforcement activities.” It wasn’t until 2014 that the Obama administration officially limited the scope of its enforcement priorities, a shift marked by Obama’s controversial “felons not families” speech.

The big thing to emphasize here is that enforcement priorities are not static. Presidential administrations choose which types of people—and as a result, how many people—to target for arrest and deportation, and different presidents have emphasized different types of enforcement. Under George W. Bush, for example, ICE regularly conducted large-scale workplace raids. These raids netted hundreds of arrests at a single site, and, given their size and publicity, also had a chilling effect on undocumented populations across the country. 

The Bush administration also expanded the scope of 287(g), a partnership between federal immigration authorities and local law enforcement. Under 287(g), municipal police departments and sheriff’s offices received training from ICE—and, before 2003, its precursor, the Immigration and Naturalization Service—and were deputized to enforce immigration law. There were several 287(g) models: a jail enforcement model, in which everyone booked into a local jail would be asked about their immigration status; a task force model, in which officers would ask people they encounter during non-immigration related operations about their status; and the hybrid model, a mix of both. (The task force model was eventually discontinued under the Obama administration after complaints over civil rights abuses and racial profiling, which shouldn’t come as a surprise.)  Bush also created Secure Communities, a program that runs the biometric data of anyone booked into a local jail through federal immigration and criminal databases. Like 287(g), the goal was to identify, arrest, and eventually deport people with criminal records.

However, the Bush administration also made choices about who not to deport. As Adam Serwer wrote for Mother Jones in 2012, Bush immigration advisers recommended letting unauthorized immigrants stay in the country when “compelling reasons exist,” or for “sympathetic humanitarian factors.” 

The Obama administration scrapped Secure Communities in 2014, replacing it with the Priority Enforcement Program (PEP). PEP implemented new deportation priorities: those who were deemed “national security threats,” gang members, convicted of state or local felonies or aggravated felonies, or apprehended at the border were top priority for deportation. Non-citizens who had been convicted of “serious” misdemeanors, three or more misdemeanors of any kind, entered the U.S. without authorization after July 1, 2014, were determined to “have significantly abused the visa or visa waiver programs'' comprised “priority 2.” Priority three was anyone who was issued deportation orders after January 1, 2014.

Under PEP, ICE modified its detainer forms, documents asking local jails or prisons to hold non-citizens for an additional 48 hours after they’re supposed to be released, so they can be picked up by immigration enforcement. There were several modifications made to the detainer process, all with the intention of making detainers less broad in the wake of legal challenges in which immigrants claimed that detainers violated their civil rights. A 2016 report by TRAC found that ICE’s use of detainers stabilized after PEP’s implementation. Although PEP was intended to reflect Obama’s “felons, not families” promise and uphold the new enforcement priorities, immigration advocates and civil rights groups still contended that its scope was too broad.

Put simply, the Bush and Obama administrations both attempted—or at least spoke about their desire—to deport “criminal” immigrants while letting those who were peacefully living in the country stay, albeit without status. It’s worth noting that these aren’t necessarily binary categories. An immigrant may have committed a crime and still have a compelling reason for wanting to stay in the United States. Indeed, immigrants’ rights activists have long opposed the “good immigrant/bad immigrant” dichotomy. Moreover, being charged with a crime—which is what 287(g) and Secure Communities screened for—doesn’t necessarily mean someone committed that crime. And even if they did, the types of crimes that usually end up leading to deportation proceedings are relatively minor.

Decisions about which groups of immigrants to target for deportation aren’t limited to recent history. The first significant pieces of immigration law in U.S. history, the Page Act and the subsequent Chinese Exclusion Act, specifically limited immigration from China. These laws were ostensibly meant to reduce the sex trade and to protect American workers, respectively, but in practice they served to create a racialized immigration system that would persist for decades to come. Immigration laws in the 1920s similarly limited who could come to the U.S. by imposing a national-origins based quota system for the first time. Like the Chinese exclusion laws, the 1924 Immigration Act was framed as a way of protecting American workers and the national character, but in reality was designed to limit the immigration of “undesirable” immigrants from southern and Eastern Europe, who were thought to be unassimilable. At the height of the Cold War, migrants from Communist countries such as Cuba were largely granted asylum, while those fleeing countries allied with the United States were turned away or derided as economic migrants.

These were decisions about who to accept, but in subsequent decades, the federal government increasingly made decisions about who to remove from the country. During World War II, the government attempted to denaturalize some German-Americans, for example. In the 1950s, the INS carried out Operation Wetback, a mass deportation of Mexican immigrants who had migrated to the United States in earlier decades, in many cases to legally work in the country to alleviate the war-era labor shortage through the Bracero program. Although Operation Wetback was supposed to target immigrants without status, many Mexican-American U.S. citizens were deported through it as well.

Immigration enforcement and policymaking in the late nineteenth and early to mid-twentieth century had a clear racial bent. Today, immigration enforcement is race-neutral on the surface but continues to fall along racial lines in practice, especially when it relies on cooperation with the criminal punishment system. 

Where we are and what’s next

One of the first things the Trump administration did on immigration was to blow up this balance, reinstating Secure Communities and eliminating the prioritization categories, making everyone without immigration status open to enforcement. “Collateral” arrests, i.e. those that target people who were coincidentally encountered in the field by immigration agents out to detain someone else, were also brought back, as were workplace raids. Essentially, Trump and Stephen Miller wanted to push the enforcement apparatus to its maximum capacity and eliminate discretion as much as possible.

This shift took place not only among the enforcement agencies but the adjudicative ones, with USCIS officials and immigration judges being stripped of much of their authority to decide which cases merited favorable exercises of discretion or not. Some of these changes were relatively tacit, like policy guidances “clarifying” evidentiary requirements. Others were very explicit, like moves to limit judges’ ability to close cases or find in favor of asylum applicants fleeing domestic and gang violence, for example.

A large part of the reason that the administration was ultimately not able to arrest and deport as many people as it wanted was that it didn’t have the physical capability and manpower, and many of the localities that had been willing to play ball under prior administrations shut down voluntary cooperation, often due to local pressure. Ironically, Trump’s anti-immigration rhetoric seems to have hampered his ability to actually carry out the anti-immigrant mission.

That said, almost immediately upon his inauguration, lawyers and journalists started noticing that the demographics of people put into removal proceedings was changing, starting to skew heavily towards longtime residents with minor or no criminal records. While the deprioritization was supposed to cause everyone to be weighted equally, in practice these formerly low-priority undocumented immigrants suddenly became highest-priority, for the simple reason that they were easiest to detain. Many of them had been checking in regularly with ICE, paying taxes, updating their home addresses. They were easy to find and could be arrested without much trouble. In their attempts to inflate arrests numbers, ICE agents emphasized this category of low-hanging fruit.

The reinstatement of Secure Communities also meant that people were being put on Homeland Security’s radar after mild contact with the criminal justice system in a way that wouldn’t necessarily have been standard before. Arrests for banal reasons like driving without a license suddenly carried renewed danger, as the information would be forwarded with no priority category limitations.

A next administration could relatively easily turn back the clock, resetting some type of preference scheme for immigration enforcement that emphasized recent entrants or people with certain types of criminal convictions, and limit data-sharing accordingly. From a logistical standpoint, this would help the system as a whole, as it would allow the already-immense immigration court backlog to be cleared out without piling cases on. In the courts themselves, it could allow judges to exercise their judicial independence again, closing cases when warranted and granted relief when warranted. Asylum officers in particular could also be given wider latitude to determine if and when an applicant deserved protections.

A new president in theory could also release almost everyone from immigration detention, a system that is supposed to be non-punitive but ends up being largely inhumane. Even mandatory detention allows for release on humanitarian grounds, an easy argument to make as the coronavirus pandemic continues ravaging detention centers, as it has for much of this year.