To immigrant’s-rights advocates, President Obama is the “Deporter-in-Chief,” on track to deport more people than any president in U.S. history. To immigration enforcement hawks, he is soft on illegal migrants, using his executive authority to make the interior of the country a haven for certain classes of undocumented immigrants. So which is it? Who is right?
According to a new report by the nonpartisan Migration Policy Institute that examines deportation trends in the U.S. over the past two decades, both sides are.
“There’s no question that there’s been a record number of formal removals, no question that enforcement has not tailed off,” Marc Rosenblum, deputy director of MPI’s U.S. Immigration Policy Program, told The Daily Beast ahead of the report’s Tuesday release. “But [Obama] is exercising a lot of discretion in the interior, a lot of people are coming across ICE’s radar and not being put through removal.”
It is true that deportations from the U.S. have risen significantly over the course of Obama’s presidency. But the MPI report notes that, as the president has not yet managed to pass immigration legislation, his record is largely rooted in policies that were enacted long before his election.
Deportation numbers have actually been climbing since 1996. That year saw the passage of the Illegal Immigration Reform and Responsibility Act (IIRIRA), which gave immigration officials more authority to carry out nonjudicial deportations. Prior to IIRIRA’s passage, the majority of deportation cases were processed by immigration courts. Now, they are largely handled by Immigration and Customs Enforcement (ICE) and Border Patrol agents.
Total formal removals, or deportations, increased from 51,000 in 1995 to about 419,000 in 2012. The MPI report attributes 84 percent of that growth to the increased use of nonjudicial removals. About 12 percent of all removals in 1995 were nonjudicial, compared to nearly 75 percent of removals in 2012. Congress has been funnelling more and more money to U.S. Customs and Border Protection and Immigration and Customs Enforcement regularly since 9/11. Between 2002 and 2013, both ICE’s and CBP’s budgets grew about 300 percent.
Perhaps the best way to understand how Obama can be simultaneously perceived as tough and soft on immigration enforcement is to consider that, under his administration, not all unauthorized immigrants are treated equal.
As far as enforcement is concerned, the Southwest border and the rest of the country might as well have different immigration laws. At the same time that Border Patrol has been ramping up the consequences of unauthorized crossings, ICE agents have been ordered to use so-called prosecutorial discretion in deporting non-citizens caught away from the border.
The shift from informal returns (quietly sending undocumented immigrants back to their home country on a bus) to formal removals that has contributed significantly to Obama’s deportation record, actually started in 2005 under the Bush administration to “strengthen deterrence against repeat crossings, disrupt smuggling networks, and raise the cost of illegal entry,” the report notes.
Eighty-three percent of people apprehended at the Southwest border were “returned” in 2005, as opposed to only 21 percent in 2012.
Meanwhile, deportations within the country have become significantly slower and more targeted.
According to the report, as of 2013 all 3,181 of the country’s law enforcement jurisdictions were involved in Secure Communities, a federal program that relies on state and local law enforcement to help identify non-citizens in the criminal justice system. Secure Communities has faced significant backlash from immigration reform advocates as well as police departments across the country, who argue it forces cops to act as ICE agents and hold certain undocumented immigrants longer than necessary while ICE determines whether or not to deport them. However, the data presented by the MPI might suggest that DHS’s enforcement priorities—which emphasize deporting criminals over law-abiding non-residents—combined with the help of programs like Secure Communities, may be responsible for more targeted removals of people with criminal records.
Eighty-five percent of undocumented immigrants identified through Secure Communities last year were not deported. Yet 88 percent of people who were deported via Secure Communities had been convicted of a crime.
Before declaring a victory for the Obama administration for successfully targeting and deporting criminals, however, it’s worth considering what kinds of criminals are being removed.
“Most of the growth of removals consists of people who’ve been convicted of an immigration crime,” Rosenblum said Tuesday at a panel discussion on the report. “About half of all illegal aliens deported since 2009 have either been immigration crimes or non-violent misdemeanors.”
Immigration-related crimes have increased in general thanks to the rise in border prosecutions. In 1997, only 1 percent of people apprehended at the Southwest border were charged with a crime. In 2013, 22 percent were. While immigration crimes jumped from 15 to 63 percent of all federal magistrate court cases between 1997 and 2013, all other non-immigration cases saw a 33 percent drop during that time period.
“Large-scale enforcement has significant effects on immigrant communities,” Rosenblum said, echoing the arguments of many advocates who say that people with mere immigration violations should be removed from ICE’s list of deportation priorities. According to the report, 86 percent of unauthorized immigrants in the U.S. as of January 2011 had been living here for six years or more; 46 percent of unauthorized immigrants have minor children, most of whom are U.S. citizens; and 95 percent of unauthorized immigrants have at least one other family member in the U.S.
“Toughened border enforcement likely has deterred many casual crossers and would-be first-time entrants, but a higher proportion of remaining border crossers may be returning to the United States because their homes and families are here,” the report states, suggesting that some prosecutorial discretion, like those which are applied to potential deportation cases within the country, might be needed at the border as well.
“Yes, prosecutorial discretion is necessary, but we need to be careful with how it is applied on the immediate border,” David Aguilar, former acting commissioner of U.S. Customs and Border Protection and former national chief of the Border Patrol, said at Tuesday’s panel. “The reason is the vast majority of the people we deal with down there are illegally in the country. Ninety-nine percent of the individuals that we apprehend within that 100-mile zone are either immediate crossers or in-transit crossers who’ve just crossed and are moving toward the interior of the country.”
Creating prosecutorial discretions to be used on the border is just one of the potential executive actions that the authors of the MPI report offer. They also suggest redefining enforcement priorities by taking less serious criminals (convicted loiterers, unlicensed drivers, etc.), and people whose only conviction is immigration-related, out of the top-tier enforcement priority alongside murderers and other violent criminals. Other proposals for making improving enforcement include limiting expedited removal procedures and creating a screening process to determine which people apprehended near the border have strong ties to the U.S.
Doris Meissner, director of the MPI U.S. Immigration Policy program, acted as the voice of reason with relation to these potential actions.
“I’d be very surprised if one sees immigration offenses dropped from the definition of serious crimes, because you’d be setting up a system that says, ‘We are going to make the border tougher and tougher, but if you can get across the border and you’re in the interior then you are in a safe place,’” she said. “That is not a system that we—the public, Congress—want to have anymore.”
In fact, she said, she doesn’t expect to see any major executive actions on enforcement any time soon—at least not while there is any semblance of a chance that Congress might move on immigration reform.
Under Obama’s instructions, the DHS is still looking for ways to make enforcement more humane. But as we saw last week when the president received a letter from 22 angry Republican senators in response to vague reports of what the DHS might be considering, it’s pretty clear that any concession is bound to interfere with a congressional compromise.