Enforcement

The enforcement of immigration laws is a complex and hotly-debated topic. Learn more about the costs of immigration enforcement and the ways in which the U.S. can enforce our immigration laws humanely and in a manner that ensures due process.

The Myth of "Self-Deportation"

How Behavioral Economics Reveals the Fallacies behind “Attrition through Enforcement” By Alexandra Filindra, Ph.D. The concept of “self-deportation” rests on a deceptively simple premise. According to its supporters, if the federal government invests more in enforcing immigration laws, and if states and localities take on additional immigration control responsibilities, the costs and risks of staying in the United States will increase substantially for undocumented immigrants. Faced with a high risk of being caught and imprisoned, “rational” undocumented residents will “give up and deport themselves” returning to their home countries rather than remain in the U.S. However, preliminary evidence from studies conducted in states where such enforcement laws have been enacted shows that immigration restrictionists have gotten it wrong. Immigrant population in these states has remained in place and the predicted exodus never materialized. Economic factors, rather than enforcement, have played a far more important role in reducing the rate of undocumented entry into the United States. This report uses important research findings from cognitive psychology and behavioral economics to explain why restrictionists have gotten it wrong and people do not behave in the “rational” way that restrictionists expect them to.

Prosecutorial Discretion in Context: How Discretion is Exercised Throughout Our Immigration System

Discretion takes many forms throughout the immigration enforcement process. Every removal of a noncitizen from the United States, for example, reflects a series of complex choices which reflect discretion. To understand the role of discretion fully, however, we need to examine the entire range of opportunities to exercise discretion in immigration enforcement and the cast of decision makers who make discretionary decisions, such as members of Congress who enact laws, Department of Homeland Security (DHS) officers who make arrests, Immigration and Customs Enforcement (ICE) trial attorneys who represent the government in removal proceedings, and immigration judges who preside over those proceedings. This Special Report traces the role of discretion throughout the immigration enforcement process. Understanding these roles is important not only in individual cases, but also in how policymakers write regulations and draft laws. Knowing how the enforcement system anticipates and incorporates discretion is key to understanding how our immigration laws work. Listen to Hiroshi Motomura discuss this report.

Proportionality in Immigration Law: Does the Punishment Fit the Crime in Immigration Court?

Proportionality is the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense. The principle is ancient and nearly uncontestable, and its operation pursuant to diverse constitutional provisions is well-established in numerous areas of criminal and civil law, in the United States and abroad. Immigration law, however, which is formally termed “civil” but is functionally quasi-criminal, has not previously been subject to judicial or administrative review for conformity to constitutional proportionality principles. Yet it is undisputed that the Due Process Clause—one of the sources of the proportionality principle in American law—applies to immigration proceedings. This Perpsectives suggests that understanding the use of proportionality in criminal and civil law offers immigration practitioners a new way to challenge the status quo, particularly in cases where the underlying basis for the removal order and the resulting consequences of removal are so disparate. Applying established proportionality principles, attorneys and policymakers can both argue for a more sane and balanced approach to immigration enforcement, one that measures the relative nature of an immigration offense against the severity of the current removal system, while securing judicial review of individual removal orders for consistency with constitutional proportionality requirements. Listen to Michael Wishnie discuss this paper:

Discrediting “Self Deportation” as Immigration Policy

By Michele Waslin The day that Alabama’s draconian anti-immigrant law went into effect in October of 2011, thousands of school children were reported absent from schools across the state, and workers did not show up for their jobs. In recent months, many immigrants living in the state have confined themselves to their homes, fearful of driving their kids to school, getting groceries, or seeking medical attention. The Alabama State Representative behind the law, Mickey Hammon, explicitly stated that this was the law’s intended effect. He said that the law, HB56, “attacks every aspect of an illegal alien’s life” and “is designed to make it difficult for them to live here so they will deport themselves.” Alabama provides a sterling example of the devastating impact of a strategic and systematic plan being promoted by anti-immigrant groups and lawmakers who have jumped on the bandwagon. The plan is called “attrition through enforcement” (sometimes called “self deportation”) and the groups behind it have created a web of federal and state legislative proposals that seek to reduce illegal immigration by making it difficult, if not impossible, for unauthorized immigrants to live in American society. While individual proposals may appear to be relatively benign, they are part of a larger systematic plan that undermines basic human rights, devastates local economies, and places unnecessary burdens on U.S. citizens and lawful immigrants.

Criminal Alien Program (CAP)

Co-Plaintiffs American Immigration Council and AILA’s Connecticut chapter initially sought records related to the Criminal Alien Program (CAP) through a FOIA request to ICE in December 2011. When ICE refused to release responsive records, Plaintiffs filed suit under FOIA to compel their disclosure.

DOJ Report Slams Sherriff Joe Arpaio and DHS Restricts 287(g) and Secure Communities Programs

Washington D.C. - After a three-year investigation into the abusive practices of Sherriff Joe Arpaio’s Maricopa County Sherriff’s Office (MCSO), the Department of Justice (DOJ) announced today that it had found a pattern and practice of civil rights abuses, including extreme cases of racial profiling.

DOJ Responds Forcefully to Civil Rights Disaster in Alabama, What Will DHS Do?

Washington D.C. – This week, the Department of Justice (DOJ) announced that it was filing suit in South Carolina to block Act No. 69 (formerly SB 20), South Carolina’s new anti-immigrant law—modeled on Arizona’s SB1070. DOJ argues—like it did in Utah and Alabama—that the law is unconstitutional and interferes with the federal government’s ability to set and enforce immigration policy and is likely to result in civil rights violations.

Prosecutorial Discretion Guidelines May Provide Temporary Relief to Gay and Lesbian Bi-National Couples

Washington D.C. –Yesterday, the Department of Homeland Security (DHS) announced that they are taking concrete steps to implement existing guidance on prosecutorial discretion across the agency in an attempt to provide relief for low priority immigration cases. DHS also announced the creation of a committee which will review 300,000 immigration cases currently in removal proceedings to determine which cases are low priority and can be administratively closed.