Worksite enforcement has since increased drastically during the Trump administration. As of May , the number of enforcement investigations was already double that of last year.
Most notably, HSI has concentrated its efforts on MS , a Salvadoran gang that is associated with targeting and recruiting in immigrant communities. HSI reports it made over 4, gang-related arrests in FY, including criminal arrests related to MS specifically. Like any government agency, ICE can be abolished, but it is unlikely that it will be completely eliminated any time soon. Each administration sets its priorities for enforcement, emphasizing various functions over others, consistent with existing law.
A reorganized ICE may see its responsibilities limited, clarified, or handed off to another agency, but its core enforcement functions are likely to remain. The National Immigration Forum would like to thank Sydney Cerza, policy intern, for her extensive contributions to this fact sheet. What is ICE?
How big is ICE? What are the sub-agencies within ICE? HSI has broad legal authority to enforce a diverse array of federal statutes, allowing the agency to investigate crimes such as human smuggling and trafficking, transnational gang activity, and financial crimes.
OPR provides oversight of DHS functions, including investigating allegations of employee misconduct and oversight of ICE detention functions, including ensuring that facilities meet agency detention standards.
Second, aliens may claim political asylum if they fear persecution or torture in the country of origin. The immigrants then stand up, and a field operations agent reading from a script asks them individually if they have understood exactly what they were told. Each immigrant then puts his or her fingerprint on the appropriate document.
These proceedings are normally conducted by DHS on paper, without an interview or evidentiary hearing. Reinstatement of Earlier Order of Removal. Certain immigration-related offenses carry criminal penalties under federal law see Figure Unauthorized immigrants also may be subject to felony charges associated with smuggling, visa fraud, and other forms of document and identity fraud.
Unauthorized immigrants subject to criminal prosecution are automatically placed in formal removal proceedings 20 at the conclusion of their criminal sentences, 21 and they are then transferred from USMS detention to DHS detention and remain in DHS detention until their deportation. Aliens who have been convicted of an aggravated felony are subject to administrative removal regardless of when the offense was committed and the sentence that was imposed. They also are subject to a longer bar on future admission to the United States 20 years , and in most cases, they are permanently ineligible for U.
The committee was told in El Paso that the completion of much of the case processing work during the criminal prosecution phase can create cost savings for immigration courts. Misdemeanor cases may be heard and disposed of by federal magistrate judges. Felony cases, in which defendants are entitled to appointed counsel, must be tried by federal district court judges, though they may be assisted by magistrate judges, who conduct various pretrial proceedings. Immigrants who are convicted of federal criminal offenses can appeal their convictions to a circuit court of appeals and then, possibly, to the U.
Supreme Court. Because of the costs of detention and lawyers, limited prison space, and the emphasis on returning immigrants to their home countries, a lower priority has traditionally been assigned to the prosecution of immigration-related crimes except in cases involving smuggling or drug operations or other unusual factors.
Recently, however, the priority of such cases has been raised: see Figure In , approximately 85, immigration-related criminal cases were processed in federal magistrate or district courts, an increase from about 25, in Immigration-related cases represented 52 percent of the magistrate court caseload and 29 percent of the district court caseload in , increasing from 21 percent and 15 percent, respectively, in These changes, in large part, coincide with the launch of Operation Streamline by the U.
Under this program, which has since expanded to eight Border Patrol sectors in four federal court districts, USAO files criminal charges against as many immigrants as possible who cross the Southwest border illegally.
NOTE: Bars show the total number of immigration cases handled by magistrate judges and district courts, and lines show immigration cases as a percentage of the total cases handled by magistrate judges and district courts. Modes of border crossing and volumes of apprehension vary significantly by location, as does infrastructure capacity: see Figure Long-term trends in apprehensions are down significantly in the El Paso, San Diego, and Tucson sectors.
Over the past 10 years, however, Tucson has seen a far higher volume of apprehensions than the other sectors. The operation of the immigration enforcement system and the level of local participation. The implementation of Operation Streamline varies considerably across federal court districts—and it has not been implemented at all in the federal court district that includes San Diego. Figures a, b, and c show the very different levels and trends in immigration misdemeanors and felonies in the El Paso, San Diego, and Tucson sectors.
In Tucson, in contrast, the number of immigration misdemeanors has risen steadily between and , from around 5, to around 25, In San Diego, meanwhile, the number of immigration misdemeanors has remained consistently negligible. FIGURE a Immigration-related misdemeanors and felonies, El Paso sector, ; b immigration-related misdemeanors and felonies, San Diego sector, ; c Immigration-related misdemeanors and felonies, Tucson sector, However, the three sectors also share certain characteristics.
The sectors are also all characterized by elements of bureaucratic discretion, institutional constraints and bottlenecks, organizational adaptation, and policy communication and coordination. The committee discovered many of these differences and similarities during its site visits to the El Paso, San Diego, and Tucson sectors, as discussed below. In general, Border Patrol agents have considerable discretion over how Operation Streamline is implemented, and their criteria for enforcement may change frequently.
For example, enforcement may be geographically targeted, so that all apprehended aliens along a particular segment of the border are sent into the program.
Juveniles, parents traveling with minor children, persons with certain health conditions, and others who require prompt return to their country of origin are usually not subjected to criminal prosecution under Operation Streamline see Lydgate, The dynamics of felony prosecutions, however, are a bit more complex. Although only USAO can prosecute immigration felonies along the Southwest border, a significant number of those cases are initiated by DHS agents who put together the charging documents and do much of the preliminary paperwork.
Although USAO has the authority to decline those cases, the committee was told that political pressures and expectations can make it difficult for USAO to do so without compelling justification. In addition, one of the most important reasons that USAO in Tucson has been able to prosecute as many felonies as it has is that it was given the resources to enhance its prosecution capacity by hiring additional attor-.
USMS, which does not have discretion over the volume or composition of its workload, is one of the DOJ components that has been especially pressured by the surge in prosecutions.
Detention is costly from a budget perspective, and detention facilities are almost always at or near capacity; the committee was also informed that the health care costs of detainees are of significant concern. An equally great if not greater challenge for USMS has to do with the personnel required to transport prisoners to and from the federal courthouse.
Not only can detention facilities be located several hours away, but the physical infrastructure of the courthouse can also make it challenging for USMS to process detainees. Felony prosecutions, which can require multiple trips for prisoners between the detention facility and the courthouse, are more burdensome for USMS than misdemeanor prosecutions under Operation Streamline, which entail fewer procedural steps. Even though USMS is under considerable stress and strain, the situation does not yet seem to have become unmanageable.
The constraints and bottlenecks faced by the various actors in the immigration enforcement system were taken into account in negotiating that number. Although some would like to increase the number of program prosecutions to a day, many others believe that moving from 70 to cases would destabilize the system.
Continued increases in the number of felony prosecutions may prove correspondingly burdensome for USMS. According to local officials, about two-thirds of apprehended immigrants were prosecuted in fiscal USMS in El Paso faces many of the same challenges as USMS in Tucson, and, as in Tucson, cooperative relationships among judges and between attorneys play an important role in helping the system to operate smoothly.
It was suggested that the relatively low level of apprehensions in the El Paso sector see Figure help account for many of these differences. And perhaps even more so than in Tucson, the resources and prosecution capacity of USAO in El Paso have managed to keep pace with the volume of cases that it has committed to pursue. Now, only repeat offenders with criminal backgrounds are charged with felonies, the overwhelming majority of whom plead guilty.
The resource constraint that is cited most often is the number of beds available to hold undocumented immigrants for criminal prosecution. Because of high real estate prices, the cost of incarceration is said to be significantly higher in San Diego than in other districts. It was suggested to the committee that the number of available beds would have to be doubled in order to accommodate all of the cases that could be prosecuted under the current set of criteria used by USAO.
As a result of this constraint, the number of prosecutions is dictated by. There are differing views as to why the San Diego sector has not participated in Operation Streamline. Some people told the committee that federal authorities, aware that resource constraints would prevent the program from being fully implemented, have chosen not to impose an unworkable program. For example, in recognition of the importance that CBP has placed on document fraud in particular, the fraudulent use of U.
As indicated in the discussion above, bureaucratic discretion, institutional constraints and bottlenecks, organizational adaptation, and policy communication and coordination are important features of Operation Streamline and immigration-related criminal prosecutions. However, these features also loom large in other parts of the immigration enforcement system, potentially complicating efforts to effectively estimate budget needs for immigration enforcement.
Given the decentralized federal structure in which immigration enforcement operates and the nature of the tasks performed, there are many points of discretionary decision making within the enforcement system. As a result, the system can appear to be less coherent and consistent in implementation than it is in design. In , the assistant secretary of DHS for ICE, issued three memoranda that sought to clarify the role of ICE agents, investigators, and attorneys in exercising prosecutorial discretion on a case-by-case basis with regard to the apprehension, detention, and removal of aliens Morton, a, b, c.
The guidelines in these memoranda encourage deportation efforts to remain focused on high-priority cases and to take account of various mitigating factors. However, the memoranda may not actually materially diminish or constrain the discretion of ICE agents at the local level.
Similarly, Border Patrol and CPB agents have considerable discretion in granting voluntary return with their decisions reviewed by second-line supervisors and, more generally, in determining how apprehended immigrants will be processed. The nature of this discretionary decision making is nicely illustrated by a laminated card that is handed out to Border Patrol agents in the Tucson sector.
Discretionary decision making by DHS agents takes place in, and can be influenced by, a framework of incentives and performance measures. The committee was told in Tucson that, all else being equal, Border Patrol agents may find voluntary returns to be relatively more appealing than other options. Nevertheless, DHS has made a conscious and concerted effort across sectors to reduce the relative frequency of voluntary returns.
In Tucson, the committee was told that CBP has issued a directive to grant fewer voluntary returns; in San Diego, that one metric of success for CBP is the ratio of expedited removals to voluntary returns, with a strong preference for the former; and in El Paso, that officers need to justify their use of voluntary returns.
The committee was also told in El Paso that ICE counsel are rewarded according to the number of formal removals that they affect, and the dangerousness of those removed. Immigration judges also have substantial authority and discretion over how removal hearings are conducted and the outcomes of those hearings. In El Paso, the committee was told that the performance of immigration judges is measured by professionalism i.
Nevertheless, in Tucson the decisions of immigration judges on such issues as cancellation of removal were criticized for being highly variable, and the committee also heard criticisms about the bonding process being highly discretionary and inconsistent. In August , DHS announced that it would form an interagency working group with DOJ to review the cases of about , people currently in deportation proceedings.
The working group will initiate a similar case-by-case review for new cases placed in removal proceedings, and it will also issue guidance on exercising prosecutorial. Although this policy initiative is based on similar principles of prosecutorial discretion outlined in the ICE memoranda discussed above, it is broader in jurisdictional scope, going beyond ICE.
It also has a retrospective dimension that is more than just exhortatory and may systematically affect the ways in which front-line agents exercise discretion.
Much will depend on how the policy is implemented and how it informs and influences the choices made by agents and officials across the various sectors. Although DOJ is not responsible for the detention costs of aliens who are brought before immigration judges, it is nevertheless affected by the availability of DHS detention bed space because it can affect the volume of cases heard by immigration judges. In El Paso, for example, DHS detention capacity has been greatly expanded, but there has not been a corresponding increase in resources for immigration courts.
Because of the availability of detention space in El Paso, immigration judges are hearing the cases of detainees who have been brought in from other parts of the country, including from California and New York. Referrals from the Secure Communities Program and local law enforcement have also been growing rapidly, which has resulted in higher workloads and growing backlogs for immigration judges. In El Paso, the committee was told that an initial appearance before an immigration judge can take more than 30 days, cases are taking longer to resolve, and that there is a growing discrepancy between the time to resolution of cases in the detained and nondetained dockets: detained offenders are seeing their cases resolved in months while nondetained cases are taking years.
In El Paso and Tucson, asylum cases were noted to be especially difficult and time consuming. Immigration adjudications may be affected by case processing constraints in other agencies. In San Diego, for example, the committee was told that immigration judges cannot act until DHS has taken fingerprints and done background checks, which can take weeks or months.
Similarly, the committee was told in Tucson that the division of the bonding process among CBP, ICE, and the immigration courts may produce gaps in needed information and that, more generally, the information systems and technology that DHS has in place in its detention facilities may not always be adequate for processing cases expeditiously.
With regard to interior enforcement i. El Paso and San Diego, for example, have chosen not to seek g agreements because the federal government does not reimburse for costs, and local officials instead find it more cost-effective to allow ICE agents to have access to jails as they do under the Secure Communities Program El Paso and San Diego Site Visits.
However, the downside of not participating in programs like g is that in rural areas away from the border, federal agents may not be available to pick up apprehended immigrants, who are then often released.
There is considerable potential for institutional adaptation and innovation in the face of resource constraints and other bottlenecks. It should also be noted, however, that these organizational responses can have sometimes adverse administrative and legal implications for immigrants being processed by the enforcement system.
There are about 30 quick court cases a day, and they tend to be relatively uncomplicated. Immigration judges receive charging documents for newly apprehended immigrants in the morning and hold hearings in the afternoon; the immigrants are advised of their rights en masse and then come to immigration court two at a time.
Getting the paperwork ready for these cases is a very labor- intensive and time-sensitive process, and it requires a very close working relationship with the Border Patrol which perceives quick court as a supplement to Operation Streamline. Judges can determine the time allotted for trials and have the discretion to set the limit, process, and criteria for quick courts.
Aside from quick courts, some judges take the initiative to provide detainees with a printed list of the things that they need to bring with them the next time they come to court. Failure on the part of the detainees to provide this information can delay the hearing process and extend the time spent in detention; immigration attorneys claim to see a difference in the court calendars of immigration judges who do and do not use these forms. The committee was also told about a more systematic adaptation, known as the Institutional Hearing Program, which enables DHS to save.
In order to minimize DHS detention costs and unnecessary restrictions on liberty, immigration judges may also order individuals who are removable to participate in an electronic monitoring program or some other alternative-to-detention program while awaiting a final adjudication. Under such programs, ICE uses technology electronic monitoring and case managers to track aliens in removal proceedings. As many as 94 percent of the people in alternative-to-detention programs appear at their removal proceedings, and the cost of monitoring aliens in these programs is about one-fourth the cost of traditional detention U.
The net result of these staffing shifts was that ICE dramatically shrunk in size. The overall number of ICE employees dropped to 16, in December of , less than half of its total of 39, the previous September. See DHS organizational chart. In another area, referrals for prosecutions by all immigration criminal investigators jumped in December to 3,, an all time high.
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