Immigration Enforcement in the United States

CRS Presentation for

The House Committee on the Judiciary

April 27, 2006

What is Immigration Enforcement? Authority Interior v. Border Select Major Legislation

Immigration Reform and Control Act of 1986 (IRCA; P.L. 99-603); Violent Crime Control and Law Enforcement Act of 1994 (P.L.

103-322); Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA; P.L. 104-208); USA Patriot Act of 2001 (P.L. 107-56); Enhanced Border Control and Visa Reform Act of 2002 (P.L.

107-173); Homeland Security Act of 2002 (P.L. 107-296);  National Intelligence Reform Act of 2004 (P.L. 108-458); and REAL ID Act of 2005 (P.L. 109-13).

Aspects of Immigration Enforcement Removal Detention Alien Smuggling and Trafficking Fraud Investigations Worksite Enforcement Enforcement at Ports of Entry (POEs) Enforcement between POEs

Removal/Deportation

An alien is “removable” if: (1) the alien has not been admitted to the United States and is inadmissible under INA §212; or (2) the alien has been admitted to the United States and is deportable under INA §237

Grounds for Deportation

Inadmissible at time of entry Violate immigration status Certain criminal offenses (aggravated felony,

crime of moral turpitude) Failure to register (if required under law) Document fraud Security risk Public charge within 5 years of entry Unlawful voting

Formal Removal Proceedings (INA Sec. 240) Notice to appear

Detention or release on bond or own recognizance

Master calendar hearing Executive Office of Immigration Review (EOIR),

immigration judge Individual merits hearing Appeals

EOIR, Board of Immigration Appeals (BIA) Judicial review

Reason for Formal Removal: FY1995 and FY2004

50.4%

34.7%

11.4%

2.8% 0.6%

24.9%21.0%

9.7%

42.8%

1.7%

Criminal Not in status Attempted Entry Previosuly removed Other

50,924

FY2004

FY1995

202,842

Source: DHS Office of Immigration Statistics, FY2004 Yearbook of Immigration Statistics, Jan. 2006.

Expedited Removal (ER)

Aliens entering without proper documentation or with willful misrepresentation of facts are inadmissible, and shall be removed without any further hearings. (INA §235)

Under law may be applied to any alien who was not admitted, and cannot prove that they have been present in the U.S. for 2 years.

Aliens subject to ER are subject to mandatory detention

Expedited Removal Has Been Applied to… Aliens at ports of entry (1997)

Aliens arriving by sea (2002)

Aliens within 100 miles of the Southwest land border who cannot show that they have been present for 14 days. (Aug. 2004, fully implemented Sept. 2005)

Aliens within 100 miles of all land borders who cannot show that they have been present for 14 days. (Jan. 2006)

Voluntary Departure

Majority of removals At border, only Mexicans and Canadians Interior, all nationalities

Alien must request At alien’s expense Different requirements for before and after

completion of removal hearing.

Type of Removal: FY1995-FY2004

3.7% 4.2%7.4%

9.9% 10.3% 10%12.4% 13.9%

17.6% 16.4%

1995 1996 1997 1998 1999 2000 2001 2002 2003 20040

500,000

1,000,000

1,500,000

2,000,000

0%

20%

40%

60%

80%

100%

Voluntary Departure

Formal Removals

Percent Formal Removals

Total 1,364,688 1,643,108 1,555,116 1,743,273 1,755,754 1,861,933 1,432,061 1,084,661 1,076,483 1,238,319

Voluntary Departure 1,313,764 1,573,428 1,440,684 1,570,127 1,574,682 1,675,711 1,254,035 934,119 887,115 1,035,477

Formal Removals 50,924 69,680 114,432 173,146 181,072 186,222 178,026 150,542 189,368 202,842

Source: DHS Office of Immigration Statistics, FY2004 Yearbook of Immigration Statistics, Jan. 2006, p. 159.

Absconders

Aliens with final orders of deportation that are unconfirmed to have

left the country Absconder Initiative

Source: CRS presentation of unpublished data from DHS.

331,734

376,003

418,753

465,353

536,644

2001 2002 2003 2004 20050

100,000

200,000

300,000

400,000

500,000

600,000

Number of Alien Absconders: FY2001-FY2005

Selected Removal Issues

Long-term residents Unauthorized alien children Executive Office of Immigration Review

(EOIR)

Detention INA § 236 allows detention of any alien while

awaiting determination of removal The Illegal Immigrant Reform and Immigrant

Responsibility Act of 1996 (IIRIRA, P.L. 104-208) established mandatory detention for certain categories of aliens

If not subject to mandatory detention Release on bond, parole, own recognizance Continued detention

Released aliens can be re-detained at any time

Aliens Subject to Mandatory Detention Criminals Terrorists Expedited removal Final orders of deportation

June 2005, 87% of detainees were mandatory

Daily Detention Population and Funded Bedspace: FY1997-FY2006

11,871

15,447

17,772

19,48520,429

19,922

21,133 21,298

19,718 20,146

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

Fiscal Year

0

5,000

10,000

15,000

20,000

25,000

Daily Population Funded Bedspace

Source: FY1997 through FY2002 CRS presentation of published DHS data. FY2004 through FY2006 CRS presentation of unpublished DHS data.Note: FY2006 is the average daily population in detention through January 30, 2006.

19,702

21,109

19,444 19,44418,500

20,800

Detention Issues

Mandatory detention In FY2005, 60%

nondetained aliens failed to appear

18% of released aliens with receive final orders left country

Unaccompanied

minors Resources

Coordination Effect on CBP and

ICE initiatives

3,121 3,127

3,915

FY2003 FY2004 FY20050

1,000

2,000

3,000

4,000

5,000

Filled

Vacant

416

2,705

285

2,8422,871

1,044

Source: CRS presentation of unpublished data from DHS.

Number of Law Enforcement Positions in Office of Detention and Removal: FY2003-FY2005

Alien Smuggling

INA §274 prohibits and specifies penalties for any person who attempts to bring in an alien at any place other than a POE; knowing or in reckless disregard that an alien is illegally

present transports the alien within the United States; knowing or in reckless disregard that an alien is illegally

present, conceals, harbors or shields the alien; or encourages or induces an alien to come to the United

States, knowing or in reckless disregard that the alien will be illegally present.

Alien Smuggling (continued)

Increasing complexity of smuggling organizations

Collateral crimes and damage Cases include language and humanitarian

issues

Selected Issues Coordination between ICE and CBP Controlled delivery

Human Trafficking

An estimated 14,500 to 17,500 people are trafficked into the United States annually

VTVPA defines a “severe form of trafficking in persons” as sex trafficking in which a commercial sex act is induced by

force, fraud or coercion or in which the person induced to perform such act has not attained 18 years of age,

the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

Human Trafficking (continued) Trafficked aliens are victims

Selected Issues Cooperation of sending countries Information T-visas

Defining Immigration Fraud

Immigration-related document fraud includes the counterfeiting, sale, and/or use of identity documents or "breeder documents" as well as alien registration documents, work authorizations, passports, or visas to circumvent immigration laws.

Benefit fraud includes willful misrepresentation of a material fact to obtain an immigration benefit in the absence of lawful eligibility for that benefit.

Measuring Immigration Fraud Reportedly widespread, but pervasiveness

not known Large-scale black market enterprises of

counterfeit immigration documents and "breeder" documents grew following IRCA of 1986

Reasonable to assume that most of the 11-12 million unauthorized resident aliens are committing document fraud

Investigating Immigration Fraud Facilitators, i.e., those who sell, distribute, or

manufacture counterfeit or altered documents Criminal organizations that broker large-scale

illegal schemes such as sham marriage rings or bogus job offers

Individual immigration benefit applications

Declining Fraud Investigations FY1986 -- There were

256 special agent workyears, completing 11,316 fraud cases.

FY1995 -- There were 181 special agent workyears, completing 6,455 cases.

FY2003 -- There were 145 special agent workyears, completing 1,389 cases

Comparison of Special Agent Workyears and Completed Cases for Selected Years

1986 1995 20030

2

4

6

8

10

12Thousands of Cases

0

50

100

150

200

250

300Total Workyears

Special Agents Completed Cases

Source: CRS analysis of DHS Office of Immigration Statistics PAS data.

Decreasing Fraud Prosecutions Successful prosecutions

of fraud cases declined from 494 convictions in FY1992 to 250 convictions in FY2003.

The number of convictions compared to the number of fraud cases received annually exhibited a similar trend, falling from 9.0% in FY1992 to 4.1% in FY2003.

Total Fraud Convictions and Convictions per Cases Received, FY1992-FY2003

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 20030

100

200

300

400

500

600Thousands

0

5

10

15

20

25

30Percent

Convictions Convictions as % of Cases Received

Source: CRS analysis of DHS Office of Immigration Statistics PAS data.

Fraud: Evolving Issues

Well-documented lack of coordination between USCIS and ICE in the area of fraud and national security investigations.

ICE reportedly will not pursue single cases of benefit fraud.

USCIS had to establish the Office of Fraud Detection and National Security to handle national security and criminal "hits" on aliens and to identify systemic fraud -- duties formerly performed by the INS enforcement arm in ICE.

DHS Inspector General found problems in the USCIS background checks.

Fraud: Concluding Comments Some maintain that going after purveyors who

primarily are providing false identification so that unauthorized aliens can work should not be a top priority given limited enforcement resources.

Others argue that it is critical to investigate the black market in counterfeit documents and benefit fraud because it is especially important to international terrorists, organized crime syndicates, and alien smuggling rings -- all of whom rely on fraudulent documents to minimize detection.

Prohibitions on Unlawful Employment Prohibitions on unlawful employment added

to the INA by IRCA (1986). It is unlawful to hire, to continue to employ, or

to recruit or refer for a fee an alien knowing the alien is not authorized to work.

It is unlawful to hire an individual without verifying employment eligibility by examining documents and completing I-9 forms.

Worksite Enforcement: Policy Changes 1988: Beginning of full enforcement Early and mid-1990s: Periods of

strengthened enforcement Late 1990s: Focus on alien smuggling

and other criminal violations Post Sept. 11, 2001: Focus on critical

infrastructure facilities

Worksite Enforcement Program Performance: FY1999-FY2003

Fiscal YearCriminal Employer

Cases Presentedfor Prosecution

Notices ofIntent to Fine(NIFs) Issued

Fine AmountsCollected

1999 182 443 $3,690,575

2000 109 213 $2,234,181

2001 239 141 $1,599,323

2002 21 73 $509,835

2003 4 16 $212,322

Source: CRS presentation of data from Department of Homeland Security.

Worksite Enforcement: Employer Fines Imposed and CollectedFiscal Year Number of

Final OrdersFine Amounts

Collected

1995 909 N/A

1996 823 N/A

1997 778 N/A

1998 535 N/A

1999 297 $3,690,475

2000 180 $2,248,193

2001 78 $1,705,359

2002 13 $585,224

2003 124 $253,706

2004 0 $118,528

2005 10 $62,232

Source: CRS presentation of data from Department of Homeland Security.

Worksite Enforcement: Policy Issues and Options Resources Employment Eligibility Verification

Process Role of Other Federal Agencies Employer Penalties

Immigration Enforcement at the Border DHS Secretary has the “power and duty to control

and guard the boundaries and borders of the United States against the illegal entry of aliens.” INA §103(a)(5)

Within DHS, Customs and Border Protection (CBP) is the lead federal agency charged with securing our nation’s land borders. At official Ports of Entry (POE) CBP Officers inspect all

individuals attempting to enter the country. Between POE United States Border Patrol (USBP) Agents

patrol the border to apprehend individuals attempting to enter the country illegally.

CBP POEs and Border Patrol Sectors

Source: CBP Performance and Annual Report - Fiscal Year 2004

Enforcement At Ports of Entry There are more than 300 Official land, air,

and sea POE INA §234 authorizes the Secretary to

designate POE INA §235 requires that all aliens presenting

themselves for admission be inspected by an Immigration Officer

INA §287 authorizes Immigration Officers to search, interrogate, and arrest unauthorized aliens

Primary Inspection

When travelers arrive into the United States, they must undergo a primary inspection undertaken by a CBP Officer

The purpose of the inspection is to determine the admissibility of a traveler to the United States

At all POE, certain categories of aliens’ photographs and two index fingerprints are entered into the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program to confirm their identity.

At all POE, all aliens’ information is run through the Interagency Border Inspection System (IBIS)

A decision is made whether to admit the individual or remand them to a secondary inspection

Secondary Inspection

If the CBP Officer during the primary inspection is not satisfied that the individual has a legal right to enter the country, they can require a secondary inspection.

Secondary inspection includes: Extensive questioning; Running the individual’s fingerprints through various

databases, including the FBI National Crime Information Center (NCIC) database; and

Careful Inspection of documentation, sometimes by contacting the Forensic Document Laboratory.

Percentage of Inspector Hours by Activity

0

10

20

30

40

50

60

70

80

FY92 FY93 FY94 FY95 FY96 FY97 FY98 FY99 FY00 FY01 FY02 FY03

Per

cen

t

Primary Inspection Secondary Inspection Enforcement Activities

Source: CRS Analysis of DHS’s PAS Data

Cases Referred to Investigations for Prosecution and Interception of Smuggled Aliens, Narcotics, and Contraband: FY2000-FY2003

Year Cases Referre d InterceptedAliens

InterceptedNarcotics

InterceptedContraband

2000 636 19,857 3,764 N.A.

2001 1,676 31,261 4,892 320

2002 1,782 32,173 3,913 945

2003 1,028 34,473 1,988 1,359

Source: CRS analysis of PAS data.Note: Contraband includes weapons and explosives. Data on contraband not available for FY2000.

Selected Issues at POE

Adequacy of Infrastructure Training of Personnel

One Face at the Border Database Technology and Interoperability US-VISIT Exit Control Western Hemisphere Travel Initiative

What does the USBP Patrol?

Area within reasonable distance of the U.S. border (INA §287a) 1,952 Mile Southwest border 3,000 Mile Northern border (excluding Alaska) Maritime border around the Gulf Coast, Florida

and Puerto Rico Regulations define reasonable distance to be

within 100 miles of the border, at the chief patrol officer’s discretion

Border Patrol Strategy: Prevention Through Deterrence In the early 1990s there was a growing sense that

illegal immigration along the Southwest border was out of control.

The USBP began deploying agents and other resources directly on the border along population centers to deter illegal entry.

Congress authorized and appropriated funding for additional agents and other resources

This had the effect of pushing illegal entry away from populated centers to more remote areas.

0

2,000

4,000

6,000

8,000

10,000

12,000

Border Patrol Agents (includes Pilots)

Source: CRS analysis of unpublished Customs and Border Protection data.

3,07

34,

100

5,06

95,

478 5,

923

6,09

66,

093

6,59

18,

018

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

9,000

FY97 FY98 FY99 FY00 FY01 FY02 FY03 FY04 FY05

Border Patrol Border Enforcement WorkyearsFY1997 through FY2005

Source: CRS analysis of data from DHS’s Performance Analysis System (PAS).

1,19

9,56

0

1,26

3,49

0

1,03

1,66

8

1,32

4,20

2 1,54

9,87

6

1,38

8,03

1 1,53

8,89

5

1,56

0,49

11,

661,

978

1,25

1,48

1

955,

310

915,

300

1,15

8,80

2

1,18

8,97

7

0

200,000

400,000

600,000

800,000

1,000,000

1,200,000

1,400,000

1,600,000

1,800,000

FY92FY93

FY94FY95

FY96FY97

FY98FY99

FY00FY01

FY02FY03

FY04FY05

Border Patrol Apprehensions

Source: CRS analysis of unpublished data from Customs and Border Protection.

Role of State and Local Law Enforcement In general, enforcement of criminal (not civil)

violations of the INA INA §287(g) allows AG to enter into written

agreements with states and localities to allow law enforcement to perform certain immigration functions Training required

Selected Issues of State and Local Immigration Law Enforcement Enhance limited DHS resources Cooling effect Sanctuary cities

Workyears Devoted to Interior Enforcement Activities: FY1992-FY2003

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 20030

500

1,000

1,500

2,000

2,500Workyears

Criminals Employers Frauds Smuggling

EWI/Status Violators Admin/Non-Investigative Misc.

Criminals 433 516.6 550.2 498.6 523.3 611.6 698 810.7 770.1 753.7 751.1 740.2

Employers 249.4 221.1 208.7 210.3 240.3 300 273.2 179.4 129.6 83 90.6 65.6

Frauds 210.4 199.2 216.1 181.4 140.2 146.9 177.7 194.7 180.8 151.3 110.9 146.1

Smuggling 225.3 217.9 220.9 211.1 229.5 266.1 318.7 347.5 347.8 344.3 277.2 278.9

EWI/Status Violators 45.7 52.1 56.5 57.1 68.5 91.6 98.4 100.5 124.3 111.5 115.6 125.8

Admin/Non-Investigative 204.8 239.8 212.9 228.2 345.6 404.5 477.4 437.5 442.4 397.7 398.6 434.9

Misc. 5.5 4.8 3.7 6.7 14 10.9 13.4 10.7 10.7 9.7 62.1 100.6

Total 1,374.1 1,451.4 1,469 1,393.2 1,561.5 1,831.6 2,056.8 2,081 2,005.7 1,851.1 1,806 1,892.1

Source: CRS analysis of data from DHS’ Performance Analysis System (PAS).

Percent of Workyears by Enforcement Activity: FY1992-FY2003

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 20030%

10%

20%

30%

40%

50%Percent

Criminals Employers Frauds Smuggling

EWI/Status Violators Admin/Non-Investigative Misc.

Criminals 31.5% 35.6% 37.5% 35.8% 33.5% 33.4% 33.9% 39% 38.4% 40.7% 41.6% 39.1%

Employers 18.1% 15.2% 14.2% 15.1% 15.4% 16.4% 13.3% 8.6% 6.5% 4.5% 5% 3.5%

Frauds 15.3% 13.7% 14.7% 13% 9% 8% 8.6% 9.4% 9% 8.2% 6.1% 7.7%

Smuggling 16.4% 15% 15% 15.1% 14.7% 14.5% 15.5% 16.7% 17.3% 18.6% 15.3% 14.7%

EWI/Status Violators 3.3% 3.6% 3.8% 4.1% 4.4% 5% 4.8% 4.8% 6.2% 6% 6.4% 6.7%

Admin/Non-Investigative 14.9% 16.5% 14.5% 16.4% 22.1% 22.1% 23.2% 21% 22.1% 21.5% 22.1% 23%

Misc. 0.4% 0.3% 0.3% 0.5% 0.9% 0.6% 0.7% 0.5% 0.5% 0.5% 3.4% 5.3%

Source: CRS analysis of data from DHS’s Performance Analysis System (PAS).

Inspector Workyears by Type: FY1992-FY2003

USBP, Inspectors, and Interior Enforcement Workyears: FY1997-FY2003

1997 1998 1999 2000 2001 2002 20030

1,000

2,000

3,000

4,000

5,000

6,000

7,000Workyears

Inspectors Enforcement

Interior Enforcement

All Inspections

Border Patrol

Inspectors Enforcement 140.9 190.9 224.6 294.3 164.5 315.8 270.7

Interior Enforcement 1,831.6 2,056.8 2,081 2,005.7 1,851.1 1,806 1,892.1

All Inspections 2,664.9 2,795.9 3,173.7 3,188.6 2,683.5 2,871.6 2,098

Border Patrol 3,072.7 4,099.5 5,069 5,478.3 5,923.2 6,095.9 6,093

Source: CRS analysis of data from the Performance Analysis System (PAS).

USBP Workyears and Apprehensions

1997 1998 1999 2000 2001 2002 2003 2004 20050

2,000

4,000

6,000

8,000

10,000

0

500,000

1,000,000

1,500,000

2,000,000workyears apprehensions

1,412,953

3,073

955,310

1,197,000

6,096

8,018

Number of Workyears Number of Apprehensions

% Change in Apprehensions

% Change in Workyears

10.1% 1.5% 6.2% -24.5% -2.5%-24.6% 3.2%24.6%

FromPrevious Year

33.4% 23.6% 8.1% 8.1% 2.9% 0% 8.2% 21.6%

Source: CRS analysis of data from DHS’s Performance Analysis System (PAS).

1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 20030

200

400

600

800

1,000

0

10,000

20,000

30,000

40,000

50,000Criminal Workyears Criminal Removals

20,098

740

Number of Criminal RemovalsWorkyears Spent on Criminal Alien Investigations

433

499

25,684

40,226

Criminal Alien Removals and Workyears Spent on Criminal Aliens

Border EnforcementApprehensions per Workyear versus

Workyears per Agent

050

100150200250300350400450500

FY97 FY98 FY99 FY00 FY01 FY02 FY03 FY04 FY05

Ap

pre

hen

sio

ns

0

0.1

0.2

0.3

0.4

0.5

0.6

0.7

0.8

Wo

rkyears

Apprehensions per Workyear Border Enforcement Workyears per Agent

Source: CRS Analysis of unpublished Customs and Border Protection Data.

Immigration Enforcement Issues DHS Organizational Structure

Inherited Issues ICE and CBP

Resources Increasing role of other federal agencies or local law

enforcement Economy Desire for enforcement