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April 2009, Volume 16, Number 2

DHS: Border, ICE, USCIS

Governor Janet Napolitano (D-AZ) was confirmed as Secretary of the Department of Homeland Security in January 2009. Napolitano said that "it has been my experience that you have to deal with illegal immigration on both a demand and supply side," enforcing laws that prohibit employers from knowingly hiring unauthorized workers and strengthening border enforcement to reduce entries.

Napolitano said that as governor she "signed the nation's strongest employer sanctions bill," requiring all Arizona employers to use the federal government's E-Verify system to check new hires beginning January 1, 2008. Napolitano signaled that she would approve fewer workplace raids that result in the apprehension of unauthorized workers but do not result in the arrests of employers and supervisors.

DHS was created in 2003 from 22 federal agencies, and today has over 200,000 employees. On April 2009, it was reported that DHS will appoint former US attorney Alan Bersin to be czar or coordinator of federal enforcement activities on the southwest border; Bersin was also the border czar between 1995 and 1998.

Border. Border apprehensions are falling to 1970s levels. Fewer than 265,000 foreigners were apprehended just inside the US border between October 2008 and March 2009, putting the US on track to apprehend about 550,000 foreigners in FY09, the lowest level since 1975, when about 600,000 foreigners were apprehended (however, the number of reported deaths along the border rose to 128 from 120 in the year-earlier six months).

Some 705,000 unauthorized foreigners were apprehended in FY08, down from 856,000 in FY07. Apprehensions peaked at 1.8 million in FY00.

Between 1993 and 2009, the budget for the US Border Patrol almost quadrupled to $2 billion. At the same time, the estimated number of unauthorized foreigners in the US tripled from about four million to over 12 million in 2007.

The seeming paradox of more Border Patrol agents and a rising stock of unauthorized foreigners in the US may reflect more migrants using smugglers who know the border area. Interviews with migrants suggest that almost all are using smugglers to evade apprehension, and that smuggling fees rise with stiffer border controls. Migrants reported paying $2,000 or more to cross the desert with smugglers in 2009, and $3,000 or more to be smuggled into the US with false documents at a port of entry.

Most Mexicans without US criminal records apprehended just inside the Mexico-US border return to Mexico under "voluntary departure," meaning they are photographed and fingerprinted before being bussed to the border and released. Some Border Patrol managers want to prosecute and convict more apprehended Mexicans for illegal entry so that they would have a US record, which normally bars their legal entry for five years if apprehended again.

In some areas along the border, all apprehended Mexicans are prosecuted. In these areas, the share of foreigners apprehended two or more times fell from 70 percent to 20 percent. One such area, twin cities named San Luis on the Arizona-Sonora border, was profiled on March 8, 2009 in the Los Angeles Times. Few migrants were trying to cross at what had been a very busy entry point.

The Border Patrol has also tried bussing apprehended migrants to a port of entry several hundred miles from where they were caught, and flying some to Mexico City so that they would be more likely to return to their homes rather than try to re-enter the US.

The Transactional Records Access Clearinghouse (TRAC) reported in January 2009 that federal prosecutions of immigrants rose sharply under the Bush administration http://trac.syr.edu/tracreports/crim/201). Migrants are often sentenced by magistrate judges in groups after plea deals are negotiated, so that one judge may sentence 200 migrants a day.

Some judges say that convicting migrants for the misdemeanor crime of illegal entry is a mistake, since it takes resources away from investigations that could develop cases against smugglers of people and drugs. Other judges say that the federal effort to convict migrants is diverting resources from environmental and white collar crimes.

The US is constructing 700 miles of fence on the 2,000-mile long Mexico-US border. The average cost of the 140 miles of fencing that is aimed at stopping people is $4 million a mile, almost double the estimated cost; fencing to stop autos is cheaper. One result of the fences is that more Mexicans are attempting to be smuggled into the US on fishing boats, often leaving from marinas in the Rosarito Beach area south of Tijuana and landing near Coronado south of San Diego.

Arizona rancher Roger Barnett was ordered to pay $75,000 to four unauthorized women he detained in March 2004 on his 22,000-acre border-area ranch; charges that he violated the women's civil rights were dismissed. A group of 16 migrants had sought $32 million. In 2006, Barnett was ordered to pay $100,000 to a US-citizen family who said Barnett threatened them while they were deer hunting on his ranch.

On his last full day in office, President Bush commuted the sentences of two former Border Patrol agents sentenced to prison for shooting a Mexican drug dealer. They had served about two years of their 11- and 12-year sentences after being convicted in 2006.

ICE. The Immigration and Customs Enforcement agency enforces immigration laws inside the US, including detecting and removing workers, criminals and other foreigners not authorized to be in the US. A day after President Obama was inaugurated, activists held a demonstration in front of ICE headquarters calling for a moratorium on deportations and workplace raids.

ICE's National Fugitive Operations Program has since 2002 assigned seven-member teams to apprehend unauthorized foreign criminals and terrorism suspects for removal. In 2006, ICE leaders dropped a requirement that at least 75 percent of those arrested be criminals, and allowed agents to include non-fugitives in their arrest counts, such as unauthorized foreigners encountered at a fugitive's last known address, or next door. The teams were instructed to increase the number of arrests each year from 125 to 1,000. The resulting "raids" spread fear in immigrant neighborhoods.

In February 2009, there were 554,000 fugitives with outstanding deportation orders in the US. With a budget of $218 million, the 104 ICE fugitive teams made 34,000 arrests inside the US in FY08. According to a report released in February 2009, ICE fugitive teams spent $625 million to arrest 96,000 foreigners, including 75 percent who did not have criminal records. The number of fugitives with criminal records arrested each year has been flat, while total arrests jumped sharply.

Foreigners apprehended inside the US can be detained or released to appear before one of the 214 immigration judges, who dealt with 350,000 cases in FY07. Many immigration judges complain that they are assigned too many cases, especially when the consequences of a wrong decision can return a foreigner to face persecution at home.

Workplace raids have slowed. On February 24, 2009, ICE agents raided Bellingham, Washington-based Yamato Engine Specialists, arresting 28 workers in the first major workplace raid under the Obama administration. The plant had 126 workers.

The ICE supervisor who ordered the Yamato raid was reportedly reassigned, and most of the workers arrested were soon released, placed in a deferred action status and given temporary work permits in exchange for offering to testify about their employment at Yamato. Representative Harold Rogers (R-KY) charged during an April 2, 2009 hearing that the ICE actions at Yamato "amount to a de facto amnesty because they are refusing to execute worksite raids unless an employer exploits illegal workers."

The Washington Post on March 29, 2009 reported that DHS Secretary Napolitano has delayed scheduled workplace raids, asking ICE to re-evaluate workplace targets and to focus on employers rather than workers at targeted firms. The ICE budget, $4 billion in FY09, includes $127 million for workplace enforcement.

In FY08, ICE made about 5,200 administrative arrests at worksites and another 1,101 criminal arrests, including 135 criminal arrests of employers or managers.

Under the 287(g) program, state and local police can receive training from ICE in immigration law enforcement and cooperate with ICE to enforce immigration laws. The New York Times on April 5, 2009 profiled the effort of police in Irving, Texas to check on the legal status of all persons arrested, including those who use false social security numbers, in an effort to steer a middle course between the neighboring city of Farmers Branch, which aimed to penalize landlords who rent to unauthorized foreigners, and cities such as San Francisco that shelter them. Farmers Branch, which has spent $2 million defending its ordinance, which was approved in 2006 and repealed in 2007.

An estimated 20 percent of Irving's residents may be unauthorized, and 70 percent of elementary school students are Hispanic. Checking the legal status of persons arrested has resulted in the detection of unauthorized foreigners. Although almost 1,000 had committed serious felonies, the other 3,100 people arrested and turned over to ICE were charged with drunkenness and not having a driver's license or insurance.

USCIS. In spring 2009, some 107,000 employers were participating in E-Verify, up from 11,000 in 2006. One reason for the jump is that 12 states have enacted laws requiring employers to participate in E-Verify. Colorado's Legislature rejected a bill to require employers to use E-Verify in February 2009, and a federal court struck down an Illinois law that prohibited the state's employers from participating in E-Verify until its accuracy improves in March 2009.

E-Verify normally verifies over 99 percent of new hires instantly, notifying within seconds the employers who submitted their information that the worker-supplied name, SSN, or immigration number match government records. However, non-US citizens are sometimes falsely rejected as potentially unauthorized. Intel reported that 12 percent of the 1,360 new hires for whom it submitted data to E-Verify were initially suspect, but all were ultimately found to be legal.

DHS Secretary Napolitano has ordered a review of E-Verify, focusing on the error rate as well as employers using E-Verify to check on job applicants rather than new hires. E-Verify cannot detect document fraud, as when unauthorized workers provide employers with documents belonging to lawful workers. As Arizona's governor, Napolitano signed a law in 2007 requiring the state's employers to check new hires with E-Verify.

In 2000, a U-visa was created for foreigners who are victims of US crimes and who help US law enforcement to win convictions for the crimes; 10,000 U-Visas a year may be issued. By the end of 2008, some 13,300 foreigners applied for U-visas, but only 65 were issued and 20 were denied. Meanwhile, 10,800 foreigners have received temporary work and residence permits while their applications for U-visas are pending.

DHS Secretary Napolitano delayed the date when US immigration laws will become effective in the Commonwealth of the Northern Mariana Islands until November 28, 2009; US laws were to apply beginning May 8, 2009. The CNMI has filed suit to block the implementation of US immigration laws.

Randy Kennedy, "Deportation Furor Catches Texas Mayor in Middle," New York Times, April 5, 2009. Spencer S. Hsu, "Delay in Immigration Raids May Signal Policy Change," Washington Post, March 29, 2009. Brady McCombs, "Border fences grow, as does debate that rages over them," Arizona Daily Star, March 15, 2009. Richard Marosi, "Border arrests drop to 1970s levels," Los Angeles Times, March 8, 2009.