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January 2013, Volume 20, Number 1

DHS: Border, Interior, USCIS

The Pew Hispanic Center estimated 11.1 million unauthorized foreigners in 2011, continuing the downward trend from 12 million in 2007. Of the 40 million foreign-born US residents, Pew estimated that 15.1 million are naturalized US citizens and 12.2 million are legal immigrants.

The US population of 315 million at the end of 2012 was 66 percent non-Hispanic white, 17 percent Hispanic, 12 percent Black, and five percent Asian.

The Meissner et al report emphasizes that the US government spends more on immigration enforcement, $18 billion in FY12, than the $14 billion spent by the FBI, Drug Enforcement Administration, Secret Service, U.S. Marshals Service and Bureau of Alcohol, Tobacco, Firearms and Explosives. The two major immigration enforcement agencies, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), refer more cases for federal prosecution than all Justice Department law enforcement agencies combined.

The report concluded that the so-called "enforcement first" policy advocated by many Congressional Republicans as a pre-condition for comprehensive immigration reform has been implemented.

Thereport outlines the six pillars of the US immigration enforcement system, that is: border enforcement, visa controls and travel screening, linking databases, workplace enforcement, criminalizing violations of immigration law, and detention and removal of foreigners. Over half of all federal criminal prosecutions involve immigration-related crime, led by illegal entry into the US, a misdemeanor, and illegal re-entry after removal, a felony.

Border. According to the Transactional Records Access Clearinghouse, there were 417 million inspections of persons arriving in the US in FY05 at 317 ports of entry, over 1.1 million a day; some 384,000 persons were refused entry, or one tenth of one percent. About 40 percent of arrivals were US citizens, 16 percent immigrants admitted to the US as permanent residents, and 44 percent temporary visitors.

The Customs and Border Protection agency reports slightly different data for FY05. CBP reported an average 1.2 million arrivals a day, including 47 percent US citizens. CBP reported an average 868 non-US citizens a day refused entry at US ports of entry. For FY11, CBP reported an average 932,000 entries a day, including 259,000 who arrived by air (

CBP says that about 36,000 entrants a day are referred for secondary inspection, and that a dozen are subject to a search of their electronic devices. The ACLU is challenging the authority of CBP officers to confiscate and search laptops and other electronic devices without warrants that lay out suspicions of wrongdoing.

Since 2010, an average of five foreigners a year attempting illegal entry into the US have been killed in confrontations with CBP agents. In Fall 2012, CBP launched an investigation after the Mexican government formally complained about several incidents, including the death of a rock-throwing youth who was shot and killed by a Border Patrol agent near Nogales, Arizona.

CBP apprehended 340,000 foreigners just inside US borders in FY11, the lowest number of apprehensions since 1970. The consequence-enforcement mechanism at the border aims to "punish" all those apprehended for illegal entry, via detention or returning those apprehended to Mexico at a different place from which they entered the US.

Interior. Deportations of foreigners illegally in the US continue to generate protest from Hispanic activists. Some 1.5 million foreigners were deported or formally removed from the US during President Obama's first term.

Almost 410,000 foreigners were deported or removed in FY12, including 55 percent convicted of US crimes. ICE said that 1,215 of those deported were convicted of US murders, 5,557 were convicted of US sexual offenses, and 36,166 were convicted of driving under the influence.

One reason for more deportations is Secure Communities, a federal-state program that checks the fingerprints of persons arrested by state and local police against FBI and DHS databases. By having police submit data on persons they arrest to federal databases, and then having ICE ask police to detain suspected unauthorized foreigners, Secure Communities allows the DHS to detect more unauthorized individuals. DHS says that its priorities for deportation are foreigners convicted of US crimes, recent border-crossers and repeat violators of immigration law.

Activists complain that "innocent unauthorized" are detected by traffic stops and deported. President Obama in summer 2011 ordered the Immigration and Customs Enforcement agency to review pending deportation cases to identify foreigners whom the government may elect not to deport, including those with close US relatives, those who arrived as children, and those who served in the US military. However, few of these reviews have resulted in the unauthorized foreigner being freed and allowed to remain in the US.

Some states oppose Secure Communities, ordering their police not to submit data on suspected unauthorized foreigners arrested for non-violent offenses. California's Attorney General in December 2012 announced that local police agencies are not obliged to participate in Secure Communities, which the federal government says is a mandatory program.

In December 2012, DHS announced that it would no longer request that state and local police hold suspected unauthorized foreigners who committed a misdemeanor. Under the new policy, ICE will issue detainers for those convicted or charged with a felony, those with three or more misdemeanor convictions, excluding traffic offenses and other minor crimes, and those whose misdemeanors are more serious, such as offenses involving violence or driving under the influence.

By focusing deportation efforts on foreigners convicted of US crimes, there are knock-on effects. DHS can try to deport a foreigner convicted of a US crime that carries a sentence of over one year, even if that sentence is not actually imposed. Due to these new complexities, the US Supreme Court in 2010 ruled in Padilla v. Kentucky that criminal defense lawyers must warn their non-US citizen clients if deportation could be a consequence of a guilty plea. In November 2012, the Court heard arguments over whether this decision applies retroactively.

ICE enforces employer sanctions laws, and since April 30, 2009 has shifted its focus from removing unauthorized workers to fining employers who hire them. This enforcement shift has resulted in fewer unauthorized workers arrested in the workplace and more employers fined for not maintaining the I-9 forms completed by newly hired workers and their employers or for continuing to employ unauthorized workers.

In FY12, ICE audited the I-9 forms of 3,000 US businesses, up from 250 in FY07. I-9 audits are sometimes called "silent raids" because they result in employers terminating workers who do not clear up discrepancies in their records. I-9 audits have drawn criticism from employers who lose experienced workers and migrant advocates who say that fired migrants cannot support families that include US citizens.

USCIS. The E-Verify system, renamed from Basic Pilot in 2007, allows employers to submit data on newly hired workers to USCIS, which checks the data against Social Security and DHS databases to determine whether an individual is authorized to work in the US. Most employees are confirmed as work-authorized within seconds, and the two percent of new hires who receive "tentative nonconfirmations" have eight business days to correct the issue or the employer must fire them (USCIS says that 83 percent of tentative nonconfirmations are ultimately found to be submissions by unauthorized workers).

Today almost 400,000 employers were enrolled in E-Verify, and they are expected to submit data on about 20 million new hires, a third of the new hires expected in 2013. Beginning with Arizona's Legal Arizona Workers Act, which required all state employers to participate in E-Verify beginning January 1, 2008 (upheld by the US Supreme Court in 2011), there are 19 states that require some or all employers to participate in E-Verify. The federal government requires contractors who provide goods and services to participate in E-Verify.

The Meissner et al report suggests that E-Verify's false negatives, the failure to confirm a work-authorized new hire, are declining rapidly. There are an unknown number of false positives, as when an unauthorized worker uses the work documents of a work-authorized person to get hired. Most assessments conclude that E-Verify is a good and improving tool that prevents unauthorized workers from being hired, but that requiring all US employers to use it to check new hires will add to employment costs.

Beginning March 4, 2013, unauthorized foreigners in the US who are sponsored by US citizens or legal immigrants may no longer have to wait for years outside the US to obtain immigrant visas. Foreigners in the US must return to their country of origin to obtain immigrant visas but, under a 1996 law, foreigners who have been in the US illegally more than six months are barred from legal re-entry for three years, and those in the US illegally more than a year are barred from legal re-entry for 10 years.

The current procedure requires applicants for visas who are in the US illegally to return to their countries of origin before they can apply for a waiver of the return bars, exposing them to the risk that their waiver will be denied and they will be trapped outside of the US. DHS announced that foreigners who pay a $585 fee can request a waiver of the three and 10-year bars on legal re-entry before leaving the US. Those who do not receive the waivers would presumably stay in the US. Those who receive waivers of the three and 10 year bars could leave the US knowing that they should be able to return as legal immigrants in a few weeks.

USCIS administers the investor visa program, which issues up to 10,000 EB-5 immigrant visas a year to foreign investors and their family members who invest at least $500,000 and create or preserve at least 10 US jobs. The US granted 7,818 EB-5 immigrant visas in FY12.

The New York Times profiled the Jay Peak ski resort in Newport, Vermont on December 31, 2012, emphasizing that almost all of the $865 million investment was from foreign investors who are not involved in the operation of the resort.

Meissner, Doris, Donald Kerwin, Muzaffar Chishti, and Claire Bergeron. 2013. Immigration Enforcement in the United States: The Rise of a Formidable Machinery. January.