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January 2013, Volume 19, 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.

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. (

The Customs and Border Protection agency 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.

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. There are far more police than DHS agents, so having police submit data to federal databases and then hold suspected unauthorized foreigners detects many more than DHS agents could find on their own. 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.

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 agents are auditing more of the I-9 forms completed by newly hired workers and their employers that show the worker presented, and the employer saw, documents attesting to the worker's identity and right to work in the US. In FY12, ICE audited the I-9 forms of 3,000 US businesses, up from 250 in FY07. So-called silent raids often result in employers terminating workers who do not clear up discrepancies in their records, prompting criticism from employers who lose experienced workers and migrant advocates who say that fired migrants cannot support families that include US citizens.

USCIS. Beginning March 3, 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.

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 because their prolonged absence would cause extreme hardship to US citizens 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.