By: Muzaffar Chishti, Sarah Pierce, and Jessica Bolter, Migration Policy Institute ~ JANUARY 26, 2017
Barack Obama was famously labeled “deporter in chief” by critics in the immigrant-rights community, even as enforcement-first advocates accused his administration of being soft on unauthorized immigrants. Which perception is accurate? With the Obama presidency just ended, a closer examination demonstrates the administration’s record is more nuanced than either criticism would imply.
Carefully calibrated revisions to Department of Homeland Security (DHS) immigration enforcement priorities and practices achieved two goals: Increasing penalties against unauthorized border crossers by putting far larger shares into formal removal proceedings rather than voluntarily returning them across the border, as had been longstanding practice; and making non-citizens with criminal records the top enforcement target. While there were fewer removals and returns under the Obama administration than each of the two prior administrations (see Table 1), those declines must be understood against the backdrop of a significant reduction in border apprehensions that resulted from a sharp decrease in unauthorized inflows, in particular of Mexicans. Analysts have attributed this trend, which began under the Bush administration, to improved economic conditions in Mexico, reduced postrecession job demand in the United States, ramped-up enforcement, and the increased use of different enforcement tactics at the border.
The enforcement priorities and policies, which evolved over the years, represented a significant departure from those of the Bush and Clinton administrations. As detailed below, the Obama-era policies represented the culmination of a gradual but consistent effort to narrow its enforcement focus to two key groups: The deportation of criminals and recent unauthorized border crossers.
The most recent enforcement figures released by the Department of Homeland Security (DHS) on December 30, 2016 offer the latest evidence of these trends. Eighty-five percent of all removals and returns during fiscal year (FY) 2016 were of noncitizens who had recently crossed the U.S. border unlawfully. Of the remainder, who were removed from the U.S. interior, more than 90 percent had been convicted of what DHS defines as serious crimes.
Border apprehensions and removals increased in FY 2016 compared to the prior year, DHS reported. In FY 2016, DHS carried out 530,250 apprehensions and 344,354 removals, compared to 462,388 apprehensions and 333,341 removals a year earlier. Despite the increase, these numbers were far lower than the peak of enforcement operations at the beginning of the Obama years, after he inherited a robust enforcement regime from his predecessors. These numbers dipped as new enforcement priorities were put in place, before rebounding slightly at the end of the Obama presidency.
Obama Inherits a Formidable Immigration Machinery
President Obama inherited a more legally robust and better-resourced immigration enforcement regime than his predecessors had. A series of laws in 1996 established new grounds for deportation, penalties for the crimes of illegal entry and re-entry, mandates for detention of deportable noncitizens, and a framework for cooperative arrangements on immigration enforcement between the federal government and state and local law enforcement agencies. Though authorized during the Clinton administration, many of these enforcement tools were not deployed and fully resourced until the Bush administration, mostly in the aftermath of the September 11, 2001 terrorist attacks.
Beginning in 2002, the federal government began 287(g) agreements, allowing state and local law enforcement officials to perform certain immigration enforcement functions. By the end of the Bush administration, more than 70 such agreements had been signed.
In 2003, Congress created DHS, including in it all immigration functions. U.S. Customs and Border Protection (CBP), the DHS component responsible for enforcement at the border, saw its border agent manpower rise from 10,000 in 2003 to 17,000 in 2008. Over the same period, U.S. Immigration and Customs Enforcement (ICE), the DHS component responsible for interior enforcement, experienced an increase in agents from 2,700 to 5,000.
At the border, CBP in 2005 introduced the Consequence Delivery System (CDS), designed to toughen the tactics used against unauthorized crossers in hopes of deterring future entry attempts. Instead of allowing unauthorized entrants to return to Mexico voluntarily, without any meaningful legal consequences, formal removal proceedings became far more common as did criminal charges for illegal entry or re-entry.
In addition, in the years following 9/11, immigration, criminal, and national-security screening systems across executive-branch agencies were expanded, upgraded, and integrated. These interoperable data systems became accessible to consular and immigration officials, as well as to local law enforcement. The Bush administration, in its final days, launched Secure Communities, a program allowing the fingerprints of those arrested by local law enforcement to be matched against federal criminal and immigration databases operated by the Federal Bureau of Investigation (FBI) and DHS.
Taken together, these combined enforcement initiatives resulted in a record high of nearly 360,000 formal removals in FY 2008—234,000 of them from the interior of the United States.
The Obama Deportation Record: A Shift from Returns to Removals
When President Obama took office in 2009, his administration abandoned some Bush-era strategies, such as worksite enforcement operations, but allowed others to scale up. By 2013, Secure Communities was operational in all jails and prisons in the United States. And the Border Patrol began systematically applying CDS border-wide starting in 2011.
Congressional funding for immigration enforcement continued to rise. In FY 2012, federal immigration enforcement funding reached nearly $18 billion—a figure 24 percent higher than funding allocated to all other principal federal criminal law enforcement agencies combined (the FBI, Drug Enforcement Administration, Secret Service, U.S. Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives).
As a result of these resources and strategies, noncitizen removals increased significantly, while apprehensions and overall deportations both remained far lower than the numbers seen under the Bush and Clinton administrations.
These figures demonstrate the Obama administration’s focus on formal removals instead of returns, with formal removals under Obama far outpacing those of the Bush and Clinton administrations even as returns were far lower. This policy to ensure that removals have a lasting legal consequence likely reduced the number of unauthorized immigrants attempting to cross the border multiple times: Overall, recidivism along the border fell from 29 percent in FY 2007 to 14 percent in FY 2014, and was much higher for migrants given voluntary return (31 percent) than for those subjected to formal removal (18 percent), according to CDS data.
Evolution of Enforcement: Prioritizing Criminals and Recent Border Crossers
Over the course of the Obama administration there was a pronounced shift in focus to the removal of recent border crossers and criminals rather than ordinary status violators apprehended in the U.S. interior. The underlying reasoning was to deter illegal border crossing and remove unauthorized immigrants before they become integrated into U.S. communities. As shown in Figure 1, interior removals decreased sharply from 181,798 in FY 2009 to 65,332 in FY 2016, while border removals stayed high and increased, from 207,525 to 279,022 over the same period.
The combined number of individuals removed and returned decreased significantly between the first and second Obama terms: from 3.2 million to 2.1 million. This decline was driven nearly entirely, as described above, by the decrease in the number of individuals voluntarily returned, rather than formally removed. From the first to second term, returns decreased significantly, from 1,609,249 to 593,104, while removals fell only slightly, from 1,575,423 to 1,518,785.
Also, removal priorities were increasingly focused on removing noncitizens convicted of crimes. In 2009, 51 percent of interior removals were of individuals convicted of what DHS described as serious crimes. In 2016, DHS reported that more than 90 percent of interior removals were of noncitizens convicted of serious crimes.
In November 2014, President Obama announced a number of further changes in immigration enforcement, including agencywide policy guidance on which categories of removable noncitizens should be the highest priority for enforcement. Three levels were detailed:
- Priority 1: National security threats, noncitizens apprehended immediately at the border, gang members, and noncitizens convicted of felonies or aggravated felonies as defined in immigration law.
- Priority 2: Noncitizens convicted of three or more misdemeanors or one serious misdemeanor, those who entered or re-entered the United States unlawfully after January 1, 2014, and those who have significantly abused visa or visa waiver programs.
- Priority 3: Noncitizens subject to a final order of removal issued on or after January 1, 2014.
The priorities codified a trend initiated in 2009 (see Table 2).
Once announced in 2014, the DHS enforcement priorities became even more sharply focused on criminals and recent arrivals. In a statement, DHS reported that in FY 2015 and FY 2016, more than 99 percent of all removals and returns fell within the three priorities. In FY 2015, 92 percent of removals and returns occurred within Priority 1, a rate that rose to 94 percent in FY 2016. Some analysts attribute the sharper focus on the top priorities to the fact that the 2014 guidelines, unlike ones issued in 2010 and 2011, applied to all DHS immigration agencies, while the earlier ones were issued by and applied only to ICE.
Obama’s Mixed Legacy and Looking Ahead to Enforcement under the Trump Administration
While the Obama administration record is characterized by much higher removals than preceding administrations, it also shows less focus on increasing absolute numbers of overall deportations and a higher priority on targeting the removals of recently arrived unauthorized immigrants and criminals. The administration also placed a much lower priority on removing those who had established roots in U.S. communities and had no criminal records. This prioritization was achieved by a slowly evolving but deliberate policy, highlighted by the administration’s November 2014 executive actions on immigration.
The process of focusing and targeting enforcement resources has set the initial stage for the Trump administration. This week President Donald Trump signed two executive orders promising wide-ranging expansions of the enforcement system, including priorities that focus on removing not only noncitizens with criminal records, but also those who have committed potentially criminal acts or who have abused public benefits. However, like Obama, only his eventual record on immigration will tell how it compares with his predecessors' in terms of prioritizing overall numbers of removals and the categories of individuals being removed.
National Policy Beat in Brief
United States Ends “Wet-Foot, Dry-Foot” Policy on Cuban Migrants. Following months of secret negotiations, the United States and Cuba announced on January 12 that the Department of Homeland Security (DHS) has ended the “wet-foot, dry-foot” policy on Cuban migrants entering the United States. A key component of this shift involves the Cuban government’s agreement to accept the return of Cuban nationals deported by the United States. The policy, established in 1995, allowed Cuban migrants who reached U.S. land to be paroled into the country, while those intercepted at sea were returned to Cuba. Under the 1996 Cuban Adjustment Act, Cuban migrants who successfully make it to the United States are able to adjust their status to that of permanent residents (i.e. green card holders) after one year. Now, Cuban migrants entering without valid visas or travel documents will be treated as any other noncitizen, including being subject to expedited removal. Those intercepted at sea will be treated as before. In addition to ending the wet-foot, dry-foot policy, the United States rescinded the Cuban Medical Professional Parole Program, which allowed Cuban medical professionals serving abroad to seek parole to enter the United States at U.S. embassies. Havana has long pressed the United States to end the medical professional parole program, as well as the wet-foot, dry-foot policy, which it claimed encourages dangerous migration journeys and human trafficking. The wet foot, dry foot announcement follows the normalization of U.S.-Cuba diplomatic relations announced in December 2014. The number of Cubans arriving in the United States has nearly doubled since fiscal year (FY) 2014, from 25,338 then to 48,520 through the first ten months of FY 2016.
- Associated Press article on the end of the wet-foot, dry-foot policy
- Joint statement by the United States and Cuba on the January 12, 2017 agreement
- DHS fact sheet on the changes to parole and expedited removal for Cuban nationals
- MPI commentary on the policy changes
Trump Nominates and Senate Confirms Marine General John Kelly as Homeland Security Secretary.
President Donald Trump nominated retired Marine General John Kelly as Homeland Security Secretary. The Senate then confirmed the nomination on January 20, and he was sworn in the same day. Kelly served for 45 years in the Marines and from 2012 to 2016 headed the U.S. Southern Command, which oversees U.S. military operations in Central and South America. Kelly’s confirmation hearing on January 10 focused on a variety of security- and immigration-related topics, including illegal immigration and border security. When asked about construction of further barriers at the U.S.-Mexico border, Kelly stated that a wall alone would not stem migration flows, and instead argued for “a layered approach,” involving technology, personnel, and cooperation with countries south of the United States. He emphasized the importance of addressing the root causes of migration in El Salvador, Guatemala, and Honduras, including violence and lack of economic opportunity. Kelly also declined to directly address whether individuals granted Deferred Action for Childhood Arrivals (DACA) under the Obama administration would be priorities for removal, expressed doubt about the legality of so-called sanctuary city policies, and stated that he would not support vetting immigrants based solely on ethnicity or religion.
Senators Introduce Bills to Protect DACA Beneficiaries. A bipartisan group of senators has introduced a bill that would provide protections for some young people who came to the United States as children and received relief from deportation under the Deferred Action for Childhood Arrivals (DACA) program created by President Obama. Sens. Richard Durbin (D-IL) and Lindsey Graham (R-SC) introduced the Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act on December 9. The bill would create a program identical to the DACA program, the 2012 Obama executive action that allows qualified unauthorized immigrants brought to the United States as children to apply for work authorization and temporary protection against removal. During the campaign, President Donald Trump committed to rescinding a number of Obama executive actions on immigration, including DACA. The BRIDGE Act would grant DACA beneficiaries and those who meet DACA eligibility requirements benefits that would be identical to those granted under DACA for three years following the date of enactment of the legislation. In addition, the bill prohibits the use of personal information submitted in DACA applications for deportation purposes, except in cases of threats to national security or a felony investigation.
Arizona Republican Sen. Jeff Flake, a cosponsor of the BRIDGE Act, also introduced the Securing Active and Fair Enforcement (SAFE) Act, which ties the protection measures proposed in the BRIDGE Act to additional enforcement measures. The SAFE Act, which includes language identical to the BRIDGE Act, would also require the Department of Homeland Security (DHS) to hold without release unauthorized immigrants convicted of or arrested for major crimes, and would require the deportation of those noncitizens within 90 days of detention. Both bills were reintroduced in the 115th Congress on January 12.
- Politico article on introduction of the Bridge Act
- Arizona Republic article on introduction of the Safe Act
- The BRIDGE Act, S.128
- The SAFE Act, S.127
Obama Administration Dismantles NSEERS Regulations. In December the Obama administration rescinded regulations for the National Security Entry-Exit Registration System (NSEERS), a national registry program established in 2002 in the aftermath of the 9/11 terrorist attacks for visitors from countries where terrorist groups were present. The program has been dormant since 2011, but advocates pressed the president to rescind the regulations out of concern that they could be utilized by President-elect Trump once in office. Trump promised during his campaign to create a registry of Muslims in the United States, and Republicans specifically called for the renewal of NSEERS in their 2016 party platform.
Temporary Protected Status for Yemen and Somalia Extended. On January 4, Homeland Security Secretary Jeh Johnson redesignated Yemen for Temporary Protected Status (TPS) and extended the designation for an additional 18 months, due to the persistence of armed conflict and the continued deterioration of conditions for civilians in the country. Yemen was originally designated for TPS in September 2015. To be eligible, Yemeni nationals and those who last habitually resided in Yemen must have continuously resided in the United States since January 4, 2017 and have been continuously physically present since March 4, 2017. This TPS designation will last from March 4 through September 3, 2018. In addition, on January 17, Johnson extended the TPS designation for Somalia for an additional 18 months, effective March 18 through September 17, 2018. TPS grants work authorization and protection from deportation to certain nationals of designated countries deemed unsafe for repatriation due to ongoing armed conflict or the effects of a natural disaster. In total, 13 countries are currently designated for TPS: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen.
- Announcement by U.S. Citizenship and Immigration Services (USCIS) of the redesignation and extension of Yemen for TPS
- Announcement by USCIS of the extension of Somalia for TPS
State Policy Beat in Brief
Lawsuit on Texas Immigrant Harboring Law Heard in Federal Court. On January 5, a three-judge panel of the Fifth U.S. Circuit Court of Appeals heard arguments over the implementation of a provision of a 2015 Texas border security bill that makes it a crime to conceal or harbor unauthorized migrants. The Mexican American Legal Defense and Educational Fund (MALDEF) first challenged the harboring provision in January 2016, arguing it violates the supremacy clause of the U.S. Constitution, which gives the federal government exclusive authority over immigration enforcement. In April, a federal judge blocked enforcement of the harboring provision while the case was ongoing. The plaintiffs, two landlords who do not inquire about the immigration status of tenants and the head of an immigrant-service organization, contend that under the harboring provision, they could be accused of a crime for continuing to house unauthorized immigrants. The Texas Attorney General’s office argues this concern is unwarranted because the bill did not include a specific punishment for renting to or sheltering unauthorized immigrants.
- Texas Tribune article on the court case
Court Rules DACA Recipients in Georgia Eligible for In-State Tuition. A Superior Court judge in suburban Atlanta ruled on December 30 that DACA beneficiaries are eligible for in-state tuition rates at Georgia universities. A 2008 state law provides that individuals who are “legally in this state” are eligible for in-state tuition, a rate that is one-third of out-of-state tuition. The ten plaintiffs, all DACA recipients, successfully argued that they qualified for in-state tuition under the 2008 law due to their federally established legal presence. The Georgia Board of Regents appealed the decision, and although the Fulton County judge, Gail Tusan, refused to put her order on hold during the process, the Board of Regents has also asked the Court of Appeals to put it on hold. As of January 11, the Court of Appeals had not made public any decision on whether it will allow the judge’s order to go into effect during the appeals process.
- Atlanta Journal-Constitution article on the case