Smart(er) Enforcement: Rethinking Removal

Abstract

Substantial interior immigration enforcement will undoubtedly continue in the United States, whether or not the legislative and executive branches can craft a legalization program. Though some enforcement is undoubtedly necessary, the system’s continuity will also be due in part to inertia. The size of the current enforcement system is stunning, affecting many millions of noncitizens and removing many hundreds of thousands annually. Equally impressive are its costs and its complexity. One recent study aptly described the system as “formidable machinery,” involving a “complex, cross-agency system that is interconnected in an unprecedented fashion.” Spending on immigration enforcement was about $18 billion in FY 2012, and has totaled some $186 billion since 1986. If we add to this an extensive pattern of recent state and local involvement in immigration enforcement, the costs, effects, and tentacle-like reach of the system become truly impressive. Moreover, its political salience is clear, as enforcement is a linchpin of discussions over comprehensive immigration reform. Virtually none of this is likely to change, absent much more dramatic re-structuring than has yet been proposed. It should change, however, as the system needs major recalibration. This is a propitious moment for serious rethinking.

This essay is a foray into deep waters. Its main purpose is to sketch and to justify a better framework for interior immigration enforcement. Such a framework should satisfy two major goals. First, it should engage meaningfully with “public order,” operational efficiency, and basic human rights. Put another way, it must be both effective and legitimate. Second, it should govern the major aspects of interior immigration enforcement architecture: prosecutorial discretion, statutory/regulatory structure, adjudicative interpretation, and adjudicative discretion. The essay’s conclusion is that the best way to accomplish this is, first, to dramatically de-emphasize immigration enforcement against long-term legal residents; and second, to take the notions of proportionality and graduated sanctions seriously in structural--rather than in discretionary--ways.