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Detention and Deportations

The United States currently has 11.7 million unauthorized immigrants residing in the country. The penalty for residing in the country without legal status is deportation. The agency responsible for detaining and deporting undocumented immigrants is U.S. Immigration and Customs Enforcement (ICE).

In FY2013, ICE deported 368,644 undocumented immigrants from the United States, a 12% decrease from the 419,384 immigrants deported in 2012. Despite this decrease in deportations, almost 2 million undocumented immigrants have been deported under the Obama administration. Based on these statistics, about 1,100 undocumented immigrants are deported per day in the United States.

216,810 of undocumented immigrants removed, or 59%, had been convicted of a crime previously. Those convicted are divided into three levels: Level 1 indicates a prior conviction for an aggravated felony or two felonies, Level 2 signifies prior conviction for one felony or three or more misdemeanors, and Level 3 is for those convicted previously of a misdemeanor. ICE does not include those who have committed a civil traffic offense as criminals. According to the FY2013 statistics released by ICE, 48% of the undocumented immigrants apprehended from the interior of the US were Level 1 offenders. This is the highest percentage of criminals deported in the last five fiscal years and a significant increase from the previous administration. Of those who were removed without a criminal conviction, 84% of them were apprehended at the border attempting to enter the U.S. Though Mexico continues to be the leading country of origin for those apprehended, other top countries include Guatemala, Honduras, and El Salvador.

Once apprehended, individuals are taken into custody and processed. After this point, immigration officers ascertain the detainee’s flight risk and may either grant the opportunity of a Voluntary Return or issue a Notice to Appear or Warrant of Arrest.  

Voluntary Return

A Voluntary Return allows immigration officers to escort undocumented immigrants across the border, bypassing the immigration courts. Many choose to utilize this option because it allows them to avoid being detained for long periods of time, and if they do choose to cross the border into the United States again and are caught, they will not be charged with a federal felony.

Notice to Appear

A Notice to Appear is a summons to appear before an immigration court. It does not require a bond, but if the individual does not appear for the hearing, the case is forwarded to ICE and a Warrant for Arrest is issued.

Warrant of Arrest

When a Warrant of Arrest is issued, the individual will either be:

  • Released on their own recognizance and expected to appear in court at a certain date,
  • Released with an appearance bond that must exceed $1,500,
  • Granted an Alternative to Detention, which is often an electronic tracking device that restricts their movement, or
  • Detained until they appear before an immigration court.

Detention

According to the Department of Homeland Security (DHS), on average it costs $119 per day to detain an undocumented immigrant. H.R. 3547, the Consolidated Appropriations Act of 2014, mandates that ICE must maintain a level of no less than 34,000 detention beds through September 30, 2014. The DHS and the White House requested $1.84 billion during FY2014 for DHS custody operations.  The average stay in a detention center is 31.9 days, below the FY2012 goal of 35 days. Many individuals are apprehended at the border, or by local law enforcement for minor offences under Secure Communities, a program run by ICE that requires local law enforcement to hand over to federal immigration officials the fingerprints of all those arrested. If the fingerprints are flagged, local officers are required to detain the individual.

Local Responses to Immigration Policy

In 2010 Governor Jan Brewer of Arizona signed into law S.B. 1070, a law that required law enforcement officials to determine an individual’s immigration status during law enforcement stops given ‘reasonable suspicion’ that the individual is undocumented. In June 2012 the Supreme Court upheld the law’s provision requiring officers to check immigration status during law enforcement stops. Other states have followed suit and are in the process of implementing laws similar to S.B. 1070.

As of April 2014 local law enforcement agencies in Philadelphia, Baltimore, and counties in Oregon, Colorado, and Washington have released statements saying that they will no longer hold immigrants in jail who are suspected of being undocumented but would otherwise be released. Officers state that resources should be focused instead on those that pose a threat to public safety.

Controversies

Immigration cases are considered civil, not criminal, cases by the US Justice System. Civil cases are generally penalized with fines where criminal cases can include prison sentences. There is much debate over how to handle immigration cases where an undocumented immigrants’ crime is residing illegally within the US.  Critics argue that for-profit detention centers cut corners in an effort to increase profits and do not allow individuals access to counsel and other rights that those in prison are guaranteed. ICE is in a protracted review of detention facilities and contracts in response to these accusations.

National Immigration Policy

On March 13, 2014 the White House released a statement saying that President Obama has ordered its administration to review its immigration policy to make it more “humane.” The Department of Homeland Security Secretary Jeh Johnson is currently reviewing guidelines and is expected to shorten the time period in which immigrants are considered “new” and thus face increased scrutiny for deportations, institute deeper background checks of detainees when considering who will be deported, and incorporate protections for those immigrants in the military from the threat of removal. Secretary Johnson will also review the Secure Communities program.

In June 2013 the so-called “Gang of Eight,” a bi-partisan group of eight US senators, proposed and passed a comprehensive immigration reform bill in the Senate. The bill included a 13-year path to citizenship for the almost 11 million undocumented immigrants currently in the United States. Comprehensive immigration reform would lower the cost of custody operations and allow ICE to focus on those who have been previously convicted of a crime. The House of Representatives has not taken up the bill.

A growing number of lawmakers and advocacy groups are calling on the President to use executive power to suspend deportations and relieve pressure on the nation’s undocumented immigrants. President Obama has stated that he does not have the authority to pass comprehensive immigration reform on his own, and will not utilize executive authority to suspend deportations or expand Deferred Action for Childhood Arrivals (DACA).

Primary Sources:

Text of HR 3547 – Consolidated Appropriations Act, 2014

U.S. Department of Homeland Security Annual Performance Report Fiscal Years 2012-2014

Immigration Enforcement Actions: 2012

Immigration Enforcement Statistics Pew Research Center

FY 2013 ICE Immigration Removals

Text of Arizona SB 1070

Dream Act

The DREAM Act (Development, Relief, and Education for Alien Minors) is a bipartisan bill that would provide undocumented youths who came to the United States before age sixteen a path toward legalization. In order to qualify for the program, applicants must attend college or serve in the U.S. military for a minimum of two years while maintaining good moral character. By fulfilling these conditions, beneficiaries of the DREAM Act obtain temporary six-year residency, during which they may apply for permanent residency, a prerequisite of citizenship. Senators Richard Durbin (D-IL) and Orrin Hatch (R-UT) first introduced the DREAM Act in the Senate on August 1, 2001. Since then, multiple versions have been proposed both in the Senate and the House. The DREAM Act was also a part of the failed Comprehensive Immigration Reform bills of 2006 and 2007. In late 2010, one version of the DREAM Act, S.3992, passed in the House, but in 2011 did not pass the Senate. On May 11, 2011 during the 112th Congress Senator Richard Durbin reintroduced the DREAM Act in the Senate. President Obama has declared his support for the bill, but no congressional action has been taken. Supporters anticipate that passing the DREAM Act will be instrumental in lifting heavy economic and social burdens. The “Dreamers” represent a demographic of approximately 2.1 million young people who were brought to the United States as children and grew up here, yet are unable to further their education on U.S. soil because of their status. Projections about the economic impact of the DREAM Act vary. A 2010 study from the Migration Policy Institute (MPI) estimated that only 38% of all 2.1 million eligible beneficiaries would apply for and obtain benefits under the DREAM Act of 2009. In this lower-bound scenario, the North American Integration and Development Center estimates that these 825,000 beneficiaries would earn $1.4 trillion over a forty year period. However, if the entire pool of potential beneficiaries were able to meet the DREAM Act requirements, MPI estimates that they would earn $3.6 trillion. In a December 2010 report, the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) estimated that the November 30, 2010 version of the DREAM Act (the version which ultimately passed the House of Representatives) would “reduce deficits by about $1.4 billion over the 2011-2020 period” and “increase government revenues by $2.3 billion over the next 10 years.” The DREAM Act would increase revenue through an increase in individual and corporate income taxes and social insurance taxes. Though those affected would be eligible for Social Security and Medicare benefits, because the Act affects a younger portion of the population the CBO estimates that only 1,800 or .2% of those affected by the DREAM Act would qualify for benefits in the years 2011-2020. Critics see the DREAM Act as a strand of amnesty that further encourages illegal immigration. One of the major concerns is that once a citizen these young people would then be able to sponsor their parents for citizenship creating an indirect path to citizenship. In response to fears of a de facto path to citizenship supporters of the bill have suggested adopting the DREAM Act with the addition of a clause that would make those who qualify unable to sponsor individuals for citizenship; some believe that this is not a feasible solution as it would create a second class of citizens. Others are concerned that the DREAM Act is difficult to oversee or that it could result in large-scale fraud. A misconception that the national DREAM Act forces states to provide in-state tuition benefits has also compromised its success in the past. However, in reality the national DREAM Act neither mandates nor disallows states to provide in-state tuition to its beneficiaries. Since the DREAM Act has not been passed in Congress, some states such as Illinois and California have passed versions of their own. In 2011, Governor Quinn of Illinois signed the Illinois DREAM Act (SB 2185) into law. The Illinois DREAM Act created a nine-person commission to manage a “DREAM Fund”, an account of private donations for scholarships and grants to children of immigrants—regardless of their legal status—to attend an Illinois institution of higher education. Governor Jerry Brown of California also passed his own version of the DREAM Act in two installments- AB 130 allows undocumented students access to an estimated $88 million in private financial aid in the form of scholarships and grants, and AB 131 allows undocumented students who meet in-state requirements to apply for financial aid. As of February 2014, 15 states have their own versions of the DREAM Act: California, Colorado, Connecticut, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon,  Texas, Utah, and Washington. The state laws permit undocumented students to become eligible for in-state tuition if they graduate from state high schools, have two to three years of residence in the state, and apply to a state institution. The students may be required to sign a document promising to seek legal immigration status. Though Hawaii, Michigan, and Rhode Island have not passed legislation granting students in-state tuition, the states’ University boards have enacted policies allowing undocumented students to pay in-state tuition; in order to qualify students must meet certain qualifications such as having lived in the state for a number of years. Florida, Indiana, Massachusetts, Mississippi, New Hampshire, and Virginia are considering bills as well that would extend in-state benefits. However Alabama, Arizona, Georgia, Indiana, and South Carolina have passed legislation that explicitly bars undocumented immigrants from receiving in-state tuition. Wisconsin passed in-state tuition in 2009, but it was later repealed. On February 5th, 2014 Senator David Vitter (R-LA) introduced legislation to prevent states from granting in-state tuition to undocumented students. Proponents of the bill refer to the act as “closing a loophole.” On January 16th, 2014 Sen. Patty Murray (D-WA) and Rep. Jared Polis (D-CO) introduced a bill to Congress: “The Investing in States to Achieve Tuition Equity (IN-STATE) for DREAMer Students Act,” which would provide $750 million to states that offer in-state tuition or financial aid to undocumented students that have graduated from an American high school. Currently  S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013”  championed by the so called “gang of eight,” a group of four democrat and four republican senators: Sens. Chuck Schumer (D-NY), Richard Durbin (D-IL), Bob Menendez (D-NJ), Michael Bennet (D-CO), John McCain (R-AZ), Lindsey Graham (R-SC), Marco Rubio (R-FL), and  Jeff Flake (R-AZ), is under consideration in Congress. The bill would implement a border security plan, mandate employment verification, and adjust the status of undocumented youth who entered the United States as children. The bill passed the Senate on June 27, 2013. Primary Sources: Text of the DREAM Act of 2010 Text of the Congressional Budget Office Cost Estimate December, 2010 Text of the Bill to Prohibit Undocumented Immigrants from Receiving Postsecondary Education Benefits Text of the “The Investing in States to Achieve Tuition Equity (IN-STATE) for DREAMer Students Act” Text of the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013” See Also: Issue Brief on Deferred Action for Childhood Arrivals (DACA)

Family-based immigration

The 1952 Immigration and Nationality Act (INA) identified family reunification as one of the four priorities for admitting immigrants into the United States.  The US immigration system is commonly referred to as a family-based system, as the majority of permanent admissions to the United States are made on the basis of family ties to US citizens or US legal permanent residents (LPRs). This is distinct from a skills-based system, in which the majority of admissions are made on the basis of workforce needs; the Canadian immigration system is an example.

Temporary Admissions

Family-based admission to the United States is almost exclusively a permanent admission phenomenon, with the exception of fiancés and fiancées of US citizens who can demonstrate intent to marry within 90 days (eligible through the K visa). In previous decades, the V visa was also available. It was intended for immediate relatives of LPRs who themselves have had LPR petitions pending for at least three years. However, while the V visa still legally exists, it is no longer available in any meaningful sense, as it requires the relative to have filed a request for the visa on or before December 21, 2000.

Permanent Admissions

Under family-sponsored immigration US citizens can petition for LPR status for spouses and unmarried children, as well as for parents, brothers, sisters, and married children. Current LPRs may only sponsor their spouses and unmarried children.

Family-sponsored immigration is split into two categories: Unlimited Family-Based, which does not require a visa number, and includes immediate relatives (defined as spouses and unmarried minor children of US citizens and the parents of adult U.S. citizens); and Limited Family-Based, which requires a visa number, and includes non-immediate relatives of US citizens and immediate relatives of LPRs. This latter category is divided into several preference levels by immediacy of relationship and the status of the US sponsor, with varying allocations of visas for each preference category.


Source: CRS Report RL 32235, U.S. Immigration Policy on Permanent Admissions, by Ruth Ellen Wasem

The total number of permanent admissions through the family preference system is nominally limited to 480,000. However, there is no numerical limit on the number of immediate relatives admitted, and the total number of immigrants admitted through the preference-tier system has a legal floor of 226,000 per year. As a consequence, the total cap of 480,000 is usually exceeded.

Limits by Country of Origin

Following the fourth priority of the INA (diverse admissions by country of origin), each country is limited to at most seven percent of the worldwide level of immigrant admissions. For family-based admissions, there is one exception: 75 percent of the visas allocated under the 2A family preference (Spouses and minor children of LPRs) are not subject to the per-country ceiling.

Oversubscription

Visas for family preference admissions are issued in the order in which the petition on their behalf was filed. Because there are more applicants for family-preference admissions than there are available visas, the family-preference categories are “oversubscribed”, meaning that there is a backlog of immigrants waiting for admission to the United States. The general oversubscription of family-preference visas combined with the per-country cap on yearly permanent admissions means that preference categories for certain countries are severely oversubscribed. The below table, current as of December 2012, lists the dates of application which are now being considered for admission. For example, the application of someone who applied under the first-tier family preference from Mexico prior to July 1, 1993 is only now being processed.


Source: United States Department of State, Bureau of Consular Affairs, Visa Bulletin No. 51, Vol. IX

Greatly complicating matters for families, those who have an LPR petition pending find it difficult to legally visit the United States. In order to qualify for a nonimmigrant (temporary) visa, including B (Pleasure or Business Visitor) visas, applicants must demonstrate that they are not planning to reside permanently. Per section 214(b) of the INA, the presumption is that all aliens seeking permanent admission to the US are coming to reside permanently. This presumption is the most common basis for rejection of nonimmigrant visa applicants. There are three visas which are exceptions to this: the H-1 professional worker, the L intracompany transfer, and the V accompanying family member. These visas are considered provisional, in that the holder may simultaneously hold the visa and apply for LPR status.

 

Resources

• Visa Bulletin No. 51, Vol. IX. United States Department of State, Bureau of Consular Affairs. <http://www.travel.state.gov/pdf/visabulletin/visabulletin_november2012.pdf>
• U.S. Immigration Policy on Permanent Admissions. Ruth Ellen Wasem, Congressional Research Service. March 13, 2012.
• U.S. Immigration Policy on Temporary Admissions. Ruth Ellen Wasem, Congressional Research Service. February 28, 2011.