In its first five years, the Obama administration's attempt to reconcile its support for immigration reform legislation with harsh enforcement policies has been strained, but not incoherent or without integrity. It has opted to target employers that hire unauthorized workers, rather than conduct high-profile, work-site raids that mostly net exploited workers. It has prioritized the removal of serious criminals, security threats, and recent border crossers, the latter in an attempt to deter illegal entries. It has chosen to exercise prosecutorial discretion on a case-by-case basis in favor of persons (primarily those who arrived as children) who do not meet its enforcement priorities. It has acted in the expectation that immigration reform legislation would pass, but has faithfully executed the highly restrictive laws passed in 1996 and in the post-9/11 years, with the unprecedented enforcement resources and tools at its disposal.
This approach has offered the administration substantial flexibility in implementing the law in ways that have defied the expectations of immigration reform proponents. Recent "illegal entrants," for example, include persons who entered as many as three years in the past and are apprehended as far away as 100 miles from the border. DHS "criminal" removals have included substantial numbers of persons with convictions for traffic, minor immigration, and other misdemeanors. Who knew that border crossers include not-so-recent entrants found far away from the border, or that illegal entrants (circularly) are among the serious criminals targeted by the Department of Homeland Security (DHS)?
The administration's aim has been to reform and enforce the laws, but its policies have devastated countless families and led to a political inflection point. Once eager to tout its aggressive enforcement strategies, the administration now seems intent on claiming (incorrectly) that its policies have had a modest impact. In response to protests over removals, John Sandweg, former acting director of Immigration and Customs Enforcement, recently soft-peddled the administration's enforcement record, arguing that the possibility of removal for a "run of the mill" unauthorized immigrant in the country's interior was "close to zero."
Yet, in 2013, DHS removed more than 133,551 persons from the nation's interior out of a total of 368,644. To put these numbers in perspective, the United States did not deport 100,000 persons per year until 1997. Yet 1.95 million persons were removed during the Obama administration's first five years. DHS defines "removals" as "the compulsory and confirmed movement of an inadmissible or deportable alien out of the United States based on an order of removal." Formal removals (of this kind) trigger a 10-year bar to legal admission in most cases, and 20 year and permanent bars in others. A removal order also carries severe criminal consequences for those who subsequently enter illegally, a group that now includes a substantial number of persons who are desperately trying to return to their U.S. families.
It is precisely because of these harsh consequences that the administration has opted to pursue removal orders in the overwhelming majority of returns. Past administrations allowed large numbers of persons who illegally entered from contiguous states (mostly Mexico) to leave the country without a formal order. In 2000, there were nearly 1.7 million "voluntary" returns or departures, which allowed returnees to skirt the negative consequences of removal. However, this practice became far less common over the course of the Bush and Obama administrations until by 2013, only 23,455 voluntary returns were permitted.
Pro-enforcement activists treat the decrease in voluntary returns as evidence of a bad-faith, scofflaw administration, but in fact this shift reveals a harsher approach to removal, one characterized by more formal removals, more criminal prosecutions for offenses previously treated as civil violations, and a high rate of "criminal" removals for traffic violations, immigration offenses and other low-level crimes. The decrease in voluntary returns can also be attributed to a substantial decline in illegal crossings. Although Border Patrol apprehensions have risen over the last two years, particularly in South Texas, they are at roughly one-fourth the level of historic highs.
Activists on both sides of the immigration debate have condemned the Obama administration's removal policies for different reasons, some valid, some specious. One fact is clear, however. As two million deportees and their families can attest, the Obama administration has ferociously enforced the law.