Last week, President Obama ordered his administration to review whether immigration law can be enforced in a more “humane” manner. To borrow a refrain from his first campaign for president, “Yes, we can.” First, he can reduce the number of people detained and second he can reduce the number of people removed from the United States. Here are just a few ideas how the Obama Administration can do that without waiting for congressional action.
First, the President should acknowledge that immigration detention is out of control. At last count (fiscal year 2012), 477,523 people saw the inside of an immigration prison. This is a record number of detainees, but only another in a long line of records under President Obama. Administration officials and advocates frequently complain that the “bed mandate” imposed by Congress ties ICE’s hands by requiring them to detain 34,000 people each night. I’m not convinced that that’s true. The budget that Congress passed and the president signed in January says DHS “shall maintain a level of not less than 34,000 detention beds.” There’s no getting around this language; Congress has forced DHS to pay for 34,000 beds.
But the text doesn’t say anything about filling those beds. If President Obama genuinely wants to reduce the human toll of immigration law enforcement, my advice to him and DHS is to pay for the beds, as Congress requires, but don’t fill them. DHS Secretary Jeh Johnson acknowledged this possibility during congressional testimony last week. It is clearly wasteful to pay for prison beds that go unused. It is, however, far less wasteful than to pay for prison beds that even DHS acknowledges it doesn’t need and then go pluck people out of the community to fill the beds with people who don’t present a flight risk or public safety danger. There’s no shame in letting prison beds go unfilled. Even Texas closed two prisons last year because there weren’t enough people getting convicted to fill the beds inside.
Would it violate Congress’s intent to leave beds unfilled? I don’t know. There are enough immigration restrictionists in Congress to make me think that at least some members would like those beds filled even if it means making detainees out of people who aren’t a flight risk or public safety threat, the two criteria traditionally used to gauge whether detention is appropriate. Ultimately, though, congressional intent is irrelevant because there’s no need to try to get into Congress’s mind when their words are so clear. The first tool by which courts interpret statutes is to look at the words themselves. If the text is clear, then courts are required to do what the text instructs. It’s not up to the courts or anyone else to second-guess the language of the laws Congress writes and the president signs. We consider legislative intent only if the words are ambiguous. When it comes to the bed mandate, I think the words are clear: The budget requires DHS to spend as much money as is necessary to ensure that it has 34,000 beds available (Congress gives it about $2.8 billion to do this). Just as clearly, the bed mandate says nothing about detaining 34,000 people. So my advice to President Obama: Tell DHS to follow the bed mandate, but don’t convert it into a people mandate.
Second, President Obama could order Attorney General Holder to reconsider the way that the Immigration and Nationality Act’s “mandatory detention” provision, INA § 236(c), is interpreted. The Board of Immigration Appeals, the immigration law appellate tribunal, currently takes the position that § 236(c) requires nothing short of physical detention. According to the BIA, alternatives to detention such as electronic monitoring or intensive supervision do not satisfy § 236(c)’s custody command that DHS “shall take into custody” any migrant who meets any of a long list of specified criteria. That’s not an obvious reading of the statutory text. As I explain in a forthcoming article in the UCLA Law Review:
In Matter of Aguilar-Aquino, the Board rejected the immigration judge’s conclusion that electronic monitoring is “custody” because, for purposes of federal habeas corpus relief, “custody” requires a deprivation of liberty but does not require actual physical restraint or confinement—in effect, that custody includes but is not limited to detention. Instead, the Board reviewed Congress’s 1996 amendments to the detention provision and concluded that Congress “used the terms ‘custody’ and ‘detain’ interchangeably.” When Congress said “custody,” in other words, it meant “detention.” Had the Board not interpreted Congress’s intent in this manner, it could not have addressed the limits of “custody” since the section at issue, § 236(a), refers to detention, not custody.
Importantly, the Board came to this conclusion by relying on the 1996 amendment’s legislative history. Taken in the context of the version of the statutory provision that existed prior to 1996, however, the legislative history to which the BIA turned is quite muddled. Earlier versions of the detention provision stretching to 1952 explicitly permitted habeas review of a decision “concerning detention, release on bond, or parole pending final decision of deportability…. ” Habeas review, of course, is available only to individuals in custody. Congress, it seems, considered detention, bond, and parole to be forms of custody subject to habeas review. In 1996 it not only replaced “custody” with “detention” in the new discretionary detention provision but it also limited habeas review of decisions to detain or not. This suggests that Congress was fully aware that detention is but one form of custody. Indeed, this conclusion is supported by the fact that the provision typically described as the “mandatory detention” provision, also added in 1996, actually requires that the attorney general “shall take into custody” anyone who meets the specified criteria. It would be odd for Congress to require detention of individuals whom it permits an immigration judge to release while allowing immigration judges to impose nondetention forms of custody on individuals whom they cannot let out of government custody. Consequently, whether “custody” is synonymous with “detain” is not as obvious from the legislative history as the board concluded. Just as the BIA concluded that the two terms are interchangeable, the board or attorney general could reconsider in light of other language that existed before 1996, as well as the language of other statutory amendments. Doing this would allow ICE to meet the INA’s demand that large classes of people with criminal history be “taken into custody” without physically confining them in secure environments.
César Cuauhtémoc García Hernández, Immigration Detention As Punishment, 61 UCLA Law Review 5 (forthcoming 2014) (internal citations omitted).
Third, President Obama could order DHS to scale back its policing initiatives. By taking immigration law enforcement down a notch, the President would ensure that fewer people enter the detention and deportation pipeline. Fewer people entering the pipeline means fewer people getting deported.
DHS currently operates an alphabet soup of law enforcement measures that collectively bring hundreds of thousands of people into the detention and deportation pipeline. Some of these are well known. Secure Communities and 287(g) programs, for example, have received a lot of attention by supporters and critics alike, and both have fed the detention and deportation pipeline in recent years. Between October 2008 and May 31, 2011, “more than 260,000 people were…booked into ICE custody as a result of” Secure Communities. National Immigration Forum, Secure Communities 1 (2011). Meanwhile, ICE claims that 309,283 people were identified as potentially removable thanks to 287(g) programs operating since January 2006.
Other immigration policing initiatives tend to fly under the radar but result in similarly large numbers of people being detained and placed into removal proceedings. The Criminal Alien Program (CAP), for example, alone is credited with leading to 1,116,877 arrests between fiscal years 2004 and 2011, making this the ICE program that led to the most arrests during this eight-year period. Marc R. Rosenblum & William A. Kandel, Interior Immigration Enforcement: Programs Targeting Criminal Aliens 25 tbl.6 (2012). Likewise, few people have heard of the National Fugitive Operations Program (NFOP), but the program had a budget of $133 million in FY 2013 and led to the arrest of 30,373 people between fiscal years 2003 and 2006. Another program, the State Criminal Alien Assistance Program (SCAAP) reimburses state, county, and city prisons and jails for incarcerating certain migrants. Meanwhile, the public hadn’t even heard of the Criminal Alien Removal Initiative (CARI) until immigrants’ rights advocates in New Orleans accidentally stumbled upon information revealing its existence.
Some of these programs are fairly new. The last major changes to immigration law happened in 1996. Most initiatives that were created under the presidential administrations of George W. Bush or Barack Obama, therefore, could be scaled back significantly or eliminated without any legal problems. The NFOP, for example, was created in 2002 and first funded in 2003. CARI seems to have come out of nowhere in the last two years. Most significantly, the Secure Communities program was launched in 2008 and has expanded to every jurisdiction in the country thanks to a concerted effort by the Obama DHS.
The Administration could even deemphasize programs that are explicitly authorized by statute. DHS has already shown a willingness and ability to do something similar in the context of a major policing initiative, 287(g) programs. DHS used to operate two types of 287(g) programs. The “task force” model” allowed local police deputized to perform immigration law investigations to arrest potentially removable individuals who they encountered on the streets, while the “jail enforcement” model let deputize police officers flag people already arrested for conduct not related to immigration. Without any fanfare or pushback, DHS chose not to renew the task force models when those agreements expired at the end of 2012.
At the very least, DHS could deemphasize programs that by not asking Congress to fund them. The president’s recent budget proposal, for example, asks for money for the SCAAP as well as a small budget increase for the NFOP. If the President truly wants to reduce the human cost of immigration laws, then he could start by not asking Congress to give him money to fund programs that expand the detention and deportation net. As he said during his most recent State of the Union address, he has a pen and it’s enormously powerful.
By no means is this a comprehensive account. The point is merely that DHS has many tools at its disposal to reduce the number of people detained and deported. It’s worth remembering that immigration law enforcement is at historically unprecedented levels. Republican claims that President Obama can’t be trusted to enforce the laws that currently exist are nothing more than tired talking points. Speaker Boehner and others who harp about this are either lying or delusional. No administration in history has enforced immigration laws to the extent that DHS has done under President Obama. The humane consequences of that enforcement are evident everywhere. Just like President Obama’s DHS ramped up the scale of enforcement to unprecedented levels, it can turn back the clock.
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