Migration Policy Institute – DHS and Immigration: Taking Stock and Correcting Course

Executive Summary

The dawn of new leadership in the White House and throughout the executive branch offers a singular opportunity to examine the policies and performance of an immigration system that is, by turns, the most generous in the world but also widely viewed as dysfunctional and unresponsive to the interests of society, the economy, and immigrants themselves.

Nearly six years ago, the structural underpinnings of the federal immigration bureaucracy were dismantled and reforged to meet the heightened security imperatives of the post-9/11 world. Now situated in a vast Department of Homeland Security (DHS) responsible for everything from port and aviation security to federal disaster response, the government’s immigration functions have profoundly evolved — in some ways for the good, in some ways requiring improvement.

This report steps back to take stock and offer a clear-eyed assessment of the performance of the three immigration agencies within DHS — US Customs and Border Protection (CBP), US Immigration and Customs Enforcement (ICE), and US Citizenship and Immigration Services (USCIS) — and overall DHS immigration policy direction and coordination.

With an uncertain timetable for legislative solutions on immigration, an issue that is politically complex and sensitive even in the best of times, the report focuses entirely on demands and choices the new administration must confront and changes the executive branch could accomplish.

Regardless of whether Congress and the White House ultimately enact new immigration legislation, the DHS immigration agencies require policy and operational changes to improve their effectiveness and ability to implement existing laws. Strengthening the agencies now offers the opportunity to further improve national security, increase efficiency and fairness, and prepare them to implement new mandates that could add significantly to their already large workloads.

The philosophy that imbues this report and its recommendations can be simply stated:

•   Immigration is in the national interest, and an effective legal immigration system is central to America’s historical values, economic competitiveness, and immigrant integration.
•   Smart, high-impact, mission-appropriate law enforcement to deter illegal immigration and to punish the “bad-faith” employers whose business model is built upon illegal immigration is equally necessary.

The report is informed by roundtable discussions with senior DHS officials, congressional staff, stakeholders, state and local law enforcement officials, advocates and policy experts; it also draws on extensive Migration Policy Institute research and analysis.

It offers 36 recommendations for improvements that the executive branch can accomplish as they do not require legislation. Among the recommendations, presented here by agency:

•   CBP should conduct a full-scale review of border technology, including the role and effectiveness of physical and “virtual” fencing, and other barriers. Pending the outcome of the review, new fencing projects and contracts should not be pursued.
•   CBP should systematically analyze the biometric and border apprehension data it collects in order to nderstand crossing trends, smuggling patterns, and other criminal behavior. The report calls for all the DHS immigration agencies to improve the quality and ransparency of their performance data and metrics.
•   Consistent with its homeland security mission, ICE should focus its operations on the criminal enterprises that underlie large-scale illegal migration. Its investigations should be prioritized to target worksites that terrorists may attempt to infiltrate and employers who intentionally hire unauthorized workers in order to depress wages, undermine working conditions, and gain an unfair competitive advantage.
•   ICE should establish and implement guidelines that prioritize its investigative targets, as well as whom it arrests, places in removal proceedings, and detains. Such guidelines should set criteria for conducting worksite enforcement actions and should direct all of ICE’s enforcement programs to achieve its statutory mission.
•   ICE’s principal worksite enforcement goals should be fostering the use of a viable mandatory employment verification system, ensuring compliance with that system, and punishing employers whose business models depend on the employment and exploitation of unauthorized workers.
•   ICE should routinely refer for criminal prosecution those who commit egregious or repeated violations of immigration law, or who commit unrelated criminal offenses. ICE should not overuse criminal charges in routine immigration-status violation circumstances.
•   As part of its Criminal Alien Program and 287(g) agreements with state and local police and sheriff’s offices, ICE should pursue plans to provide federal, state, and local law enforcement with expanded access to its databases during the booking process; expand screening of all noncitizens serving criminal sentences; and place noncitizen criminals into removal proceedings before they complete their sentences (obtaining travel documents for those ordered removed).
•   Supervised release programs run by ICE should be expanded for discretionary detainees who do not threaten national security or public safety, and who would not represent a flight risk while under supervision. ICE’s enhanced electronic monitoring program should be extended to carefully screened mandatory detainees who do not represent a national-security, public-safety, or flight risk if the agency determines the program meets necessary legal standards of civil detention.
•   The Social Security Administration’s (SSA) “no-match” program, whose purpose is to credit earnings to those who paid into the system, should not be used by DHS as an immigration enforcement tool.
•   Mandatory employer verification must be at the center of legislation to combat illegal immigration. Until such legislation is enacted, the administration should support reauthorization of the E-Verify employment verification system and expand its use as a voluntary program, allowing for its steady improvement in moving to scale as a mandatory program. Attention should now be focused on continued improvement in the accuracy rates of the DHS and SSA databases, development of a secure system of identification, and improved rates of employer compliance with program rules.

Also, the administration should analyze whether or not E-Verify ultimately offers the best platform for mandatory verification.
•   Funding for USCIS should be “right-sized” and adjudication procedures should be streamlined so that the agency can break the recurring cycle of backlogs that impedes its ability to function as a true immigration services agency. The agency’s funding model must be redesigned so that user fees support legitimate application processing costs, with additional revenue sources to provide for critical infrastructure investments.
•   To encourage legal immigration for all who are eligible for benefits under current laws, USCIS should adjudicate in the United States, not at consulates abroad, “extreme hardship” waivers for persons approved for family-based visas.
•   Visa and immigration processes have been substantially strengthened since 9/11.  DHS should undertake a rigorous review of all post-9/11 security procedures with the goal of identifying gaps that must still be addressed and streamlining processes to eliminate redundancies.
•   DHS should strengthen its immigration policy coordination role by appointing a Senior Assistant to the Secretary and Deputy Secretary whose sole duty is to oversee all aspects of DHS immigration policy implementation and coordination. The individual should be empowered to act with the authority, as appropriate, of the secretary and Deputy to ensure clear policy direction and coherence in DHS’s immigration functions.
•   DHS should take the lead in developing a comprehensive immigration enforcement vision and strategic plan that involves all key stakeholders within the administration and beyond.

To read the full report, click here.