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Excerpted From: Jennifer Lee Koh, Downsizing the Deportation State, 16 Harvard Law & Policy Review 85 (Winter 2021) (159 Footnotes) (Full Document)


JenniferLeeKohnWhat might President Biden's immigration legacy be? Based on the campaign and first several months of office, the Biden administration has demonstrated a commitment to undoing many of its predecessor's immigration policies. Immediately after taking office, President Biden issued a series of executive orders and proclamations that reversed some of the most controversial immigration policies of the Trump era, such as the travel bans and efforts to rescind Deferred Action for Childhood Arrivals (DACA). With respect to prosecutorial discretion, the Administration has revised the immigration enforcement priorities aimed at guiding deportation and detention decisions, which appear to have had some impact on the number of arrests and deportations in the interior United States. Immigration agencies sought to change course on a range of practices, from highly visible programs such as the Migrant Protection Protocols (MPP), which required asylum seekers to remain physically in Mexico while having their asylum claims heard by the immigration courts, to seemingly mundane but deeply frustrating practices with respect to the treatment of blank spaces on immigration application forms. In litigation over controversial Trump-era policies such as the public charge rule (which sought to deny green cards to immigrants who received certain public benefits) and the withholding of federal funds to sanctuary cities, the Administration moved to dismiss the actions in light of anticipated policy changes. During its first week, the Biden administration also announced its support for immigration legislation that would create mechanisms for millions of people who currently lack authorized status to establish pathways to permanent residence and U.S. citizenship.

Immigrant communities and their allies expressed a mixture of cautious optimism and continued concern at the start of 2021. Despite President Biden's stated commitment to distinguishing himself from Trump on immigration, many policies remained in place during the first six months of the new President's term--perhaps due to the pace at which regulatory and administrative change can realistically take place, but perhaps also due to lack of political priority. For instance, the Biden administration continued to employ and defend the summary expulsion of families and adults seeking asylum at the United States-Mexico border pursuant to Title 42 of the United States Code. The Trump administration had justified Title 42 expulsions on public health grounds related to COVID-19, but the practice has come to signify the most recent iteration of the politicization of, and hostility towards, asylum seekers at the southern border. The judiciary has slowed other immigration policy initiatives from the Biden administration. A significant early effort to exercise prosecutorial discretion, a 100-day moratorium on deportations, was enjoined by a federal court. By August 2021, federal district courts in Texas had issued three nationwide injunctions prohibiting the Biden administration from moving forward with key immigration policy departures from Trump--restoring DACA, terminating MPP, and implementing enforcement priorities. The Administration's management of migration at the southern border and the human rights emergency involving Central American countries (primarily El Salvador, Guatemala, and Honduras) requires continued attention. And despite President Biden's early support for comprehensive immigration reform in Congress, the viability of meaningful legislative options remains unclear.

The Biden administration could approach its immigration policies not only through the lens of distinguishing itself from Trump or through the enactment of new laws and policies, but from a broader historical perspective that accounts for the growth of the modern deportation state. This perspective recognizes that the government's capacity to engage in immigration enforcement--especially detention and deportation--has grown steadily over time, and that scaling back the size and scope of the governmental infrastructure that has made mass detention and deportation possible is warranted. After all, funding for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), the two main federal agencies responsible for enforcing the immigration laws in the interior and at the border, exceeds that of any other law enforcement agency in the federal government. In fiscal year 2019, ICE received $8.3 billion in funding, and CBP, $17.7 billion--for both agencies, resources nearly three times greater than received around the time of their creation in 2003. Indeed, the federal government has spent a total of $333 billion on those agencies since 2003. Increased funding has given rise to greater capacity. As of January 2021, the two agencies employ nearly 50,000 border and interior enforcement agents, reflecting increases of two- to three-fold since 2003. Prior to 2003, the former federal agency the Immigration and Naturalization Service (INS) deported fewer than 40,000 people, but by FY 2019 ICE removed over 260,000--a more than four-fold increase. The numbers of people detained each year by immigration authorities have likewise undergone exponential increases.

Yet this growth in the deportation state has yielded troubling results. The dominant tools used by immigration enforcement--quasi-criminal measures like physical incarceration, with attendant costs leading to family separation, displacement, and distrust in government--have led to harms exacted upon immigrant communities, especially communities of color. More enforcement resources have not led to greater legal compliance. The agencies, in turn, have developed reputations for lawlessness, which have undermined their legitimacy. And the deportation state has played a strong role in perpetuating legacies of racial injustice and white supremacy in the United States.

This Article contends that an overarching goal for the Biden administration should be to reduce the overall size, scale, and support for the federal government's capacity to detain and deport. Such efforts necessarily involve confronting--and questioning--the substantive rules of immigration law dealing with who to admit, how to distribute benefits, the centrality of deportation in immigration enforcement, and how deportation takes place. The focus of this Article, however, is on questions that are adjacent to core immigration law rules, such as how and to what extent enforcement operations are resourced, how internal staffing and management of the immigration bureaucracy takes place, and how external relationships with entities outside the federal government help grow the potential reach of the deportation state. As part of this symposium on agency restructuring to advance progressive agendas, this Article contends that these questions warrant direct attention and concern. It highlights three key areas: first, the capacity of and funding for the administrative bureaucracy; second, the management of the civil servants and frontline agents, and third, the contracts, agreements and collaborations entered into by federal immigration agencies.

In doing so, this Article seeks to make two broader contributions to current immigration discourse. First, given the recognition that the executive branch has come to occupy a central--if not the most critical--role in shaping immigration policy, it encourages reform-minded scholars, policymakers and advocates to think about designing an immigration system that not only responds to the excesses of the Trump era, but also reduces the likelihood of a future President inheriting a maximally resourced deportation bureaucracy. Second, by focusing on aspects of the deportation state--funding, staffing, and contracts--that tend to evade significant public attention, this Article encourages critical examination of ways in which the deportation state might expand through mechanisms that are not immediately evident and that are prone to escaping accountability.

Part I of the Article provides a brief overview of the current state of immigration law and policy in early 2021, providing background on preceding administrations beginning with President William J. Clinton. Part II sets forth rationales for downsizing the deportation state, grounded in fairness, effectiveness, legitimacy, and racial justice considerations. Part III explores issues related to funding, supervision, and management of the front line as well as the subfederal and private relationships that arise out of the contemporary deportation state. The Article concludes with restrained optimism for the short term, and a call for sustained attention to the government's deportation capacity in the long term.

[. . .]

This Article has encouraged the Biden administration to approach its immigration policy with the goal of downsizing the deportation state, a shift that would depart not just from the Trump era but from multiple administrations before it. Three particular areas--funding, staffing and supervision, and subfederal and privatization collaborations--constitute significant dimensions of any effort to minimize the size, scope, and capacity of the bureaucratic apparatus tasked with conducting deportations and detentions. Each of these three areas is interconnected. Removing immigration enforcement's heavy reliance on carceral tools such as detention, for instance, may be fundamentally addressed through funding and collaborations with subfederal and private entities. Increasing the compliance capacity of the immigration bureaucracy requires rethinking funding streams for immigration enforcement as well as supervision and staffing of the immigration state. If we are serious about orienting the system towards a greater measure of fairness, justice, and humanity, each of these areas requires specific attention.

The Biden administration may offer a glimmer of hope for immigrant communities in the short term, but the past several decades have illustrated the vulnerability of immigrant communities to the country's political whims. Even as immediate reforms and legislative fixes remain essential, shaping the nature of the contemporary deportation state should remain a priority in the long run.

Associate Professor of Law, Pepperdine Caruso School of Law.

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