Enforcement of Immigration Laws

Enforcement of Immigration Laws

Antonia Moras

"Enforcement of Immigration Laws" by Antonia Moras. Alaska Justice Forum 28(2-3): 2-4 (Summer 2011-Fall 2011). Although there has been increasing involvement by state and local law enforcement, and more politicization of immigration issues at the state and local level, the federal government still has primary responsibility for enforcement of the nation's immigration laws. Despite relatively few cases, the adjudication of immigration cases in Alaska has slowed dramatically over the last decade, as it has elsewhere. This article also examines immigrant detention Alaska, immigration court proceedings, and the lengthy time for an immigration proceeding, and the enormous backlog of cases.

Although in recent years there has been more involvement by state and local law enforcement-and more politicization of immigration issues at state and local levels-the federal government still has primary responsibility for enforcement of the nation's immigration laws. The formation of the Department of Homeland Security has resulted in changes in how the laws are enforced, although the changes may have affected Alaska less than other states because the number of Alaska cases involving immigration law violations continues to be very low. Despite the relatively few cases, however, the adjudication of immigration cases in Alaska has slowed dramatically over the last decade as it has elsewhere.

After the 2001 terrorist attacks, the functions of the Immigration and Naturalization Service were subsumed within the newly-formed Department of Homeland Security (DHS)-with the Bureau of Immigration and Customs Enforcement (ICE) taking on the responsibility for apprehending and removing unauthorized immigrants. In Alaska the reorganization has meant that the center for decision-making in ICE activities in Alaska is Seattle, rather than Anchorage as it was under the old Immigration and Naturalization Service (INS). ICE does have an office in Anchorage, but Alaska is no longer a separate district for administration of enforcement actions. Decisions about certain aspects of enforcement now ultimately rest with the Seattle office.

In Alaska the number of individuals who are apprehended under immigration laws continues to be very low. Although state-level figures for Alaska are very difficult to obtain-also as a result of the reorganization-and are not necessarily directly comparable with those from the old INS, there has been little or no increase in the use of detention as an immigration enforcement tool in the state. The number of people detained remains low. Nationally, there has been a significant increase in the use of detention since the establishment of DHS and ICE, with many more people subject to mandatory detention. (Despite the use of detention most immigration law violations are not criminal offenses.) Why this has not occurred in Alaska may be related to staffing levels and budgetary allocations, but that cannot be ascertained with the available information. ICE will not provide information on staff numbers in Alaska.

Also-as of September 2011, no communities in Alaska had signed a 287 (g) program memorandum of agreement. Under a 287 (g) agreement, a local law enforcement agency receives delegated authority for immigration law enforcement in its jurisdiction. Only 69 law enforcement agencies in 24 states have signed these agreements.

Nor were any Alaska agencies formally participating in the Secure Communities program. Under this program, the fingerprints of someone who has been arrested for a criminal offense are sent to the FBI for cross-checking with ICE on immigration status. While this cross-checking does occur with some arrestees in Alaska, the state is not a formal participant in this program-according to information published on the ICE website. Nationally, 47 percent of over 3,000 jurisdictions are part of the program.

The following discussion provides snapshots of the work in Alaska of the two main federal entities involved in the apprehension and removal of unauthorized immigrants-ICE and the Executive Office for Immigration Review (EOIR), which is the formal title for the country's network of immigration courts. The data available cover different time periods-and different cases-and must be viewed separately for each agency.

Immigrant Detention in Alaska

According to information obtained from ICE, an unauthorized immigrant in Alaska usually comes to the attention of ICE after the individual has been picked up by a law enforcement agency for a matter other than an immigration violation. ICE will then ask the agency to put the individual on immigration hold-detention-for a short period during which the bureau establishes whether the person should be detained formally on an immigration violation. This occurs throughout the state. Between April 2007 and March 2008-the latest period for which data were available when this article was written-facilities in seven communities held one or more ICE detainees for a period of time: Anchorage, Eagle River (Hiland Mountain), Dutch Harbor, Kodiak, Fairbanks, Ketchikan, and Juneau.

If someone is formally detained by ICE in a facility outside the Anchorage area, the individual is usually transferred to an Anchorage Department of Corrections (DOC) facility, although sometimes-particularly from locations in southeast Alaska-the person may be transferred directly to the ICE detention facility in Tacoma. (ICE does not have detention facilities in Alaska. It has interagency service agreements with city jails and DOC facilities around the state that allow for short-term immigration detention. The detention facility in Tacoma is a contract facility operated by a for-profit corporation.)

The transfer to Anchorage is followed in most cases by a transfer to the Seattle area, although at all points of detention, an individual may request to have the detention reviewed by an immigration judge. The judge can terminate the case immediately, continue the detention, or release the individual under one of a variety of arrangements, pending disposition of the case in court.

The available data on immigration detention in Alaska are derived from ICE transfer records, which do not track individuals but rather incidents of transfer and nationalities. (See "Note on Data Sources for Immigration Articles.") Because many detainees are held in more than one facility-resulting in multiple incidents of transfer for one person-it can only be said that the total number of people detained by ICE from April 2007 through March 2008 was no higher than 175 and may have been lower. Most of these individuals passed through Anchorage while in ICE custody and most were eventually transferred to the Seattle area for further processing of their cases. Almost all were men; very few women were detained. (A similar process of transfer to Seattle also used to occur under the INS.) Of the individuals in these 2007-2008 cases, only 58 left ICE detention in Alaska; that is, only 58 of the detainees from this group moved from the custody of ICE while still in Alaska.

Of the 58 detainees, 21 were released on bond pending appearance in immigration court; 13 were deported directly from Alaska; 2 agreed to voluntary departure; 9 were released on orders of recognizance or community supervision; 3 cases were terminated; and 10 were transferred to the custody of the U.S. Marshals Service or another law enforcement agency. The individuals who received bond or were released on recognizance or under community supervision would have later appeared in immigration court in Anchorage. Those transferred to the custody of a U.S. Marshal or other law enforcement agency may also have eventually appeared before an immigration judge but not necessarily in Alaska. The final disposition of these 2007-2008 cases cannot be determined from the available data.

Immigration Court Proceedings

Immigration cases are heard by judges within the Executive Office of Immigration Review (EOIR), a judicial branch within the Department of Justice-not the Department of Homeland Security. There are around fifty immigration court districts in the country as a whole. The Alaska court is in the Oregon district. A judge travels to Anchorage on a regular schedule to hear Alaska cases.

A respondent in an immigration case is entitled to an attorney, but not at government expense. The government arranges for translation and interpretation. None of the respondents whose cases are heard in Anchorage is in detention at the time the case is heard, although some may have been detained briefly at an earlier point when first apprehended by ICE.

According to current EOIR case data, at the end of July 2011, there were 181 cases pending for the Anchorage court. (Note: EOIR case data cannot be matched with ICE data. The EOIR cases enumerated here are not the ICE cases discussed in the first part of this article. Also, the cases reflect different time periods.) From the beginning of FY 2011 through the end of July, 61 cases had been resolved. (None of these cases involved respondents with a criminal conviction.) Of these, 9 were removals-or deportations; and 11 were voluntary departures. With an official deportation, an individual is barred from returning to the country for a period of years or in some cases, permanently. With a voluntary departure, an individual is required to leave, but is not barred from returning. In 20 cases the judge found no cause for removal and terminated the case. In 18 relief was granted; that is, although there were grounds for removal, the judge found reason under immigration law to permit the individual to remain in the U.S. The decision in three cases was not available, probably due to a lag time in entering data.

One aspect of the immigration law enforcement process that has changed both nationally and for Alaska is the time involved in bringing cases to completion. Immigration courts face an enormous backlog of cases. Over the last decade there has been a very marked increase in the average number of days from the filing of a case to its final adjudication. In FY 2000, the average time in the Anchorage court was 188 days. (See "Immigration Court in Alaska 1993-2002," Alaska Justice Forum, Spring 2003.) The average number of days to completion for these 61 FY 2011 cases in Anchorage court was 646. This length is undoubtedly at least somewhat related to the fact that the Alaska court is not hearing cases all the time. (One case, with a respondent from Senegal, took 1,300 days; another, with a respondent from Gambia, took 967.) The average for the Seattle court for the same time period in FY 2011 was 484 days, but for the Northwest Detention Center in Tacoma, where hearings are also conducted, it was 53 days-one of the lowest averages in the country. Nationally in July 2011, for all EOIR courts, the average time was 490 days and close to 286,000 cases were pending.

The lengths of time from filing with the immigration court to disposition are most troubling for those respondents who are being detained by ICE. As noted above, none of the respondents appearing in immigration court in Anchorage are in detention, but some of those apprehended and detained in Alaska and transferred to Seattle do continue to be held in detention while their cases make their way through immigration court. Again: it isn't possible to follow the progress of Alaska cases between ICE data and EOIR, so nothing specific can be stated regarding the length of time in court for Alaska detainees.

The snapshots provided here of ICE and EOIR seem to indicate that the number of unauthorized immigrants who come to the attention of ICE in Alaska continues to be low. There has been no dramatic increase in the number of people detained or the number transferred out of state, although the adjudication of cases has slowed, possibly affecting the lengths of detention for some of those apprehended.

Finally, it should be noted that apprehension and removal of unauthorized immigrants is not the only ICE effort that focuses on foreign nationals within Alaska. As the principal investigative arm of DHS and the second largest investigative agency in the federal government, the agency is also involved with border security efforts, smuggling prevention, human and drug trafficking, and other areas which may be relevant to Alaska but are not discussed in this article.

Antonia Moras is the former editor of the Alaska Justice Forum.