Although initial investigations of alleged immigration violations are under the purview of DHS, the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) is responsible for adjudicating all such cases. The EOIR is responsible for determining if defendants should be removed from the US or permitted to remain. The immigration courts handling these cases are composed of over 2,400 judges in 59 Immigration Courts across the country. Removal proceedings begin when DHS serves an individual with a charging document, requiring them to appear before an EOIR immigration court. After a hearing is scheduled, a DHS attorney argues on behalf of the government and defendants are provided the opportunity to present representation at their own expense.
Immigration courts also hear a variety of other proceedings, including asylum hearings, claimed status reviews and credible fear hearings. Any initial immigration ruling is subject to appeal before the Board of Immigration Appeals (BIA). BIA rulings may also be appealed before the appropriate federal court of appeals. However, if any court determines that an individual should be removed from the US, the DHS is responsible for effecting removal.
Bush Administration Policy
As a former Texas governor, President George W. Bush made immigration reform a major issue during his election campaign in 2000 and, once in office, focused federal policies on border security, temporary worker programs and citizenship application reform. During his presidency, deportations averaged 200,000 annually. In August 2004, the Bush administration announced new deportation policies that expanded the scope of "expedited removal" proceedings and circumvented portions of the hearing procedures. A statement issued by DHS explained the rationale behind the "expedited removal" policy:
When a person is apprehended and placed in expedited removal proceedings by a Border Patrol agent, he or she generally will be detained and removed to his or her country of origin as soon as circumstances allow. They will not be released into the U.S. in most cases, and is not provided a hearing before an Immigration Judge unless he or she is determined to have a credible fear of return to his or her country.Previously the policy was only available in the cases of individuals caught illegally trying to enter the country at airports and border checkpoints. The policy change altered the policy to include undocumented immigrants caught anywhere within 100 miles of the border who have been in the US for 14 days or less.
Any person who expresses an intention to apply for asylum, or a fear of persecution or torture, or a fear of return to his or her home country will be referred to a U.S. Citizenship and Immigration Services (CIS) asylum officer for a "credible fear" interview. If the person is found to have a credible fear, he or she will be removed from the expedited removal process and may seek protection in a removal hearing before an Immigration Judge.
During his second term of office, Bush requested over $410 million to bolster DHS deportation efforts. DHS Inspector General Richard Skinner claimed that the DHS needed additional funding in order to better implement the "catch and return" policy for dangerous undocumented immigrants. Following this, and other immigration policy changes, the US Commission on International Religious Freedom (CIRF) conducted an investigation and recommended changes. In February 2007 they criticized the policies of the Bush administration, particularly the expansion of "expedited removal," for "[placing] vulnerable asylum seekers at risk."
During the last year of the Bush administration, DHS attempted to implement "Operation Scheduled Departure." The program was to begin in five cities and would allow immigrants with outstanding removal orders to report to ICE to make arrangements to voluntarily leave the US. The program allowed individuals up to 90 days to make arrangements before leaving. However, the program was seen as a failure after only 8 people volunteered to participate and it was suspended indefinitely in August 2008. JURIST Guest Columnnist Michele Waslin argued in 2008 that the failure of Operation Scheduled Departure underscored the larger shortcomings of US immigration policy:
The failure of Operation Scheduled Departure serves to highlight the realities of our broken immigration system. The U.S. cannot expect to deport its way out of its current problems, and it cannot expect immigrants to simply choose to leave.
Obama Administration Policy
President Obama entered office on a platform of comprehensive immigration reform, including a path to legalization for undocumented workers. However, in the face of a divided Congress, President Obama has primarily chosen to use discretionary powers through DHS to reform deportation and immigration policy. Exercising prosecutorial discretion, the administration has focused its deportation enforcement efforts on convicted criminals. A June 2011 memo from ICE Director John Morton outlined some of the policy differences between Bush and Obama administration enforcement policies. Under President Obama, the ICE considers criminal backgrounds, the department considers many factors such as an individual health, military service, total time in the US, ties to the community and likelihood of successful deportation in evaluating individual cases. Despite focusing its enforcement efforts on undocumented immigrants with criminal backgrounds, deportations have increased annually at an average of seven percent under President Obama. Between September 2010 and September 2011, over 400,000 individuals were deported.
Beginning in 2012, the President Obama administration introduced a new test program in Colorado. They ordered an extensive docket review for the approximately 7,900 cases currently before the Colorado immigration courts. At least 1,300 were identified as posing no risk and will be allowed to remain in the US. If similar proceedings occurred nationwide, an estimated 39,000 immigration cases could be closed.
On June 15, 2012, the Obama administration announced that the Department of Homeland Security would stop deporting young undocumented immigrants that came to the US as young children. Shortly after the announcement, Iowa Congressman Steve King issued a statement that he plans to sue the Obama administration in order to delay the implementation of this policy. Mississippi Governor Phil Bryant joined this lawsuit challenging the policy directive. On June 20, 2012, Congressman Ben Quayle introduced a bill designed to block enforcement of the policy.
In the wake of DOJ criticism of immigration courts' inefficiency as well as President Obama's reelection, eight US Senators from both parties revealed a plan for comprehensive immigration reform in January 2013. The plan [PDF] rests on four "pillars": creating a path to citizenship for undocumented immigrants, reforming the existing immigration system in order to ease the way for immigrants who would bolster the US economy or are joining families in the US, creating a new employment verification system in order to check immigration status, and allowing immigrants to legally imigrate to the US for low-skilled labor if it is available and American workers have refused the work.
In April 2013, a bipartisan Senate group announced that they had settled disputes between labor and business and agreed upon a plan for immigration reform. The plan was unveiled in the form of an immigration reform bill introduced in the Senate that would remove the threat of deportation for millions of immigrants living in the US and create a path to citizenship for undocumented immigrants. The Senate passed an immigration reform bill in June 2013.