Magazine | March 20, 2017, Issue

The War over Enforcement

A special agent from Immigration and Customs Enforcement searches a vehicle heading into Mexico at the Hidalgo, Texas, border crossing, May 28, 2010. (Scott Olson/Getty Images)
Trump’s policy is good so far, but the real battle is in the workplace

President Trump’s executive orders on immigration enforcement had barely been signed when the Left identified its first “victim,” a Mexican woman living illegally in Arizona named Guadalupe Garcia de Rayos. She had been routinely checking in with ICE over the years in scheduled meetings that she always walked away from without consequence. Then, in early February, ICE detained her at one of these sessions and deported her back to Mexico.

There is no doubt that Garcia de Rayos is a far cry from one of Donald Trump’s “bad hombres.” She came here at age 14. She lived in the United States for about 20 years and has two U.S.-born children. When her husband, also an illegal immigrant, said in interviews that she didn’t constitute a threat to anyone, he was undoubtedly correct.

But Garcia de Rayos was hardly the random victim of an ICE roundup. She had been arrested and convicted in 2008 for using someone else’s Social Security number, a common crime among illegal immigrants and a felony. She was detained for months at the time. Then in 2013 an immigration court issued an order against her for final removal, which happens only after proceedings involving extensive due process. If the United States government can’t deport someone it has ordered removed after checking every box, whom can it deport?

The case of Guadalupe Garcia de Rayos represented the opening skirmish in a broader war over enforcement that will be one of the dominant fights of the early Trump years. The Left will try to use every sympathetic case, every hint of overreach, and every instrument of lawfare to frustrate the Trump enforcement agenda. It wants to create (or perhaps reestablish) a consensus that enforcement is inhumane, impractical, and ineffective, that it targets the wrong people and violates our values. The stakes are enormous. If the Trump administration doesn’t win this battle, no one will try enforcement-first ever again, and the Trump phenomenon, which has so powerfully challenged the elite view of immigration as an unadulterated good, will fizzle out on one of its core priorities.

The crux of the matter isn’t the hot buttons that so dominated the campaign and the first month of the administration — the border wall and the travel ban. We should do more to physically secure the border, but even a hermetically sealed border wouldn’t eliminate illegal immigration (it would be powerless to stop visa overstayers). Nor is the travel ban as significant as advertised. The version that got deep-sixed by the activist Ninth Circuit applied to only seven countries for only 90 days. Interior enforcement, especially at the workplace, will determine whether we begin to reduce the current illegal population and prevent another wave of illegal immigrants from coming. Without effective enforcement inside the country, we can build the wall and Mexico can pay for it, and nothing significant will have changed.

The tightened enforcement that the administration has begun to implement, effectively reversing Obama’s lawless quasi-amnesty in his final executive order on immigration, is the first step. The administration now has to wage a shrewd political fight to defend it. And it needs to pursue a deal in Congress to institute a system of workplace enforcement and reduce legal immigration, changes that will put our immigration system on a fundamentally sounder footing. If President Trump manages this, he will have transformed U.S. immigration policy in a way that seemed impossible a few years ago, when the RNC was hawking an “autopsy” that endorsed “comprehensive immigration reform” and such a bill passed the Senate with nearly 70 votes.

Of course, when that bill ultimately failed in the House, President Obama took matters into his own hands. Then, as now, the interior was the key. To understand Obama’s gutting of interior enforcement, consider the trend in formal deportations, known bureaucratically as “removals.” Illegals apprehended by the Border Patrol and sent right back are classified separately as “returns.” This distinction matters because border returns represent merely treading water, i.e., stopping some of the new illegal immigrants attempting to come here, while removals address the existing illegal population. Through the Bill Clinton and George W. Bush administrations, removals climbed consistently, from about 51,000 in fiscal year 1995 to about 389,000 in fiscal year 2009 (the first third of which was still under Bush). This reflected the commitment of both of those administrations and of Congress to invest in enforcement capacity.

Under Obama, that commitment disappeared. In 2012, removals were barely higher than in 2009. Yet activist groups labeled the president the deporter in chief. Why?

The Obama administration cooked the books to keep its numbers artificially high, clearly hoping to burnish its enforcement credentials ahead of a push for amnesty. As revealed first by the Washington Post, Obama’s Department of Homeland Security engaged in legerdemain to engineer “record” removals in fiscal year 2010 of a few thousand more than the prior year. More significantly, the Obama administration transferred an ever-larger number of aliens arrested at the border to ICE custody, thus adding them to ICE’s deportation totals.

At the start of the Obama administration, these inflated numbers accounted for only about one-third of ICE’s removals; by the end, they made up nearly three-quarters. At one point, the Border Patrol was handing over hundreds of apprehended illegal aliens a day to ICE, which held them for a matter of hours. Meanwhile, the number of interior deportations, entirely the responsibility of ICE, dropped precipitously thanks to increasingly severe restrictions placed on the types of cases that ICE could process. Even President Obama acknowledged, in an online discussion aimed at Hispanic voters, that the deportation numbers were “a little deceptive.”

Notwithstanding these gimmicks, the number of deportations of all sorts dropped dramatically during Obama’s second term, falling more than 40 percent, to about 240,000 in 2016. Interior deportations fell by three-quarters from the 2011 level, and even criminal removals, supposedly the administration’s focus, dropped by 60 percent.

This collapse in enforcement was nicely summarized by John Sandweg, speaking to the Los Angeles Times shortly after leaving as acting ICE director: “If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero — it’s just highly unlikely to happen.”

Illegal immigrants and their advocates got accustomed to this lax regime, which is one reason President Trump’s approach strikes them as so radical. Before the Obama years, it would have been considered a banality for the federal department in charge of immigration enforcement to say — as DHS did in February — that its “personnel shall faithfully execute the immigration laws of the United States against all removable aliens.” What else would its personnel do?

Trump’s two January executive orders on border and interior enforcement, and the February memos from DHS Secretary John Kelly laying out implementation guidelines, represent a return to normalcy. One line in the interior-enforcement memo summarizes the changed approach: “The Department no longer will exempt classes or categories of removable aliens from potential enforcement.” As our colleague Andrew C. McCarthy has explained, that is exactly what President Obama did. He put illegal immigrants in three categories and said that enforcement was a “priority” for each of them. “While Obama’s two lower tiers were referred to, in an Orwellian way, as ‘priorities’ (i.e., enforcement ‘Priority 2’ and ‘Priority 3’),” McCarthy notes, “the reality was more like immunity.”

The new Trump guidelines also set out priorities, as any law-enforcement agency must, but there are no immunities. The priorities are broadened to include all crimes, and the many exemptions in place under Obama, such as having a U.S.-born child, have been ended. ICE will no longer have to wait until conviction to start the deportation process, meaning fewer criminal aliens will be able to slip away. In addition, fraudsters, welfare abusers, and illegals who absconded from deportation orders are again priorities, as are any illegal immigrants who, “in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” Under the prior Obama dispensation, law-enforcement officers were not allowed to exercise discretion in handling such cases, although the legal rationale of his executive orders depended on “prosecutorial discretion.”

The Trump guidelines and executive orders tightened up enforcement in sundry other ways, but they left a noticeable void — the complete absence of any steps to weaken the magnet of jobs for illegal aliens. The documents don’t mention restored work-site enforcement, something that effectively disappeared under Obama, or E-Verify, the online system that allows employers to determine whether a new hire is telling the truth about his identity. This even though Candidate Trump said in August, “We will ensure that E-Verify is used to the fullest extent possible under existing law, and will work with Congress to strengthen and expand its use across the country.” Illegal employment still may be addressed, but it was a missed opportunity to send the message that both illegal aliens and their employers (a traditional Republican constituency) must be held responsible for their actions.

Predictably, activist groups have hyperventilated about these measures, warning of mass roundups and violations of illegal aliens’ rights. A series of operations in February illustrates the absurdity of the fear-mongering. ICE arrested 678 people, 74 percent of them convicted of a crime — the rest were illegal aliens encountered in the course of the raids who didn’t have a criminal conviction. As one agent told the New York Times: “Before, we used to be told, ‘You can’t arrest those people,’ and we’d be disciplined for being insubordinate if we did.” ICE agents don’t go looking for ordinary illegal aliens to deport, but when they encounter them, they’re no longer barred from taking them into custody.

With existing resources, ICE can annually remove perhaps 500,000 illegal aliens (actually, some are legal immigrants who render themselves deportable by committing crimes). This is indeed higher than the late-Bush/early-Obama peak, but it would be a difference in degree, not in kind.

A more substantive objection is that illegal immigration is subsiding in any case, so Trump’s restoration of enforcement is a pointless provocation. It is true that the illegal population has remained relatively stable at between 11 and 12 million, but that stability masks significant churn. Steven Camarota of the Center for Immigration Studies estimates that during the first six and a half years of the Obama administration, 2.5 million new illegal aliens settled in the United States — an average of nearly 400,000 per year. The fact that these new arrivals were offset by others who left, died, or were legalized doesn’t obviate the need for enforcement. Simply preventing these new arrivals would have resulted in a 20 percent drop in the total illegal population.

Regardless of the merits, immigration is obviously going to be a central front in the anti-Trump “resistance.” There will inevitably be some mistakes or overreach in enforcement, and every such instance, real or imagined, will become the next Pearl Harbor in the media. In the battle of narratives, it often takes only one powerful anecdote or datum to overwhelm facts, logic — and the law.

Meanwhile, the campaign of scorched-earth lawfare has already begun, drawing on the anti-enforcement network’s near-limitless supplies of funds and attorneys. The goal of this blitzkrieg will be to overwhelm the courts, challenging everything possible — arrests, ICE detainer notices, the use of expedited removal, detention decisions, bond hearings, you name it. The Mexican government has endorsed this strategy. And if the lawless conduct of the courts in the travel-ban cases is any indication, the anti-borders effort will enjoy some successes. (The unofficial motto of the immigration bar is “It ain’t over ’til the alien wins.”)

An effort is already under way to develop a network of safe houses for illegal aliens, an extension of churches providing them “sanctuary.” This is mainly a publicity stunt, however — it could accommodate only a few thousand people at most.

More dangerous is the likelihood of direct action. Last fall in Buffalo, N.Y., after one of the few work-site raids ICE launched on Obama’s watch, protesters chained themselves together to try to block the ICE office there. These protests have so far been peaceful, but as deportations pick up, it will likely get uglier. We could see the home addresses of ICE officers and Border Patrol agents posted online and targeted for protests. With the ubiquity of smartphones and social media, we can expect flash mobs to try to interfere with ICE operations, and perhaps physical threats to the lives of officers.

As with Black Lives Matter, some of this activism will be self-discrediting, but not all of it. While the imperative to enforce the laws is self-evident to Trump and his supporters, the case won’t make itself. Much of his immigration agenda has been unpopular in recent polling, perhaps caught up in the backwash from the chaotic rollout of the travel ban.

So the Trump team should be focused on public persuasion. The case for enforcement should be broader than merely protecting us from bad actors, Trump’s go-to rationale. Obviously, not everyone affected by renewed enforcement is going to be an MS-13 gangbanger, and it strains credulity to imply as much.

Trump needs to explain why immigration limits are necessary in the first place, making the economic case, among others. Trump and his team should point out that reducing the pool of low-skilled workers is good for American workers, both the native-born and legal immigrants, especially down the income scale, where competition from illegal immigrants is most felt. They should talk about the fiscal burden on state and local governments that pay for schools and hospitals and social services. And, finally, they should be relentless in arguing that illegal immigration is a subsidy to certain employers, even if — especially if — it upsets the Chamber of Commerce.

The last is a potent point politically. Employers that depend on illegal labor are much less sympathetic than illegal immigrants themselves, and the polling is consistently strong for cracking down on them.

Trump must also work to take the edge off his own anti-immigrant image. He should visit a naturalization ceremony. He should go to an English-as-a-second-language class. He should have Latino construction workers to the White House. He should make a showy point of speeding up the processing of green cards — anything that plays against type and associates him with immigrants who follow the rules and are assimilating into this country. Trump’s supporters might consider this to be pointless symbolism or overly defensive, but the target is the fence-sitting public that may be inclined to support Trump’s polices but finds him too abrasive.

The ultimate goal of Trump’s policy should be putting our immigration system on a new footing. This means reducing the illegal population, but also putting in place the mechanisms to prevent flows of illegal immigration in the future. Then an amnesty can be considered for remaining illegal immigrants. This broad approach begins with the current effort, which should discourage newcomers and convince loosely connected illegal aliens already in this country to leave, while directly reducing the illegal population through deportations. But three further steps are necessary for a sustainable new regime.

First, DHS needs to pull back on the rubber-stamping of temporary visas and develop a check-out system for people who come on those visas that we do issue. Half of new illegal immigrants are visa overstayers, who enter legally but never leave. We are doing much better than we used to in checking foreign travelers in, but unless we also check them out, we can’t know who remains here illegally. Congress has mandated the development of an electronic entry-exit system multiple times, but previous administrations showed little interest in following through. President Trump committed to do this during the campaign, and he needs no additional authority to deliver on the promise (although it will take more funding).

The two other measures require congressional authorization. Foreigners who come here and stay illegally do so overwhelmingly for jobs, so weakening the jobs magnet is imperative. Phasing in E-Verify for all new hires would be a major step in that direction. About half of all new hires were screened through the system last year, but only Congress can make it universal. Fortunately, the bill to do so is already written, sponsored by Texas representative Lamar Smith and approved in the last Congress by the House Judiciary Committee.

The final missing piece is a reduction in legal immigration. There are many reasons to make such a change, and one of them is to reduce illegal immigration, especially low-skilled and family-chain migration. Legal immigration creates the networks that support illegal immigration. Here again, legislation is already at hand: Senators Tom Cotton (R., Ark.) and David Perdue (R., Ga.) have introduced a bill to prune the family categories, reserving special immigration rights only for spouses and minor children of citizens and legal residents. Together with other provisions, the bill would cut future legal admissions by at least 40 percent.

With Chuck Schumer in the filibuster catbird seat, neither of these latter two measures will get the needed Democratic support to pass the Senate on their own. An obvious deal suggests itself, though. President Obama lawlessly amnestied illegal aliens who came here before age 16 with the so-called Deferred Action for Childhood Arrivals, or DACA. This is the most appealing group of illegal immigrants. Obama’s grant of three-quarters of a million work permits under DACA abused his power, but it created facts on the ground that Republicans ignore at their peril. Upgrading DACA from Obama’s sketchy amnesty to a proper and permanent amnesty passed through Congress would be a natural item to trade for universal E-Verify and a reduction in legal immigration (even just a swap for E-Verify would be a win).

The Trump administration has an incredible opportunity on immigration. Enforcement-first seemed a pipe dream for years, but now an administration is in place that is quite serious about it. But the other side won’t rest until it has frustrated and reversed the enforcement agenda. It is imperative that Trump succeed, which means focusing on the truly important things (e.g., the workplace, rather than getting Mexico to pay for the wall) and fighting shrewdly. In the right circumstances, Trump may eventually be able to do a Nixon-in-China and bless an amnesty for a reduced illegal population. First, though, he has to win the war over enforcement.

– Mr. Krikorian is the executive director of the Center for Immigration Studies. Mr. Lowry is the editor of National Review.

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