As the 113th Congress gets ready for another attempt to fix our broken immigration system, a plan released by a bipartisan group of Senators calls for a legalization program that would occur in several stages and depend on progress in securing our borders and enforcing immigration laws in the interior of the U.S. For those concerned about border security and enforcing immigration laws, the good news is that, since immigration reform was last debated, there has been tremendous progress in immigration law enforcement.
In 2007, the Senate introduced bipartisan immigration reform legislation containing a section establishing a series of border security and other enforcement “triggers” that had to be met before other sections of the bill, including the section pertaining to the legalization of undocumented immigrants, would take effect. While the broad reforms contained in the 2007 legislation did not pass, the government continued an enforcement buildup that was already underway, and has now met or surpassed many of the security benchmarks contained in the legislation.
Following is a list of those immigration enforcement conditions, and how they relate to today’s level of immigration enforcement.
1. Control of the Border
The 2007 bill[i] specified that the Secretary of Homeland Security (DHS) must demonstrate operational control of 100 percent of the Southwest border “including the ability to monitor such border through available methods.”
By the bill’s definition, control of the border has been accomplished. Currently, the entire Southwest border is either “controlled,” “managed,” or “monitored” to some degree.[ii] [iii]
With the current record level of border enforcement, illegal crossings, as measured by apprehensions at the border, are at their lowest level since 1972.[iv] By comparison, the last time a legalization program was considered and passed in Congress, in 1986, apprehensions on the border were nearly five times today’s level.[v]
2. Border Patrol Staffing
The 2007 legislation specified that Border Patrol staffing be at 20,000 full-time agents. Currently, there are more than 21,400 agents.[vi] In addition, there are thousands of agents from other federal agencies, including the Drug Enforcement Agency (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Federal Bureau of Investigations (FBI), and other agencies, supplemented by National Guard troops. This does not include thousands of agents employed by Customs and Border Protection (the parent agency of the Border Patrol and a component of the DHS) who work at the ports of entry on the border.[vii]
3. Border Infrastructure
The 2007 legislation specified the construction of 670 miles of border fencing, 105 camera and radar towers, and four unmanned aerial vehicles.
As of February 2012, 651 miles of border fencing have been built out of the 652 miles that the Border Patrol feels is operationally necessary.[viii] The fence now covers almost the entire length of the border from California to Texas.[ix] There is double fencing in many areas. Between Mexico and Texas, the Rio Grande River already serves as a natural barrier. Many additional miles of border are virtually impassible due to the remoteness of the terrain and deep canyons.
The 2007 legislation specifies the use of at least 105 ground-based radar and camera towers. Customs and Border Protection now has more than 250 Remote Video Surveillance Systems with day and night cameras deployed on the Southwest border. In addition, the agency relies on 39 Mobile Surveillance Systems which are truck-mounted infrared cameras and radar.[x] CBP has also sent Mobile Surveillance Systems, Remote Video Surveillance Systems, thermal imaging systems, radiation portal monitors, and license plate readers to the Southwest border.[xi]
The 2007 legislation specified the deployment of four unmanned aerial vehicles along the Southwest border. Customs and Border Protection currently operates three Predator B unmanned aerial drones from an Arizona base,[xii] and two from a Texas base, providing surveillance coverage of the Southwest border across Arizona, New Mexico, and Texas.[xiii]
4. Apprehension and Detention of Border Crossers
The 2007 legislation specified that DHS should be detaining all persons illegally crossing the Southwest border, and it should have the resources to hold in detention up to 31,500 persons per day on an annual basis.
Prior to August 2006, many persons who were apprehended at the border were released pending their immigration hearing. That practice was ended in August 2006, and now nearly all persons crossing the border illegally are detained.[xiv] Immigration and Customs Enforcement (ICE) is now funded to hold 33,400 individuals in detention at any given time. Over the course of the government’s fiscal year 2011, ICE reported that it detained more than 429,000 individuals, an all-time high.[xv]—118,000 more than the 311,000 individuals who were detained in 2007.[xvi] For fiscal year 2012, ICE reported that it had removed nearly 410,000 persons, also a record.[xvii] That number is approximately 91,000 more than were removed in 2007.[xviii]
In addition to removal, many who cross illegally in Texas and Arizona face prosecution on criminal charges through a program called “Operation Streamline.” These persons face a federal judge, pre-trial custody, and jail time in a federal prison before they are put into deportation proceedings.
5. Worksite Enforcement Tools
The 2007 legislation specified that DHS must comply with a set of requirements for a worksite system that was contained elsewhere in the legislation—which, of course, was not passed.
Today, the Department of Homeland Security is using an electronic worker verification system called E-Verify. The system currently is not mandatory, except for certain classes of employers, such as federal contractors. Making the system mandatory nationwide will require further legislation that will be difficult to pass if it is not coupled with broader reforms.
Aside from its voluntary enrollment, the system in use today is similar to that contained in the 2007 legislation. It is electronic, and searches government databases to determine whether a prospective hire is authorized to work in the U.S. It also searches government image databases, if the prospective hire presents a U.S. passport, a U.S. Permanent Resident card, or a work authorization document (all of which are federally-issued identification documents with embedded images). Despite the fact that Congress has not mandated its use beyond certain types of employers,[xix] employers continue to sign up to use E-Verify. Nationwide, more than 353,822 employers were enrolled as of March 31, 2012.[xx]
Above and Beyond the 2007 Benchmarks
While these 2007 benchmarks have largely been met if not surpassed, they are not the only methods of immigration enforcement that have been implemented or expanded in the last four years. Here are a few examples:
- US-VISIT: When a visitor to the U.S. arrives at an airport, a Customs and Border Protection inspector captures the visitor’s fingerprints and photograph and instantly checks for any criminal background or immigration problems. In the case of someone who has applied for a visa through the U.S. State Department, that person was photographed and fingerprinted when applying for the visa, and the information at the point of entry can be compared with the information in the State Department’s records, to ensure the visa holder arriving in the U.S. is the same person as the one who applied for the visa. The program, being phased in over time, will also record biometric data of persons leaving the U.S., and the exit record will be matched with the entry record, so the government can tell whether the person has complied with the terms of his or her visa.
- ESTA: For persons who are not required to apply for a visa, there is now a program they must use to gain travel authorization from the U.S. government. With the Electronic System for Travel Authorization,[xxi] someone coming from a visa waiver country (mainly Europe and Japan) enters information about him- or herself online and that information is examined by DHS to determine whether the visitor poses a potential problem.
- Secure Communities: Persons who are arrested by local police for any reason have their fingerprints taken as part of the booking process. These fingerprints, after being checked by the FBI for criminal history, are turned over to the Department of Homeland Security, which checks its databases for potential immigration problems. If a database check turns up a problem, Immigration and Customs Enforcement can interview the individual or request that the local police agency place a hold on the person’s release from detention. The program is proving to be extremely controversial because it is being implemented without the broader reforms to the immigration system necessary to deal realistically with the nation’s undocumented population.
- I-9 Audits: While the E-Verify electronic verification is not yet mandatory, ICE continues to use a different tool for enforcing immigration laws in the workplace. Employers are required to keep records on each employee showing that the employer was provided with documents that authorize the employee to work in the U.S. Since 2007, ICE has stepped up its monitoring of employer compliance with the law. In fiscal year 2012, ICE imposed fines totaling nearly $12.5 million against employers found to be violating the law. In the same period, ICE made 520 criminal arrests tied to worksite enforcement investigations.[xxii]
- Benefit Fraud: The Fraud Detection and National Security Directorate (FDNS) was created within U.S. Citizenship and Immigration Services to check the background of a person applying for some immigration benefit, such as citizenship. If someone is found to be ineligible for that benefit (due to a criminal history, for example) the person will be denied the benefit and may be placed into removal proceedings. In addition to checking the information supplied by immigrant benefit petitioners, the agency investigates, among others, employers who are petitioning for a worker to determine if the employer really exists and is paying workers what the employer reported to USCIS.
Conclusion
All of the efforts described above have demonstrated that the government can, and is capable, of enforcing our immigration laws. The record immigration law enforcement of the past five years should pave the way for broader reforms of our immigration laws. In both the propsals of the president and the senators who have been working on a reform agreement, a prerequisite for putting undocumented immigrants on a path to citizenship is a set of enforcement requirements. Any new requirements for enfocement will have to acknowledge the great progress that has been made in recent years. By the criteria set by Congress in 2007, America has achieved sufficient levels of immigration enforcement. Continued advancements in enforcement will depend on broader reforms to the immigration laws that are now broken, so that enforcement resources can be targeted to focus on real threats.
Updated January 2013
[i] S. 1639, introduced by Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA), available at:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s1639pcs.txt.pdf. Triggers are in Section 1, “Effective Date Triggers.”
[ii] Government Accountability Office, “BORDER SECURITY: Preliminary Observations on Border Control Measures for the Southwest Border,” Testimony Before the Subcommittee on Border and Maritime Security, Committee on Homeland Security, House of Representatives, February 15, 2011. Available at:
http://www.gao.gov/new.items/d11374t.pdf.
[iii] Subsequent to the 2007 legislation, members of Congress opposed to immigration reform have adopted a definition of “operational control” that appears in the Secure Fence Act of 2006: the prevention of all unlawful entries. Congress has never appropriated the amount necessary to prevent every single unlawful entry, which might require tens or hundreds of thousands more Border Patrol agents. Such expense would not be practical or sustainable, and the 2007 legislation contained the caveat that the listed enforcement measures be completed “as soon as practicable” and “subject to the necessary appropriations.”
[iv] In 2011, total Border Patrol apprehensions on the Southwest border were 327,577. They were 321,326 in 1972. U.S. Border Patrol, “Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal Year (Oct 1st through Sept. 30th,)” Dec. 12, 2011, Available at:
[v] Id.
[vi] U. S. Border Patrol, “U.S. Border Patrol Fiscal Year Staffing Statistics,” December 12th, 2011. Available at:
[vii] National Immigration Forum, “The ABCs of Federal Agents on the Border,” May 2011. Available at: http://immigrationforum.org/wp-content/uploads/2015/04/FederalAgentsontheBorder.pdf
[viii] Customs and Border Protection, “Southwest Border Fence Construction Progress,” Available at:
http://www.cbp.gov/xp/cgov/border_security/ti/ti_news/sbi_fence/.
[ix] See map: U.S. Customs and Border Protection, “Fencing Construction Status,” 12/25/2009. Available at:
http://www.cbp.gov/linkhandler/cgov/newsroom/highlights/2009/fence_map.ctt/fence_map.pdf.
[x] “Statement of U.S. Customs and Border Protection Border Patrol Chief Michael Fisher, Assistant Commissioner Thomas Winkowski, U.S. Immigration and Customs Enforcement Executive Associate Director James A. Dinkins, U.S. Coast Guard Rear Admiral Paul F. Zukunft, of the Department of Homeland Security, Before the House Appropriations Subcommittee on Homeland Security,” March 16, 2011. Available at:
http://www.cbp.gov/linkhandler/cgov/newsroom/congressional_test/southwest.ctt/southwest.pdf.
[xi] Department of Homeland Security, “Fact Sheet: Smart, Effective Border Security and Immigration Enforcement,” October 5, 2011. Available at:
http://www.dhs.gov/ynews/releases/20111005-fact-sheet-border-security-immigration-enforcement.shtm.
[xii] U.S. Customs and Border Protection, “Unmanned Aircraft System MQ-9 Predator B,” Fact Sheet, January 2011. Available at: http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdf.
[xiii] Customs and Border Protection, “CBP Receives Second Predator-B in Texas,” News Release, October 28, 2011. Available at: http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/10272011.xml.
[xiv] Meissner and Kerwin, “DHS and Immigration: Taking Stock and Correcting Course,” Migration Policy Institute, February 2009. Available at: http://www.migrationpolicy.org/pubs/DHS_Feb09.pdf.
[xv] Department of Homeland Security Office of Immigration Statistics, Annual Report, “Immigration Enforcement Actions: 2011,” September 2012. Available at:
http://www.dhs.gov/sites/default/files/publications/immigration-statistics/enforcement_ar_2011.pdf.
[xvi] Department of Homeland Security Office of Immigration Statistics, Annual Report, “Immigration Enforcement Actions: 2007,” December 2008. Available at:
http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf.
[xvii] U.S. Immigration and Customs Enforcement, “FY 2012: ICE announces year-end removal numbers, highlights focus on key priorities and issues new national detainer guidance to further focus resources,” News Release, December 21, 2012. Available at: https://www.ice.gov/news/releases/1212/121221washingtondc2.htm.
[xviii] “Immigration Enforcement Actions: 2007”
[xix] Some states have mandated the use of E-Verify for businesses operating in within the state as a condition for obtaining a business license.
[xx] U.S. Citizenship and Immigration Services, “History and Milestones,” April 5, 2012. Available at:
[xxi] For more information, see U.S. Customs and Border Protection, “Welcome to the Electronic System for Travel Authorization,” at: https://esta.cbp.dhs.gov/esta/.
[xxii] Immigration and Customs Enforcement, “Fact Sheet: Worksite Enforcement,” May 23, 2012. Available at:
http://www.ice.gov/news/library/factsheets/worksite.htm.
[1] S. 1639, introduced by Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA), available at:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s1639pcs.txt.pdf. Triggers are in Section 1, “Effective Date Triggers.”
[1] Government Accountability Office, “BORDER SECURITY: Preliminary Observations on Border Control Measures for the Southwest Border,” Testimony Before the Subcommittee on Border and Maritime Security, Committee on Homeland Security, House of Representatives, February 15, 2011. Available at:
http://www.gao.gov/new.items/d11374t.pdf.
[1] Subsequent to the 2007 legislation, members of Congress opposed to immigration reform have adopted a definition of “operational control” that appears in the Secure Fence Act of 2006: the prevention of all unlawful entries. Congress has never appropriated the amount necessary to prevent every single unlawful entry, which might require tens or hundreds of thousands more Border Patrol agents. Such expense would not be practical or sustainable, and the 2007 legislation contained the caveat that the listed enforcement measures be completed “as soon as practicable” and “subject to the necessary appropriations.”
[1] In 2011, total Border Patrol apprehensions on the Southwest border were 327,577. They were 321,326 in 1972. U.S. Border Patrol, “Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal Year (Oct 1st through Sept. 30th,)” Dec. 12, 2011, Available at:
[1] Id.
[1] U. S. Border Patrol, “U.S. Border Patrol Fiscal Year Staffing Statistics,” December 12th, 2011. Available at:
[1] National Immigration Forum, “The ABCs of Federal Agents on the Border,” May 2011. Available at: http://www.immigrationforum.org/images/uploads/2011/FederalAgentsontheBorder.pdf.
[1] Customs and Border Protection, “Southwest Border Fence Construction Progress,” Available at:
http://www.cbp.gov/xp/cgov/border_security/ti/ti_news/sbi_fence/.
[1] See map: U.S. Customs and Border Protection, “Fencing Construction Status,” 12/25/2009. Available at:
http://www.cbp.gov/linkhandler/cgov/newsroom/highlights/2009/fence_map.ctt/fence_map.pdf.
[1] “Statement of U.S. Customs and Border Protection Border Patrol Chief Michael Fisher, Assistant Commissioner Thomas Winkowski, U.S. Immigration and Customs Enforcement Executive Associate Director James A. Dinkins, U.S. Coast Guard Rear Admiral Paul F. Zukunft, of the Department of Homeland Security, Before the House Appropriations Subcommittee on Homeland Security,” March 16, 2011. Available at:
http://www.cbp.gov/linkhandler/cgov/newsroom/congressional_test/southwest.ctt/southwest.pdf.
[1] Department of Homeland Security, “Fact Sheet: Smart, Effective Border Security and Immigration Enforcement,” October 5, 2011. Available at:
http://www.dhs.gov/ynews/releases/20111005-fact-sheet-border-security-immigration-enforcement.shtm.
[1] U.S. Customs and Border Protection, “Unmanned Aircraft System MQ-9 Predator B,” Fact Sheet, January 2011. Available at: http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdf.
[1] Customs and Border Protection, “CBP Receives Second Predator-B in Texas,” News Release, October 28, 2011. Available at: http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/10272011.xml.
[1] Meissner and Kerwin, “DHS and Immigration: Taking Stock and Correcting Course,” Migration Policy Institute, February 2009. Available at: http://www.migrationpolicy.org/pubs/DHS_Feb09.pdf.
[1] Department of Homeland Security Office of Immigration Statistics, Annual Report, “Immigration Enforcement Actions: 2011,” September 2012. Available at:
http://www.dhs.gov/sites/default/files/publications/immigration-statistics/enforcement_ar_2011.pdf.
[1] Department of Homeland Security Office of Immigration Statistics, Annual Report, “Immigration Enforcement Actions: 2007,” December 2008. Available at:
http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf.
[1] U.S. Immigration and Customs Enforcement, “FY 2012: ICE announces year-end removal numbers, highlights focus on key priorities and issues new national detainer guidance to further focus resources,” News Release, December 21, 2012. Available at: https://www.ice.gov/news/releases/1212/121221washingtondc2.htm.
[1] “Immigration Enforcement Actions: 2007”
[1] Some states have mandated the use of E-Verify for businesses operating in within the state as a condition for obtaining a business license.
[1] U.S. Citizenship and Immigration Services, “History and Milestones,” April 5, 2012. Available at:
[1] For more information, see U.S. Customs and Border Protection, “Welcome to the Electronic System for Travel Authorization,” at: https://esta.cbp.dhs.gov/esta/.
[1] Immigration and Customs Enforcement, “Fact Sheet: Worksite Enforcement,” May 23, 2012. Available at:
http://www.ice.gov/news/library/factsheets/worksite.htm.