The Enforcement Process

Virtually all nations, whether large or small, seek to control their borders.

In an attempt to achieve this goal, going back for more than 200 years, the United States has adopted an increasingly massive and sometimes overlapping mix of enforcement mechanisms. Although over the years the agencies responsible for this work have been re-organized, renamed and in some cases enlarged, the basic four-stage framework of the overall structure has so far not been fundamentally changed as a result of 9/11.

(1) While not strictly an enforcement matter, the government maintains a vast regulatory system that touches the lives of millions of people each year as a result of its power to issue visas, naturalize citizens, grant asylum, etc.

(2) Agencies like the Border Patrol, now located within the Department of Homeland Security's Bureau of Customs and Border Protection, have for many decades been authorized to intercept the flow of "undocumented" persons as they slip across the border. Under the administrative authority granted by law, hundreds of thousands of these persons are each year persuaded to return to their place of origin without ever being charged with any kind violation and without the benefit of any kind of hearing. At the same time the old Customs Bureau, once a major source of federal revenue, has been moved to the Bureau of Customs and Border Protection, again within the DHS, to join with former INS immigration inspectors to manage much of the flow of persons and goods entering and leaving the United States.

(3) The agencies have long had a second option: to initiate formal proceedings, mostly aimed at removing individuals from the United States. The adjudication of these proceedings is the responsibility of 215 special judges sitting in 53 courts. In a recent year, they decided more than 200,000 cases. About one third of the decisions involve aliens who are detained. The judges are not in the judicial branch. Rather, they are employees of the Executive Office for Immigration Review, a branch of the Justice Department. The traditional rules of evidence guiding judges in federal district courts are not applicable. This means immigration judges have greater authority to receive evidence in deciding cases.

(4) Finally, however, the agencies also are authorized to recommend that criminal charges be brought against selected individuals. These charges are generally prosecuted by assistant U.S. attorneys and decided by judges and magistrates in the federal district courts. The judges and magistrates, unlike the administrative judges in the Justice Department, are a part of the judicial branch.

This report focuses only the last, the prosecution in federal court of individuals charged with criminal violations of the immigration laws. For many years, the criminal cases were mostly the result of the investigations by the Immigration and Naturalization Service (INS), an agency within the Justice Department. With the creation of the DHS immediately after 9/11, however, the criminal enforcement effort has split between the department's Bureau of Customs and Border Protection and its Bureau of Immigration and Customs Enforcement. It is from the Border Patrol that the Justice Department's enforcement data show that most of the rapid growth in criminal enforcement has occurred.