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Priorities and the State of Implicit Bias in Crimmigration

Written immigration enforcement priorities might promote transparency but still might not address inequities.

The modern civil rights movement has brought greater attention to the question of racial justice and the criminal justice system.

Although the role of race in immigration law has received less political and public attention, legal scholars have long written about it. For at least two decades, scholars have addressed the way that implicit bias endemic to the criminal justice system seeps into the immigration removal machinery, particularly with respect to removals of individuals of Mexican and Central American descent—or Latinos.

Today, criminality remains a primary filtering mechanism that still imports the biases embedded in the criminal justice system, despite increased awareness of the problem of race in policing.

Immigration enforcement practices that rely on the criminal justice system import the systemic biases of that system. Department of Homeland Security (DHS) policies, such as Secure Communities (S-Comm), create a link between criminal and immigration policing and expand the reach of immigration enforcement into the interior of the United States.

Although S-Comm expands interior enforcement capacity by relying on interactions such as state and local police stops, DHS sets priorities for enforcement that may create a narrower set of criteria for when, and against whom, Immigration and Customs Enforcement (ICE) initiates an arrest, detention, or notice to appear (NTA) for removal proceedings—the issuance of an NTA is the step that begins the removal process.

The U.S. Congress has empowered the executive branch to set immigration enforcement priorities as a means of exercising prosecutorial discretion. Both S-Comm and DHS’s enforcement priorities are race neutral, and data on race are not tracked. The same is true with respect to priorities memoranda that include guidance for ICE line officers making enforcement decisions. DHS’ creation and articulation of enforcement priorities have implications for some rule of law principles relevant to immigration law, including antidiscrimination and equity, transparency and consistency.

But setting priorities may not be sufficient to disrupt potential implicit bias in the criminal justice system from filtering into immigration enforcement, particularly when S-Comm remains in effect. The relationship between S-Comm and enforcement priorities provides insight into the role of race in modern administrative immigration law with respect to interior enforcement.

President Bush initiated S-Comm in 2008, and it was fully implemented in 50 states and 3,181 jurisdictions by 2013. It was precipitated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Scholars have described this law as contributing to the criminalization of immigration, or “crimmigration,” because it expanded the type of conduct that triggered adverse immigration consequences, increased the use of immigration detention or jails as a means of social control, and created more links between the criminal and immigration systems. Scholars have also described the ways S-Comm has played a role in criminalizing race by “creating and reinforcing the identity of the ‘criminal alien’ as Latino.”

S-Comm was first implemented in highly Latino, rather than high-crime, regions. In response to concerns about the potential for S-Comm to encourage racial profiling in criminal policing and impact the immigration removal system, the Obama Administration replaced S-Comm with the Priority Enforcement Program (PEP), which was effective from 2015 through 2017. Both S-Comm and PEP resulted in arrests and deportation of those with no criminal convictions and convictions for minor offenses.

Under PEP, Latinos were disproportionately deported. I cautioned then that despite the shift to PEP, racial disparities in crime-based removals might persist and, in fact, more than 90 percent of those deported during the Obama presidency were from Latin America.

The S-Comm program was never subject to notice-and-comment rulemaking pursuant to the Administrative Procedure Act. Some suggest that it should have been.

To date, the Biden Administration has left S-Comm in place, but it also dictated discretion via enforcement priority memoranda, potentially infusing the system with clearer criteria for enforcement. Programs such as S-Comm link the criminal justice and immigration removal systems. Establishing removal priorities may have a relationship to bias in immigration law as well.

Discretion and prioritization are inevitable in the absence of the possibility or desirability of full enforcement. Prosecutorial discretion and enforcement priorities are a necessary part of the criminal law and immigration law landscapes. As “internal administrative law,” immigration agency guidance memoranda establish enforcement priorities. The evolution of immigration enforcement at the border is important to understand the government’s interior enforcement priorities today, and their relationship to S-Comm, crimmigration policing, and race.

That evolution from border to interior enforcement, as described by Professor Shalini Ray, set the stage for subsequent racializing interior enforcement. The history of U.S. Border Patrol evolved out of politics arising from the legacy of slavery, eugenics, preference for a white ethno-state, and agribusiness.

This evolution resulted in a poorly conceptualized and regulated Border Patrol. The Border Patrol had license, first unofficially and later sanctioned by the U.S. Supreme Court, to engage in racial profiling based on Mexican appearance. The role that Mexican identity and racial profiling have played at the border migrated to interior enforcement as the border moved inward, particularly after 1996.

Congress has delegated authority to the DHS Secretary to set Immigration and Customs Enforcement (ICE) priorities. Within the last half century, enforcement discretion and prioritization were influenced by market-driven labor needs and recognition of the undesirability and inability to achieve full enforcement. Discretion is accepted as a “structural necessity.”

In 2000, after the 1996 reforms eliminated some forms of discretion and caused critics to express concern about equity and proportionality, Commissioner Doris Meissner of the Immigration and Naturalization Service issued a memorandum on prosecutorial discretion. It articulated race-neutral enforcement priorities and listed factors, including criminal history, efficiency, and humanitarian considerations.

About 10 years later, ICE implemented new priorities and provided criteria to inform line officers’ decisions concerning apprehension and issuance of NTAs. The memo deprioritized noncitizens without criminal convictions and prioritized those with serious criminal convictions. Two years later, almost half of those deported had no criminal history, and there was no indication that ethnic identity or race had ceased to be an implicit factor in who law enforcement targeted.

The Trump Administration’s immigration enforcement policy has been criticized as failing to uphold the executive branch’s duties by refraining from establishing meaningful enforcement priorities and devolving discretion to line level officers, which was also a critique of S-Comm. A system without prioritization lacks constraints and accountability, which are key rule-of-law principles that influence perceptions of whether democracy is functioning fairly and without bias.

By containing enforcement within a semblance of priorities, discretion can perhaps indirectly change the equation with respect to the role of implicit bias in interior immigration enforcement. Or it may provide the illusion of doing so.

Today’s immigration enforcement priorities are similar to those of the Obama Administration. Professor Shoba Sivaprasad Wadhia, an expert on immigration enforcement discretion, states that the Biden Administration’s “ICE priorities memo is an important step in advancing President Joseph R. Biden’s commitment to humane immigration system and is critical to building a sound prosecutorial discretion policy.” Even though capacity to deport has not increased drastically and the Biden Administration has rhetorically favored a more humane immigration policy, the Biden Administration’s DHS has reached a historic high in issuing NTAs in immigration court.

If NTA issuance continues at the current pace, immigration courts “will receive 800,000 new cases—at least 300,000 more than the annual total the court has ever received during its existence.” Absent a cap on NTAs, enforcement priorities will not tamp down the number of those placed in removal proceedings. And by continuing to rely on the criminal justice system to funnel noncitizens into removal proceedings, disparate impacts may persist, and at a higher rate.

New guidance from the ICE Office of the Principal Legal Advisor notes the importance of exercising prosecutorial discretion early in the process, and encourages tactical decisions like stipulating to relief. Sivaprasad Wadhia has long encouraged such strategies, along with other measures like changes to the form to provide more information about issuance and filing of NTAs, and cessation of issuance of NTAs against noncitizens who are prima facie eligible for relief or have strong equities. How the new guidelines are implemented is yet to be seen.

Decades before the recent increase in attention to the role of race in criminal law, the War on Drugs, and mass incarceration, legal scholar Kenneth Culp Davis called for selective, rather than full, enforcement to honor rule-of-law concerns, such as transparency, accountability and due process. As Culp proposed, one response to the impossibility of full enforcement is for legislatures to criminalize less conduct, rather than more.

Although the new agency guidance is within the scope of viable administrative measures, only Congress can decriminalize conduct or curtail conduct that results in deportation or provide relief. Such legislative change has not transpired in either criminal law or immigration law. In immigration law, Congress has expanded grounds for deportation, eliminated relief, and fortified the connection between the criminal justice system and deportation. Adding more paths for immigrants to obtain legal status and infusing greater discretion at early stages will only potentially indirectly counteract bias that stems from S-Comm and a reliance on criminality to police immigrants.

In addition to carefully outlining the nuances of exercising prosecutorial discretion and issuance of NTAs, Professor Sivaprasad Wadhia has proposed formalizing enforcement priorities through the notice-and-comment rulemaking process to allow more transparency. Providing access to data concerning identity would serve a similar purpose.

A lack of specified enforcement priorities almost certainly devolves discretion, undermines transparency and due process, and masks implicit bias and racial discrimination in enforcement. It is unclear, however, whether more express priorities that facilitate transparency and consistency would reduce discrimination or counteract implicit bias.

As long as racial bias remains in the criminal justice system and immigration enforcement uses criminality as a metric in setting priorities, racial bias will persist. If administrative law has been constructed with the erasure of race, and the enforcement of immigration law has similarly been influenced by the role of race, enforcement priorities may be only one piece of the puzzle.

Carrie Rosenbaum is a professor of legal writing at the University of California Berkeley School of Law and a visiting scholar at the Center for the Study of Law & Society.

This essay is part of a seven-part series titled Race and Regulation.