Restoring Credibility and Humanity

A credible enforcement system should incentivize compliance with the law by giving those who want to follow the rules a way to do so: rewarding them when they meet requirements, and imposing consequences if they do not.  It must also account for the millions of undocumented people living in the United States—people who either violated civil immigration laws by entering the country without authorization or who entered lawfully and then fell out of status—who have become integral to the fabric of the United States. Overwhelming evidence shows that most undocumented immigrants pose no heightened risk of criminality and, in the long run, they are a critical net benefit to the U.S. economy and American communities. Unfortunately, today there is no way for most undocumented immigrants to “get right with the law,” even when they have lived in the United States for decades and otherwise comply with the law. 

Congress should make compliance an option for as many undocumented people as possible by passing existing legislation that offers permanent legal status and pathways to citizenship. A majority of Americans consistently support this, especially for undocumented immigrants with no criminal record and extensive ties to the community. However, even robust, immediate legalization programs inevitably will leave millions of undocumented immigrants without legal status. An immigration enforcement system that offers one-time legalization but does not address the question of those remaining (or a future undocumented population) will not be effective. 

Congress can impose consequences on undocumented immigrants and increase their compliance with the law without automatically subjecting all to arrest and deportation. It should develop a diversion mechanism and compliance process that federal enforcement agencies can use if they encounter an undocumented immigrant. Instead of forcing every person immediately toward arrest and deportation, a diversion mechanism would redirect undocumented people with years of life in the United States and no criminal convictions into an alternative process with civil penalties proportionate to their case, and that offers access to lawful permanent status for those who prove their ability to comply with those penalties. To maintain credibility and effectiveness, this compliance process should be managed by a civil administrative agency that is not ICE.  

Public safety should be a fundamental goal of any law enforcement agency. Immigration enforcement is no exception. Given limited resources, federal immigration agencies have traditionally focused efforts on noncitizens who had contact with the criminal legal system, and especially those who posed a public safety threat. But the second Trump administration is targeting all undocumented immigrants, including those who pose no public safety threats. It has abandoned enforcement priorities while simultaneously increasing indiscriminate arrests and violent practices. Mass deportation treats all immigrants as an existential public safety threat, even though immigrants correlate with lower crime rates. This agenda has instilled fear, eroded public trust, and led to decreases in the reporting of crime, all of which have counterproductively made communities less safe.

Many of the tactics this administration has used are permitted under immigration laws passed in the 1980s and 1990s, which have not kept pace with advances in the understanding of how to best improve public safety. These laws legislate detention and deportation for thousands who pose no actual safety threat and enable federal agencies to deputize local police to serve as immigration agents in American communities—with little oversight or direction. A credible enforcement system will require Congress to make overdue revisions to these outdated laws to focus enforcement efforts on noncitizens who pose bona fide safety threats and ensure that local police are seen as protectors, not as entry points into a civil deportation dragnet. 

Therefore Congress should: require immigration enforcement agencies (whether ICE or any other agency) to use “enforcement and prosecutorial priorities” with a focus on noncitizens with violent or recent, especially serious criminal convictions; amend outdated grounds of deportation that distract from a focus on current and serious safety risks; codify professional law enforcement standards for immigration agencies; and, repeal laws that permit federal agencies to deputize local police for immigration enforcement, while taking steps to support a new public-safety partnership model between states and the federal government that offers financial support for supportive services in immigrant communities alongside more targeted enforcement against noncitizens who pose serious threats. Lawmakers have an opportunity to course correct by advancing laws and policies that actually deliver safety. 

Scaled and proportionate consequences can strengthen the rule of law by delivering real consequences without tearing millions of people away from their families and communities through detention and deportation.  The overly blunt nature of the current U.S. immigration system, in which the only options are no consequences or a life-shattering consequence, has helped this administration ramp up the dehumanizing rhetoric, political theater, and enforcement tactics of mass deportation. 

This was not inevitable. The current laws established in the 1980s and 1990s replaced the prior, more flexible system that treated immigration violations as a problem that could be fixed rather than a permanent stain that could only be resolved by deportation. As a result, today the system fails to offer reasonable or proportionate civil consequences for violations, making detention and deportation a one-size-fits-all punishment. 

A modern enforcement system should reserve its harshest tools for the highest-threat cases and create structured compliance pathways for everyone else. Congress should adopt scaled, proportionate penalties for people facing removal, which would permit immigration judges to decide when removal makes sense—and when it does not. It should also significantly decrease the number of people that can be placed into immigration detention facilities, as a proportionate enforcement system does not require a system of mass incarceration. Any person still subject to detention should be entitled to basic due process with a bond hearing and appointed lawyer.

Building a credible and humane immigration enforcement system depends on establishing that enforcement agencies are accountable to other branches of government and the public and therefore deserve the public’s deference and respect. Under the Trump administration, even when ICE officers commit misconduct serious enough to draw rebuke by public officials and protest by Americans nationwide, there seem to be no consequences. In just one year, the Trump administration has gutted three internal oversight bodies at the Department of Homeland Security (DHS), declaring oversight as a “roadblock[] to enforcement.” It has also routinely denied members of Congress access to immigration detention facilities for oversight visits as they are entitled to under the law. Despite the shooting of multiple U.S. citizens and immigrants at the hands of immigration officers, the public has not seen federal agencies hold officers accountable—or even acknowledge error. Thanks to decades-old laws restricting judicial review, federal courts have also been powerless in accounting for legal violations and abuses.  A credible enforcement system must include codified accountability mechanisms that expand authority of both the federal courts and Congress to impose meaningful consequences when federal agencies and agents abuse their authority. True accountability will require a new, independent, and bipartisan oversight body whose recommendations are enforceable, alongside rebuilt internal oversight agencies within DHS with new legal authorities and greater independence to ensure they are more effective than in the past. Restoring credibility to immigration enforcement depends on a reformed and far stronger accountability system than ever before.