REGIONAL IMMIGRATION ENFORCEMENT.

• Author: Marouf, Fatma

ABSTRACT

Regional disparities in immigration enforcement have existed for decades, yet they remain largely overlooked in immigration law scholarship. This Article theorizes that bottom-up pressure from states and localities, combined with top-down pressures and policies established by the President, produce these regional disparities in enforcement. The Article then provides an empirical analysis demonstrating enormous variations in how Immigration and Customs Enforcement's field offices engage in federal enforcement around the United States, focusing on field offices located in "sanctuary" regions, which provide a more hospitable political climate for immigrants, and "antisanctuary" regions, where the climate is more hostile. By analyzing data related to detainers, arrests, removals, and detention across these field offices, the Article demonstrates substantial differences between field offices located in sanctuary and antisanctuary regions, as well as variations within each of those groups. In order to promote more equitable and transparent enforcement, the Article offers recommendations regarding agency guidelines, rulemaking, performance metrics, and institutional designs, examining the strengths and limitations of these approaches.

INTRODUCTION I. THE REGIONAL STRUCTURE OF IMMIGRATION ENFORCEMENT A. The Creation of INS and Its Autonomous Regional Offices B. The Current Geographic Structure of Immigration Enforcement II. FORCES THAT PRODUCE REGIONAL EFFECTS A. Bottom-Up Influence of States and Localities B. Top-Down Impact of Central Policies 1. Bureaucratic Buy-In 2. Field Office Discretion C. Regional Effects III. REGIONAL VARIATIONS IN IMMIGRATION ENFORCEMENT A. ICE Detainer Requests B. Administrative Arrests 1. Arrests of Noncitizens with No Criminal History 2. Arrests of Noncitizens with Convictions 3. Arrests of Noncitizens with Pending Charges C. Removals 1. Removals of Noncitizens with No Criminal History 2. Removals of Noncitizens with Convictions 3. Removal of Noncitizens with a Pending Criminal Charge D. Detention 1. Detained Population 2. Detainees Classified as "No Threat" 3. Detainees Classified as Highest Threat 4. Alternatives to Detention E. Summary of Results IV. IMPLICATIONS A. Implications for Immigration Policymaking 1. Enforcement Guidelines 2. Notice and Comment Rulemaking 3. Expanding Performance Metrics to Reflect Multiple Goals B. Implications for Institutional Design 1. Separation of Enforcement and Adjudicative Functions 2. Empowering OIG and CRCL 3. Establishing Regional Committees for Civilian Oversight CONCLUSION INTRODUCTION

Stark variations exist in immigration enforcement depending on the region of the United States. (1) Such disparities persist even when one compares field offices in regions with generally similar political climates. For example, Immigration and Customs Enforcement (ICE)'s Seattle field office--which oversees Washington, Oregon, and Alaska--arrests noncitizens with no criminal history at nearly four times the rate of the San Francisco field office--which oversees northern California and Hawaii--and removes them at nearly eight times the rate of the San Francisco field office. (2)

Although these regional disparities in immigration enforcement have existed for decades, they remain largely overlooked in immigration law scholarship. Legal scholarship focused on immigration federalism tends to "treat[] the federal government as a singular entity vis-a-vis the states," (3) while articles scrutinizing the federal government tend to probe the allocation of immigration authority between the President and Congress. (4) This Article, on the other hand, looks within the Executive Branch, specifically within ICE, an agency within the Department of Homeland Security (DHS), in order to explore how ICE Enforcement and Removal Operations (ERO) field offices actually engage in federal enforcement around the country. (5) By analyzing data related to detainers, arrests, removals, and detention across ICE ERO's field offices, this Article demonstrates drastic regional variations in key aspects of federal immigration enforcement.

This analysis indicates that federal immigration enforcement reflects a type of "checkerboard federalism," where substantive national policies are geographically differentiated. (6) The regional focus of this Article also adds to a nascent body of scholarship shining light on the geographic structure of federal agencies and analyzing the implications of regional organization for federalism and federal administrative law. (7) As David Owen has observed, "all the new spotlights illuminating administrative federalism have yet to shine on the geographic structure of federal agencies themselves." (8) By offering an innovative regional analysis, this Article makes both theoretical and empirical contributions to our understanding of federal agencies and to our understanding of ICE in particular.

To date, the legal scholarship on "immigration federalism" has examined a wide range of issues related to federal, state, and local relations, with little attention to regional dynamics. Among other things, scholars have examined state power and preemption doctrines; (9) efforts of states and localities to resist federal enforcement; (10) the federal government's attempts to "commandeer" states and localities in order to secure their cooperation; (11) regulation of access to social benefits as a way for states and localities to impact immigrant integration; (12) the impact of overlapping local, state, and federal law enforcement on particular communities; (13) conflicts between state laws and local "sanctuary" or "antisanctuary" laws ("immigration localism"); (14) and multilayered "sanctuary networks." (15)

In this rich body of literature, the only articles discussing "immigration regionalism"--a term coined a decade ago by Professors Keith Aoki and John Shuford--propose a regional approach to developing solutions to multifaceted immigration issues, such as employment and labor. (16) As Professor Shuford explained, "[i]ndividual states, interstate areas, and substate districts might function as federal immigration regions ('FIRs') in a manner and structure similar to the federal court system." (17) Cristina M. Rodriguez has also argued that immigration's distinct regional implications require regional solutions, at least with respect to integration. (18 While these innovative arguments merit further exploration, they do not emphasize enforcement or address ICE's existing regional structure, which is the focus of this Article.

Only a handful of prior articles have examined regional variations in immigration enforcement. Professors Shoba Sivaprasad Wadhia and Leon Wildes documented regional variations in two types of prosecutorial discretion: deferred action status and stays of removal based on information obtained through FOIA requests. (19) Virgil Wiebe analyzed state and local policies in Minnesota and found that differences in federal regional offices resulted in different outcomes. (20) Spencer Amdur highlighted significant variations among states in Criminal Alien Program removals and the use of immigration detainers, noting that "these data suggest some real geographic variation along political lines" but that "[m]uch more empirical work remains to understand federal enforcement practices." (21) Additionally, Emily Ryo and Ian Peacock have provided an impressive empirical analysis of county participation in immigration detention that found geographic disparities. (22) In a distinct but related context, Jaya Ramji Nogales, Andrew Schoenholtz, and Philip Schrag's seminal article, Refugee Roulette, documented disparities in asylum decisions, including by asylum officers within DHS. (23)

This Article is the first to provide a more comprehensive analysis of regional variations by ICE field office in several key aspects of immigration enforcement. Part I begins by presenting historical background on the regional nature of immigration enforcement, explaining how the Immigration and Naturalization Service (INS), which was ICE's predecessor, struggled to control autonomous regional offices. Part I then explains ICE ERO's current geographic structure, which, at the time of writing, divided the territory of the United States into twenty-four field offices that oversee areas that vary in size from groups of states to single states to groups of counties.

Part II provides a theoretical framework for regional variations by examining the different forces on ICE field offices that can produce regional effects. First, it discusses bottom-up pressure by states and localities that cooperate or refuse to cooperate with ICE in multiple ways. States and localities can decide to cooperate or refuse to cooperate with ICE by making critical decisions about whether to enter into 287(g) agreements that deputize law enforcement agencies to be involved in immigration enforcement, honoring ICE detainer requests, allowing ICE officers into jails and prisons, adopting "sanctuary" or "antisanctuary" policies, and entering into contracts with ICE regarding detention facilities. Because ICE's field offices are physically located in regions with dramatically different policies and politics regarding immigration enforcement, those differences may affect federal enforcement decisions.

At the same time, there are top-down pressures on ICE field offices by the President, the Secretary of DHS, and the Director of ICE, and those pressures can come in various forms, such as Executive Orders, guidelines, regulations, internal agency procedures, and performance metrics. The President can seek to promote consistency in enforcement decisions by setting clear national priorities, or the President can encourage decentralization by leaving much to the discretion of frontline officers. Part II argues that the convergence of pressures from above and below on individual ICE ERO field offices...