INTRODUCTION 1464 I. THE DEPORTATION-DOMINANT ACCOUNT 1469 II. THE INTERIOR STRUCTURE OF IMMIGRATION ENFORCEMENT 1472 A. The Immigration Enforcement Pyramid 1474 B. Enforce Mechanisms 1476 C. Multiple Enforcement Agents 1482 III. LESSONS FROM LOW-LEVEL CRIMINAL LAW ENFORCEMENT 1490 A. The Limits of Deterrence 1492 B. Hidden Enforcement Costs 1494 IV. RESTRUCTURING IMMIGRATION ENFORCEMENT 1502 A. Procedural Remedies 1502 B. "Sanctuary" as a Managerial Strategy 1504 C. Evaluting the Costs of Enforcement 1507 CONCLUSION 1511 INTRODUCTION
Deportation dominates immigration policy debates, yet it represents a fraction of the work the immigration enforcement system does. In recent years, federal immigration authorities have carried out three to four hundred thousand removals annually. (1) The numbers are staggering on a historic scale, but they amount to no more than three to four percent of the estimated population of eleven million undocumented migrants. (2) The vast majority of the undocumented population remains present long-term, with the median length of residence being about fourteen years. (3) Less than fifteen percent have been present for under five years. (4)
Given these figures, deportation plays an outsized role in immigration policy debates. (5) Equating immigration enforcement with deportation obscures much of the interior work that the immigration enforcement system does. At worst, it lends fodder to the argument that the immigration enforcement system is simply not doing much work. (6) It is akin to trying to understand the whole of the criminal justice system from the perspective of capital cases.
A large literature explores how immigration enforcement has absorbed the enforcement norms of criminal law. (7) This scholarship is valuable precisely because it illustrates the erosion of the doctrinal boundaries between immigration and criminal law. Yet to the extent scholarship compares deportation to criminal punishment, it presents an incomplete portrait of both systems. Just as immigration enforcement does far more than impose deportation, criminal law enforcement reaches well beyond formal punishment. The vast majority of people who experience contact with the criminal justice system do so through low-level arrests, where there is no hefty prison sentence. Rather, they experience other penalties, such as probation, jail time, fines, lost work, or other collateral penalties that can be triggered from a mere arrest, even without a conviction. Incarceration is not the sum total of what the criminal justice system does; it is merely the top of the "penal pyramid." (8)
This Article argues that even as immigration enforcement has absorbed the enforcement norms of federal criminal prosecution, it has also absorbed surveillance and "managerial" techniques--namely, techniques for monitoring, tracking, and conducting risk assessment on large groups over time--from the low-level criminal law context. In comparing certain low-level criminal law enforcement and immigration enforcement, this Article makes two contributions to immigration enforcement debates. First, it argues that immigration enforcement should not be conceptualized as synonymous with deportation; rather, deportation is merely the tip of a much larger enforcement pyramid. Scholars have explored the interconnections between the tips of the "penal pyramid" and the immigration enforcement pyramid by showing how deportation is imposed in ways that increasingly resemble criminal punishment. (9) But they have yet to examine structural similarities at the base of both pyramids, where a large population is subject to ongoing monitoring. This Article begins to fill that gap. Second, it argues that similar to the misdemeanor context, policymakers have failed to appreciate the hidden costs of monitoring a population in the long term and creating the ubiquitous possibility of escalated enforcement. A large and compelling body of literature documents how immigration enforcement techniques may create vulnerability to bad or unscrupulous actors, such as those who engage in wage theft or abuse. (10) Yet the real impact of this enforcement system goes deeper. It leaves little room for good faith actors--those who do not seek to exploit vulnerable populations--to encourage socially desirable interactions. Appreciating this cost is necessary for understanding the full reach of immigration enforcement. It also suggests that the costs of this enforcement approach are not entirely unique to the immigration context. Rather, they are also partially the product of an enforcement structure that gives a host of actors the power to trigger escalated enforcement.
Immigration enforcement operates in the interior by delegating enforcement discretion to many actors, both public and private. Police officers or employers, for instance, function as so-called "force multipliers" who are supposed to engage in immigration enforcement while undertaking their normal duties. (11) In taking this approach, immigration enforcement borrows a strategy from low-level criminal law enforcement. Employers, for instance, function as de facto probation officers when they monitor compliance with work requirements for probationers. In thousands of homes that are subject to "nuisance" ordinances around the country, landlords are required to monitor tenants and to evict those the police suspect of causing disturbances. (12) In both the criminal law and immigration context, such initiatives are viewed as a low-cost way to achieve enforcement objectives.
Yet taking this approach to enforcement imposes hidden costs. As criminal law scholars have recognized, for one, some populations are unlikely to be deterred. Some addicts, for instance, respond to drug enforcement crackdowns by engaging in riskier behavior to avoid getting caught. (13) Attempts at enforcement can trigger law enforcement tradeoffs: They can come at the expense of enforcing other laws, such as wage and hour laws. They can also lead to "system avoidance," when the regulated population avoids contact with key formal legal institutions to avoid perceived surveillance and resulting enforcement actions. (14) The volume of undocumented migrants living in the United States long term demonstrates how enforcement efforts are unable to meet their stated objectives. And efforts to engage in ever-broader, ever-cheaper enforcement tactics are likely to create significant costs for society at large, such as through system avoidance and law enforcement tradeoffs. In taking this approach, interior immigration has replicated some of the flawed assumptions behind low-level criminal enforcement, particularly in overlooking the full costs of this approach.
Understanding the reach of immigration enforcement and its impact has taken on new urgency in recent years. One rationale for the Trump administration's crackdown on illegal immigration is simple deterrence: the theory is that high-profile acts of enforcement along with a stated "zero tolerance" approach will make a significant dent in the population of eleven million unauthorized migrants who are already present. (15) This Article shows why this theory of deterrence is oversimplified. It overlooks systemic costs of attempting to achieve deterrence, particularly costs associated with delegating enforcement discretion to actors other than federal immigration enforcement authorities.
Undocumented migrants who remain in the United States are not merely aware of the possibility that one day ICE may come knocking at their door. Rather, they have reason to perceive routine interactions with key institutions--employers, police, and others--as potential triggers for detention, deportation, or other penalties. This awareness, in turn, creates incentives to engage in system avoidance--to lay low, avoid reporting crime, or avoid reporting unsafe working conditions. Awareness of surveillance reorders relationships; it puts some in a position of power relative to others. Employers, for instance, are not merely employers. Because they routinely conduct immigration screening, (16) they have the ability to credibly threaten to trigger arrest, detention, or deportation. This raises the stakes of routine interactions between undocumented workers and employers. Similar dynamics unfold with others who exercise de facto immigration enforcement power, such as police. (17)
Incentives to lay low exist even when employers or police themselves encourage open communication, offer fair working conditions, or otherwise encourage socially valuable interactions. This Article seeks to apply insights from criminal law enforcement to evaluating how immigration enforcement decisions affect the vast majority of undocumented migrants who remain within the United States. (18) It evaluates procedural reforms and "sanctuary" policies, and it considers how to more fully assess the costs of the current enforcement structure.
This Article proceeds as follows: Part I briefly summarizes the literature comparing deportation to criminal punishment. Part II explains why deportation should be conceptualized as the tip of a larger enforcement pyramid. Part III shows how immigration enforcement bears important structural parallels to low-level criminal law enforcement techniques. Both operate by delegating enforcement discretion to public and private actors, and both carry the potential for high-stakes outcomes. It then discusses the costs of seeking to surveil and to sporadically enforce laws against a long-term undocumented population. Part IV considers how attention to the structure of immigration enforcement may affect contemporary immigration enforcement debates. In particular, it calls for recognizing the limits of proceduralist arguments in immigration enforcement, and it evaluates the limits of "sanctuary" policies in criminal justice. It also considers how to more fully evaluate the costs of immigration enforcement in the absence...