//  11/7/17  //  In-Depth Analysis

By Kari E. Hong, Assistant Professor, Boston College Law School

President Donald Trump and Congressional leaders are apparently considering trading protections for Dreamers—the young adults previously protected by DACA—for “massive border security”.[1] As someone who has been involved in the immigration field for nearly 20 years, we do not need more security. We need less of it, and a substantial reduction at that.

It’s true that Trump has increased immigration arrests by nearly 40 percent,[2] but only six percent of those have been convicted of serious crimes.[3] I represent non-citizens with criminal convictions; most are not “bad hombres.” Rather, they are long-term residents who do not deserve any more punishment than what the criminal courts deemed necessary. Among the “criminal aliens” that Immigration and Customs Enforcement (ICE) has targeted for deportation are combat veterans who served in Iraq and Afghanistan,[4] a 9/11 volunteer who helped clear the World Trade Center rubble,[5] and mothers whose crimes arose from securing false documentation to work.[6] 

In his executive orders and budget requests, Trump has been asking for up to 15,000 new immigration officers to effectuate arrests,[7] but they can only be immediately hired if Congress waives background checks on each applicant.[8] If employed, their salaries will start at $1.3 billion more each year.[9]

Trump wants states and cities to assist in immigration arrests, but two federal courts have struck down his threats to withhold funds from sanctuary jurisdictions since the Constitution prevents the president from conscripting local actors to perform federal functions.[10] A growing number of state courts bar local police from detaining people for immigration violations because they are civil matters, not actual or potential crimes.[11] 

Although we detain 400,000 non-citizens each year at a cost of $2 billion,[12] Trump’s 2018 budget recommends $1.5 million more for spending on detention centers.[13] More than 90 percent of immigration detention centers are for-profit prisons.[14] In 2016, then Deputy Attorney General Sally Yates recommended that the federal government discontinue their use because they are less safe, less capable, and more expensive than government facilities.[15] The billions spent on for-profit detention centers are remarkable because ICE has a number of other alternative release mechanisms --bond, orders of supervision, and community support programs—that are as effective[16] and significantly less costly.[17]

Plus, the proposed southern border wall is hugely expensive and will not prevent the undocumented immigration. Just 700 miles of the 2,000-mile-long southern border has an existing barrier.[18] The remaining 1,300 miles do not because the land is privately owned,[19] it’s on inhospitable terrain,[20] or it interferes with animal and water migration.[21] More saliently, the number of undocumented immigrants who overstayed their visa outnumber those who crossed the southern border.[22] Congress should continue to block the billons necessary to build this wall—the costs start at $21 billion[23] and have been estimated to be as high as $70 billion[24]—that, if ever constructed, can be scaled by an individual with a $100 ladder.[25] 

Under President Obama, the federal government annually spent $18 billion on immigration enforcement, which is just under $4 billion more than the combined budgets of the agencies targeting actual criminals—the FBI, DEA, Secret Service, and Bureau of Alcohol, Tobacco, and Firearms.[26] 

It’s time to ask why we seek to increase rather than decrease those dollars. Just like the “tough on crime” measures that left us with mass incarceration,[27] broken communities,[28] and a 75-percent recidivism rate,[29] enacting “tough on immigration” efforts are equally nonsensical and wasteful. Immigrants commit fewer crimes than citizens;[30] our crime rate sits at a 20-year low.[31]

Stopping immigration will not stop crime, but it will stall our economy. One in four Americans are immigrants or the children of immigrants,[32] including the current and prior president. More than 83 percent of our country’s top high school science students are children of immigrants.[33] Immigrants are twice as likely to start small businesses.[34] The H1-B visa program places more doctors in hard-to-serve areas than any other.[35]  Undocumented workers do the majority of planting and harvesting of our food.[36]  And without young immigrant workers, our social security system becomes insolvent: In 1950, there were 150 workers for every 20 retirees, and in 2050, without immigration, there will be only 56 workers who must support the same number of retirees.[37] 

There are two ways to stop illegal immigration: We can deport all of them by using cruel and expensive tactics to rid our country of millions of people who are contributing to this country as tax payers, small business owners, parents and spouses of citizens, and skilled and unskilled workers; or we can legalize them by giving a path to citizenship for those who are contributing to this country, which was the immigration policy prior to Congress changing the law in 1996. 

The trumped-up reasons for trumped-up immigration enforcement must be called out for the waste of money and human capital that it is.  We do not have billions of dollars to arrest people for immigration violations.  Ninety percent of Americans support a path to legalization.[38]  It’s time for Congress to do the same.
Kari Hong, an Assistant Professor at Boston College Law School, teaches immigration and criminal law, founded a clinic representing non-citizens with criminal convictions in the Ninth Circuit, and has argued over 100 Ninth Circuit cases and 50 state criminal appeals.



[1] https://www.reuters.com/article/us-usa-immigration-trump-daca/trump-says-immigration-deal-with-democrats-close-without-border-wall-idUSKCN1BP18F?il=0

[2] Aria Bendix, Immigrant Arrests Are Up, but Deportation Is DownTHE ATLANTIC (May 17, 2017), https://www.theatlantic.com/news/archive/2017/05/under-trump-immigrants-arre-stsare-up-but-deportation-is-down/527103.

[3] Bryan Schatz, Trump Is Asking for $4.6 Billion for His Immigration CrackdownMOTHER JONES(May 23, 2017, 11:49 PM), http://www.motherjones.com/politics/2017/05/trump-budget-border-wall-immigration-enforcement. (“After falsely claiming that 75% these people had criminal convictions, the data showed that “only six percent of [those arrested] had convictions for violent crimes and the fastest growing category of arrests was immigrants with no convictions at all.”)

 https://www.nytimes.com/interactive/2017/03/06/us/politics/undocumented-illegal-immigrants.html?_r=0 (reporting that of the 11 undocumented population, less than 3% are believed to have committed a felony)

[4] http://www.chicagotribune.com/news/nationworld/ct-deported-vets-20170604-story.html

[5] https://www.nytimes.com/2017/06/21/nyregion/cuomo-pardon-deportation-carlos-cardona.html

[6] Emily Allen, Protestors Rally Around Woman Who Took Sanctuary in Denver ChurchFOX31 DENVER (Feb. 18, 2017, 10:18 PM), http://kdvr.com/2017/02/18/protesters-rally-around-woman-seeking-sanctuary-in-denver-church; Suzanne Gamboa, Arizona Woman Deported, Possibly the First Under Trump Immigration OrdersNBC NEWS (Feb. 9, 2017, 7:45 PM), http://www.nbcnews.com/news/latino/arizona-woman-deported-possibly-first-under-trump-immigration-orders-n718986.

[7] https://www.usatoday.com/story/news/politics/2017/08/02/dhs-wavers-hiring-15-000-new-immigration-officers-says-trump-order-only-a-goal/533401001/

[8] Elliot Spagat, Border Patrol May Loosen Lie-Detector Hiring RequirementAZ. CENT.(Mar. 8, 2017, 12:30 PM), http://www.azcentral.com/story/news/politics/border-issues/2017/03/08/border-patrol-may-loosen-lie-detector-hiring-requirement/98908980.

[9] Daniel González, Trump Plan to Hire 15K Immigration, Border Agents Could Cost Billions, Take YearsAZ. CENT. (Mar. 7, 2017, 6:02 AM), http://www.azcentral.com/story/news/politics/border-issues/2017/03/07/president-donald-trump-plan-hire-immigration-border-agents-cost-billions/98651772.

[10] http://www.chicagotribune.com/news/local/breaking/ct-chicago-sanctuary-cities-lawsuit-met-20170915-story.htmlCty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081, at *25 (N.D. Cal. Apr. 25, 2017).

[11] See Lunn v. Commonwealth, 477 Mass. 517, 531 (Mass. 2017)Morales v. Chadbourne, No. 12-301-M-LDA, 2017 WL 354292, at *1 (D.R.I. Jan. 24, 2017)(“This twenty-four hour illegal detention revealed dysfunction of a constitutional proportion at both the state and federal levels and a unilateral refusal to take responsibility for the fact that a United States citizen lost her liberty due to a baseless immigration detainer through no fault of her own.”); Orellana v. Nobles Cty., No. 15-3852 ADM/SER, 2017 WL 72397, at *8 (D. Minn. Jan. 6, 2017)(“Thus, in this case, because no warrant was issued for Orellana's arrest, Orellana's arrest and continued detention is lawful only if officers acted within their statutory authority for affecting a warrantless arrest .... Orellana's admission regarding his immigration status provided probable cause for the first half of what § 1357(a)(2) demands. There is, however, no evidence that ICE or any other immigration officer had probable cause to believe that Orellana was ‘likely to escape before a warrant can be obtained for his arrest,’ the second half of what is needed before a warrantless arrest under § 1357(a)(2) is lawful.”); Miranda-Olivares v. Clackamas Cty., No. 3:12-CV-02317-ST, 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014) (“There is no genuine dispute of material fact that the County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention.”). Cf Mendoza v. U.S. Immigration & Customs Enf't, 849 F.3d 408, 418 (8th Cir. 2017) (under the facts of that case, the officer “had arguable probable cause to issue the ICE detainer and was entitled to qualified immunity”). Or cases cited at Kari Hong, The Costs of Trumped-Up Immigration Enforcement Measures, 2017 Cardozo L. Rev. de novo 119, 154 NN 46 & 47 (2017) (citing cases), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2957888

[12] Immigration Detention Map & Statistics, CIVIC, http://www.endisolation.org/resources/immigration-detention (last visited June 22, 2017) (“The United States maintains the largest immigration detention infrastructure in the world, detaining approximately 380,000 to 442,000 persons per year.”); Hanna Kozlowska, The American Private Prison Industry Has Scored Another Big Win with the US Government, QUARTZ (Dec. 1, 2016), https://qz.com/850810/the-department-of-homeland-security-wants-to-keep-using-private-prisons-for-immigration-detention.


[13] Trump Administration Budget Aims to Undermine Due Process and Implement Mass Deportation Plans, AILA Doc. 17052361, AM. IMMIGR. LAW. ASS'N (May 23, 2017), http://www.aila.org/advo-media/press-releases/2017/aila-opposes-trump-fy2018-budget; Nicholas Fandos, Trump's Border Wall Gets Billions in Budget ProposalN.Y. TIMES (Mar. 16, 2017), https://www.nytimes.com/2017/03/16/us/politics/donald-trump-border-wall-budget.html.

[14] Hanna Kozlowska, The American Private Prison Industry Has Scored Another Big Win with the US Government, QUARTZ (Dec. 1, 2016), https://qz.com/850810/the-department-of-homeland-security-wants-to-keep-using-private-prisons-for-immigration-detention.

[15] Matt Zapotosky & Chico Harlan, Justice Department Says It Will End Use of Private PrisonsWASH. POST (Aug. 18, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/08/18/justice-department-says-it-will-end-use-of-private-prisons.

[16] See Declaration of Thomas Homan at 11, Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) (No. 2:85-CV-04544-DMG), http://www.aila.org/File/Related/14111359l.pdf.

[17] Ruthie Epstein, Alternatives to Immigration Detention: Less Costly and More Humane than Federal Lock-upAM. CIV. LIBERTIES UNION (Oct. 27, 2014), https://www.aclu.org/other/aclu-fact-sheet-alternatives-immigration-detention-atd.

[18] Daniel Stone, A Border Wall Already Exists in Some Places. We Visited It.NAT'L GEOGRAPHIC (Jan. 25, 2017), http://news.nationalgeographic.com/2017/01/what-the-us-mexico-border-actually-looks-like.

[19] Nomaan Merchant, As Wall Looms, US Moves to Settle Border Fence Land CasesUS NEWS (June 16, 2017, 5:11 PM), https://www.usnews.com/news/best-states/texas/articles/2017-06-16/as-wall-looms-us-moves-to-settle-border-fence-land-cases (discussing legal cases against 90 Texas landowners).

[20] Daniel Stone, A Border Wall Already Exists in Some Places. We Visited It.NAT'L GEOGRAPHIC (Jan. 25, 2017), http://news.nationalgeographic.com/2017/01/what-the-us-mexico-border-actually-looks-like.

[21] Natasha Geiling, San Diego Prepares to Fight Back Against Trump's Environmentally Catastrophic Border WallTHINK PROGRESS (Aug. 3, 2017, 10:14 AM), https://thinkprogress.org/border-communities-environmental-destruction-wall-25266cc2b216 (discussing potential legal challenges from environmental grounds and economic challenges by the City of San Diego and the State of Arizona to the border wall); 

[22] Alfonso Chardy, Foreigners Who Overstay Their Visas Outnumber Those Who Cross the Border IllegallyMIAMI HERALD (Mar. 10, 2017, 2:47 PM), http://www.miamiherald.com/news/local/immigration/article137722458.html.

[23] Julia Edwards Ainsley, Exclusive--Trump Border “Wall” to Cost $21.6 Billion, Take 3.5 Years to Build: Homeland Security Internal ReportREUTERS (Feb. 9, 2017, 6:05 PM), http://in.reuters.com/article/usa-trump-immigration-wall-idINKBN15O2ZZ.

[24] https://www.brookings.edu/essay/the-wall-the-real-costs-of-a-barrier-between-the-united-states-and-mexico/

[25] Linda Greenhouse, Legacy of a FenceN.Y. TIMES (Jan. 23, 2011), http://query.nytimes.com/gst/fullpage.html?res=9E02E5DE1331F930A15752C0A9679D8B63.

[26] DORIS MEISSNER ET AL., MIGRATION POLICY INST., IMMIGRATION ENFORCEMENT IN THE UNITED STATES: THE RISE OF A FORMIDABLE MACHINERY 9 (Jan. 2013), http://www.migrationpolicy.org/research/immigration-enforcement-united-states-riseformidable-machinery.

[27] http://www.npr.org/2014/09/12/347736999/20-years-later-major-crime-bill-viewed-as-terrible-mistake

[28] See Alana Semuels, What Incarceration Costs American FamiliesTHE ATLANTIC (Sept. 15, 2015), https://www.theatlantic.com/business/archive/2015/09/the-true-costs-of-massincarceration/405412.

[29] https://prisonscholars.org/the-problem-recidivism-mass-incarceration/

[30] https://www.nytimes.com/2017/01/26/us/trump-illegal-immigrants-crime.html

[31] https://www.usnews.com/news/articles/2016-09-26/us-crime-rate-rises-slightly-remains-near-20-year-low

[32] Matt Rocheleau, 1 in 4 Americans Are Immigrants or Children of ImmigrantsBOS. GLOBE (Jan. 30, 2017), https://www.bostonglobe.com/metro/2017/01/30/americans-are-either-children-immigrants-immigrants-themselves/veKA9SM9H9onyBS6TiCUwI/story.html.


[33] Stuart Anderson, 83% of America's Top High School Science Students Are the Children of ImmigrantsFORBES (Mar. 11, 2017, 12:11 AM), https://www.forbes.com/sites/stuartanderson/2017/03/11/83-of-americas-top-high-school-science-students-are-the-children-of-immigrants/#7858cfa2200f.

[34] Imigrants and Small BusinessN.Y. TIMES (June 30, 2012), http://www.nytimes.com/2012/07/01/opinion/sunday/immigrants-and-small-business.html.

[35] http://money.cnn.com/2017/02/02/news/economy/trump-visa-ban-doctor-shortage/index.html; https://www.nytimes.com/2017/03/18/us/doctor-shortage-visa-policy.html

[36] Caitlin Dickerson & Jennifer Medina, California Farmers Backed Trump, but Now Fear Losing Field WorkersN.Y. TIMES (Feb. 9, 2017), https://www.nytimes.com/2017/02/09/us/california-farmers-backed-trump-but-now-fear-losing-field-workers.html; see also Michael Frank, Can America's Farms Survive the Threat of Deportations?THE ATLANTIC (June 6, 2017), https://www.theatlantic.com/business/archive/2017/06/can-americas-farms-survive-the-threat-of-deportations/529008; Tamar Haspel, Illegal Immigrants Help Fuel U.S. Farms. Does Affordable Produce Depend on Them?WASH. POST (Mar. 17, 2017), https://www.washingtonpost.com/lifestyle/food/in-an-immigration-crackdown-who-will-pick-our-produce/2017/03/17/cc1c6df4-0a5d-11e7-93dc-00f9bdd74ed1_story.html?utm_term=. ecbe6a85828a; Chris Morris, California Crops Rot as Immigration Crackdown Creates Farmworker ShortageFORTUNE (Aug. 8, 2017), http://fortune.com/2017/08/08/immigration-worker-shortage-rotting-crops.

[37] http://www.as-coa.org/articles/get-facts-immigrants-and-economy-five-reasons-why-us-economy-needs-immigrants

[38] http://www.cnn.com/2017/03/17/politics/poll-oppose-trump-deportation-immigration-policy/index.html

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