This article shows how the governmental authority over immigration law came into being. Modern day immigration enforcement can be traced to 19th century origins and the doctrine plenary powers (PPD). The Supreme Court established Congress’ plenary power when Chinese Exclusion was challenged in the case of Ping v. the United States 1889. Ping challenged the constitutionality of his exclusion from the US by arguing it violated his constitutional right to due process protection.

In deciding Ping, the Court upheld the constitutional legitimacy of Chinese Exclusion, citing that Congress clearly intended to exclude Chinese persons from the US when drafting the legislation in question. Even though the Constitution does not clearly state that the political branches of the federal government have any authority, let alone plenary authority over immigration, Ping’s exclusion was upheld based on the Court’s presumption that Congress possesses inherent sovereignty over foreign policy.

The Court’s ruling against Ping states:

"That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation . . . if it could not exclude aliens it would be to that extent subject to control of another power."

The Court established Congress’ sovereign authority over governance of the entry and exit of foreign nationals and PPD became a standing judicial theory under which the Supreme Court has consistently declined to extend otherwise applicable constitutional protections to foreign nationals in situations where it has decided that Congress and the Executive Branch are exercising powers inherent in the right to sovereignty of the nation.   The broad rationale for plenary powers presumes that the nation and Constitution must be protected during a wide array of national emergencies, at any cost, even if protections of reasonable legal rights are curtailed. In immigration cases, plenary powers have been consistently upheld by the embedded philosophy that the rule of law is dependent on the exercise of control over foreign nationals in the name of security. Put another way, Congress has the power to create immigration laws and the President has the power to enforce them with minimal interference from the judicial branch.

Consequently, the congressional and executive branches of government have used their plenary powers over immigrants to expand the nation’s immigration enforcement apparatus. The Court confers upon Congress and the President the ability to direct retributive legal action at non-citizens. In deference to the will of Congress and the Executive Branch, all levels of federal courts have customarily insulated immigration law from constitutional challenges. When addressing constitutional challenges to immigration law, the Supreme Court has since Ping, consistently deferred to the plenary authority of the two political branches of government reasoning that exclusion and deportation falls under the nation’s inherent right to exercise sovereignty over matters of immigration policy.

Thus, in 1889, the Court firmly established the doctrine of plenary powers based on its own judicial interpretation of congressional intent. Prosecutors and immigration judges have since invoked Ping as a binding precedent ruling because the perpetuation of PPD depends on similar judicial interpretations. Another case from the Chinese Exclusion era, Fong Yue Ting, firmly established in 1893 that any alien could be deported for any reason. The Court majority, in ruling against Ting, ceded virtually unlimited authority to Congress in the regulation of immigration cases by seeming to render due process inapplicable in deportation proceedings. Ting established that the due process available in removal proceedings is only that which Congress sees fit to provide. The Court wrote, “as to foreigners, the decision of executive or administrative officers, acting with powers expressly conferred by Congress, are due process of law.”
Kanstroom cites a determinant deportation case in which the courts, in 1952, reinforced a tradition of deference to congressional intent. “Congress has plenary power over aliens and may deport them from this country at any time for any reason,” wrote a federal judge in the 5th Circuit Court of Appeals in Marcello v. the United States. Even though due process violations occurred in Marcello’s deportation hearing, the Supreme Court subsequently rejected Marcello’s appeal because it was “clear that Congress had established a specialized administrative procedure applicable to deportation hearings . . . adapting them to the particular needs of the deportation process.” The hearing officer the recommended Marcello’s deportation adjudicated the case which his own superiors had initiated, investigated, and prosecuted. Plenary powers are so well embedded into the government culture that when the government wishes to deport someone, almost anything goes.

Congressional Powers: Immigration Law

Legal scholars concur that the temperament of deportation law changed dramatically in 1996, when Congress passed the omnibus Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration and Immigrant Responsibility Act (IIRIRA) in order to make it easier to deport terror suspects, illegal aliens, and criminal aliens amidst widespread public anxiety over the social costs associated with the presence in the US of foreign nationals. Since the enactment of these notoriously harsh deportation laws, millions of non-citizens, many undocumented, but also hundreds of thousands with legal immigration status have been ordered to leave the country. The 1996 immigration laws, heretofore referred to as AEDPA and IIRIRA, defined a wide array of criminal violations and immigration status violations that warrant mandatory detention before deportation from the United States.

One particularly unforgiving provision of IIRIRA is an expanded category of deportable convictions falling under the definition of aggravated felony, for which legal permanent residents can be deported for even relatively minor offenses, including shoplifting and drug possession. Formerly low-level felonies as well as some misdemeanor convictions are considered to be aggravated felonies for the purposes of deportation. Aliens convicted of aggravated felonies are automatically deported through expedited procedures intended to ensure deportation as soon as the alien is released from custody after serving the sentence for the underlying crime. Deportation orders for aggravated felony convictions are not reviewable under any circumstances by the federal courts.

Not only did the 1996 laws expand the reaches of deportation for immigration-related offenses, they mandated detentions prior to deportation proceedings, while raising insurmountable barriers to legal re-entry.  What is more, aggravated felony deportations frequently include cases in which non-citizens have been long-term residents married to American citizens, or who have American children.  Broad applications of aggravated felony definitions serve to increase the overall numbers of non-citizen offenders, strip them of legal permanent residency, make them ineligible for future legal entry, and banish them permanently to countries that they may not even remember.

An excellent example of the retributive nature of the aggravated felony law concerns a Portuguese national named Carlos Pacheco, who became a legal resident of the US as a 6-year old child. In 2000, a federal appeals court agreed that he was an aggravated felon based on his prior misdemeanor convictions in Rhode Island for stealing Tylenol, a few packs of cigarettes, and resisting arrest (United States v. Carlos Pacheco, 2000). Pacheco had been, in fact, deported for his crimes in 1998. This would have been the end of the story except for that Pacheco was apprehended in the act of returning to visit his mother one year after his formal removal from the US.

Under strict application of IIRIRA, Pacheco was determined to be guilty of a serious felony known as re-entry after removal, which earned him 46 months in prison for sneaking back into the country (United States v. Carlos Pacheco, 2000). Pacheco appealed the harsh sentencing determination, claiming that his original cases, the misdemeanor convictions in Rhode Island did not make him an aggravated felon, and therefore, should never have resulted in his original deportation. His defenders argued that the IIRIRA definition of aggravated felony was ambiguous because it allowed state-level misdemeanors to be construed as aggravated felonies for the purpose of removal from the US.

One appellate judge concurred with the defense and issued an opinion, “When Congress, in a definitional section [IIRIRA] seems to say that bananas are apples, we should ask whether that is really what Congress meant.”  Nonetheless, the appellate court ultimately ruled against Pacheco stating that, “In the case before us, we deal with the question of whether Congress can make the word misdemeanor mean felony . . . we hold that it can, because in this instance, we consider Congress to be master . . .” (2nd U.S Court of Appeals, 2000). Upon upholding the definition of aggravated felony, the majority wrote, “We find Congress' intent to classify certain misdemeanors as felonies clear . . . we therefore carry out the intent of Congress and affirm the judgment of the district court.” 

The dissenting opinion, in contrast, expressed misgivings that when Congress drafted IIRIRA in a zealous response to anti-immigrant backlash, it effectively equated misdemeanors with felonies by upgrading the gravity of crimes when moving deportation cases from state to federal levels. As a result, the federal immigration consequences of Pacheco’s offenses were far more punitive than the criminal consequences on the state level had been. Pacheco’s final disposition portrayed deportation as an extremely definitive judicial proceeding. The outcome ultimately suggests that non-citizens subject to aggravated felony statutes have not been successful in obtaining meaningful court standing for judicial challenges.

While a history of unreasonable deportation rulings suggest that Congress’ authority over immigration law might be entirely insulated from judicial review, the judiciary might have left the door slightly ajar for judicial scrutiny for detained aliens. The Court might have significantly narrowed the scope of plenary powers in Zadvydas, and yet, the bench wrote ambiguity into the Zadvydas opinion when attempting to interpret congressional intent. In siding with Zadvydas on appeal of his prolonged detention, the Court conceded on one hand that the power of the Attorney General to detain non-citizens is “subject to important limitations,” but in the same opinion inconsistently stated that despite constitutional problems, if Congress had made its intentions clear with regard to special cases meriting indefinite detention, the Court would defer as usual.  Despite the constitutional problem here, if this Court were to find a clear congressional intent to grant the Attorney General the power to indefinitely detain an alien ordered removed, the Court would be required to give it effect.

Paradoxically, the Court wrote on the very next page that Zadvydas indefinite detention would raise “a serious constitutional problem.” It is hard to see how both of these ideas, 1) constitutional limitations and 2) plenary powers of the Attorney General can simultaneously be true; however, contradictions invariably flow from judicial interpretations of the 1996 deportation laws. Nonetheless, the Zadvydas opinion was notable because it brought into question the constitutionality of detaining of immigrants while deporting them.

The 1996 immigration laws in combination with public distrust of foreign-nationals have resulted in a one-strike-and-you-are-out alien removal policy. Congress clearly intended AEDPA and IIRIRA to rid the nation of as many undesirable aliens as possible. And fully empowered enforcement agents have since vigorously pursued arrests and removals of foreign nationals who have been convicted of a crime in the past, are in the country illegally, and even those who have been turned down for asylum. As to such persons arrested, the decisions of executive or administrative officers, acting within the powers expressly conferred by Congress, are due process of law. Not surprisingly, the PPD continues to insulate immigration law enforcement procedures and practices from constitutional attack based on the embedded presumption that non-citizens deserve less legal protections than citizens.  Meanwhile, if there is a single feature that distinguishes today’s immigration law system from the past, it is the sheer volume of detention and deportation.

Executive Powers: Detentions and Deportations Rising

At least 283,000 immigrants and non-citizens were detained for deportation during fiscal year 2006, in an expanding network of detention centers designed distinctively for non-citizens. The number of non-citizens incarcerated in county jails, federal prisons, and immigration detention centers has surged while government and corporately-owned detention centers proliferate. At year’s end 2007, the total number of annual detentions approached 300,000. Post-9/11 changes in deportation policy requiring mandatory detention drive the demand for the additional detention beds. In keeping with the demand, the Office of Deportation and Removal (DRO), the custodial division of Immigrations and Customs Enforcement (ICE), has stepped up the detention of deportable aliens to keep pace with its ambitious goal of “removing all removable aliens” by 2012. As a result, immigrants and other non-citizens are jailed in detention centers in record numbers, while the government decides how to deport them.

ICE has curtailed its practice of release-on-personal-recognizance with an assigned hearing date because too many non-citizens facing deportation never return to court. Hence, ICE’s strict removal policy necessitates the DRO’s detention enforcement policy in the interim to guarantee non-citizen compliance with final deportation orders. A major ICE publication (2006) forcefully states, “ICE ensures that no detainable or deportable alien is released  . . .”  The Acting Director of the DRO, Victor Cerda, lobbied Congress for more detention bed funding when testifying in 2005.

On a constant basis, we are at 100-percent capacity every night . . . and as our numbers are showing, we are hitting historical records  . . . plenty of business, plenty of clients out there to process through the system (Senate Hearing 109–64).

Mr. Cerda did not exaggerate the increased demand for immigration detention space. ICE and the DRO conducted “plenty of business” while detaining and deporting at least 271,000 non-citizen “clients” during the fiscal year ending on September 30, 2007. The total represents a 30 per cent increase in actual deportations over the 208,521 total in 2005. The volume of detentions and deportations are rising.

Assistant Secretary of Homeland Security for Immigration and Customs Enforcement, Julie L. Myers boasted in March of 2008, “at least 304,000 immigrant criminals eligible for deportation are behind bars nationwide.” Secretary Myers has publically campaigned for funding to increase technical and manpower capabilities in order to more efficiently bring immigration charges while immigrants are serving their criminal sentences so they can be deported as soon as they complete their terms without ever being released from custody. Myers, who is the nation’s ranking immigration enforcement officer, oversees the vast network of detention centers operated by ICE/DRO.

ICE and the DRO own and operate eight large capacity detention facilities and augment detention capacity with seven contract detention facilities operated by private contractors. Meanwhile, ICE holds its overflow population within a patchwork system of over 300 state and local jails. ICE reports that “nearly 1.5 million individuals have come through detention facilities since ICE was created in 2003.” The nation’s largest private prison company, Corrections Corporation of America, has partnered with the federal government to detain close to one-million aliens in the past five years.

Within the System

When aliens are picked up by ICE and placed into the detention/deportation system, they enter a distinct world of limited constitutional justice. Claims challenging the constitutionality of deportation laws were drastically limited by Congress in 1996, when it almost completely eliminated judicial review for criminally convicted aliens with the passages of AEDPA and IIRIRA. Cases similar to Pacheco are sometimes granted procedural reviews of the criminal court convictions that formed the basis for their removal orders; however, formal deportation orders for aggravated felonies in immigration courts are strictly non-reviewable. Formal deportation hearings fall under the authority of the Executive Office of Immigration Review (EOIR) and are presided over by administrative agents called Immigration Judges (IJ). By some accounts, IJs are merely bureaucrats in robes—employees of the Department of Justice (DOJ). Levinson argues that IJs are only administrative agency adjudicators who serve at the pleasure of the US Attorney General. The Attorney General may reassign or remove immigration judges at any time. As a consequence, IJs are aware that ruling against the government in a deportation case can be hazardous to one’s job. In other words, IJs lack decisional independence because they are DOJ employees. Unbiased deportation decisions are not likely because the adjudicating agency, the EOIR, is subservient to the same DOJ bureaucracy that functions as a law enforcement agency under the Executive Branch.

Enforcing the Borders 

The tragic events of September 11, 2001 provided the impetus on the federal level for the perpetuation of a bureaucratic environment dominated by security imperatives. When Border policing and alien apprehensions intensified in the aftermath of the 9/11 attacks, the goal of border protection was no longer only to keep out the conventional unauthorized immigrant who comes to the US to work, but to apprehend terrorists who seek to commit “acts of violence” against Americans:

. . . terrorists will try to enter our country across our Southern border. These reports are not new  . . .  and we have been preparing for the possibility and are taking appropriate actions to better secure our borders against the threat (CBP, 2007).

US Customs and Border Protection (CBP) has responded to its post-9/11 security imperative by mobilizing its assets along US borders to deal with the threat of surreptitious entry by terrorists, criminal aliens, and undocumented aliens, and to halt the smuggling of terrorist weapons:

  . . . CBP is … charged with the management, control and protection of the nation’s borders . . . keeping foreign terrorists and terrorist weapons out of the country while enforcing hundreds of US immigration laws.

In order to deal with heightened security threats the Department of Homeland Security (DHS) has created militarized enforcement bureaucracies, e.g., ICE and CBP, by placing former immigration control functions under the purview of border security. The definition of threat level along US borders has entailed a conceptual manipulation of immigration policy that has recast the illegal immigrant (criminal, evil) as an enemy in the war on terror--an ever expanding war against evil in all places and all times as defined by the overzealous enforcement agencies.
As the CBP defined its border security mission, it somehow mixed the external terrorist threat with domestic concerns about the invasion of undocumented economic immigrants. In contrast to the compelling imagery of terror on the Web site, the vast majority of CBP duties consist of apprehending low-wage laborers who attempt to enter the US without paperwork. The style of rhetoric displayed on the CBP Web site emphasizes our vulnerability to justify the allocation of border enforcement resources. CBP resource allocations along the US-Mexico border have included the amassment of 6000 additional National Guardsmen, the two-billion dollar construction project known as the virtual fence, and deployment of six Predator Drones. The well-publicized allocations of resources coincide with mounting anti-immigrant backlash.

. . . to increase security across our borders during the “period of increased risk” . . . actions and initiatives include a broad range of strategies and defenses that CBP deploys in its anti-terror mission.

The number of steps taken “during the period of increased risk” may include “a broad range of strategies and defenses” that amount to an overall enforcement approach worthy of a fortified security enclave. Security enclaves are “segregated spatial enclosures” designed to provide safe, secure environments for those who dwell within them. A security enclave may be necessary, according to the CBP because another terrorist attack is inevitable:

al Qaeda and affiliated Sunni extremists [who] continue to pose a strategic threat to the homeland and remain intent on carrying out another attack in the United States.

Indeed, the 109th Congress appeared to be thinking of a security enclave when it authorized funding for the Secure Fence Act of 2006. Although Congress was unable to pass any other immigration legislation that year, the 700-mile fence measure included enough funding to hire 6000 new border agents to patrol the border area adjacent to the fence. Congress has endorsed an enforcement ideology designed to keep out those who Inda satirically describes as the “hordes of anti-citizens . . . who threaten our security and quality of life.” The immigrant policing bureaucracy has been mobilized to fight a protracted war against aliens. In the CBP strategy to militarize immigration policy, immigrant illegality has been al Qaeda-fied. The only plausible solution to the immigration problem as defined by the enforcement agencies has been to turn the US into a fortified enclave of sorts. The pervasive security mentality of immigration agencies has been to cast a wide net of control and surveillance over the southern border.

Into the Interior

The enforcement agencies are eager to patrol the nation’s borders, but not especially interested in demarcating where the border ends. The negative consequence of the security mentality is a general failure on the part of immigration officials to acknowledge the distinction between the competing goals of immigration policy and national security measures. Policy makers only present border security initiatives in terms border militarization while permitting relaxed constitutional standards for immigration adjudications. In November of 2005, ICE announced its multi-year plan called the Secure Border Initiative (SBI) to control the US borders and to ensure interior enforcement and compliance with immigration laws. SBI also extends the borders inland with a legal maneuver known as expedited removal. Expedited removal consists of mandatory detention and removal for immigration violators apprehended anywhere inside the 100-mile wide swath that runs along the inside of the US border. Under expedited removal, immigration enforcement officers, rather than immigration judges, determine who should be deported. Thus, immigration authorities have become the judge, jury, and executioner.

CBP and ICE conduct removals with no judicial oversight for persons apprehended within the limits of the 100-mile extended border zone. The ICE Web site explains, “This expanded authority has greatly increased removal efficiencies by eliminating the time spent litigating to a final order of removal before immigration judges . . .” While extended border control represents a system of automated exclusion along the border swath; the interior enforcement strategy consists of an aggressive system of post-entry round ups and pre-deportation detentions.  Extended border control reaches into the interior as far as deemed necessary to catch the dangerous “anti-citizens” who have managed to slip past the border guards.

Interior Enforcement Strategy - the Endgame

The interior phase of SBI extends border control to the unwanted portion of the non-citizen population already within the territorial boundaries of the US. As part of an enforcement plan called Operation Endgame, the Office of Detention and Removal (DRO), seeks to detain and remove all removable immigrants from the US by 2012. The DRO proclaims, “We must strive for 100 per cent removal rate.” Endgame is defined in a Homeland Security directive as the “golden measure” of success in 2003. The appropriation of the word “Endgame” suggests that the metaphorical state of immigration enforcement in the US is the last stage of a chess game when only a few pieces (deportable aliens) are left on the board. With the ambitious goal of “100 per cent removal” by 2012, Endgame as the official enforcement roadmap lays the framework for the “golden measure” of “removing all removable aliens” through the continued development of alien capture systems, detention infrastructures, and creation of alliances with other enforcement agencies. Federal immigration enforcement agencies are seeking alliances in local jurisdictions.

Pursuant to Operation Endgame, ICE’s collaboration with state and local law enforcement significantly expands the alien-apprehension capabilities of immigration enforcement agencies under previously unused provisions in Section 287(g) of IIRIRA. Section 287(g) of IIRIRA provides that:

the Attorney General may enter into a written agreement with a State, or any political subdivision . . . to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens.

Some state and local police and departments of corrections have willingly begun to work with the Attorney General to rid the country of all deportable aliens. Ensuring the identification and expedited removal of so many deportable aliens requires coordinated governmental efforts. DRO and ICE are determined to strengthen partnerships with federal, state, and local law enforcement agencies, to improve technologies, to share national law enforcement data, and to streamline and expedite procedures for detaining, processing, and removing aliens. As permitted under Section 287(g), ICE regularly enters into working agreements which allow designated officers from a number of non-federal police agencies to carry out immigration enforcement functions such as asking suspected illegal aliens for proof of legal status. Section 287(g) has thus far allowed ICE to form the largest non-federal immigration posse in the country with 160 officers from Maricopa Country, Arizona. 

Arizona’s Maricopa County Sheriff Joe Arpaio has led an anti-illegal alien movement in the state by establishing an immigration tip line to act on reports of illegal alien presence.  Sheriff Arpaio has become a national standard bearer for immigration restriction through his use of law and order rhetoric, for example, “I'm going to put them [illegal aliens] on chain gangs, in tents and feed them bologna sandwiches.” Arpaio said he is eager to see a lawsuit challenging his local immigration enforcement program “go all the way to the Supreme Court . . . I'm going to keep locking them up.”

The spate of illegal alien detentions in Maricopa County comes at a time when local officials across the country are launching similar crackdowns in response to public disappointment over Congress' apparent inability to pass so-called comprehensive immigration reform. According to the Maricopa Sheriff’s Web site, detention officers have turned over 11,377 illegal immigrants to immigration authorities for deportation. Detention Watch Network (2007) reports that in addition to its 160 field officers, Maricopa County has 60 trained jail officers to process for deportation inmates booked into the jail under the federal Criminal Alien Program (CAP). DRO collaborates with the Maricopa County Sheriff’s Department, and a growing list of local agencies, through the CAP initiative that requires the review of inmates’ records in local and county correctional facilities for immigration status. Local jailers now determine the deportability of inmates who cannot demonstrate immigration status including cases of those inmates charged only with misdemeanor infractions. According to the DRO/ICE Fact Sheet (2008), the two agencies currently screen 100 per cent of all federal and state prisons throughout the United States.

In addition to making use of local agencies and national databases, ICE has demonstrated its proclivity for worksite enforcement by raiding jobsites, bringing criminal charges against employers, seizing employers’ assets, and charging employers with fraudulent document violations. While ICE increasingly favors detention, prosecution, and removal; immigrant rights groups and other critics say the local area crackdowns reflect a growing national anti-immigrant backlash. Ongoing portrayals of the immigrant invasion by politicians and government officials serve to fuel militaristic responses to immigration issues just as anti-crime and anti-terror rhetoric on government agency Web sites have made major inroads into the elimination of fundamental due process rights in deportation hearings.

Beyond Plenary Powers

Concerned citizens of the US ought to be aware of the embeddedness of plenary powers in view of the frequent allocation of emergency powers by Congress and the President in the name of fighting alien criminality while preserving the nation’s security. The current immigration detention and deportation regime has emerged largely because real and perceived dangers associated with the presence of the foreign-born have inspired politicians and enforcement bodies to enact various corrective strategies in response to public calls for stricter control over who should be in the United States.  In conjunction with programs such as the Secure Border Initiative and the Interior Enforcement Strategy, CBP and ICE have dramatically expanded interior enforcement programs such as Endgame and CAP which have succeeded in apprehending and expelling thousands undocumented meat packers, janitors, and Mexican restaurant employees.

Current efforts by the US government to manipulate public fear of the foreigner are the stuff upon which internal security agencies are built. Once ICE accomplishes ambitious goal of “100 per cent removal” of all “deportable aliens by 2012,” the Endgame will have presumably been won.  What will the enforcement agencies do with those thousands of detention beds? Who will those thousands of armed immigration agents keep watch over then?