In a recent publication, law professor Peter Markowitz explains that many federal agencies use “cooperative enforcement” policies to help people and corporations that violate the law come into compliance with the law. Such policies have long been used by the Occupational Safety and Health Administration, the Food and Drug Administration, the Environmental Protection Agency, and the Securities and Exchange Commission, for example. Because a central goal of all law enforcement, including the enforcement of U.S. immigration laws, should be to encourage lawful conduct—rather than dole out punishment for the sake of punishment—cooperative enforcement policies that provide on-ramps to compliance should be utilized as part of a more just and potentially more effective enforcement regime.
And yet that is the opposite of what the Trump administration has pursued when it comes to immigration. For years, the administration has exploited long-standing flaws in our immigration system to make it as harsh and punitive as possible. Recently, for example, U.S. Immigration and Customs Enforcement (ICE) renewed a push to reopen closed removal cases for individuals currently protected under the Deferred Action for Childhood Arrivals (DACA) program. The sole purpose of this effort is to secure final orders of removal that can be expeditiously executed if the U.S. Supreme Court permits the administration to terminate DACA. As The Atlantic’s Adam Serwer has argued, “the cruelty is the point.”
Disproportionate punishment in Matter of Mayen
A precedential decision by the Board of Immigration Appeals (BIA) last week illustrates the almost exclusively punitive approach to enforcement that has existed in the U.S. immigration system since at least 1996—when Congress dramatically eliminated opportunities for discretionary relief from removal—and that has increasingly become the norm under President Donald Trump. In Matter of Mayen, the BIA considered whether an immigration judge abused their discretion by refusing to grant a continuance to Angel Mayen-Vinalay, a Mexican national in removal proceedings who had a pending U visa application with U.S. Citizenship and Immigration Services (USCIS). There is no question that Mayen was prima facie eligible for the U visa; a law enforcement certification supported his eligibility, attesting to his helpfulness in investigating or prosecuting a criminal offense. Moreover, the application’s approval would have saved Mayen from deportation and resulted in a grant of lawful status in the United States and eventual permanent residence. Instead of continuing to allow the U visa to be adjudicated and perhaps ultimately terminating proceedings when Mayen received a green card, the judge ordered his removal.
While the case was on appeal to the BIA, USCIS informed Mayen that he was eligible for the relief but could only be formally approved once a visa number became available. Inexplicably, Congress caps the number of U visas that can be provided each year to crime victims who assist law enforcement at 10,000; while the statutory cap is reached every year, Congress has been unable to increase or eliminate the cap notwithstanding the fact that U visas promote cooperation with law enforcement and enhance public safety. Although the immigration judge denied the continuance before USCIS confirmed Mayen’s visa eligibility, the BIA refused to remand the case for further consideration because it believed the letter likely would not have changed the judge’s discretionary decision.
Weighing against the grant of a continuance was the U.S. Department of Homeland Security’s (DHS) opposition to the request as well as the cost being incurred as a result of DHS’s decision to keep Mayen in detention for the duration of the proceedings. The BIA did not address that DHS likely opposed the request based on the agency’s deportation-only outlook or that DHS could have avoided detention expenses simply by releasing the applicant in light of the fact that he was on a path to becoming a lawful visa holder and ultimately a green card holder. The BIA concluded that since Mayen could pursue his request for a U visa from abroad, he would not be harmed by the decision to deny a continuance that will result in his deportation.
Conclusion
The BIA’s decision is just the Trump administration’s latest effort to undermine the utility of the U visa. Last year, ICE revised its stay of removal policy to increase the likelihood that U visa applicants such as Mayen would be deported while their applications were pending with USCIS. And over the past two years, USCIS has pushed to restrict access to fee waivers that have long made protections under the law—including U visas—available to victims of serious crimes.
It is unclear how this make any sense. Mayen had lived in the United States for more than 23 years and was eligible to receive lawful status—and eventually permanent residence—as a result of his cooperation with law enforcement. But rather than facilitate this remedy and bring him into compliance with the law—both as a reward to him for engaging helpfully with law enforcement and as an enticement for other undocumented immigrants to do the same—our immigration enforcement apparatus dealt him the most severe penalty possible: deportation. The reality in our immigration enforcement system is that deportation is actually the only penalty authorized in removal proceedings.
This case illustrates how a punishment-only approach to immigration enforcement is antithetical to maintaining a functional and workable system. The current U.S. immigration enforcement apparatus fails to ensure that punishments are proportionate to the offense, and it is not designed to achieve outcomes that comport with basic principles of fairness and justice. These central flaws understandably undermine public confidence in the system and must be reformed.
Tom Jawetz is the vice president of Immigration Policy at the Center for American Progress.
For more on how to restore the rule of law by committing to proportionality, accountability, and due process in immigration enforcement, see CAP’s report, “Restoring the Rule of Law Through a Fair, Humane, and Workable Immigration System.”