As the nation turns the page away from the dark chapter of President Trump’s relentless assault on immigrants, it is time to take stock of the nation’s unprecedented immigration enforcement regime. During its relatively short existence, the Immigration and Customs Enforcement agency (ICE) has deported more than twice as many people as were deported in the entire previous history of the United States. The human and fiscal costs of ICE’s mass deportation agenda are astronomical, and there is almost universal agreement across the political spectrum that the United States’ immigration enforcement apparatus is badly broken. That, however, is where the agreement ends. Immigration hawks focus on the nation’s large undocumented population to demonstrate the system’s ineffectiveness and advocate that the nation double down on detention and deportations. However, continuing to throw unprecedented and ever increasing billions of dollars at an enforcement apparatus that has terrorized immigrant communities and failed to meaningfully increase compliance with immigration law can no longer be justified. Immigration advocates focus on the system’s unprecedented brutality and proscribe an end to the tactics of mass detention, family separation, and criminalization. Such reforms are necessary and justified but beg the question of how, in the absence of these heavy-handed tactics, the nation can promote compliance with immigration law.
Absent from the political discourse is an affirmative vision for what a just and humane, but also effective, immigration enforcement system could look like. The absence of such a vision has stymied progress and left the immigrant rights movement open to dismissive critique. This Article seeks to set forth a new framework for immigration enforcement that would be dramatically less costly, less brutal, and simultaneously more effective at promoting compliance with immigration law. This new paradigm requires that we radically rethink both the “substantive rules” to be enforced—which dictate who and how people can be penalized for immigration violations—and the “mechanics of enforcement”—the mechanisms by which we can increase compliance with such substantive rules without putting people in cages and tearing apart hundreds of thousands of families each year. The obstacles to meaningful immigration enforcement reform are myriad. However, a clear vision for a new paradigm in immigration enforcement is a necessary, though alone insufficient, precursor to such reform. This Article seeks to provide one such vision and to catalyze a critical national dialogue regarding the immigration enforcement system that ought to replace ICE’s failed mass detention and deportation regime.