Catch and release (U.S. immigration policy)

Catch and release is the unofficial name for a protocol historically followed by immigration enforcement agencies in the United States (specifically, by U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection) where people caught for being in unlawful immigration status are released while they wait for a hearing with an immigration judge. The policy officially ended in 2006 under President George W. Bush and United States Department of Homeland Security Secretary Michael Chertoff, where it was replaced by a catch and return or catch and detain policy. However, some critics of immigration enforcement in subsequent years, particularly under the presidency of Barack Obama, have dubbed various policies and practices under the administration as catch-and-release policies.^[1][2]

History

Historical policy

Historically, due to the lack of resources available to Immigration and Customs Enforcement to detain people, as well as the lengthy time period between apprehension and being ordered deported, catch-and-release was the de facto policy followed by ICE: those believed to be in violation of immigration status were released and given a date when they were to appear before an immigration judge for their deportation hearing. Knowing that coming to a hearing could lead to them being deported, many of these people simply failed to turn up to their hearings. In July 2005, the National Center for Policy Analysis reported that at some federal immigration courts, 98% of the defendants failed to show up.^[3]

End of the policy

In October 2005, Michael Chertoff, then Secretary of the United States Department of Homeland Security, told a hearing of the United States Senate that he intended to end the catch-and-release policy soon, so as to reduce illegal immigration to the United States and the security threat posed by it.^[4][5]

In late July 2006, Chertoff announced that the United States had ended the catch-and-release policy a few months ago, and the recent infusion of funding for border security had been helpful with implementing the policy. In response, many lawmakers expressed skepticism.^[6]

In August 2006, he provided more details, explaining that the change had led to a drop of 20,000 in the number of border-crossers. According to the new policy, those caught in immigration violation would generally be detained until their hearing, with the possible exception of Mexicans who had recently arrived, who could be subject to expedited removal. While not everybody would be detained, detention would become the default option.^[7][8]

In a February 2007 statement before the United States Senate Judiciary Subcommittee, Chertoff confirmed that the policy had ended completely starting August 2006, and reported the changes observed to the number of apprehensions as a result.^[9]

Reception of the end of the policy

David Mulhausen of the Heritage Foundation said that the end of the policy was a positive development but still did not address the problem of the large number of border-crossers from Mexico who were immediately turned back but could keep re-attempting entry.^[8]

An article by Juan Mann in VDARE, a website that advocates for significantly restricted immigration to the United States, argued that ending catch-and-release at the level of border enforcement was not good enough, because it did not solve the root problem where hearings before immigration judges were needed to deport people, and this got in the way of quick and efficient deportation. Mann argued instead that an administration that truly wanted to battle illegal immigration would expand the scope of expedited removal, and get rid of the Executive Office for Immigration Review and due process requirements before deporting immigrants.^[10]

Subsequent use of the term

"Catch-and-release 2.0"

In January 2015, Brandon Darby, writing for Breitbart.com, published leaked internal training documents of the U.S. Customs and Border Protection that he described as "catch-and-release 2.0". The documents identified three priority categories for those believed to be in violation of authorized status. These leaked documents were a result of the November 2014 executive action on immigration undertaken by Barack Obama's administration (and would also form the basis for the Priority Enforcement Program, revealed in mid-2015):^[1]

1. Aliens who “pose a threat to national security, border security, or public safety."
2. Aliens who are “misdemeanants and new immigration violators.”
3. All other immigration violators.

The instructions to CBP noted that those in category (3) would not be detained and deported, and therefore CBP agents were advised to not waste resources arresting them but rather focus on priority one and priority two offenders.^[1] The Associated Press reported on a similar set of guidelines.^[11]

Reporting about the guidelines for Vox.com, Dara Lind noted that, while Breitbart.com was claiming that this policy was "catch and release 2.0", ICE agents claimed that the guidance they received had always been similar, suggesting that, as far as internal guidance went, the original catch-and-release policies had never actually ended. However, because ICE and CBP officials often rounded up low-priority offenders despite them being low-priority, the Obama administration had to provide more explicit guidance and also introduce the Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans programs to explicitly protect people in low-priority categories from deportation.^[12]

On a similar note, in a backgrounder for the Center for Immigration Studies, Jessica Vaughan used ICE memos from 2013 as well as deportation numbers to argue that catch and release was the de facto immigration enforcement policy for a sizable fraction of people caught for being in violation of immigration law.^[13]

Other uses

Separately, Senator Chuck Grassley, when seeking a legislative change that would allow the United States government to detain people scheduled for deportation who were not being accepted by their home countries, described the status quo (created by Zadvydas v. Davis) as a "catch-and-release loop hole".^[2]

References