Interior Immigration Enforcement by the Numbers

By Matt Graham, Bipartisan Policy Center, @matt__graham

Opinions on the extent to which the U.S. enforces immigration laws vary dramatically. Some contend that enforcement is already extremely tough, while others contend that the government fails to enforce immigration law. Rarely are these claims backed by more than one or two statistics.

Based on a long series of Freedom of Information Act requests, the Transactional Record Access Clearinghouse (TRAC) keeps records of immigration enforcement statistics. Their numbers paint a more nuanced picture than either side’s advocates, but leave major holes that available data appear unable to fill.

Removals (Deportations)

The common claim that the Obama Administration deports unauthorized immigrants in record numbers is true. Figure 1 reports the total number of removals each fiscal year between 1980 and 2011. The Department of Homeland Security (DHS) defines a removal as “the compulsory and confirmed movement of an inadmissible or deportable alien out of the United States based on an order of removal.” These numbers do not include individuals that were “turned back” at the border—only individuals who went through either an administrative or judicial removal process.

Figure 1. Number of alien removals, FY 1980—2011

Source: Department of Homeland Security, Yearbook of Immigration Statistics, 2011.

It is important to note, however, that looking at only the number of deportations can be misleading. The number of new removals ordered in immigration court has dropped each year that President Obama has been in office, as has the number of deportation proceedings.

Figure 2. Number of removals ordered in immigration courts, FY 1998—2013

Source: TRAC. FY 2013 figures include only October through April.

Figure 3. Number of deportation proceedings in immigration courts, FY 1992—2013

Source: TRAC. FY 2013 figures include only October through April.

Like the total number of deportations, court actions do not tell the whole story. This is because not all deportations are a result of immigration court cases. Table 1 suggests that a large and increasing share of deportations occur without ever going to immigration court. TRAC forwards two potential reasons for this, but explains that data are not sufficient to parse between them:

  • Reinstated orders. Already-deported immigrants who re-enter the country illegally do not get a new deportation order, but they are deported again. In May 2012, 34.7 percent of all deportations were reinstated orders.
  • Administrative removals. Not all types of deportation require a hearing. For example, immigrants previously convicted of aggravated felonies may be removed administratively. Removals that never reach court still count as deportations, but do not appear in statistics about immigration courts.
  • Incomplete data. Elsewhere, TRAC has alleged that ICE does not release sufficient data to resolve some perceived data inconsistencies.

Table 1. Immigration court orders versus actual deportations, FY 2010—12

Source: TRAC.

Among those deportation cases that do reach immigration court, the share that end in an allowance to stay in the U.S. has risen dramatically (Figure 4). This rapid increase may be due in part to President Obama’s deferred action program, which allows “DREAMers” to avoid deportation. Additionally, if the government is deporting more immigrants administratively, it could follow that individuals who reach immigration court now tend to have less serious criminal backgrounds. Data presented later (Figure 6) suggest that this is plausible.

Figure 4. Percent of deportation cases ending in allowance to stay in the U.S., FY 1998—2013

Source: TRAC. FY 2013 figures include only October through April.


Money provides another measure of the U.S. government’s commitment to interior enforcement. Immigration and Customs Enforcement (ICE) is the principal DHS office responsible for interior enforcement of U.S. immigration law. Its budget increased rapidly since 2005, but has dropped slightly since the recession began having major budget impacts in FY 2009.

Figure 5. ICE budget, FY 2005—13

Source: TRAC (2005-10), DHS (2011-12), CRS (2013). Note: 2005-10 figures represent total expenditures. 2011-12 represent enacted budget. 2013 represents pre-sequester enacted budget.

Criminal Activity

The extent to which the government deports immigrants accused of crimes (other than entering or remaining in the U.S. without authorization) often rises to prominence in the immigration debate. Since 2008, the share of deportation orders sought in immigration court due to criminal activity has fallen. As explained above, however, many immigrants who have been found guilty of aggravated felonies are deported without ever going to immigration court.

Notably, the data below only represent situations in which ICE cites criminal activity as a basis for deportation. For some immigrants with criminal histories, ICE may choose to cite other reasons in its pursuit of deportation. According to TRAC, ICE has stated that it “cannot reliably identify” the total number of cases in which the immigrant had a criminal history. As with the issue of deportation proceedings above, the available data are not equipped to answer all questions.

Figure 6. Deportation orders sought in immigration court based on alleged criminal activity, Jan. 2008 – Mar. 2012

Source: TRAC. * Preliminary Counts.

A more detailed version of Figure 6 is available here.

Similarly, the number of criminal prosecutions from Customs and Border Protection (CBP) and ICE referrals has fallen in recent years. The table below displays the number of criminal prosecutions over the previous 12 months.

Table 2. Trend in criminal prosecutions from referrals to CBP and ICE, Jan. 2009 – Aug. 2012 (previous 12 months)

Source: TRAC.

In ICE detention centers, the majority of immigrants have a criminal conviction. Table 3 displays the top 10 most serious convictions for those with a criminal conviction, and the source table displays the most serious conviction for all those who were in in ICE detention centers as of October 2011.

Table 3. Most serious charge for ICE detainees by frequency, October 2011

Source: TRAC.

Court Backlog

S. 744, the current immigration proposal, mandates the appointment of additional immigration judges. This could help clear the large and growing backlog in immigration courts. This backlog could be part of ICE’s motivation for bypassing immigration courts at a higher rate (presuming, as data suggest, that the agency is actually doing so).

Between 1998 and 2013, the backlog of cases in immigration courts increased by over 150 percent. The increase may be partly attributable to Operation Streamline, which began in began in December 2005 in the Del Rio Border Patrol Sector. The operation requires that “all prosecutable aliens, regardless of nationality, apprehended within the geographic boundaries be prosecuted.” Since that time, Border Patrol has initiated several similar operations across the southwest border, and the number of pending cases has nearly doubled.

Figure 7. Number of pending cases in immigration courts, FY 1998—2013

Source: TRAC. FY 2013 figures as of April 2013.

During the same period, the average processing time for immigration courts increased by nearly 175 percent.

Figure 8. Immigration court processing time for all types of charges

Source: TRAC. FY 2013 figures include only October through April.

An Incomplete Picture

As noted above, deportations and ICE funding have hit record numbers in recent years. On its face, this suggests that immigration enforcement has increased as well. However, court activity around deportations has fallen, and unauthorized immigrants who reach immigration court now stand a much better chance of being allowed to stay in the U.S.

Unfortunately, ICE has not released data that fully explain how these trends fit together. Data suggest that the Obama Administration’s use of immigration courts in deportation proceedings is declining. However, it is unclear how much of this is due to the deportation of previously-deported individuals, to the increased use of administrative proceedings, or to some other factors. In turn, this makes it difficult to determine how heavily ICE emphasizes the deportation of criminals. TRAC, which has endeavored to make these data public for years, has issued strongly-worded rebukes of the quality and quantity of data that ICE maintains and provides.

It is certain that the Obama Administration has deported unauthorized immigrants in record numbers, and that immigration courts have become much more likely to allow immigrants to stay in the U.S. The largest take away, though, may be that the available information makes interior enforcement difficult to assess.

About the Bipartisan Policy Center’s Immigration Task Force. Founded in 2007 by former Senate Majority Leaders Howard Baker, Tom Daschle, Bob Dole and George Mitchell, the Bipartisan Policy Center (BPC) drives principled solutions through rigorous analysis, reasoned negotiation, and respectful dialogue. Like BPC’s other projects, the Immigration Task Force combines politically-balanced policymaking with strong, proactive advocacy and outreach. The Task Force is chaired by former Governors Haley Barbour and Ed Rendell, as well as former Secretaries Henry Cisneros and Condoleezza Rice. For more information, please visit This analysis originally appeared here.

Who Are the Opponents of Comprehensive Immigration Reform?

By Tom K. Wong,, @twong002 

While members of the Senate Judiciary Committee (SJC) spent yesterday inside the Dirksen Senate Office Building marking up the bipartisan Senate “gang of 8’s” comprehensive immigration reform (CIR) bill, some Republican members of the House of Representatives gathered outside of the Capital Building to declare their opposition to reform efforts. These Representatives have been described as a “veritable all-star team of anti-‘amnesty’ activists.”

While the House has yet to formally take up debate on immigration reform, the group of 8 Representatives who made their opposition known yesterday – particularly with respect to a pathway to citizenship – provides an opportunity to evaluate the early predictions made related to support and opposition to CIR in the House.

The 8 Representatives who gathered yesterday in opposition to CIR are listed in Figure 1. The figure also plots the predicted probability of each of the representatives. As the figure shows, the representatives are correctly predicted as “solid no” votes. The predicted probabilities range from a low of .07, which means a 7% chance of voting yes on CIR to .24, which means a 24% chance of voting yes. The average predicted probability of voting yes on CIR for these 8 Representatives is .13, or only 13%.


It is no special feat to predict that a Representative such as Steve King (IA-4), who has a long history of anti-immigrant voting and other antics, will vote no on CIR. But what this retrospective shows is that the group that assembled yesterday is not alone.

In looking at all of the Representatives with predicted probabilities of less than .13, the results indicate that there are 101 other Representatives who may join this “all star team of anti-‘amnesty’ activists.” Figure 2 plots the predicted probabilities for all of these Representatives. They are spread across 17 states with the largest concentrations in Texas and Florida. While the predicted probabilities in the figure reflect the assumptions of the statistical models, when viewed from a different perspective we see that there are 31 Representatives who share immigration voting records that mirror the “anti-‘amnesty’ gang” (they are represented by the orange dots).

The road to CIR is a long one. And while the wheels are currently turning in the Senate we know that the road to final passage runs through the House. What remains to be seen is how many Representatives will join together in efforts to block CIR from passage – which makes it all the more interesting to see which Representatives will stand up to counter these efforts.

Tom K. Wong, Ph.D., is an assistant professor of political science at UC San Diego. He is an expert on immigration politics and policy. He is a research associate at CCIS and beginning in fall 2013 he will be Director of the International Migration Studies Program at UC San Diego.

What the GOP has to Gain – and Lose – ­Among Latinos When it Comes to Immigration Reform

By Matt A. Barreto, Latino Decisions

Recently, there have been a series of high profile endorsements for comprehensive immigration reform from the Republican Party. Immediately after the November 2012 election Bobby Jindal made a plea for more civility and less stupidity on the immigration issue. Before too long, it was the Gang of 8 in the U.S. Senate, which included four prominent Republican Senators who introduced their framework for an immigration bill. Then the RNC released a lengthy report calling for stronger outreach to Latinos, starting by passing an immigration reform bill. And now Tea Party favorite, Senator Rand Paul, has changed his position and is now in favor of comprehensive immigration reform. Can Republicans really draw more Latino support if they back a path to citizenship? The answer is unequivocally “Yes.” Or if they fail to support immigration reform with a path to citizenship, they could do even worse than Mitt Romney’s all-time low among Latino voters in 2012.

Even President Obama acknowledged that the Republican Party can make gains with Latino voters if they support this issue. Republican Scott Rigell from Virginia told the AP: “He said that actually implementing immigration reform would actually benefit Republicans more than it would Democrats. Looking at the data, Mr. Obama is right. In a recent poll of Latino registered voters on the topic of immigration reform, we asked a couple of different versions of the question “will Republican support for immigration reform make you more likely to vote Republican.” Here we focus on the possible gains (or losses) Republicans can make by reporting results just among Latinos who said they had voted for Obama in 2012, or just among Latino Republicans.

In a hypothetical election match-up with a Republican candidate who supports a pathway to citizenship for undocumented immigrants, against a Democrat who opposes citizenship and calls it “amnesty,” we find that 61% of Obama voters would actually choose the pro-immigration Republican.

When asked if they would be more or less likely to vote for a Republican candidate in the future if the Republicans take a leadership role in passing comprehensive immigration reform including a pathway to citizenship, we find that 43% of Obama voters say more likely to vote Republican.

When we explain the current bipartisan efforts in the U.S. Senate with four Republicans working alongside four Democrats, and ask if the Republican commitment to the bipartisan plan makes them more or less likely to vote Republican, we find 26% of Obama voters say they are now more inclined to vote GOP.

Finally, when we ask Latinos to consider all elections they have voted in for local, state and federal office, and ask if they have ever voted for a Republican candidate, we find that 41% of Obama voters say yes, hey have voted Republican at some point.

While there are clear opportunities for the GOP to make gains among Democratically-leaning Latinos, there are also pitfalls if they fail to support immigration reform from within their own ranks.  When asked how important it is that Congress passes an immigration reform bill in 2013, 64% of Latino Republicans said “very” or “extremely” important. When given the argument that immigration reform should wait until later and Congress should focus only on the economy now, 69% of Latino Republicans disagreed and said Congress should focus on both immigration reform and the economy right now. Finally, when asked which immigration policy they would prefer, 66% of Latino Republicans said they wanted an immigration plan with a clear pathway to citizenship, and only 32% of Republicans said citizenship should wait until after the border is deemed secure.

The data are clear that Latino Republicans expect to see movement on an immigration bill, with a path to citizenship in 2013.  But if the bill stalls, or House Republicans block the effort or prevent a path to citizenship, can the Republican party actually do worse among Latinos than Mitt Romney did in 2012?  Yes.

When asked if they approve or disapprove of the job Congressional Republicans are currently doing handling immigration policy, 40% of Latino Romney voters said they disapproved (only 46% approved).

When asked if they perceived Republican Party as doing a good job reaching out to Latinos, or if the Party was ignoring Latinos or even being hostile to Latinos, 41% of self-described Republicans said the GOP was “ignoring or being hostile” to Latinos


When asked if they would be more or less likely to vote for Republican candidates, if the GOP blocks immigration reform with a path to citizenship, 33% of Latino Republicans said they would be less likely to support their party.

Finally, when asked if they would be more or less likely to vote for Democratic candidates, if the Democratic party takes a leadership role in passing comprehensive immigration reform, 32% of Latino Republicans said they would be more likely to vote Democrat.

For more analysis from this report, go here. A version of this post previously appeared in the Latino Decisions blog.

Matt A. Barreto is an Associate Professor in political science at the University of Washington, Seattle and the director of the Washington Institute for the Study of Ethnicity and Race (WISER). He is also the director of the annual Washington Poll.

Will Amendments Using Border Triggers To Create More Obstacles to Legalization Pass?

By Tom K. Wong,, @twong002

Conclusion: Should amendments be introduced and voted on by the full Senate e.g., the Cruz and Sessions amendments that make the initial process of becoming legal contingent on border triggers being met (think triggers first, legalization, and then citizenship instead of legalization first, triggers, and then citizenship), they are likely to fail.

Earlier this week members of the Senate Judiciary Committee (SJC) filed 300 amendments (nearly two-thirds filed by Republicans) to the comprehensive immigration reform bill (S.744) unveiled last month. Today, the SJC will begin debate over these amendments. While we are still a long ways away from the fireworks that are sure to come once the bill is introduced in the full Senate, these amendments provide a preview of what lies ahead. Note: controversial amendments rejected by the SJC are likely to appear again (sometimes in modified forms) once the bill hits the full Senate.

Border security and, specifically, the border triggers that need to be met before legalization can occur, are sure to figure prominently in the debate. Several amendments filed yesterday speak directly to this issue. One can think of the contours of this debate as constituting two main parts. First, what should the border triggers be? Second, where does legalization and a path to citizenship fit in the context of these triggers?

One of the foremost goals of border security – as currently written in the Senate gang of 8’s bill – is an “effectiveness rate” of 90 percent, which roughly translates to mean that 9 out of every 10 illegal entry attempts are detected and deterred at each of the high-risk areas along the Southern border. Based on the amendments that were filed, Senators Cruz (R-TX), Sessions (R-AL), Cornyn (R-TX), and Grassley (R-IA) clearly think that the border triggers need to be stricter. Whereas amendment 1 filed by Senator Grassley makes the simplest point that “effective control” should be required across all parts of the border and not just the high-risk sectors, the other amendments push further by invoking the language of “operational control.”

Operational Control

Amendment 1 filed by Senator Cruz states that the border triggers in the bill should include operational control of “100 percent of the international border between the United States and Mexico” (as well as a tripling of Border Patrol agents and a quadrupling of equipment and technologies). Amendment 11 filed by Senator Sessions similarly seeks to shift the language of border security to operational control. In both cases, the amendments refer to the definition of operational control given in the Secure Fence Act of 2006. Not just a matter of semantics, this seemingly benign shift in language has tremendous implications.

Defining Operational Control

Section 2(b) of the Secure Fence Act of 2006 defines operational control as the “prevention of all unlawful entries into the United States.” The prevention of all unlawful entries across land borders that span nearly 2,000 miles in the south and over 5,000 miles in the north is something that many acknowledge is an unrealistic standard. Even U.S. Customs and Border Protection (CBP) does not use the language of operational control in its own performance and accountability reports. Nevertheless, both the Cruz and Sessions amendments adopt the language of operational control, which sends a clear signal that, for them, the effectiveness rate defined in the gang of 8’s bill is not enough.

Blending Operational and Effective Control… Then Adding Situational Awareness

Amendment 1 filed by Senator Cornyn takes the gang of 8’s concept of effective control and weaves it into a new definition of operational control. Specifically, the Cornyn amendment defines operational control to mean that “within each and every sector of the Southern border, a condition exists in which there is an effectiveness rate, informed by situational awareness, of not lower than 90 percent.” Here, the amendment adds the concept of “situational awareness” to the debate. The amendment defines situational awareness as “the capability to conduct continuous, manned or unmanned, monitoring, sensing, or surveillance of each and every one-mile segment of the Southern border or its immediate vicinity.” To say that situational awareness means 24/7 surveillance of the entire border is no caricature. In fact, the amendment goes on to specify the use of funding to “operate unarmed unmanned aerial vehicles along the Southern border for 24 hours per day and 7 days per week.” Altogether, the Cornyn amendment defines the primary border security goal of the bill as operational control and situational awareness of the entire Southern border (and further specifies that this should be accomplished within a 5-year period).

Operational Control Before Legalization

The gang of 8’s bill lays out a process wherein undocumented immigrants can become legal via registered provisional immigrant (PRI) status, but can only take the steps towards becoming a citizen after certain border triggers are met. Think legal status, triggers, and then citizenship. However, some of the amendments discussed here would change this. Think triggers, legal status, and then citizenship. In other words, these amendments would keep undocumented immigrants undocumented until the border triggers are met. Amendment 4 filed by Senator Grassley states that individuals can only be granted PRI status after effective control of the Southern border has been maintained for 6 months. The Cruz amendment states that its border security requirements must be met “before the Secretary of the Homeland Security may process applications for registered provisional immigrant status.” And lastly, the Sessions amendment states that operational control “triggers the initiation of processing for provisional immigrant status.” To his credit, the Cornyn amendment allows PRI status to come before the triggers are met.

Are These Amendments Likely To Pass?

Altogether, these amendments have the potential to fundamentally alter the immigration reform bill as we currently know it. As Senator Marco Rubio (R-FL) has stated repeatedly for days now, the gang of 8’s bill may need tighter border security measures in order to convince those on the fence – particularly looking forward to the House – to support it. But more to the point for our purposes here, the key question is whether any of these amendments, even if they fail in committee, have a chance to pass when the full Senate takes up debate?

This analysis looks specifically at the likelihood that an amendment that seeks to make legalization contingent on border triggers – for example, the Grassley, Cruz, and Sessions amendments – will pass. While each of these amendments are distinct, one common thread is that each specifies a set of border security measures and then makes legalization contingent upon them.

The Isakson Amendment

In 2006, there was an amendment that was introduced and voted on that did this exact same thing. The Isakson amendment (no. 3961) introduced a “border security certification” section to the immigration reform bill. The amendment stated that until the border security measures identified in the bill have been completed and were fully operational, “The Secretary may not implement any program […] which grants legal status to any individual, or adjusts the current status of any individual, who enters or entered the United States in violation of Federal law.” This amendment was ultimately defeated (40 yays and 55 nays). However, the vote was not neatly predictable based on party lines, as some Democrats joined Republicans in voting for the amendment while some Republicans joined Democrats in voting against it.

In analyzing the vote on the Isakson amendment, we can gain some sense of whether there are enough votes in the Senate to change the current link between border security and legalization from legal status, triggers, and then citizenship to the more pernicious triggers, legal status, and then citizenship. I note here that while this analysis provides insight to the border trigger aspect of the debate, it does not tell us about the other border security amendments that were introduced (e.g., 5,000 more CBP agents). This is planned for a separate analysis.


Just like in 2006, should an amendment be introduced that makes the initial process of becoming legal (not citizenship) contingent on border triggers being met, it is likely to fail. The results indicate 46 yay votes and 54 nay votes (assuming that all Senators vote). The yay votes are broken down into only 15 “solid yes” votes with 31 “lean yes” votes. The nay votes are broken down into 39 “solid no” votes and 15 “lean no” votes. The yay votes include 5 Democrats and the nay votes include 4 Republicans. A full list can be found here.

To be sure, the Isakson amendment is most analogous to the Cruz and Sessions amendments, as they attach tighter border measures to legalization. Given the Cornyn amendment tightens the border security triggers, but maintains the logic of legal status, triggers, and then citizenship, it is likely to garner more support should the full Senate vote on it. It should also be said that, as Senator Grassley proposed two separate amendments on this issue – one dealing with what the triggers should be and the other dealing with how legalization and a path to citizenship fits in the context of the triggers – it may very well be the case that one passes (requiring effective control across the entire border) while the other does not (makes legalization contingent on 6 months of effective control).


Step 1 of this analysis models the vote on the Isakson amendment to the Comprehensive Immigration Reform Act of 2006. Here, I estimate multiple models to identify the best model fit. I then construct categories of likelihood, wherein each predicted probability is characterized as a “solid yes” vote, “leans yes,” “leans no,” and “solid no” vote. These categories take into account the confidence intervals around each predicted probability. Figure 1 provides a graphical illustration.

Figure 1. Predicted probabilities and 95% confidence interval for all 100 Senators

Step 2 critically evaluates the predicted probabilities obtained in step 1 by analyzing the actual voting record on the Isakson amendment for each current Senator who casted a vote. In all, 35 out of 42 Senators were correctly classified, which represents a match rate of 83.3%.

Step 3 checks the analysis in step 1 against the full history of voting on immigration-related bills in the Senate from 2006 to present as an additional check. The determinants of past votes on immigration policy are analyzed using a logistic regression model: Pr (Voteit = 1|Xit) = P (β0 + β1Xit + εit) where Xit represents a vector of explanatory variables, including key demographics characteristics, and εit represents the error term. In the Senate, there are nearly 6,000 observations to analyze. Predicted probabilities are then obtained from m = 1,000 simulations for each current member of the Senate using the estimated models.

Step 4 synthesizes all of the data – actual voting records and predicted probabilities – and assigns each Senator to one of the four categories of likelihood described above.

Tom K. Wong, Ph.D., is an assistant professor of political science at UC San Diego. He is an expert on immigration politics and policy. He is a research associate at CCIS and beginning in fall 2013 he will be Director of the International Migration Studies Program at UC San Diego. Special thanks to Hillary Kosnac, Cat Benson, Brana Vlasic, and Cameron Kaveh for excellent research assistance. 

Are There Enough Votes in the Senate to Include LGBT Families in Comprehensive Immigration Reform?

By Tom K. Wong,, @twong002

Conclusion: Yes, there is enough support for LGBT inclusion in family reunification in the Senate. Will the inclusion of LGBT families as part of comprehensive immigration reform kill the chances of getting a bill passed in the Senate? This analysis suggests, no. However, the House is the sticking point.

As we comb through the 844-page immigration reform bill released late Tuesday night, one omission has already drawn the attention of several immigrant-rights organizations: the absence of language including LGBT couples in the family-based immigration system.

Under current immigration laws, U.S. citizens and legal permanent residents can sponsor their spouses for immigration purposes. However, because same-sex partners are not considered spouses they are excluded from family-based immigration. This adversely affects over 36,000 families, 46% of which are estimated to be raising children.

Over the past decade, legislation has been introduced and reintroduced – e.g., Uniting American Families Act (UAFA) and Reuniting Families Act (RFA) – in Congress to include “permanent partner” and “permanent partnership” in the language of family reunification (this does not redefine marriage). Whereas these previous efforts have not succeeded, the current debate over comprehensive immigration reform (CIR) provides an occasion to renew this push for greater inclusiveness in U.S. immigration policies. The question that seems to be carrying the day thus far, however, is whether infusing the contentious immigration debate with an equally if not more contentious issue could potentially kill the chances of getting immigration reform. This analysis examines this question.

Will the inclusion of LGBT families as part of comprehensive immigration reform kill the chances of getting a bill passed in the Senate? This analysis suggests, no.

While there are no precedent votes on either the UAFA or the RFA, the legislative history of these bills provides important information from which it is possible to glean information about potential support among legislators. Specifically, these bills have garnered dozens of sponsors and co-sponsors over the past decade, most of who are still in Congress. The 2012 debate over the reauthorization of the Violence Against Women Act (VAWA) also saw the introduction of an amendment (the Hutchison amendment) that would have removed key provisions prohibiting discrimination against the victims of domestic violence on the basis of their sexual orientation or gender identity. The vote on this amendment, coupled with the broader immigration-related aspects of VAWA, combine to provide insight about how legislators are likely to vote when the issues of immigration and LGBT rights intersect. Congressional scorecards on LGBT rights from the Human Rights Campaign (HRC) add an additional layer of important information to consider.

Identifying Support and Opposition to LGBT Inclusion

All Senators who have sponsored/co-sponsored the UAFA or are ranked at the top of the HRC scorecard are classified as being “solid yes” votes should it come up as an amendment to CIR. Senators who have not sponsored/co-sponsored the UAFA, but who voted against the Hutchison amendment and ranked well above the average Senator in the HRC scorecard are also classified as “solid yes” votes. A “lean yes” classification is constructed for Senators whose records are less clear. Senators who voted against the Hutchison amendment, but are ranked around the middle of the HRC scorecard, are classified as “lean yes.” Senators who do not have a legislative track record and and do not have a Congressional scorecard ranking (e.g., new Senators that did not previously serve in the House), but have otherwise indicated support for LGBT rights (e.g., marriage equality, repeal of “don’t ask, don’t tell,” etc.) are also classified as “lean yes.”

All Senators who have not sponsored/co-sponsored the UAFA, who voted for the Hutchison amendment, and are ranked at or near the bottom in the HRC scorecard, are classified as “solid no” votes. Senators who do not have a legislative track record and do not have a Congressional scorecard ranking, but have otherwise indicated opposition to LGBT rights, are classified as “lean no.”

Unlike the other analyses in this series, I do not use a statistical model here. A statistical model in the absence of theoretically informed priors relating specifically to the intersection between immigration and LGBT rights (indeed, a fruitful avenue for future research) is akin to data mining in the dark. With this in mind, the classification of Senators into the categories described above, particularly with respect to the “lean yes” or “lean no” categories, should be viewed as a heuristic and be combined with the on the ground realities and developments that unfold in real time (e.g., Republican Senator Rob Portman of Ohio recently announcing his support for marriage equality).

Senate Prediction

Not only does it appear that LGBT inclusion in family reunification would pass as an amendment to CIR, but a filibuster-proof vote on final passage of CIR also seems to still be within reach. Full list here.

  • There are 62 Senators who are likely to support LGBT inclusion and 38 who are likely to oppose.
  • Supporting LGBT inclusion: there are 50 Senators who are “solid yes” votes and 12 more who “lean yes.”
  • Opposition to LGBT inclusion: there are 35 Senators who are “solid no” votes and 3 more who “lean no.”

Will LGBT Inclusion Kill CIR?

Combining the above predictions with the general analysis of support and opposition to CIR (see previous analysis) allows us to evaluate whether the inclusion of LGBT families as part of comprehensive immigration reform will kill the chances of getting a bill passed in the Senate.

59 Senators who are likely to support LGBT inclusion are also likely to support passage of CIR. If we assume that those who would have supported CIR actually vote no because of LGBT inclusion, then 59 votes is 1 vote shy of a filibuster-proof vote. This may be alarm enough for some to delink immigration reform with LGBT rights. However, there are additional points to consider. First, these 59 Senators do not include 3 members of the Senate “gang of 8.” While Jeff Flake (0 HRC score while in the House), John McCain (15 HRC score), and Lindsey Graham (15 HRC score) are not expected to support LGBT inclusion, if the UAFA or something like it is approved as an amendment to CIR, it is unlikely that these 3 Senators will vote no when it comes to passage of the overall bill. That is, assuming that they are not willing to “cut off their nose to spite their face.” Moreover, in looking at the 62 Senators who are likely support LGBT inclusion, there are 3 who were previously predicted to oppose CIR. One of these is Republican Senator Rand Paul of Kentucky. Events in real time have already witnessed Senator Paul come out (however tepid) in support of immigration reform. Adding Senator Paul to the 3 members of the “gang of 8” pushes support back above 60.

To be clear, this is playing with political fire, especially given the highly charged nature of these issues and the necessity of a filibuster-proof vote to get to final passage of CIR. This path should thus be tread carefully. Based on the above assessment, the inclusion of LGBT families in immigration reform means an estimate of about 63 votes, which is down from an estimate of 67 votes on a bill that does not include LGBT inclusion. But while this may mean less overall support, it does not necessarily kill the chances of CIR in 2013.

The sticking point, however, is the House, which will be the subject of a later post.

Research support provided by the Asian Pacifican American Legal Center (APALC). Thanks to Cat Benson and Brana Vlasic for their excellent research assistance.

In Senate Bill, Path to Citizenship May Not Come After Border Triggers

By Tom K. Wong,, @twong002

At close to midnight PST Tuesday, the full text of the Senate comprehensive immigration reform bill was finally released. The full 844-page bill can be found here.

Among the early insights gleaned from the exact language of the bill relates to how the path to citizenship will unfold. While the bill reaffirms that border security triggers are necessary prerequisites for the path to citizenship, it also includes language stating that if making citizenship contingent on border triggers – which leaves immigrants stuck in a “provisional” legal status until these triggers are met – is found to be unconstitutional, then the path to citizenship will be available to all in 10 years  (see section 3 of the bill).

As the “registered provisional immigrant status” that the bill creates and the legal implications of being a lawfully permitted immigrant without lawful permanent resident status (convoluted, I know) is new to immigration policy, this appears to provide some room for those seeking a more direct and inclusive path to citizenship.  

Legalization First, then a Path to Citizenship After… Maybe

By Tom K. Wong,, @twong002

The 2013 version of comprehensive immigration reform (CIR) now has a name: the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. Here is a preliminary summary of what the path to citizenship looks like. The Senate “gang of 8’s” summary outline can be found here and the full text and be found here.

The Senate bill creates a fairly straightforward and direct path to citizenship for DREAMers and for undocumented agricultural workers after border triggers are met. But for the rest of the undocumented population, while the bill creates a path to citizenship, the road there runs through a first step of legalization and then a second step of border security triggers and a minimum 10-year wait. The following details the path to citizenship for the bulk of the undocumented population.

The First Step: Legalization

  • Registered Provisional Immigrant (RPI) Status   Undocumented immigrants in the U.S. prior to December 31, 2011 – and have lived here continuously since – can apply for RPI status. RPI status will mean that a person is considered lawfully present, which means that he or she will not be subject to deportation, will be able to legally work in the U.S., and be able to travel freely outside of the country. RPI status will require an initial $500 fee. After 6 years, another $500 fee will be required. It is important to note that those in deportation proceedings will be able to apply for RPI status. Moreover, criminals will be excluded and individuals with RPI status will not be eligible for federal means-tested public benefits (think welfare).
  • Reuniting Families Separated by Deportation   An important aspect of RPI status is that undocumented immigrants who were deported before December 31, 2011 can apply to reunite with their families if they are the spouse or parent of a U.S. citizen or permanent resident. DREAMers who were deported can also apply to re-enter the U.S. as a registered provisional immigrant.

The Second Step: Border Security Triggers

The step that generally precedes eligibility for citizenship is that of being a lawful permanent resident (LPR) – think having a green card. However, the outline of the Senate bill clearly states that those with RPI status will not be eligible to adjust to LPR status until the Southern Border Security Strategy (see previous post here) has been “substantially deployed and substantially operational.” What constitutes “substantially deployed” and “substantially operational” is not entirely clear. However, what we do know from the Senate bill is that this determination will be made by the Secretary of the Department of Homeland Security (DHS) in consultation with the Comptroller General. Moreover, while the border security aspects of the Senate bill identifies a 90% effectiveness rate as a major goal, the border security triggers that precede the path to citizenship are not defined as such – again, at least based on what we currently know. What this means is that the current administration and the current DHS Secretary, or what is more likely, the next administration and whomever is appointed the next DHS Secretary, are going to play pivotal roles in shaping the course of the path to citizenship.

Additional triggers include: a) the “substantial completion” of additional border fencing, b) the implementation of mandatory E-Verify for all employers, and c) the use an electronic entry-exit system across air and sea ports of entry.

10-Year Wait

Assuming that the border trigger hurdles are overcome, after 10 years a registered provisional immigrant can apply to become a legal permanent resident. However, the process is complex. The Senate bill changes immigration rules so that some decisions regarding who can immigrate will be determined by a merit-based system, which awards points to individuals based on employment, education, and length of residence in the U.S., among other factors. The merit-based system creates new legal categories that prospective immigrants fall into. One of these categories is “long-term alien workers and other merit based immigrant workers.” These persons are defined as those “who have been lawfully present in the United States for not less than ten years” and who do not qualify to immigrate via other pathways. This language alludes directly to RPI immigrants.

There are two important points to make.

First, under this new merit-based system, immigrants with RPI status can only apply for LPR status if they have worked regularly, pay a $1,000 penalty, pay all taxes owed, and demonstrate English language skills, among other requirements.

A second, more important point relates to the formula in which immigrants with RPI status are able to adjust to LPR status. The outline of the Senate bill refers to a flexible allocation formula for merit-based visas, but the total number of these visas would be capped at 250,000 annually. Ceteris paribus, this means that it would take 4 years for 1 million immigrants with RPI status to receive LPR status and thus be on the path to citizenship, 8 years for 2 million immigrants, 12 years for 3 million immigrants etc. Given this allocation formula, some may never make it onto the path to citizenship (e.g., a middle-aged person applies for RPI status in 2014, waits 10 years, and then is towards the end of a 5 million person line that will take an additional 20 years to clear – a 5 million person line is a low estimate in many scenarios). One option would be to adjust the allocation formula for merit-based visas to permit a much higher annual cap. Another option would be to remove caps altogether for those with RPI status. What is telling about the outline of the Senate bill is that it does not specify how immigrants with RPI status will become legal permanent residents beyond the details of the merit-based system. Given the language that is increasingly used by Senator Marco Rubio and others of “no special path to citizenship,” this particular omission may portend a major fight ahead over how long it will take some undocumented immigrants to make it onto the path to citizenship. It also hints at – particularly when looking to the debate in the House – the many more compromises that are likely to be made (despite what the gang of 8 says) in order to get a deal done.

Update, 1:59AM PST, 4/17/13.

With the details of the Senate bill now in hand, we now know that not only are those with RPI status not eligible to receive a merit-based immigrant visa until at least 10 years after enactment (paragraph g of Section 2302), but they will also not be able to begin accruing points towards a merit-based visa until after a 10-year wait (see Section 2301). Moreover, under track 2 of the merit-based system, “long-term alien workers and other merit-based immigrants,” who are defined in paragraph (c)(3) of Section 2302, beginning in 2029, “must be lawfully present in an employment authorized status for 20 years prior to filing an application for adjustment of status” (p. 274).

Will Comprehensive Immigration Reform Pass in the House?

By Tom K. Wong,, @twong002

Conclusion: The road to CIR is an uphill climb in the House, as just around 200 representatives are likely to vote yes. The data suggest a low of 183 and a high of 203. However, the results also show that 33 representatives who are likely to vote no on CIR are electorally vulnerable based on their November 2012 electoral margin of victory. These representatives are thus likely to be the locus of grassroots efforts to pass CIR.

As the details of the House comprehensive immigration reform bill begin to emerge, it is an opportune time to ask ourselves what the likelihood of passage is in the 435-member House of Representatives. Before proceeding to the analysis, I recap the events that have brought us to this point (jump below if you’ve already read the Senate post).

Will comprehensive immigration reform (CIR) pass in 2013? In a recent whirlwind of events since President Obama’s reelection, the Senate “gang of 8” introduced its draft principles on immigration reform, the President then addressed the nation describing his own vision of reform just one day after the gang of 8 unveiled their blueprint, the White House promptly released more details of the president’s proposal immediately after his speech, the House Judiciary Committee recently held its first hearing on the issue, and then the Senate Judiciary Committee did the same. The momentum that has been building towards CIR, which started well before last November’s election, has shown no signs of slowing down. However, momentum itself is no guarantee that reform will happen.

As a matter of politics, the key question is whether there are enough votes in Congress? More specifically, are there 60 filibuster-proof votes in the Senate and 218 votes in the House? While there are no crystal balls to tell us how legislators will ultimately vote, the recent history of immigration politics in the U.S. provides sufficient information to make informed predictions, not only about how current members of Congress are likely to vote on CIR, but also about what the final bill is likely to include (or not include).

Three key factors are worth noting:

  • First, while the current push for immigration reform represents its own distinct stage, many of the key actors are still the same. Nearly 200 representatives who are currently in the House were also in office during the contentious debate over H.R. 4437 in 2005. In the Senate, nearly 50 sitting Senators were also around during the 2006 immigration reform effort. This provides a rich pool of voting history to analyze and learn from.
  • Second, while we still do not know the details of the Senate or House bills, a) the degree of overlap between the gang of 8’s principles, the President’s proposal, and the 2006/2007 Senate CIR bills, coupled with b) the many lingering stand-alone immigration-related bills that have been introduced in Congress over the past few years, suggests that while the devil remains in the details, many of the details are already known. This is not to suggest that 2013’s bill will perfectly mirror previous reform efforts. Rather, it is to say that in analyzing the hundreds of amendments to CIR 2006 and 2007 and all of the immigration-related bills that have been introduced in Congress since 2005, we can create a map of the road ahead.
  • Third, the November presidential election showed that immigrant communities – and communities of color more generally – are increasingly flexing their political muscle. This adds confidence to our ability to use the demographic makeup of states and districts to inform how we think legislators are likely to vote on CIR.

House Prediction

In analyzing over 10,000 roll call votes on immigration-related legislation in the House from H.R. 4437 to present, and in identifying the votes that most closely approximates the House immigration reform proposal – that is, a bill that includes a path to citizenship for DREAMers, but no “special” path for others – the data suggest that between 183 and 203 representatives are likely to vote for CIR. The models accurately predict up to 94.4% of all key votes analyzed. A full list of all House Representatives broken down into into their predicted categories of support and opposition can be found here: CIR House Analysis for CIR Blog.

Ending the story here would paint a bleak portrait. However, the numbers mentioned above does not mean that CIR is not possible in the House. If we assume that those who are predicted to “lean yes,” in fact, vote yes, this brings us to 203 votes. The question then becomes, how can this number be increased?

  • Getting all Democrats on Board with CIR. In looking at representatives who are predicted to “lean no,” 1 is a Democrat. In additional there are 4 Democrats who are predicted as “solid no” votes. Switching these no votes to yes votes is no easy task given the voting records of these representatives. However, getting all Democrats on board with CIR represents one practical approach
  • Electorally vulnerable no votes. There are 33 representatives who are predicted to vote no and are electorally vulnerable – meaning the representative won by a margin of less than 10 points during the November 2012 elections. In looking more closely at electorally vulnerable no votes, we see that 4 are Democrat and the rest are Republican. These representatives are spread across 21 different states.

In all, there is no easy road to CIR in the House and all paths to it are paved with obstacles. However, the data point to several alternate routes. Stay tuned for more detailed analyses of the electorally vulnerable no vote districts.


The underlying assumption of the statistical models used to estimate likely support and opposition is that representatives who represent diverse districts, particularly those with large foreign-born and Hispanic/Latino and Asian populations, are more likely to support a CIR bill that includes a path to citizenship than Representatives in mostly white districts – while considering other factors. One way to interpret these results is thus: to the extent that Representatives are responsive to the changing demographics of their districts, we can expect them to vote as the model predicts. However, it is not yet clear whether changing demographics – even given the November 2012 elections – will parlay into more legislative support for CIR.

Step 1 of this analysis models the final passage vote on H.R. 4437, amendment 667, which would have made the bill even more restrictive, and the DREAM Act vote in 2010. Here, I estimate several models. Model 1 focuses on the racial and ethnic characteristics of districts while controlling for other factors (e.g., the party affiliation, southern state). Model 2 focuses the racial and ethnic backgrounds of representatives. Model 3 focuses on the racial and ethnic characteristics of districts, the racial and ethnic background of representatives, and the interaction between race/ethnicity and geography. I then construct categories of likelihood, wherein each predicted probability is characterized as a “solid yes” vote, “leans yes,” “leans no,” and “solid no” vote. These categories take into account the confidence intervals around each predicted probability. Figure 1 provides a graphical illustration.

Figure 1. Predicted probabilities and 95% confidence interval for all 435 Representatives

Step 2 critically evaluates the predicted probabilities obtained in step 1 by analyzing the actual voting record on immigration-related bills for each Representative (where a robust voting record exists). For example, if a Representative voted for H.R. 4437, for amendment 667 and against the DREAM Act, I expect the Representative to be categorized as “solid no” when it comes to supporting a CIR bill with a path to citizenship. Conversely, if a Representative voted against H.R. 4437, against amendment 667, and for the DREAM Act, I expect the Representative to be categorized as “solid yes.” Model 3 correctly classified 134 out of 142 Representatives, which represents a match rate of just over 94%.

Step 3 expands the analysis in step 1 to the full history of voting on immigration-related bills in the House from H.R. 4437 to present as an additional check. The determinants of past votes on immigration policy are analyzed using a logistic regression model: Pr (Voteit = 1|Xit) = πit(β0 + β1Xit + εit) where Xit represents a vector of explanatory variables, including key demographics characteristics, and εit represents the error term. In the House, there are over 10,000 observations to analyze. Predicted probabilities are then obtained from m = 1,000 simulations for each current member of the House using the estimated models.

Step 4 synthesizes all of the data – actual voting records and predicted probabilities – and assigns each Senator to one of the four categories of likelihood described above.

Special thanks to Hillary Kosnac, Cat Benson, Brana Vlasic, Cameron Kaveh, and Sierra Graves for wonderful research assistance.