A review of ICE detention statistics for FY 2021 reveals that the agency’s detention of aliens who were arrested by its officers in the interior of the United States is low and falling quickly, even as overall ICE detentions are holding fairly steady. That’s the natural consequence of the disaster unfolding at the Southwest border and ICE’s new non-enforcement regime under the Biden administration, but the statistics require some explanation to understand just how bad they are.
ICE is responsible for enforcing the immigration laws in the interior of the United States. That includes not just removals, but also the questioning of suspected removable aliens, their arrest, detention, and prosecution.
While Border Patrol and its agency, CBP, generally enforce the immigration laws at the border, Border Patrol agents and CBP officers are not assigned the duty of “detaining” aliens even the aliens they apprehend, per se.
Rather, aliens whom CBP officers and agents apprehend are held briefly by the agency for “processing” (questioning, the biometrics collection, and charging). While that process can take days, if the aliens are subsequently detained at all, it’s ICE who detains them.
ICE detained 25,519 aliens on an average day in the month of June. That is well below historical averages, but it is more than the average daily population (ADP) of aliens in ICE detention in October (18,747) or December (16,130). ADP numbers cratered in February (14,088) and have been increasing since then.
As an aside, I explained in December that ICE’s ADP numbers fell in FY 2020 and early in FY 2021 due to pandemic detention restrictions. Those restrictions have been loosened, but ICE’s detention of aliens it apprehended in the interior (as opposed to CBP apprehensions at the border) is still low, for reasons I will explain below.
The ADP of ICE detainees who were apprehended by CBP in June was 20,806. That includes 457 convicted criminals, 627 aliens with pending criminal charges, and 19,721 who are being held on immigration charges alone.
By contrast, the ADP of ICE detainees who were apprehended by ICE in the interior in June clocked in at just 4,714, almost 4,000 of whom were convicted criminals, and 431 who have pending criminal charges; 285 were solely immigration violators.
In October, by contrast, almost 12,500 of the 18,747 aliens who were detained by ICE had been arrested by ICE officers and agents in the interior of the United States. Of those, 9,203 had criminal convictions, 2,597 had pending criminal charges, and 694 were immigration violators. I will get back to those statistics below.
In a tweet, Nick Miroff from the Washington Post explained why the number of ICE detainees, and in particular ICE detainees who had been apprehended by CBP, was so high:
The ICE detainee pop. is growing because fewer border crossers are being expelled, NOT as a result of more interior enforcement.
— Nick Miroff (@NickMiroff) July 6, 2021
Data here show the number of ICE detainees WHO WERE ARRESTED BY ICE has dropped from average of 10,776 per day in January to 4,714 per day in May. pic.twitter.com/koxi6bcEQW
Throughout FY 2021, CBP has expelled, rather than sent to ICE for detention, most aliens apprehended by Border Patrol, under Trump-era orders issued by the CDC under Title 42 of the U.S. Code in response to the pandemic. In May, more than 64 percent of all illegal migrants whom Border Patrol apprehended at the Southwest border were expelled under Title 42, almost exclusively single adults.
Given how massive the surge of illegal migrants has been in recent months, however, that still left more than 61,000 aliens in May who were processed under the Immigration and Nationality Act (INA), and who therefore were not summarily expelled under Title 42.
The vast majority were released into the interior of the United States (as the ICE’s detention statistics show), although section 235(b) of the INA requires all of them to be detained.
While that is a major issue, the bigger issue is that these statistics show that ICE enforcement in the interior has been all but eradicated by the Biden administration.
ICE is required by law to actually remove all aliens who are removable under the numerous grounds of removability in sections 212 and 237 of the INA and who are not eligible for protection (like asylum) or immigration benefits (like a green card).
The Biden administration is openly ignoring those precepts, however, and has decided to enforce the law against just three groups of removable aliens: national security risks, aliens who entered illegally after October 31, 2020, and aggravated felons and a select group of gang members.
When I say “enforce the law”, I don’t just mean that those are the only aliens whom ICE officers are allowed to deport. Rather, those are the only aliens whom ICE officers are allowed to question, arrest, and detain.
As a fig leaf, the administration’s “guidance” on this issue provides that ICE officers can go after other aliens if they receive “preapproval” (following a time-consuming and wholly unnecessary process) to do so, but as a recent lawsuit against DHS demonstrates, that exception is all-but ineffectual.
That is why the May ADP numbers for aliens who were encountered by ICE are so low—there are so few removable aliens whom ICE officers were allowed to pursue, let alone detain.
As the Washington Post has put the current non-enforcement regime: “ICE under President Biden is an agency on probation . . . . Biden has placed ICE deportation officers on a leash so tight that some say their work is being functionally abolished.”
Why would the Biden administration put a federal law-enforcement agency on “probation”? In a memo issued on January 20, the then-acting DHS secretary contended that: “Due to limited resources, DHS cannot respond to all immigration violations or remove all persons unlawfully in the United States.”
That is factually true (Jeff Bezos cannot buy every yacht there is, either), but in this context it is hogwash. In March 2011, then-ICE Director John Morton contended that the agency “only has resources to remove approximately 400,000 aliens per year", but the agency will be lucky to remove a tenth of that number of aliens this year.
The real reason is that, as the aforementioned Post article explained, Donald Trump “lavished” ICE officers “with praise” because he liked immigration enforcement. Then-candidate Joe Biden derided immigration enforcement under Trump in ethical terms, and seeks to strangle it now that he is in charge.
That is especially true of immigration detention. Biden vowed on his campaign website that, as president, he would “End prolonged detention . . . . “, but the issue is that “prolonged detention” is necessary if aliens are in removal proceedings that stretch out for more than 2.5 years-- the current average completion time in immigration court.
If aliens aren’t detained, however, new ones are not only more likely to enter illegally (because they get to remain indefinitely), but non-detained aliens are much less likely to show up for deportation than detained ones are (logically).
Further, Biden’s derision of ICE was based on a false premise. As the October ADP numbers above show, the Trump administration was quite selective in its immigration enforcement efforts (including detention), and primarily targeted criminal aliens.
Even before the pandemic, as I explained in January, ICE under the Trump administration arrested and removed fewer aliens than it did during the first six years of the Obama-Biden administration, and the vast majority of the aliens it did arrest and remove had criminal convictions or pending criminal charges.
In summary, the most recent ICE detention numbers reveal that the border disaster is getting worse (and will deteriorate even more once CDC lifts its Title 42 expulsion orders), but more importantly that ICE interior enforcement efforts have been decimated under the Biden administration. It’s no wonder that immigration is a losing issue for the president with potential voters, and likely will be for a while.