TRACking the Detainer Data at ICE

By W.D. Reasoner, February 28, 2013

It is probably obvious to anyone who has read any of my occasional blogs or other writings for the Center that I'm strongly pro-enforcement on the immigration issue. To me, it comes down to what I believe is in the best interest of American society, writ large, and fundamental fairness to all of those intending immigrants who sit patiently abroad waiting for their visa quota number to come up.

It is also obvious from my writings that I'm no fan of the way the current administration has chosen to exercise its executive powers in the matter of immigration policing. I have been a frequent critic of the Department of Homeland Security and its component agencies, particularly U.S. Immigration and Customs Enforcement (ICE), for their failings, downright ineptitude, and (not least) a sad propensity for guile instead of openness, and unfettered hyperbole in announcing dubious accomplishments that seem more the result of creative bookkeeping than reality.

Conversely, I am generally a fan of Syracuse University's Transactional Records Access Clearinghouse (TRAC), which often casts a ray of sunshine on the actual data produced by DHS and its components such as ICE — sunshine that can be quite revealing in laying bare to public view what's really going on behind the wizard's screen — even though I recognize their philosophical propensities don't line up neatly with mine.

But fair is fair, and sometimes ICE can be its own worst enemy by hiding behind that screen when all its leaders need do is speak up and explain their data in a rational way. They are lucky in that even critics such as me sometimes feel bound to weigh in when they perceive that data may be misinterpreted in a matter of significance, despite ICE's own reticence to explain itself.

Such is the case with a recent TRAC report, entitled, "Who Are the Targets of ICE Detainers?" According to the report:

  • "In more than two out of three (77.4 percent) of the detainers issued by ICE, the record shows that the individual who had been identified had no criminal record — either at the time the detainer was issued or subsequently…" and,

  • "However, as TRAC reported in February 2012, the ICE basis for classifying individuals as "serious" offenders — that is, Level 1 — appears to be flawed, since their records show that all too often the most serious Level 1 offenders have only been convicted of traffic violations and immigration violations (illegal entry) rather than some more serious offense…" and, finally,

  • "While the press have quoted ICE officials as contending that the agency did not track how many U.S. citizens had been inadvertently held in immigration detention, the data released to TRAC indicate that a substantial number of U.S. citizens may be affected. It is illegal for DHS to detain U.S. citizens, and to do so is a significant violation of their constitutional rights."

Here are my concerns with the interpretations that TRAC has accorded the data:

"In more than two out of three (77.4 percent) of the detainers issued by ICE, the record shows that the individual who had been identified had no criminal record — either at the time the detainer was issued or subsequently…"

I am troubled by the phrase, "either at the time the detainer was issued or subsequently". Follow my logic here, since it's a bit technical.

Under ICE's Secure Communities program, detainers are placed very quickly after an alien is booked into a jail for a crime. This is because everything is based on matching of the digital fingerprints sent electronically to the state and then federal governments from the booking police agency. That is to say that it happens at the front-end of the criminal justice system, and deliberately so. In the past, by the time immigration authorities got wind of an alien's arrest and conviction for a crime, he might have been released on probation, parole, or after serving as little as a third of his sentence due to jail overcrowding or complex and mandatory "good behavior" computations.

Based on the Secure Communities protocols, it follows that in many — perhaps most — cases, the conviction has not yet happened. That doesn't mean it won't. And, ironically, in today's criminal justice system, the more significant the charge, the longer it will likely take to dispose of it through trial and conviction or dismissal. If the charge is, say, attempted murder, or trafficking in narcotics, or the like, chances are that the detainer will track the subject all the way through the many months that it takes for the criminal justice system to deal with the case, and right into the prison (assuming he is convicted, and that the police and correctional authorities decide to honor the detainer — no sure thing these days). Thus, ICE will only pick up the convicted alien after his sentence is completed. How long does this take? It can be quite a while — years in some cases.

So when TRAC says, "either at the time the detainer was issued or subsequently" (my emphasis), then we need to ask: How long after does "subsequently" imply? We don't know. And this makes all the difference in the world in a reasonable determination as to whether ICE is living up to its own alien criminal classification levels. Unfortunately, as I mentioned, ICE does itself no favors. In this instance, as TRAC makes clear, "ICE inexplicably withheld any information on the nature of the crime for which the individual had been convicted." Go figure.

"However, as TRAC reported in February 2012, the ICE basis for classifying individuals as "serious" offenders — that is, Level 1 — appears to be flawed, since their records show that all too often the most serious Level 1 offenders have only been convicted of traffic violations and immigration violations (illegal entry) rather than some more serious offense."

First, we should not assume that traffic offenses are always "minor". Vehicular manslaughter, negligent homicide, and driving under the influence of alcohol or narcotics all strike me as serious offenses. So, in determining whether the traffic offenses are negligible, I suggest that a detailed examination into what they consisted of would be in order before making any assertions about the gravity, or lack thereof, of the offenses. It is not clear from TRAC's report that this was done, or even discernible from the quality of the data obtained from ICE.

Next, most would agree that issuing a detainer against an alien with a prior conviction for illegal entry is a perfectly appropriate use of ICE resources. Consider: an alien is arrested by ICE or the U.S. Border Patrol after having crossed the U.S. border illegally. He is charged with, and convicted of, the crime of illegal entry under 8 USC 1324. After serving the sentence, however minimal, for that offense (more likely, given credit for time served awaiting trial, and then handed back to the immigration authorities) he is civilly charged with being deportable for having illegally entered. He is presented to an immigration judge, and formally deported from the United States.

The second time federal immigration authorities encounter him, where is he? Back in the United States — and, worse, in the custody of local police being charged with a state crime of some kind: breaking and entering, drug possession, you name it. He has not only proven himself to be a scofflaw where federal civil and criminal immigration laws are concerned, but also a criminal, as most people understand the word. And what is more, when he reentered the United States after having been previously deported, he committed a federal felony. Take a look at 8 USC 1326.

Under such obvious circumstances, I would argue that any rational system of immigration enforcement would make such aliens a Level 1 priority for federal agents to pursue. It is only a surprise to me that DHS and ICE leaders in this administration haven't found a way to undercut that effort, too, as they have so many others.

"While the press have quoted ICE officials as contending that the agency did not track how many U.S. citizens had been inadvertently held in immigration detention, the data released to TRAC indicate that a substantial number of U.S. citizens may be affected. It is illegal for DHS to detain U.S. citizens, and to do so is a significant violation of their constitutional rights."

First, let me state unambiguously that it is not "illegal for DHS to detain U.S. citizens". Many United States citizens are arrested and charged each year for violation of federal immigration-related criminal offenses: alien smuggling is a prime example. The U.S. Sentencing Commission reports that in 2011 there were more than 1,500 U.S. citizens sentenced in federal court for immigration crimes. When ICE detains U.S. citizens for such crimes, it is doing its job. While the authors of the TRAC report may have intended that their statement refer only to U.S. citizens detained in anticipation of filing civil deportation charges against them, that is not what was said. Precision in language is extremely important when dealing with complex and sensitive social issues. We don't know the nature of the detainers filed — there is nothing in the TRAC report to reflect this key distinction, and quite likely there was nothing in the data that TRAC was given and analyzed that would have permitted them to make the distinction. Thus, the statement is indefensible as written.

But to get back to the intent of the statement: There have been cases where U.S. citizens have been erroneously identified and detained — I myself have castigated ICE for having done so — but such cases are rare indeed.

I and others at the Center have dealt before with the canard of ICE officials routinely detaining large numbers of U.S. citizens for reasons related to deportation and found it to be untrue. For a more balanced examination of the circumstances under which DHS data can lead researchers to such inaccurate and inflammatory conclusions, look at the December 2011 Center Memorandum, "Secure Communities by the Numbers, Revisited: Analyzing the Analysis".