Concerns About the New Priority Enforcement Program

Remarks of Jessica Vaughan, director of policy studies, Center for Immigration Studies

Press Conference hosted by the Texas Sheriffs Association, State Capitol, Austin

August 5, 2015

The implementation of ICE's new Priority Enforcement Program (PEP) is a major setback to rule of law in our country. It further scales back immigration enforcement by ICE and it explicitly facilitates sanctuary jurisdictions in obstructing ICE efforts to take custody of criminal aliens. This has enormous implications for public safety in Texas.

PEP has been described as a program to focus on criminal aliens. But in fact, PEP will result in the release of even more criminal aliens back to the streets, with local communities — and especially law enforcement agencies — left to deal with the consequences.

While the official roll out started July 2, ICE actually started implementing the program shortly after the president's announcement of the program as part of his sweeping and controversial executive actions of November 2014.

Already ICE arrests in Texas are down 28 percent over last year. Criminal alien arrests are also down 25 percent since this program was implemented.

It cannot fairly be described as an overzealous dragnet of enforcement as some opponents have alleged.

The changes that PEP brings are significant, and Texas sheriffs and government officials are right to be concerned. We are already dealing with the fall-out from suppressed enforcement. Even though the successful Secure Communities program gave ICE the capability to identify more criminal aliens than ever before, still the prioritization policies resulted in the release of 80,000 convicted criminal aliens since 2013, 170,000 cases of criminal aliens encountered but not charged by ICE since 2013, and 10,000 criminal aliens released by sanctuary jurisdictions since last year.

PEP does two main things. First, it further restricts the criteria for deportation. Now, only certain convicted felons, offenders with three separate misdemeanor convictions, and some new illegal arrivals will be considered appropriate for deportation. And ICE officers are told to make exceptions even to these categories if certain factors exist, such as family or community ties, illness, pregnancy, or other exceptions.

In addition, PEP makes it harder for ICE to actually take custody of one of these offenders, because it restricts use of detainers. This is one of the main differences from Secure Communities. Under Secure Communities, ICE could take action to prevent an alien's release from the time of initial booking into local custody, and the alien could not be released before ICE could take custody. Now, ICE has to wait until the outcome of charges, which cannot be predicted, and the practical result is that aliens will be able to walk out of custody before ICE can act. A typical case might be, for example, an alien who has been in jail for several months awaiting trial, has his hearing, is found guilty, and is sentenced to time served. That offender is immediately released from the courthouse, and even if the local authorities notify ICE, realistically they cannot dispatch officers quickly enough to arrest the convicted criminal alien. It's impossible for ICE to station officers in every courthouse waiting to see if illegal aliens are convicted of whatever crimes they commit. This program opens up huge cracks in the system of deporting criminal aliens.

Further, PEP allows local agencies to ignore ICE's efforts to assume custody of an offender if they choose.

We've seen how this turns out, over and over again. It's great for the criminal aliens and their families. It is often not a happy result for other families who suffer harm when these criminal aliens re-offend.

And we know that they do re-offend. Last year, in just eight months, one-fourth of the criminal aliens released by sanctuary jurisdictions were arrested again. According to Texas Department of Public Safety statistics, about 40 percent of criminal aliens arrested in the state are recidivists, either after being released by the feds, the local governments, or because they come back illegally after deportation.

National sanctuary policies like PEP are a tragedy waiting to happen.

Texas is ground zero for illegal immigration right now. There are seven Mexican drug cartels operating in the state. There are officer shootings, stash houses, home invasions, extortion, all by illegal aliens. The costs of dealing with this are enormous. The GAO found that it costs Harris County alone more than $30 million per year. This affects the quality of life for all. And, importantly, it serves to encourage more illegal immigration when people know that if they make it here they face so little chance of deportation.

Texas cannot control federal policy, but it can try to blunt the effects by taking action at the state level to discourage or penalize sanctuary policies. This would include clarifying that agencies are authorized and expected to cooperate with ICE, and that sanctuaries may lose some funding.