Data obtained by the Senate Judiciary Committee following a hearing on the collapse of immigration enforcement reveals that a very large number of illegal aliens in the country have already had due process and been ordered removed, but are still living here in defiance of that order. As of a year ago, there were more than 925,000 aliens who had been ordered removed, but who had not departed (known as ICE's "Post Final Order Docket"). About 20 percent of the non-departed aliens have at least one criminal conviction. Nearly all of these individuals — and nearly all of the convicted criminals — are at large, not in ICE custody. About 60 percent of the aliens come from just four countries: Mexico, El Salvador, Honduras and Guatemala, as shown on the accompanying map. A disproportionate number of the non-departed criminal aliens are citizens of Cuba.
Non-Departed Aliens with Final Order of Removal
by Country of Citizenship
Table 1, reproduced from the ICE records, shows the number of aliens who have been ordered removed (and exhausted all appeals), the number detained, and the number with criminal convictions.
Table 1. ICE's Post Final Order Docket (as of July 4, 2015)
As shown in Table 2, the number of non-departed post final order aliens who are convicted criminals grew 20 percent from 2012 to 2015. Considering that federal data indicates a recidivism rate of somewhere between 30 and 70 percent, the federal government's failure to deport these aliens should be of some concern to law enforcement agencies and the public. The map below shows the citizenship and number of non-departed criminal aliens who are at large, at the time of the ICE report.
Table 2. Number of Non-Departed Post Final Order Criminal Aliens: 2012 - 2015
Non-Departed, Non-Detained Convicted Criminal
Aliens with Final Order of Removal
by Country of Citizenship
There are three main reasons that these aliens are still here:
Home Country Refuses to Accept Them. A number of countries simply refuse to take back their citizens after deportation, or do their best to slow-walk the process. According to Sen. Chuck Grassley, who chairs the Senate Judiciary Committee, DHS says that currently 23 countries are "uncooperative" and cooperation with 62 others is "strained." In 2015 ICE released 2,166 aliens because their countries refused to take them back, and more than 6,100 were released in 2013-14 for the same reason. Since a 2001 Supreme Court decision known as Zadvydas v. Davis, ICE may not keep aliens in custody for longer than 180 days, except in a few situations. A recent Boston Globe investigation detailed the public safety problems caused by these releases, as a significant share of these aliens have committed new crimes after release. One victim of this practice was Casey Chadwick, who just over a year ago was murdered by a Haitian citizen, Jean Jacques, a convicted criminal whom ICE tried unsuccessfully three times to deport and finally released. "This breaks my heart every second of every day," her mother, Wendy Hartling, told members of the House Oversight and Government Reform Committee earlier this year. "The tragedy of Casey's death is not an isolated case and is occurring frighteningly often around the country — when it really shouldn't be happening at all," said Hartling.
Aliens Abscond. Immigration court data show that when aliens are released pending deportation hearings, they often fail to appear for their hearings; and, when aliens who are ordered removed are released pending removal, they often flee to avoid removal. Former immigration judge Mark Metcalf has analyzed immigration court data and found that more than half of non-detained aliens skip out on their hearings. Unless they have a serious criminal record, these aliens are not considered a priority for enforcement under Obama administration policies. Among the population of "non-criminal" non-departed aliens are three Central American youths now charged with murdering 17-year-old Danny Centeno-Miranda in Loudoun County, Va., in September 2015 on his way to the school bus stop. The three illegal alien youths allegedly failed to appear for their immigration court hearings about one month before the murder, and had been ordered removed in absentia.
Sanctuary Policies. Dozens of state and local governments have adopted sanctuary policies that obstruct ICE from taking custody of deportable aliens. An ICE report we made public last year listed a number of occasions when criminal aliens with prior deportation orders were released to the street instead of turned over to ICE for deportation. The most notorious example is Juan Francisco Lopez Sanchez, who was slated for his sixth deportation after serving time in a federal prison in California, when San Francisco asked to take custody of him for prosecution on an old drug charge. The charge was quickly dropped, but Sanchez was eventually released as per local policy prohibiting cooperation with ICE. A few months after his release (and one year ago today), Sanchez shot and killed Kate Steinle, apparently randomly, as she walked on a San Francisco Pier with her father. Many local jurisdictions across the country have policies that bar the transfer of aliens to ICE on the basis of an outstanding deportation order.
Tables 3 and 4 show the countries with the largest numbers of non-departed aliens:
Table 3. Top Countries of Citizenship of Non-Departed Aliens
Table 4. Top Countries of Citizenship of Criminal Non-Departed Aliens
The data presented to the committee can be found here, in Question 17.
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