Last week I suggested that the large number of "non-criminal" detainees identified in a November 29 report from the Transactional Records Access Clearinghouse (TRAC) reflected the massive influx of aliens who had been apprehended after entering illegally in FY 2019. The "U.S. Immigration and Customs Enforcement [ICE] Fiscal Year 2019 Enforcement and Removal Operations Report" proves that I was correct, but it is cold comfort, to say the least.
TRAC found (without much analysis of its own as to factors) that:
According to data recently obtained by TRAC, the growth in detention by [ICE] over the past four years has been fueled by a steady increase in the number of detainees with no criminal history. On the last day of April 2019, ICE held about 50,000 people in detention centers nationwide. Nearly 32,000 — or 64% — of detainees had no criminal conviction on record. This is up from 10,000 — or just under 40% of the nationwide total — four years prior. Over the same period, the total number of detainees with criminal convictions remained consistently between a low of 16,000 in March 2015 to a high of just over 19,000 in late 2017 and early 2018.
I posited that there was a fairly reasonable explanation for the low percentage of criminal aliens detained by the agency:
The fact that a large proportion of the non-criminal detained population [according to the TRAC analysis] are housed near the Southwest border would indicate that many of those aliens are in expedited removal/credible fear proceedings, particularly the two facilities that "detain mothers with children who are seeking asylum in the United States". Significantly, the TRAC data reflects a "snapshot" of aliens detained on the last day of 14 specified months over that four-year period. Even if those FMUs would be released within 20 days, they would still show up as "detained" in TRAC's reporting, and likely the adults would not have been prosecuted for illegal entry (even if they entered illegally), as explained below.
Further, the fact that "many" of those facilities are not near the border does not mean that the non-criminal aliens in those facilities are not in expedited removal/credible fear proceedings. The York County (Pa.) Prison, where my court was located when I was an immigration judge, is some 1,800 miles from the Southwest border, and yet there were detainees housed there in expedited removal proceedings who had pending credible fear interviews, and others who were waiting for their asylum hearings after they were found to have credible fear. ICE places aliens where it has space, even if that means that they have to be transported away from the border. [Emphasis added.]
Well, sure enough, ICE proved me right:
Th[e] sustained increase in migration [across the Southwest border] has stretched resources across the U.S. government, requiring ERO to redirect its enforcement personnel and detention capacity to support border enforcement efforts as well as a significantly increased detained population. This has negatively impacted the number of ERO's interior arrests, as well as the percentage of removals stemming from such arrests, and has also changed the overall composition of ICE's detained population. Because much of ERO's limited detention capacity has been dedicated to housing aliens arrested by CBP, many of whom are subject to mandatory detention under U.S. immigration laws regardless of criminality, the increase in border apprehensions has resulted in a lower overall percentage of ICE detainees who have a criminal history (the vast majority of those arrested by ERO in the interior have criminal convictions or pending criminal charges, while those arrested by CBP at the border often do not have any known criminal history). [Emphasis added.]
The parenthetical in the excerpt also supported my emphasis on ICE's statement that: "The reality is 90% of ICE arrests this year were of criminal offenders, illegal reentrants and immigration fugitives with outstanding final orders of removals." ICE is focusing its resources in the interior almost exclusively on criminal aliens and those with final orders, but its ability to do so in FY 2019 was hobbled by the fact that it had to respond to the humanitarian and national security disaster the border.
So, I was right. The problem is that because Congress has so significantly limited ICE resources, and because the resources that the agency did have had to be directed to the aforementioned disaster at the border, most otherwise removable aliens in the interior who had not come to the attention of state and local law enforcement (or frankly, usually accidentally of ICE), got to live in the United States scot-free. This in turn simply fed the narrative pushed by smugglers and adopted by foreign nationals considering illegal entry to the United States that if they could just get into this country they could live here forever.
Put another way, because there were so many aliens entering the United States illegally, other foreign nationals abroad saw the economic value in entering the United States illegally, creating not just a vicious circle, but a firestorm of sorts that fueled even more illegal entries. Or, as civil-rights icon and then-Chairwoman of the (Clinton) Commission on Immigration Reform Barbara Jordan foretold more than two decades ago: "If people unauthorized to enter believe that they can remain indefinitely once having reached the interior of the nation, they may be more likely to come." That "may" has now become "will".
This is a pretty basic concept, but one that is largely ignored by most of the media and much of the public in the current immigration debate. You cannot separate interior enforcement from border enforcement — they are actually one and the same, and if you underfund one, you are going to get more of the other.
This represents a failure on the part of a several parties. Congress bears significant blame for its failure to plug the loopholes that are exploited by smugglers and illegal migrants. On top of that, they bear the blame for underfunding immigration enforcement even in the course of a humanitarian disaster that it saw unfolding in real time, while at the same time blaming the White House for that disaster.
By the way, when I say "Congress" neither party escapes blame. While Democrats have done everything they could to neuter ICE (with many calling ridiculously for the agency's abolition), Republicans in the last Congress sat on their hands with respect to funding and the critical legislative fixes that would have avoided this miasma. It is not like members of the 115th Congress with vast knowledge in the area did not propose such fixes, but leadership (including and especially then-Speaker Paul Ryan) failed to get them passed.
The media also should be ashamed of their role in this. Consider the following opinion piece from D.C.'s newspaper of record, the Washington Post: "There's no other way to explain Trump's immigration policy. It's just bigotry". Or this, from Time: "Trump's Anti-Immigrant Rhetoric Was Never About Legality — It Was About Our Brown Skin". Or this from CNET: "Tech calls Trump immigration ban 'bigotry' and 'un-American'". Not that this is a new topic. In August, I wrote a post captioned "Ken Cuccinelli, Emma Lazarus, and Political Bias in the Media: No wonder voters don't trust news outlets" that is as accurate now as it was then.
Don't look for a lot of serious analysis of the issues from almost any major outlet (including reporting on the abuse suffered by migrants travelling to the United States to enter illegally, which actually occurred during the Obama administration). Immigration can be hard to understand, and many reporters have nothing but open disdain for the administration, so why bother?
In any event, I was right. But, the system is still horribly, horribly wrong.