With the inauguration just days away, it's time to assess how the new Biden administration will handle immigration enforcement. Fortunately, the former vice president has made his plans clear, both in his public statements and in two documents: his campaign website page "Plan for Securing Our Values as a Nation of Immigrants"; and the "Biden-Sanders Unity Task Force Recommendations". None received much attention during the campaign, but then neither did immigration generally. They are based in part however on misperceptions that immigration enforcement under the outgoing Trump administration was particularly harsh. Respectfully, those misperceptions warp Biden's policies.
Bases of the Misperceptions
Those misperceptions were driven by the media during the Trump administration, which often focused on human interest stories about aliens who were wrenched from their families by ICE, or on crying children who were apprehended at the border by CBP. Rarely if ever, however, was there any context.
In part, they were propounded by the president's political opponents. Former Rep. Joe Crowley (D-N.Y.) referred to ICE as a "fascist" organization in a 2018 Democratic debate. "Former" because he lost the election to now Rep. Alexandria Ocasio-Cortez (D-N.Y.), or "AOC". AOC has called on ICE to be abolished, because of its enforcement efforts under the Trump administration.
In large part, however, those misperceptions were grounded in statements made by Trump himself. Immigration was a key (and winning) issue in his 2016 campaign, and the president has made several major immigration policy announcements in office. There was also a lot of braggadocio, however, with Trump (for example) vowing shortly after his election to deport two to three million criminal aliens.
Mark Twain wrote: "Give a man a reputation as an early riser and he can sleep 'til noon." That was certainly the case with Trump and immigration. So closely linked was the president with the issue that I often remarked that what you think about immigration depends on what you think about Donald Trump.
On his immigration website, Biden asserts that: "Trump has waged an unrelenting assault on our values and our history as a nation of immigrants." Has he really, though? Let's look at the numbers.
As I will explain below, there are two key metrics to use in determining how stringent any president's immigration enforcement efforts have been: ICE arrests of aliens in the United States ("interior arrests"), and ICE removals of aliens from within the United States (as opposed to at the border), also known as "interior removals".
Why focus on those two metrics? Because, by and large, immigration enforcement at the border is reactive, driven by the efforts of foreign nationals to enter the United States illegally.
Any administration only has so many tools at its disposal to dissuade such entries, although the Trump administration has done its best through a number of initiatives. If foreign nationals are going to come — and their smugglers are going to bring them — all that CBP can do is respond to them. Were no foreign nationals to seek to enter the United States in a given year, Border Patrol apprehensions would be zero. If almost a million come (as happened in FY 2019), apprehensions will climb accordingly.
Now, CBP's response to and treatment of those aliens is an issue. If you actually listen to the statements of Crowley and AOC — and assuming that you know anything about how the immigration system works — you will see that they are largely complaining about CBP's detention during processing of aliens, not ICE enforcement, per se.
The problem there is that CBP has done the best it could with its limited resources. Most Border Patrol stations and processing centers are decades old, built in a time when most migrants were single adults from Mexico who could be detained together and processed (and usually removed) within eight hours. As I noted in February 2019 congressional testimony, "prior to FY 2011, over 90 percent of arriving aliens were single adult males, and 90 percent were Mexican nationals."
In FY 2019, the majority of illegal migrants were adults with children (family units or FMUs) and unaccompanied alien children (UACs), from Central America. Processing those aliens takes 78 hours on average, and CBP's facilities were not meant to protect tender-age minors from unrelated adults. The makeshift dividers that were used as a stopgap created the "kids in cages" trope that was tied to Trump, but they in fact date to the Obama administration (as I have previously explained).
In any event, therefore, removals of aliens apprehended at the border are a poor metric to gauge immigration enforcement. Immigration enforcement in the interior, on the other hand, is proactive — it represents the efforts of ICE under whatever administration is in control to arrest and remove aliens. And, as the statistics show, ICE's efforts in this regard under Trump — with a limited two-year exception — fell well below the agency's enforcement actions under Obama.
Traditionally, "removals" or "deportations" meant the repatriation of aliens who were found living in the United States. That was because up until the George W. Bush administration, the policy of Border Patrol and CBP had usually been to informally return aliens who were apprehended at the Southwest border to Mexico.
That was easy, because as noted above, the historic norm was that most aliens apprehended at the border were single adults from Mexico. That country has an obligation to accept back its removed nationals, meaning that Mexican nationals could simply and quickly be returned through the closest port of entry. And returns required a lot less paperwork than formal removals.
Under Bush, however, DHS shifted to more formal removals of those aliens at the border, as CNN Politics noted in July 2019. That was accelerated in the Obama administration, a fact my colleague Mark Krikorian explained in August 2019. As he stated, "Obama cooked the books" to boost the number of purported removals.
Fortunately, there are statistics available that distinguish between those inflated border removals and true interior removals. Those statistics tell an interesting story.
Comparing Interior Removals Between Obama and Trump
Trump never got anywhere near his promised two million removals of criminal aliens, let alone three. In total, between FY 2017 and FY 2020, ICE removed 935,346 aliens. Of those, most — 604,879, just less than 65 percent — had either criminal convictions or pending criminal charges (the rest were removable on immigration grounds).
Those 935,346 removals include both aliens who were removed after apprehension at the border and in the interior. To understand how "harsh" Trump's enforcement efforts were, as noted above, it is crucial to look at those interior removals.
In FY 2010 (the first full fiscal year of the Obama administration), ICE removed 229,235 aliens from the interior. In FY 2020 (the last full year of the Trump administration), by contrast, ICE only removed 62,739 aliens from the interior — 92 percent of whom had pending criminal charges or convictions, with aliens with convictions making up the bulk (77 percent).
That means that interior removals from the United States actually dropped more than 72 percent between the first fiscal year of the Obama administration and the last fiscal year of Trump's.
Of course, the pandemic had a huge impact on ICE operations — and hence removals — in FY 2020. Still, in FY 2019, ICE removed just 85,958 aliens from the interior (75.6 percent of whom had criminal convictions, and 15.7 percent of whom had pending criminal charges — a total of 91.3 percent).
Even at its high-water mark in FY 2018, ICE under the Trump administration removed a mere 95,360 aliens from the interior — of whom 76.1 percent had criminal convictions and 14.8 percent had pending criminal charges (a combined 90.9 percent). Those FY 2018 interior removals were just less than 41.6 percent of what Obama's FY 2010 interior removal numbers had been.
I will note that interior removals declined throughout the Obama administration, beginning in FY 2011. In FY 2016 (the last full year of the Obama administration), ICE removed 240,255 aliens, of whom 65,332 were interior removals. Of those interior removals, 60,318 (92 percent) had criminal convictions.
But that FY 2016 number (and the Trump FY 2018 number for that matter) represented a huge decline from just two years before (in FY 2014), when there were 102,224 interior removals. In fact, there were 223,775 interior removals in FY 2011; 180,970 in FY 2012; and 133,551 in FY 2013.
Total interior removals in FY 2015 — during which then-DHS Secretary Jeh Johnson issued his "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants" memorandum, significantly curtailing immigration enforcement — dropped to 69,478. I will discuss that memorandum below.
Still, interior removals were much lower throughout each fiscal year of the Trump administration than they had been throughout all but two of the seven full fiscal years (FY 2010-FY 2016) of the Obama administration. And, the vast majority of the removals that did occur under the Trump administration involved criminals — not aliens solely removable on immigration grounds.
In the traditional sense, all ICE arrests occur in the interior. The bookkeeping legerdemain described above has confused the issue, as CBP has apprehended migrants entering illegally and handed them over to ICE for detention, but the statistics (which are somewhat muddied) still distinguish between the two.
In FY 2020, ICE arrested 103,603 aliens in the interior. Of those, 68.1 percent had criminal convictions, and 21.6 percent had pending criminal charges (87.7 percent total). Again, the number of ICE arrests was affected by the pandemic last fiscal year, but ICE arrests have been in decline since FY 2018.
That fiscal year, there were 158,851 ICE arrests, of whom 66.1 percent had criminal convictions, and 20.7 percent had pending criminal charges (86.8 percent all told). In FY 2019, when ICE resources were drawn off to address the crisis at the border, the number of ICE interior arrests fell to 143,099. Of those arrests, 64.3 percent involved aliens with criminal convictions, and 21.6 percent had pending criminal charges, for a sum of 85.9 percent of all ICE arrests involving criminal aliens.
The total FY 2017 numbers were similar to those in FY 2019. In FY 2017, ICE arrested 143,070 aliens in the interior, of whom 73.7 percent had criminal convictions, and 15.5 percent had pending criminal charges (89.2 percent in total).
How did those numbers stack up with ICE arrests under the Obama administration? Well, let's just say that the prior administration's efforts followed the same arc with respect to arrests as they did with respect to removals, again, for reasons I will explain below.
In FY 2016, ICE arrested 114,434 aliens in the interior of the United States. Of those, 59 percent fell within the first priority category (national security risks, gang members, aliens convicted of "felonies" and aliens convicted of "aggravated felonies" as defined in the Immigration and Nationality Act (INA)) in Secretary Johnson's November 2014 memorandum, 31 percent within the second priority category (three or more misdemeanors, a "significant misdemeanor", aliens who entered illegally after January 1, 2014, and visa abusers), and 3 percent within the third (aliens issued a final order of removal after January 1, 2014). The rest were in the "federal interest" or unknown categories.
The number of interior arrests had been in decline at that point for years. In FY 2015, for example, there were 125,211 ICE arrests, although statistics are not available for the priorities into which those arrests occurred given the fact that the Johnson memorandum was not in force until the fiscal year had begun.
In FY 2014, ICE made more than 180,000 interior arrests according to DHS's Immigration Enforcement Actions Annual Report (the actual number was 181,719 according to the Transactional Records Action Clearinghouse (TRAC) at Syracuse University, although their numbers for FY 2015 through FY 2017 differ slightly from DHS's, and TRAC refers to them as "interior apprehensions"). Those arrests are not broken down by criminality, either by DHS or by TRAC, as this was not really an issue until the Johnson memorandum.
In FY 2013, according to DHS, ICE Enforcement and Removal Operations (ERO) made 229,698 administrative arrests (matching the TRAC total of ICE interior apprehensions) and ICE Homeland Security Investigations (HSI) made an additional 11,996 administrative arrests. The nature of the HSI arrests is not entirely clear from DHS's reporting, so I will exclude them from my total.
In FY 2012, DHS reported 262,769 administrative arrests by ICE ERO, and an additional 15,937 by ICE HSI. For what it is worth, TRAC reported that there were 290,622 ICE interior apprehensions in FY 2012, which would actually be larger than the ERO and HSI arrests combined (278,706).
No matter, because those numbers were all lower than they were in FY 2011 (which differ, depending on the source): 285,088 for ERO and 16,261 for HSI as per DHS; 322,093 according to TRAC.
Both sources report that the FY 2011 number of arrests was higher than in FY 2010. According to DHS, there were 270,635 arrests by ERO and 18,290 by HSI that fiscal year, while TRAC reports that there were 314,915 ICE interior apprehensions.
To round it out, in FY 2009, there were 311,920 interior apprehensions by ICE according to TRAC, and 297,898 interior arrests according to the Pew Research Center.
Just to add an additional wrinkle, Pew states that there were 110,104 ICE interior arrests in FY 2016 as opposed to the ICE number above (114,434) while TRAC states that there were 108,372.
Pew's numbers appear to have come from a FOIA release of ICE ERO Administrative Arrests between FY 2009 and FY 2016, which are set forth in a spreadsheet. For comparison's sake, that FOIA shows 272,384 ICE interior arrests in FY 2010; 288,392 in FY 2011; 265,573 in FY 2012; 232,287 in FY 2013; 183,703 in FY 2014; 119,772 in FY 2015; and, as noted, 110,104 in FY 2016.
That said, no matter what source you refer to, the number of interior arrests by ICE under the Trump administration — even at their apex in FY 2018 — was lower than in five of the seven full fiscal years of the Obama administration.
Using the lowest number most favorable to non-enforcement in the Obama administration (DHS's report on ERO arrests in FY 2011) and the highest one most favorable to enforcement under the Trump administration (ICE arrests in FY 2018), ICE interior arrests were more than 41 percent lower under Trump in FY 2018 than under Obama in FY 2011.
Keep that in mind when, for example, the county executive of Montgomery County, Md., Marc Elrich (D), draws parallels between ICE's enforcement policies under Trump and "terrorism".
The Effect of the Johnson Memorandum and PEP
Why the decrease in removals and arrests in FY 2015 and FY 2016, and the comparable decrease when comparing the Trump administration and the first five years of the Obama administration? A large part of it has to do with the November 2014 Johnson memorandum, which was followed when ICE substituted its prior immigration enforcement protocol under the then six-year-old "Secure Communities" program with a new one, the "Priority Enforcement Program" (PEP).
Under both Secure Communities and PEP, ICE officers rely on fingerprints submitted to the FBI by states and localities when they book in criminal arrestees to identify aliens.
Prior to the Johnson memorandum, ICE officers could then issue a detainer on those removable aliens who fell within the (comparably) broader parameters of a separate memorandum issued in December 2012 by then-ICE Director John Morton (before the Morton memorandum, ICE officers were free to place detainers on any removable alien).
The PEP program, in line with the Johnson memorandum, strictly limited the ability of ICE officers to place those detainers, and to arrest, detain, and remove deportable aliens. As alluded to above, for example, only those aliens who had entered after January 1, 2014, or who had received a final order of removal on or after that date, were priorities for removal. Even many criminal grounds of removability were not covered by PEP or the Johnson memorandum.
Most significantly, PEP required a criminal conviction before an ICE officer could take action against an alien who had been arrested for a crime, as my colleague Jessica Vaughan explained in testimony in March 2016 — sometimes with dire consequences.
Trump eliminated PEP and reactivated Secure Communities in Executive Order (EO) 13768, "Enhancing Public Safety in the Interior of the United States". That EO did not return to the status quo before the Morton memorandum, however. Instead, it expanded the priorities for arrest and detention of removable aliens in the United States. That said, it did remove the limitations on immigration officers in the arrest, detention, and removal of non-priority aliens in the Johnson memorandum.
PEP and the Johnson memorandum are not the sole reasons for the decline in interior enforcement between FY 2011 and today. But they set a tone of non-enforcement of the immigration laws that flowed down to states and localities that subsequently adopted sanctuary policies (although plenty had them in place before November 2014), and that shifted the view of immigration enforcement in much of the public thereafter.
Trump tapped into concerns about such non-enforcement in the 2016 primary and general elections. But he also, in my opinion, fueled the misperception that immigration enforcement under his administration was stricter (and more effective) than it had been in the not-so-distant past.
This latter point is best reflected in Biden's campaign promises to limit enforcement of the immigration laws in response to ICE's policies under Trump.
As I have noted elsewhere, Biden has vowed to impose a 100-day moratorium on removals, and to only deport aliens who have committed felonies in the United States thereafter. If he were to follow through on these policies, he would not only be reversing Trump's immigration policies, but those set out in the Johnson memorandum — again, issued under the Obama administration — as well.
Biden has explicitly stated that he would not remove aliens who have been convicted of DUI, for example. DUI, however, was included under the list of "significant misdemeanors" that Johnson identified as priority offenses for removal. Notably, in FY 2019, 74,523 aliens convicted of DUI were removed from the United States. Under Biden, they would all likely stay and, all too often, reoffend.
Taken at his word, Biden also would not remove aliens who entered illegally, but who have not committed any other offenses. But aliens who entered illegally after January 2, 2014, were considered priorities for removal under the Johnson memorandum.
It is questionable whether anyone — or jurisdiction — would have standing to challenge those policies in court. But they are in clear contravention of Congress's directives in the INA.
And, again in my opinion, based on a misperception of ICE enforcement under the Trump administration.