In my last post, I explained how facts included in the recent "U.S. Immigration and Customs Enforcement [ICE] Fiscal Year 2019 Enforcement and Removal Operations [ERO] Report" answered questions that were raised by a November 29 TRAC study of ICE's detention of non-criminal aliens. There is a lot more in that ICE report, most of which does not paint a pretty picture for those interested in the rule of law, or for that matter the public as a whole. (My colleague Jessica Vaughan has also blogged on the report.)
The first key takeaway in that report is the significant impact that the massive influx of aliens entering irregularly at the Southwest border in FY 2019 had on ICE in its interior enforcement effort last fiscal year, which was a key focus of my last post. U.S. Customs and Border Protection (CBP) apprehended or found inadmissible 1,148,024 individuals in FY 2019, the vast majority (977,509) at the border between the United States and Mexico. The report explains how those encounters taxed ERO's limited detention space and its resources generally, even though most of those individuals were only briefly detained.
For example, the report explains that due to the huge increase in aliens encountered at the border, 63 percent of the aliens that ERO detained in FY 2019 were originally apprehended by CBP (which does not generally detain aliens after their initial processing). Aliens apprehended by CBP utilized 11 percent more of ERO's total detention space than they did in FY 2018 (when there were 521,090 CBP encounters at the Southwest border), and 23 percent more than in FY 2017 (which saw 415,517 CBP encounters).
In real numbers, aliens apprehended in interior enforcement operations by ICE occupied 22,724 detention beds at the end of FY 2017, but only 21,195 beds at the end of FY 2018. That number dropped even further, to 18,881, at the end of FY 2019. To put this into perspective, ERO utilized more detention beds at the end of FY 2019 (50,922) than at the end of FY 2018 (43,746) or at the end of FY 2017 (37,931), but because of the increased influx of migrants at the border between FY 2017 and FY 2019 and ICE's duty under law to detain many those aliens, ERO simply lacked the space to detain aliens arrested in the interior. That means that, media reports notwithstanding, ICE interior enforcement efforts are hardly a "machine".
This is not to say that those aliens encountered by CBP were simply warehoused indefinitely in ICE detention. The number of days that aliens apprehended by CBP remained in ICE custody decreased from 38.6 days in FY 2017, to 29.8 days in FY 2018, to 26.6 days in FY 2019. The number of aliens encountered by CBP and the ERO beds they utilized increased, but the average stay decreased for two likely reasons: Some aliens who were detained were removed, and (likely more often) aliens who had been detained were released to free up beds for new arrivals.
This was especially true of family units (FMUs), that is, aliens traveling with children. Because in most cases, the latest interpretation of the Flores settlement agreement requires children to be released within 20 days of arrest, and because those children are usually released with their parents (to avoid "family separation"), FMUs were, the report explained, "usually booked in and out of custody quickly." This confirms the findings of the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel in its April 16, 2019, "Final Emergency Interim Report". That report both described the phenomenon of FMU releases and explained the implications of this policy (driven by necessity due to bad law and inadequate resources) for immigration enforcement generally:
After being held for several days at inadequate and overcrowded holding areas at [Border Patrol] stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America.
By far, the major "pull factor" is the current practice of releasing with a NTA most illegal migrants who bring a child with them. The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children (UAC). After being given NTAs, we estimate that 15% or less of FMU will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals. [Emphasis added.]
Detention was not the only resource that had to be reallocated by ICE as a result of the border disaster in FY 2019, as the report makes clear:
[T]he situation at the Southwest Border has ... driven a significant increase in the number of non-detained cases ERO manages nationwide, which surpassed 3.2 million cases in FY 2019, after steadily increasing from 2.6 million cases in FY 2018 and 2.4 million cases in FY 2017. With 5,300 law enforcement officers across 24 field offices, ERO does not have sufficient resources to effectively manage the sustained increase in non-detained cases.
As a result, just more than 1.5 percent of all of the cases that ERO was managing at the end of FY 2019 involved detained aliens. And, as ICE underscores: "Detention remains a necessary tool for facilitating the repatriation of those who have received a final order of removal." In fact, "85 percent of those removed by ICE in FY 2019 had spent time in ICE detention prior to repatriation to their home country." So, the fewer aliens who are detained, the lower the number of aliens who will be removed, a problem exacerbated by the massive influx of irregular migrants at the border.
Consider all of this in terms of a key Democratic talking point, best summarized by a headline in The Atlantic in April 2019: "The Real Illegal Immigration Crisis Isn't on the Southern Border. Focusing on asylum seekers who cross land borders ignores the real problem: people who overstay their visas". So much of ICE's "bandwidth" (in D.C. jargon) is taken up simply keeping track of aliens who have entered illegally that the agency lacks the ability to apprehend visa overstays.
The report reveals that ERO's administrative arrests in the interior declined by 10 percent in FY 2019, and its arrests of convicted criminals declined by 12 percent because of its need to reallocate resources (including 350 ERO officers, 6.6 percent of the total force of 5,300) to the border. That said, 86 percent of ERO's arrests were of aliens with criminal arrests and convictions, meaning that most if not all aliens who had simply overstayed their visas had little to fear from ICE enforcement.
Those criminals were, by and large, the "worst of the worst" (my words, not ICE's) repeat offenders:
ERO continues to carry out its public safety mission with limited resources, and as a result, many of the criminal aliens it arrests have extensive criminal histories with multiple convictions or pending charges. Of the 123,128 ERO administrative arrests in FY 2019 [compared to 138,117 in FY 2018] with criminal convictions or pending criminal charges, the criminal history for this group represented 489,063 total criminal convictions and pending charges as of the date of arrest, which equates to an average of four criminal arrests/convictions per alien, highlighting the recidivist nature of the aliens that ICE arrests. [Emphasis added.]
At the same time that ICE resources are stretched the thinnest, and its focus on arrests has shifted primarily to the worst criminal violators, the agency is receiving even less assistance from its state and local "partners":
ICE has ... experienced an increase in the number of jurisdictions that do not cooperate with its enforcement efforts nationwide, and estimates that limited visibility into the actions of state and local law enforcement in non-cooperating jurisdictions has also impacted the number of detainers issued.
Well, that is ICE's problem, right? Wrong, as the report makes clear:
Detainers reduce potential risks to ERO officers and the general public by allowing arrests to be made in secure custodial settings as opposed to at-large in communities, conserve scarce government resources, and allow ERO to assume custody of criminal aliens before they have an opportunity to reoffend. In FY 2019, ERO issued 165,487 detainers; the aliens who were the subjects of these detainers had criminal histories including, but not limited to, the following crimes: more than 56,000 assaults, 14,500 sex crimes, 5,000 robberies, 2,500 homicides, and 2,500 kidnappings. [Emphasis added.]
I have written about the safety issues that result from localities refusing to comply with ICE detainers in the past, but the point bears repeating. Local jails check every arrestee before intake for weapons, and are usually well staffed by armed enforcement officers. Therefore, it is the best place for ICE officers to take custody of criminal aliens — especially violent ones. "Best" for the officers themselves, but also for the public at large and the individual aliens. If an alien is one of the 56,000 arrested for assault (let alone the 2,500 arrested for homicide), for example, that alien likely has a tendency toward violence disproportionate to the public as a whole.
When ICE tries to arrest a removable alien, that alien is facing the likely prospect of removal from the United States and return to his or her own country. Avoiding that arrest enhances the alien's likelihood of remaining in the United States, which was the alien's intent to begin with. When a locality refuses to comply with a detainer, ICE has to go pick up that alien facing expulsion elsewhere. ICE (at least) wants that criminal off the street, and so its officers must apprehend the alien at the alien's home or in a public place. That arrest will occur peacefully in the best-case scenario, but with a violent criminal, there is logically a higher likelihood that an alien will use force to abscond by, say, pulling a gun or stealing a car. Every locality that refuses to honor an ICE detainer is setting up that latter scenario, but to what end?
Sanctuary jurisdictions want to make the purely political statement that they do not support immigration enforcement, usually with the fig leaf that noncompliance with ICE is "increasing public safety", that is, the cops (or more often their political superiors) are trying to "gain[] the trust of immigrants". My colleagues and I have already shown that this is a canard.
That said, however, there are three arguments against this position. One, "immigrants" are not a monolithic group — no lawful permanent resident likely wants criminals turned back on the street (assuming they are not criminals themselves), for example. Two, does it really increase the trust of any population to have the local cops return otherwise removable violent criminals to the community? Three, as the ERO report shows, most non-criminal aliens are unlikely to be arrested by ICE to begin with.
In the best (realistic) light, sanctuary jurisdictions have made the law-enforcement bet that ICE will act professionally and contain a potentially violent situation in which a dangerous alien wants to flee, so that local politicians can blithely roll along with their sanctimonious #resistance. In the worst light, those jurisdictions want to have it both ways, demanding SCAAP funding because they have to deal the criminal effects of a lack of immigration enforcement while blaming any resulting carnage inflicted by an absconding criminal alien on those evil cowboys at ICE.
In any event, sanctuary jurisdictions are making it harder for ICE to use its limited resources to apprehend criminal aliens.
Finally, the report, in extremely elliptical terms, shows the weaknesses of the "Alternatives to Detention" program. I will discuss those findings in my next post.