The Departments of Justice (DOJ) and Homeland Security (DHS) this week issued the "Alien Incarceration Report, Fiscal Year 2018, Quarter 2". The results of that report are eye-opening, to say the least.
The report states that 59,945 "known or suspected aliens" were in DOJ custody at the end of the second quarter of FY 2018 (March 31, 2018). It explains how those departments arrived at their findings:
Pursuant to E.O. 13768, [U.S. Marshals Service (USMS)] and [Bureau of Prisons (BOP)] provide U.S. Immigration and Customs Enforcement (ICE) with data on a quarterly basis regarding inmates and detainees identified as foreign-born during their criminal case process. In turn, ICE checks USMS and BOP data against its ICE Enforcement and Removal Operations (ERO) case management system, the ENFORCE Alien Removal Module (EARM), and the U.S. Citizenship and Immigration Services Central Index System to identify aliens with immigration records and pending or completed removal proceedings.
This approach allows ICE to place each known or suspected alien within one of the following five categories:
- Under Investigation: Further investigation by ICE is required to confirm alien status and establish potential removability.
- Under Adjudication – Legal: The person is lawfully present in the United States but has been charged as a removable alien; removal proceedings are ongoing.
- Under Adjudication – Illegal: The person is unlawfully present in the United States and has been charged as a removable alien; removal proceedings are ongoing.
- Ordered Removed: The person is an alien who has been issued a final order of removal or has agreed to depart voluntarily, and therefore has no lawful status.
- Relief/Benefit: The person is an alien who has been granted relief or protection from removal that would generally be considered lawful status. However, depending on the nature of the inmate's criminal offense, his or her status may be subject to review and rescission or revocation by DHS or an immigration judge.
Once ICE checks the USMS and BOP data, it returns its findings to USMS and BOP. That data is then utilized by USMS and BOP to generate statistics relevant to E.O. 13768, including the primary offenses committed, costs of incarceration, and other factors affecting public safety and the criminal justice system. USMS and BOP are continuing to develop their process to allow for more robust reporting of information related to E.O. 13768.
Of those 59,945 "known or suspected aliens":
- 36,235 were confirmed aliens with orders of removal or who had agreed to depart voluntarily,
- 16,426 were still under investigation by ICE to determine alienage,
- 4,903 were aliens who were illegally present and undergoing removal proceedings, and
- 1,281 were legally present and undergoing removal proceedings.
- 1,100 aliens in DOJ custody had been granted relief or protection from removal.
Those aliens were split between "38,391 known or suspected aliens [who] were in BOP custody (approximately 21 percent of the 183,291 total individuals in BOP custody) on March 31, 2018," and "21,554 confirmed aliens [who] were in USMS custody, along with 2,075 individuals for whom alienage had not yet been determined," as of that date.
There have long been suspicions that the number of aliens in DOJ custody are skewed by the large number of immigration detainees that the department is holding for immigration violations, including human trafficking, smuggling, and illegal reentry. Interestingly, however, 46 percent of known or suspected aliens in BOP have actually been convicted of "drug trafficking or other drug-related offenses (such as conspiracy to commit drug trafficking offenses, or smuggling large amounts of drugs on the high seas) as their primary offense." Thus, a significant number of those suspected aliens in federal prison have drug offenses.
And those drug offenses are extremely significant:
Of the 17,540 known or suspected aliens in BOP custody with a drug offense as their primary offense, 17,354 (approximately 99 percent) were convicted of drug trafficking or other drug trafficking-related crimes. Only 186 (approximately one percent of the known or suspected aliens with a drug offense as their primary offense) had a primary offense of simple possession — and many of these were traffickers who were caught with significant amounts of drugs but were convicted of lesser offenses as a result of circumstances such as plea bargains.
This is consistent with my experience as an immigration judge, where I had jurisdiction over two federal facilities, Federal Correctional Institution (FCI) Moshannon and FCI Allenwood, in addition to a docket of other aliens who completed their federal time. Curiously, many fought removal asserting that they would be subject to torture if returned to their home countries, at the hands of the very drug-trafficking organizations for whom they previously worked. Those claims, which were rarely successful, revealed the vicious nature of those drug-trafficking organizations.
Not surprisingly, immigration-related offenses are the second-most common convictions that brought known or suspected aliens into BOP custody. These were not simply illegal entry cases, however. As the report noted, the offenses included "human trafficking or illegal reentry after deportation".
Nine percent of those known or suspected aliens in BOP custody are awaiting trial. In addition, 5 percent had as a primary offense fraud, 4 percent weapons offenses, 3 percent racketeering and continuing criminal-enterprise offenses (including murder for hire), and 2 percent obscene material offenses (including child pornography). The report continues: "Other primary offenses committed by smaller numbers of known or suspected aliens in BOP custody included kidnapping, murder, larceny, terrorism, escape, bribery and extortion, rape, and other offenses." As the report notes "aside from terrorism-related offenses, many of these types of offenses are typically prosecuted at the state and local level," for obvious reasons: absent special circumstances, they are state-level crimes. The fact that those aliens caught federal charges simply underscores the significance of their offenses, and also likely reflects why they are such a small proportion of those incarcerated at the federal level.
The report includes a rogues gallery of aliens who been convicted of these offenses. One of the most interesting is Bryan Galicia Barillas, a.k.a. "Chucky", a Guatemalan national who was convicted in federal District Court in Massachusetts. Barillas received a 22-year sentence after he pleaded guilty to RICO conspiracy. The report explains:
The racketeering activity by Galicia Barillas, a member of MS-13's Enfermos Criminales Salvatrucha (ECS) clique, included his involvement in the death of an innocent bystander in Chelsea. On October 18, 2014, Galicia Barillas and Hector Ramires, another member of the ECS clique, encountered a group of individuals in Chelsea suspected of belonging to a rival gang. Ramires, who was armed with a weapon that Galicia Barillas had provided on an earlier occasion, shot at one of the suspected gang rivals and missed, killing an innocent bystander who was looking out a nearby window of a room she shared with her three children. Galicia Barillas was a juvenile at the time of the murder. Galicia Barillas also accepted responsibility for his role in a September 8, 2014 stabbing and attempted murder of an individual in Chelsea, which Galicia Barillas also committed when he was a juvenile. Shortly after he turned 18, Galicia Barillas was involved in an April 2015 conspiracy to kill an MS-13 member that the gang believed was cooperating with law enforcement, and a May 26, 2015, stabbing and attempted murder of a suspected rival gang member in Chelsea. For his part, Ramires pled guilty in October 2017, to a RICO conspiracy involving murder and was sentenced in April 2018 to 27 years in prison.
Remember Barillas' case the next time anyone attacks the president for raising the issue of alien gang members in the United States. Again, most aliens in United States are not dangerous criminals, their illegal entry notwithstanding. Many if not most of the gang members, on the other hand, are bad people, the subjective observation borne of experience.
For those not clear on USMS' role in the incarceration process, that component houses and takes care of pre-trial federal detainees, as well as those who have been sentenced but are awaiting transfer to BOP custody.
With respect to those in USMS custody, the report states:
Confirmed aliens, identified through self-reporting or through confirmation of alienage by ICE, comprised 38 percent of the 56,436 total individuals in USMS custody. Of those confirmed aliens, 70 percent (15,065 individuals) had removal orders, 20 percent (4,383 individuals) had their immigration status currently under investigation, and approximately seven percent (1,587 individuals) were unlawfully present and in removal proceedings. Only one percent (274 individuals) of the confirmed aliens in USMS custody were lawfully present and in immigration proceedings. Another one percent (245 individuals) of the confirmed aliens in USMS custody were in receipt of a grant of protection or relief from removal.
Not surprisingly, 56 percent of the 21,554 confirmed aliens in USMS' custody were there for a primary offense related to immigration, including human trafficking and illegal reentry. That report continues, however:
Approximately 23 percent (4,864 individuals) of the confirmed aliens in USMS custody were in custody for a primary offense related to drugs. Other primary offenses included violations of conditions of supervision (1,062 individuals, approximately five percent of the aliens in USMS custody), property offenses (947 individuals, approximately four percent of the aliens in USMS custody), weapons offenses, and violent offenses (406 and 406 individuals, respectively, each approximately two percent of the aliens in USMS custody). Approximately four percent (955 individuals) of the aliens in USMS custody were material witnesses, while another four percent (796 individuals) were in custody for an unlisted offense or were in USMS custody due to a writ, hold, or transfer.
Again, not surprisingly, 69 percent of those in USMS' custody (14,116 individuals) were apprehended in the southwest region, likely reflecting the large number of immigration and drug-related offenses for which they were charged.
Finally, in the second quarter of FY 2018, those aliens cost USMS $136 million in housing costs. This is a staggering sum, especially since many of those individuals should never have been in the United States to begin with.
The state figures in that report are somewhat less than helpful, because they are incomplete. The report notes that "43,617 noncitizen individuals in custody ... represent an undercount, because five states — including California, Nevada, and Oregon — did not report citizenship data." This is significant given the fact that 2.2 million illegal aliens resided in California in 2016, according to the Pew Research Center, representing some 20 percent of the total illegal population in the United States. It is possible that those 2.2 million aliens are more law-abiding than the average, but I doubt that to be true.
Interestingly, the Pew Research Center indicates that the 210,000 illegal aliens in Nevada represent some 7.1 percent of the population, a higher percentage than any other state by a long shot, and 21 percent higher by percentage than California, at 5.6 percent of the total population. Again, excluding those illegal aliens in the Silver State almost definitely skews the number of total aliens in state criminal custody lower by a significant margin.
The DHS/DOJ report does include statistics from the Texas Department of Public Safety (DPS), which "publishes data online regarding criminal alien arrests and convictions," with an important caveat: "These data do not account for all aliens in the Texas criminal justice system, as they are limited to criminal alien arrestees who have had prior interaction with DHS resulting in the collection of their fingerprints." The crimes reported by DPS are shocking:
According to DHS status indicators, over 279,000 criminal aliens have been booked into local Texas jails between June 1, 2011 and January 31, 2019, of which over 189,000 were classified as illegal aliens by DHS.
Between June 1, 2011 and January 31, 2019, these 189,000 illegal aliens were charged with more than 295,000 criminal offenses which included arrests for 539 homicide charges; 32,785 assault charges; 5,737 burglary charges; 37,234 drug charges; 403 kidnapping charges; 15,991 theft charges; 23,701 obstructing police charges; 1,660 robbery charges; 3,473 sexual assault charges; 2,170 sexual offense charges; and 2,976 weapon charges. DPS criminal history records reflect those criminal charges have thus far resulted in over 120,000 convictions including 238 homicide convictions; 13,662 assault convictions; 3,158 burglary convictions; 17,930 drug convictions; 175 kidnapping convictions; 7,100 theft convictions; 11,336 obstructing police convictions; 1,013 robbery convictions; 1,710 sexual assault convictions; 1,153 sexual offense convictions; and 1,282 weapon convictions.
Again, every one of these heinous crimes could have been prevented if we simply enforced our laws at the border. But I digress.
The DHS/DOJ report, as incomplete as it is, still provides important information for policy experts and members of Congress to consider when assessing what resources should be dedicated to immigration enforcement. In much the same way that chopped wood warms twice, border enforcement preserves precious BOP and USMS resources that could be used for native-born and naturalized citizens. Further, the human costs, in particular the victims of violent offenses and those who are trapped in the grip of drug abuse and addiction, would not have to suffer from the predations of criminals committing violent and drug-related offenses.
Keep these statistics in mind when you hear talk of "peaceful" immigrants entering illegally who are simply seeking a better life in the United States. Not all of them are criminals, and likely most aren't, either. But those who are criminals spread pain and death, and their crimes are preventable. If only Congress had the will.