The Wall Street Journal ran an editorial this week headlined “Mass Deportation by the Numbers”, in which the paper claimed “the Trump Administration’s rhetoric about deporting criminals doesn’t match its current much broader policy of mass deportation”. I question the statistics the editorial board relied upon, because they don’t match the ones ICE is statutorily required to publish. For my hefty monthly subscription fee, I expect more facts, better analysis, and less spin than the editorial board offered.
A Quick Tutorial on the “Deportation” Process
If everything you know about “deportation” was learned by watching television or reading most major outlets, you may assume it’s a perfunctory affair. It isn’t.
ICE officers don’t randomly grab suspected aliens, toss them into unmarked vans, or “disappear” them into shadowy cells before placing them on military jets to speed them off to faraway lands. That is a fib, a fable, a tale told by partisans to frighten and enrage the unwary and easily baited, often for political advantage. Here are the facts.
ICE officers can engage in casual conversation with anyone they like — including suspected aliens, just the same as you and I can.
Once the suspect objectively believes they can’t walk away, however, the encounter becomes what’s known as a “Terry stop”, and the officer must have “reasonable suspicion” that individual: (1) is an alien removable from the United States; (2) is committing a misdemeanor in the officer’s presence; or (3) is committing or has committed a felony.
At that point, the ICE officer cannot “arrest” that person — that is, take the suspect into custody and transport that person elsewhere — unless the officer has developed “probable cause” that one of those three conditions exists.
If the individual (citizen or alien) is arrested on criminal grounds, the arrestee will be briefly detained while a prosecution determination is made, or if the individual is a fugitive, while a decision is made to send that individual to the jurisdiction seeking his or her custody.
Alternatively, ICE officers can make an immigration arrest “on warrant”.
Specifically, section 236(a) of the Immigration and Nationality Act (INA) allows ICE officers to “arrest and detain” a suspected removable alien “pending a decision on whether the alien is to be removed from the United States” with an administrative warrant, issued by the agency itself.
Regardless of whether an alien removable from the United States is arrested with a warrant or without one, if it’s a civil immigration arrest, the alien will be briefly detained for a determination on whether the alien will remain in ICE custody, be released on a bond of at least $1,500, or be “conditionally paroled”.
If ICE decides to hold the alien in custody, the alien can ask an immigration judge to “reconsider” that continued custody determination, and if the immigration judge also finds that the alien should remain in custody or sets a high bond, the alien can seek a separate review from the Board of Immigration Appeals (BIA).
There are only three reasons ICE can continue to detain an alien arrested on civil immigration grounds: (1) the alien is a “danger”, either to the community or the national security; (2) the alien is a flight risk; (3) the alien has received “due process” already and is under a final order of removal.
In that third scenario, section 241(a)(2) of the INA requires ICE to take the alien into custody and detain the alien for at least 90 days (“the removal period”) pending the alien’s removal from the United States.
Keep that section 241(a)(2) mandate in mind when I discuss the Journal editorial below, but in any event, immigration detention is not “punitive”, that is, it isn’t intended to punish the alien for any transgression.
Rather, aliens can only be detained on civil immigration grounds to ensure they appear at their removal proceedings and/or so that ICE can find them to deport them.
If the alien is not under a final removal order, ICE must serve them with a charging document called a “Notice to Appear” (NTA) detailing the immigration charges lodged against the alien, and placing the alien into “removal proceedings” under section 240 of the INA.
Aliens in removal proceedings are known as “respondents”, and all respondents have (among other rights) a “right to counsel” at no expense to the government under section 292 of the INA, the right to have the proceedings interpreted into a language they understand, the right to offer evidence and to object to evidence offered by the government, and the right to appeal an adverse decision to the BIA.
And if the respondent doesn’t agree with the BIA’s decision, section 242 of the INA allows the alien to file a petition with the U.S. circuit court with jurisdiction over the place where the immigration judge issued his or her decision to review the BIA’s opinion.
That’s more “due process” than most other civil litigants receive in state or federal courts, and there are any number of organizations and attorneys who are ready and willing to sue to ensure alien respondents receive it before ICE can “deport” them from the United States.
“Let’s Look at How the Trump Administration’s Deportation Policy Is Being Implemented”
With that background, I turn to the Journal editorial, which promises to “look at how the Trump Administration’s deportation policy is being implemented by the numbers”.
Here are some key data points cited by the Journal editorial board:
At the beginning of 2025, 87% of ICE arrests were immigrants with either a prior conviction or a criminal charge pending, according to ICE data obtained by the Deportation Data Project. Only 13% of those arrested at the beginning of 2025 didn’t have either a conviction or a pending charge.
By October 2025, the percentage of arrested immigrants with a prior conviction or criminal charge had fallen to 55%.
Since October, 73% taken into ICE custody had no criminal conviction and only 5% had a violent criminal conviction, according to a Cato Institute review of ICE data.
Syracuse professor Austin Kocher, who tracks official ICE data, finds that between Sept. 21, 2025, and Jan. 7, 2026, single-day ICE detentions increased 11,296. But only 902 of those were convicted criminals, 2,273 had pending criminal charges and 8,121 were other immigrant violators. ICE arrests have been trending upward since January 2025, but criminal arrests have plateaued.
If you look closely at those statistics, you’ll notice they bounce around between ICE “arrests” and ICE “detentions”.
As explained above, immigration “custody” totals are a subset of immigration “detentions”, which in turn are a subset of immigration “arrests”. Simply put, ICE can’t keep an alien in custody until officers first arrest that alien and then detain that alien.
That’s because not every alien ICE arrests — on criminal grounds or civil immigration ones — is “detained” by ICE for any meaningful period, and even fewer are held in ICE custody; many are released by the agency itself, by immigration judges, and by the BIA.
These terms all have meaning, and yet the Journal collapses them into one class by failing to distinguish between ICE arrests and detentions, and then by failing to consider continued “custody” at all except in passing.
ICE’s Duty under the Immigration and Nationality Act
As I have recently explained (twice), ICE has a statutory duty to find removable aliens and to place them into removal proceedings, but I will explain that duty again, lest there be any confusion.
If ICE identifies an alien under a final order of removal, the agency has an obligation under section 241(a)(2) of the INA to take that alien into custody and to hold that alien in custody regardless of whether the alien has a criminal history or not.
As of November 2024, there were more than 1.44 million aliens with final, but unexecuted, removal orders, and in FY 2025, immigration judges added nearly 500,000 more final orders to that total.
The detention mandate in section 241(a)(2) of the INA isn’t a dusty relic of a bygone age: Last January, Congress put teeth in that requirement when it passed the Laken Riley Act (by broad, bipartisan margins) by giving state attorneys general authority to sue DHS for not taking those aliens into custody.
Similarly, the grounds of inadmissibility (in section 212 of the INA, for aliens who haven’t been lawfully admitted) and deportability (in section 237 of the INA, for aliens lawfully admitted but still removable) are written in “mandatory”, not “precatory” terms.
If ICE, in the course of a consensual conversation or a Terry stop determines an individual is a removable alien who isn’t under a final removal order, the officer must either take that alien into custody and serve that alien with an NTA, or detain the alien long enough to get an address where the NTA can be served and the court can send the alien hearing notices.
It would be unacceptable for an EPA official, an IRS agent, or any other federal officer to find an individual engaged in an ongoing violation of federal law and simply allow that individual to walk away and continue to offend.
The same is true when it comes to ICE and immigration violations. But not all removable aliens ICE comes into contact with are detained, and not all detained aliens are held in continued ICE custody.
Who Is Being Held in Continued ICE Custody?
One datapoint you won’t find in the Journal editorial is reference to any official government statistics, which is odd because section 216 of the Department of Homeland Security Appropriations Act for FY 2020 (S. 2582) requires DHS to “make available on a publicly accessible website, a report detailing data on aliens detained ... in the custody of” ICE, and to update it every seven days.
ICE dutifully complies with that requirement, producing and publishing an Excel spreadsheet under the header “Detention Statistics” attached to its “Detention Management” web page.
That Excel spreadsheet reveals that ICE has nearly 69,000 aliens in its custody, 11,679 of whom were encountered by CBP at the border and 57,311 of them arrested by ICE in the interior.
Throw out the aliens first encountered by CBP, because CBP is under a different statutory mandate (under section 235(b) of the INA) to hold them in its custody, and focus on the ones who were initially arrested by ICE.
Of those 57,311 aliens, 16,627 (29 percent) have criminal convictions and 16,040 (28 percent) have criminal arrests — meaning 57 percent of all the aliens ICE has arrested, detained, and is holding in its custody have “criminal histories”.
For what it’s worth, 1,102 of the aliens detained in ICE custody who were first encountered by CBP (9.4 percent of that total) have criminal convictions, and 1,841 of them (15.8 percent) have criminal arrests.
In other words, even if you count all those aliens who are in ICE custody, including CBP border and port encounters, more than half of them have criminal histories.
That’s a far cry from claiming that the “Trump Administration’s rhetoric about deporting criminals doesn’t match its current much broader policy of mass deportation”, which the Journal editorial board does.
Of course, there’s no way to know how many “other immigration violators”, aliens currently in ICE detention with no identified criminal histories, were arrested, detained, and are in custody because they are under final orders of removal.
As noted, both the INA and the Laken Riley Act require ICE to arrest those aliens and hold them for 90 days pending removal. The latter act became law less than a year ago, its mandates are directly relevant to any critique of “noncriminal aliens” in ICE custody, and yet the Journal editorial board ignored it entirely.
As a subscriber, I expect better of the newspaper, and you should too.
Moreover, it’s ironic that the Journal first references the large percentage of ICE detainees with criminal convictions at the end of the Biden administration, suggesting that was a reasonable baseline.
That percentage is high because the Biden administration largely ignored noncriminal aliens entirely and was extremely choosy about the criminal aliens it would allow ICE officers to investigate, let alone detain.
In fact, the states of Texas and Louisiana sued DHS under Biden to force it to take more dangerous criminal aliens into custody, a challenge the last administration took all the way to the Supreme Court (successfully) to defend its right not to take criminal aliens into custody.
With limited exceptions, Biden’s DHS also refused to allow ICE to take aliens under final orders into custody, which explains why more than 1.44 million of them were at large in November 2025.
Biden’s refusals to take those “final order” aliens and the criminals identified by Texas and Louisiana into custody were catalysts for the Laken Riley Act.
ICE’s current enforcement statistics are more in line with previous administrations than Biden’s were; thus the “beginning of 2025” ICE arrest number is a poor reference point for what should have been a sensible analysis.
Two Last Points
There are two last points in the Journal editorial that merit response.
The first is the caption on a photo that appears at the top of that piece: “Customs and Border Protection agents arrest a man after not providing documents proving he's a US citizen, Minneapolis, Jan. 11.”
I wasn’t there, and don’t know the man, or the agents, or even any of the facts. But a simple failure to produce U.S. citizenship documents is almost definitely not why that “arrest” took place.
Neither CBP nor ICE has a remit to arrest people who are unable to produce “documents proving” they are citizens, and in fact both lack authority to arrest even most aliens in the United States.
Rather, as explained above, immigration officers are authorized to arrest individuals without a warrant if they have probable cause to believe those individuals are committing or have committed certain criminal offenses or are aliens subject to removal.
To be clear: Nothing requires U.S. citizens to offer proof of their citizenship except in extremely limited situations, such as when they are seeking admission at ports of entry or claiming certain federal benefits (neither of which appears to be occurring in the photo).
That said, falsely or fraudulently telling a government official you’re a U.S. citizen is a federal felony under 18 U.S.C. § 911 and a (very serious) civil immigration offense under section 212(a)(6)(C)(ii) of the INA.
If this individual had claimed to be a citizen and CBP had probable cause to believe he wasn’t, it would have been appropriate for agents to arrest him to verify his claim or alternatively to prosecute him on either civil immigration or federal criminal grounds.
That’s very different, however, from the Journal’s suggestion that this man was arrested simply because he couldn’t “provid[e] documents proving he's a US citizen”, and the paper knows (or should know) it is.
Second, the editorial references a Journal op-ed by Minnesota Gov. Tim Walz (D) disputing Trump II claims “that Minnesota jails release ‘the worst of the worst’”, and arguing instead that: “There is not a single documented case of the [Minnesota Department of Corrections’] releasing someone from state prison without offering to ensure a smooth transfer of custody.”
What both the governor and the Journal fail to mention, however, is that under a February 2025 opinion issued by Minnesota Attorney General Keith Ellison (D), state law there “prohibits state and local law enforcement agencies from holding someone based on an immigration detainer if the person would otherwise be released from custody”.
If ICE officers want to wait at the jailhouse door for Minnesota or its subdivisions to release a criminal alien, the state will tell the agency where and when to find them, but otherwise local governments in the Land of 10,000 Lakes won’t facilitate the immigration arrest.
That’s hardly what I would call “ensur[ing] a smooth transfer of custody”, and to its credit, the Journal admits that “there’s no doubt Minneapolis and St. Paul have ordinances that bar using resources to help ICE apprehend people based on immigration status”, which “complicates ICE’s job and makes confrontations more likely”.
Respectfully, however, more elucidation and at least some reference to the Ellison opinion would have benefitted those (like me) who pay a hefty fee of $41.72 to receive the paper each month.
As I recently explained, this dichotomy of “noncriminal removable aliens good” and “criminal removable aliens bad” not only finds no sanction in the INA, but it is of recent vintage, dating to the last years of the Obama administration.
ICE has a duty to place the removable aliens it finds into removal proceedings, period. That said, official ICE statistics show that the majority of aliens the agency has arrested and is holding in its custody have criminal histories, regardless of what the Journal editorial board may want you to believe. For my monthly subscription, I expect all the facts.