What Does TRAC's New 'Non-Criminal' Detention Data Mean?

Confusing report leaves out key information

By Andrew R. Arthur on December 3, 2019

The Transactional Records Access Clearinghouse (TRAC) issued a report last week captioned "Growth in ICE Detention Fueled by Immigrants with No Criminal Conviction". That report is notable for what it does not analyze, more so than what it does.

It begins:

According to data recently obtained by TRAC, the growth in detention by Immigration and Customs Enforcement (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.

This would suggest that ICE is now apprehending and detaining more aliens by percentage who do not have criminal records than it has in the (recent) past. I say recent because a four-year analysis is hardly enough for a historical record, at least for those of us who have worked in immigration and can remember what reasonable (and yet, even then, hardly robust) immigration detention looked like in the not-so-distant past.

Only during the later years of the Obama administration did the issue of detention of non-criminal aliens become an issue. As an immigration judge in a detained court from 2006 to around 2011, I saw plenty of removable aliens without convictions.

The change is best evidenced by a November 2014 memorandum issued by then-Secretary of Homeland Security Jeh Johnson captioned "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants". Those policies "prioritized" the detention and removal of a limited number of aliens with criminal convictions, as well as those who were apprehended at the ports of entry or while entering illegally. Prior to the issuance of such "priorities", the only issue with respect to detention and removal was whether an alien was removable, with few objective observers arguing that removable aliens who had only status violations (for entering illegally without being apprehended or overstaying their visas) should be left alone in the United States.

In any event, assuming that criminal convictions are an important factor in ICE detention decisions, TRAC fails to explain whether the "detainees with no criminal history" include aliens in expedited removal under section 235(b) of the Immigration and Nationality Act (INA) (that is, who are apprehended after illegally entering the United States or after being deemed inadmissible at the ports of entry), including the significant subset of those aliens who claim "credible fear". Under that provision of the INA, those aliens are required to be detained until they are removed or until their asylum applications are considered.

ICE bears the responsibility for detaining those aliens (other than unaccompanied alien minors (UACs), who are sent to the Department of Health and Human Services for placement in shelters run by the Office of Refugee Resettlement (ORR) as soon as they are processed by U.S. Customs and Border Protection (CBP). This includes most of the aliens who are going through the credible-fear process before asylum officers at U.S. Citizenship and Immigration Services (USCIS), who are actually detained (an unspecified number are released on parole).

I would note, as an aside, that many aliens travelling in family units (FMUs), that is, an adult or adults travelling with a child or children, had been released by CBP early in FY 2019 without undergoing expedited removal, as detailed in the Homeland Security Advisory Council's CBP Families and Children Care Panel's "Final Emergency Interim Report". That practice, known as "catch and release", was ended in late September 2019. Even now, however, due to court interpretations of the Flores settlement agreement, those FMUs are usually released as a family within 20 days.

TRAC suggests, without explicitly stating, that some significant proportion of those expedited removal/credible fear aliens may fall within this population:

In addition to finding higher rates of detainees with no criminal convictions over time, TRAC also finds that the distribution of detainees without criminal convictions is institutionally uneven: the majority (85%) of ICE's nearly 32,000 detainees with no criminal history in April 2019 are held in just one-third of ICE's 214 detention centers. Table 2 [therein] includes all detention centers where 50% or more of the detained population had no criminal conviction on record. ... The 70 detention centers in Table 2 held a combined 26,767 detainees with no criminal conviction.

Significant among the detention centers listed ... are the South Texas Family Residential Facility and Karnes County Civil Detention Facility, both of which detain mothers with children who are seeking asylum in the United States. Many detention centers, such as Port Isabel SPC and El Paso SPC, are located near the U.S.-Mexico border. Yet many are not: Tallahatchie County Correctional Facility in Mississippi, Stewart Detention Facility in Georgia, and Krome North SPC in Florida are located far from ports of entry and serve as key nodes in ICE's nationwide detention network. Still others, such as Tacoma ICE Processing Center and CCA Northeastern Ohio Correctional are actually much closer to the U.S.'s northern border. [Emphasis added.]

The fact that a large proportion of the non-criminal detained population 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.

In a Law360 article on this report captioned "Most Recent ICE Detainees Found To Lack Criminal Record" (behind a paywall), Susan Long, a co-founder and co-director of TRAC and a professor of managerial statistics at the Whitman School of Management at Syracuse University, expounded on the findings of the report, but not on this question. She stated: "There's a big growth in the number of individuals who have no recorded prior conviction, even for such things as simple traffic offenses or illegal entry or anything like that." While the reference to aliens without convictions for illegal entry would seem to suggest that a portion of the population of detained non-criminal aliens are not in expedited removal/credible fear proceedings, other evidence would suggest that is not the case.

First, that article quotes from a statement by ICE acting press secretary Bryan D. Cox, who made clear 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." That would indicate that CBP apprehensions actually do make up a significant number of the non-criminal ICE detainees, because they are aliens who are not arrested by ICE, because they are apprehended by CBP.

Interestingly, however, the article includes a rejoinder to Cox by Long, who contended "if that were true, then 'that would mean that those people who don't have any record are the ones who have a greater probability of being locked up.'" I am not really sure what she meant by that contention, unless it was to suggest that ICE was using resources to arrest criminal aliens only to release most of them right away, without ever detaining them. She never explains why, however, that would be true; it almost definitely is not.

Of course, many of the aliens referenced by Cox who have outstanding orders of removal and are arrested by ICE would themselves likely have no criminal record (in the United States, at least). It is hardly exceptional that ICE would make it a priority to arrest and detain such individuals until they can be removed (except to the Washington Post) — that is a significant part of the agency's mission.

Second, despite the various iterations of "zero tolerance" policies, under which aliens who enter illegally are supposed to be prosecuted for illegal entry under section 275 of the INA or illegal reentry under section 276 of the INA, most aliens who entered (or reentered) illegally were not prosecuted under those provisions.

As the Congressional Research Service (CRS) noted in a February 2019 report, "zero tolerance" as it related to adults in FMUs was in effect from early April to late June 2018. According to the Department of Justice's Bureau of Justice Statistics, in FY 2018 (which is also the latest year for which statistics are available), 61,562 individuals were prosecuted for illegal entry, and 31,902 for illegal reentry — 93,464 in total.

That same fiscal year, however, according to CBP, 396,579 aliens were apprehended entering the United States illegally. Even factoring out UACs and FMUs, 239,331 other aliens were apprehended by the Border Patrol that year. This means that, at a minimum, 145,867 aliens who were apprehended by Border Patrol for entering illegally (60 percent) were not prosecuted for that offense. Many, if not most, of those aliens would have been detained for some period of time by ICE, particularly aliens who were not Mexican nationals (who can be quickly returned if they do not claim credible fear), and conversely, Mexican nationals who claimed credible fear.

Third, aliens deemed admissible at the ports of entry are not charged with illegal entry or illegal reentry, but are still amenable to expedited removal (except UACs). In FY 2018, there were 115,887 such inadmissible aliens. Even subtracting 53,901 FMUs and 8,624 UACs, there were still 53,362 inadmissible aliens apprehended at the ports along the Southwestern border in FY 2018. Again, aside from Mexican nationals who had asked to be returned, most would likely have been detained by ICE for at least some period of time.

And, fourth, of course, the number of illegal entrants increased significantly in FY 2019, to 851,508, while 126,001 aliens were deemed inadmissible at the southwestern ports of entry. Again, factoring out UACs (who would have been sent to ORR), that accounts for 896,875 aliens. The latest statistics on prosecutions under section 275 and 276 of the INA have not been released, but if trends hold, most would not count as "criminal aliens" under Long's definition, but would still have been subject to detention by law, at least for some period of time.

The other group that TRAC apparently included within the group of non-criminal aliens are aliens who were arrested, but not convicted, of crimes. According to ICE, it apprehended 32,977 such aliens in FY 2018, 21 percent of its total arrests that year. Even if those aliens have not been convicted of criminal offenses, they garnered enough attention from local authorities to result in an arrest for a crime. The detention of such aliens on status violations saves localities the costs of prosecution and confinement, while protecting the community from the dangers that the guilty, but not convicted, pose.

Again, the issue of whether a removable alien has a criminal conviction or not has no bearing on whether that alien is removable and should be removed — by law, a status violator with no relief should be removed from the United States. In the words of the late civil-rights icon (and then-chairwoman of the bipartisan U.S. Commission on Immigration Reform) Barbara Jordan:

Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave. The top priorities for detention and removal, of course, are criminal aliens. But for the system to be credible, people actually have to be deported at the end of the process. [Emphasis added.]

And as the Supreme Court has recognized, detention is a critical element of that deportation process: "Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation."

That said, however, if TRAC wants to make the point that a larger percentage of aliens without criminal convictions are currently being detained by ICE, more information about that population of "non-criminal" aliens would inform the discussion. Then, the American people can decide whether this is a wise use of limited government resources.