In my last post, I analyzed new proposed DHS policies that would drastically limit ICE enforcement. That analysis was based on reporting in a February 7 Washington Post article captioned "New Biden rules for ICE point to fewer arrests and deportations, and a more restrained agency". To read that article, one would assume that ICE had engaged in unprecedented enforcement under former President Trump. In reality, the opposite is true.
Here is an excerpt from that article:
Trump made ICE a major tool of his domestic policy agenda, lavishing agents with praise and exhorting them to deport "millions" of immigrants. ICE officials said they continued to prioritize criminals under Trump, but the agency's more aggressive enforcement posture also caused the deportation of families, business owners with community ties, and minor traffic offenders, triggering a backlash that included calls from some Democrats to "abolish ICE."
I have great respect for the authors of that article, but "lavishing agents with praise" is a loaded phrase ("praising" makes the same point more objectively). Nonetheless, the excerpt raises the question that article did not answer: Was ICE enforcement under Trump that different than it had been in the past? With the exception of the last two years of the Obama administration, the answer is "No, it was actually more restrained."
As I explained last month, 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".
Various administrations have fudged the latter number, but the former has been more or less consistently interpreted over the years. In the interior, administrative immigration arrests are within the purview of officers in ICE Enforcement and Removal Operations (ERO).
Here's how ICE ERO interior arrests under Trump compared with the agency's performance in the last partial fiscal year (FY 2009) of the George W. Bush administration and throughout the Obama administration:
The figure shows that ICE ERO interior arrests fell from FY 2014 through FY 2016, and while arrests increased between FY 2017 and FY 2018, they fell again in FY 2019 and fell further in FY 2020.
Most notable, however, is the fact that at no point in the Trump administration did the number of ICE ERO interior arrests reach the level they were at in FY 2014, and those arrests had actually been in decline since FY 2011.
Equally notable is the focus that ICE under the Trump administration placed on interior arrests of criminals.
Of the aliens ICE ERO arrested in FY 2017, 73.7 percent had criminal convictions, and an additional 15.5 percent had pending criminal charges. In FY 2018, 66.3 percent had criminal convictions and 20.8 percent had pending charges. In FY 2019, 64.3 percent had convictions, while 21.6 percent were facing criminal charges. In FY 2020, 68 percent of interior arrests involved aliens with criminal convictions, and again, 21.6 percent had pending criminal charges.
The rest were aliens removable on immigration grounds.
The pre-Trump ICE numbers do not specify how many ICE ERO arrests involved aliens with criminal arrests — only convictions. That is because, prior to FY 2015, ICE was not really that focused on arresting only criminal aliens. Nonetheless, in FY 2014, just 73.3 percent of ICE ERO interior arrests involved aliens with convictions.
The percentage of ICE ERO interior arrests of aliens with convictions was 72.5 percent in FY 2013; 64.7 percent in FY 2012; 58 percent in FY 2011; 52.5 percent in FY 2010; and 39 percent in FY 2009.
That means that ICE in any year under Trump arrested a higher percentage of aliens in the interior with convictions than the agency did in three of the fiscal years under Obama (one partial, two full); and in two fiscal years under Trump (one partial, one full), ICE arrested a higher percentage of criminally convicted aliens than in four fiscal years under Obama (again, three partial, one full). And the percentages in FY 2019 were pretty close to those in FY 2012.
Why, then, does the Washington Post bring up "the deportation of families, business owners with community ties, and minor traffic offenders" by ICE under Trump?
Part of it has to do with the last two years of the Obama administration. In November 2014 (in FY 2015 in D.C.-time), then-Obama DHS Secretary Jeh Johnson issued a memorandum captioned "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants", which significantly curtailed immigration enforcement.
That memorandum directed ICE to focus on recent illegal entrants and aliens with criminal convictions, and as a consequence, the number of aliens who were arrested by ICE ERO in the interior with criminal convictions increased to 85 percent in FY 2015, and 86 percent in FY 2016. As the figure above and the foregoing statistics show, however, those numbers are the outliers, but they set a narrative that the Washington Post and most major media outlets have followed ever since.
The lack of interior enforcement in the last two fiscal years of the Obama administration is only part of the narrative that the Washington Post followed, however. The other part has to do with Trump's rhetoric.
He talked tough on interior enforcement, and no doubt meant it. ICE, though, was unable to deliver, due to the actions sanctuary jurisdictions took to block the agency's enforcement efforts, and court decisions that made it more difficult to do its job, as I explained in a January 26 post.
In other words, when it came to immigration enforcement, the media (which is almost exclusively hostile to the 45th president, by any objective measure) listened to what Trump said on immigration, but when it came to what ICE was actually doing, focused instead on the human interest stories of the aliens involved (such as the families and business owners the Post references).
Respectfully, that was done to attack Trump, whom, as noted, most of the media does not like. How can I state that so dispositively?
Because, the number of ICE ERO interior arrests of aliens without convictions was anywhere between 139 percent to 531 percent higher under the first five years of the Obama administration than it was during any year of the Trump administration. Those are not percentages — those are real people, including, no doubt, business owners and families (I saw plenty of both when I was an immigration judge under the Obama administration).
Do you remember stories about a man who was simply helping a relative cut down a tree and was subsequently arrested by ICE (because he was under a final order of removal) between FY 2010 and FY 2014? How about the guy arrested by ICE at his house on church grounds (who had been under an order of removal for 15 years) during that period? Both appeared in the Washington Post during the Trump administration.
I am sure there are more, but those are the only two I wrote about.
Both stories elicit some level of sympathy, but Trump plus ICE made them compelling human interest stories (to the Post, at least). I am not saying that there were no similar stories under Obama, but it was certainly not the narrative.
Unfortunately, that narrative is driving the Biden ICE enforcement policy that was the subject of the Washington Post article. If Justice Louis Brandeis was correct in noting that "sunlight is said to be the best of disinfectants", bringing these facts to light will allow the public — and its elected representatives — to assess that policy fairly.
As noted, I have great respect for the authors of that article. They can spread more sunlight than I can, and next time, I hope they do so.
As for the policy, in my next post, I will explain why it is even more restrictive — and worse — than even the one set forth in Secretary Johnson's November 2014 memorandum.