The Cato Institute, a libertarian think tank, has recently published a deeply flawed study by David Bier titled "U.S. Citizens Targeted by Immigration and Customs Enforcement in Texas".
Using specious causality, the author links the Texas anti-sanctuary law to an assertion that in Travis County, Texas — which includes the city of Austin — the police, against their desires, were forced to collaborate with Immigration and Customs Enforcement (ICE) in detaining significant numbers of U.S. citizens. I say "against their desires" because until the Texas legislature enacted the anti-sanctuary statute, the sheriff of Travis County actively protected arrested alien criminals from the reach of ICE.
Bier then goes on to extrapolate the already questionable Travis County number to arbitrarily assign a figure to the number of U.S. citizens that he estimates ICE "targeted" statewide throughout Texas:
From October 2005 to August 2017, 814 targets of ICE detainers in Travis County — 3.3 percent of all requests — claimed U.S. citizenship and presented officers with a Social Security number (SSN). ICE subsequently canceled or declined to execute about a quarter of those detainer requests. Based on statements from ICE officials, the best explanation for not executing these detainers is that ICE targeted at least 228 U.S. citizens in the county before canceling or declining to execute those detainers. SB 4 will likely increase the detention of U.S. citizens for supposed violations of immigration law by preventing local police from releasing them. ... Applying the rate of wrongful detainers in Travis County to all detainers in the state of Texas from 2006 to 2017 implies that ICE wrongfully placed detainers on at least 3,506 U.S. citizens statewide. [Emphasis added.]
There is so much that is wrong and presumptive here that I hardly know where to begin. While it's true that people who later prove to be U.S. citizens sometimes find themselves in removal proceedings (something I've previously commented on and explained), most often this occurs because an individual doesn't even know he is a U.S. citizen until all of the factors of his life are unraveled in front of an immigration judge, and it turns out that he derived his citizenship under one of the arcane provisions found in the Immigration and Nationality Act (INA). When such cases come to light they superficially look terrible, but not so much after a close examination.
However, in this study Bier reports that these are people who at arrest by sheriff's deputies asserted U.S. citizenship, and sometimes presented Social Security cards. So what factors should we critically be considering as we read Bier's report?
Implicit Bias Is Evident in the Phrasing of the Report. Throughout the report, Bier suggests that ICE "targeted" U.S. citizens, even though there is no evidence that they did any such thing. Keep in mind that ICE agents went out seeking none of these individuals, alleged U.S. citizens or otherwise. They simply reacted to the process that takes place for all arrestees booked into the county jail, and filed detainers based on information and experience against those whom they believed to be deportable aliens. Use of the word "targeted" reflects the implicit bias of the author, as do other emotionally charged words and phrases throughout the report, such as "wrongful" and "inaccurate".
False Claims Are Common in Border Areas. Illegal aliens routinely falsely claim to be U.S. citizens, particularly in areas generally near the U.S. border, such as Travis County. When they additionally present identification, such as a Social Security card, it is called a "documented false claim". Social Security cards are readily counterfeited; they have almost no security features to render them difficult to reproduce even by the most inept forgers. For this reason, merely presenting a Social Security card and claiming citizenship doesn't prove much in and of itself, particularly if police are willing to take it all at face value.
In Travis County, because the sheriff's office could no longer stiff ICE and ignore detainers — due to passage of the Texas anti-sanctuary statute — it would appear that they are trying to discredit both ICE and the statute by feeding bogus statistics to Bier that purport to show that ICE abuses its authority, and that they are obliged to play along, by filing detainers against U.S. citizens. They have cast the allegation in its darkest possible light, even though there are a number of reasons to doubt the "facts" as presented, and even though the statistics are open to a multiplicity of much less sinister interpretations.
When enforcement agencies such as the Travis County Sheriff's Office are stubbornly unwilling to look closely at the documents, or the facts and circumstances of citizenship claims to see if everything syncs, or to exhibit any doubt whatever as to a suspect's birth and nationality claims ("not my job"), it is a recipe for tragedy. Exhibit One in that regard is the case involving the murder of college sophomore Mollie Tibbetts, whose alleged killer was an illegal alien from Mexico who used a fraudulent Social Security card and claimed to be born in the United States.
The problem of documented false claims in Texas is so severe that under three successive presidential administrations, the State Department has been refusing to issue, or has canceled and revoked, U.S. passports for individuals who procured them using Texas birth registrations obtained through the intermediary of corrupt midwives. Corrupt birth registrations have been around so long that even I had personal experience with the problem going back decades to my years as a street agent. They are difficult to combat because much of Texas is still rural and the denizens often use midwives for births. The lure of easy money in return for fraudulently signing a registration giving an alien the instant gift of "citizenship by birth" can be powerful.
The result is that ICE agents operating in Texas are acutely aware of the problem of false claims, documented or otherwise, including (perhaps especially) among those who have been arrested and are being held by police. Why would alien criminals not be prepared with bogus documents and false claims in the eventuality of arrest if they think it will help them escape the reach of immigration officials? But ICE agents don't, nor should they, always accept such assertions at face value because they know the frequency with which false claims are made. One strategy they exercise is to immediately file the detainer while concurrently obtaining the release date of the individual being held by the police. They then work against the clock to either verify the claim or disprove it. If they can't disprove it, they withdraw the detainer and, as long as it doesn't result in confinement of the individual beyond the time frame provided by law and regulation, then there is no constitutional harm. Keep in mind that when ICE agents withdraw a detainer, it doesn't mean the claim isn't false — it just means they couldn't break it in the time frame they had to investigate.
And there is another dynamic at play as well. Unlike mouths and bogus documents, fingerprints don't lie. Thus, no matter what identity a criminal assumes or what documents he presents at arrest by Travis County sheriff's deputies, if he is recorded in DHS systems as an alien violator — for instance, if he was arrested by the Border Patrol illegally entering and released on his own recognizance under various "catch and release" schemes adopted by prior administrations, only to abscond later — then ICE agents will know that the individual has merely perpetrated a documented false claim to citizenship when booked, and file a detainer. Why, then, would the agents later withdraw or cancel such a detainer? I explain that in detail below, but in essence if he had no lengthy criminal history and was not previously deported, there was a good chance he did not fit within the mandatory "enforcement priorities" during the eight years of the Obama administration.
I will not suggest that no mistakes are ever made, they are, but 30 years of experience tells me that mistakes are by no means as common as suggested by Bier in his sensationalist report, which relies on anecdote and supposition to create a highly questionable set of statistics. ICE agents go to extraordinary lengths to accord U.S. citizens the rights, privileges, and respect to which they are due while at the same time working assiduously to weed out the phonies. This is particularly important when dealing with alien criminals trying to scam the system.
Context and Timing Are Everything. Bier cites the remarks of a single supervisory ICE officer in a single case, in a deposition held in Rhode Island, to conclude that his case-specific remarks must hold equally across the nation, including south-central Texas:
In court, ICE Supervisory Detention and Deportation Officer John Drane testified that he could think of only two reasons for a canceled detainer: the person was a legal permanent resident who did not have a conviction for a crime that would make him or her removable — inapplicable to people claiming U.S. citizenship — or the person was a U.S. citizen.
But context is everything and, while even ICE agents in the northeast would not be completely immune to the phenomenon of false claims, the claims would be of a significantly smaller scale and different character from those in Texas. This would certainly have had an impact on how Drane framed his response to the question of withdrawing a detainer, because his experiences would be nothing like those of ICE agents working in south or central Texas.
Nothing makes Drane uniquely qualified to speak about the reasons either for filing or withdrawing detainers in various regions of the country — and in truth, he was not claiming to be so qualified; he was speaking of his experiences in the New England area. For this reason, Bier's selection of Drane's case-specific comments to draw nationwide conclusions is an obvious example of cherry-picking to arrive at a desired result.
The time frame of Drane's deposition (April 2015) is also significant. In November 2014, President Obama and then-Homeland Security Secretary Jeh Johnson announced a host of new "executive actions" that would govern how immigration agencies administered their responsibilities. In the enforcement arena, the executive actions formally imposed a series of restrictions that had in many ways already been in effect, and gotten increasingly restrictive over the course of the administration. Masked as "enforcement priorities", the new guidelines were so selective and imbalanced (see here and here) that ICE agents all over the nation began canceling detainers or simply not filing them. The unsurprising consequence was that the number of ICE detainers plummeted and the agency went on its own binge, releasing nearly 20,000 detainees into the community. Concurrently, over the next several months — and in fact for the duration of the Obama administration, as filed detainers were reviewed and nixed by supervisory personnel — many detainers were withdrawn as not meeting the new criteria of criminality drawn up by Secretary Johnson and his cohorts.
That wasn't the only dismaying step taken. Using the notion of "prosecutorial discretion", ICE's body of trial attorneys — the ones who prosecute removal cases before the immigration courts — were directed to ask the judges to administratively close cases that were already being litigated but didn't fit within the narrow guidelines drawn by the administration — and they did so by the thousands. They also were engaged in the review of cases likely to be presented to them by agents seeking to initiate removal proceedings including, significantly, jailed individuals against whom detainers had been filed. The mantra became "when in doubt, toss the detainer out." Why risk your job in support of a case that might be criticized by higher-ups as not meeting the new priority guidelines?
It's not a surprise that Drane avoided speaking to these very real, very major reasons that many detainers were withdrawn by ICE. One can surmise that he sidestepped the issue of agents being obliged to cancel detainers under the imposed-from-above priority system for fear of his job. ICE agents had been overtly threatened by their new Director, Sarah Saldaña, with discipline or termination if they in any way violated these priorities, and they were under equally great pressure not to speak publicly about the egregious failings of the new priority system and its consequences.
All of this is directly relevant to Bier's report for two reasons:
First, his study purports to examine Travis County detainers for the years 2005 through 2017. Eight of those 13 years (January 2009 through 2016) fell under the Obama administration, which as a matter of policy was actively discouraging the filing of detainers and demanding the cancellation and withdrawal of many detainers previously filed because they represented cases that did not fit within the administration's narrow view of appropriate enforcement matters, even before the new "priorities" guidelines were formally announced.
Second, as Bier himself observes in end note 14, "ICE's records obtained by a Freedom of Information Act request show that 44 percent of the detainers have no resolution listed, and another 10 percent say 'lifted' without explanation." While he describes this state of affairs as reflecting "inaccurate and incomplete" records to support his thesis, it is equally (indeed, more) likely that ICE agents simply didn't see the need or wisdom to record in the agency database that they did so under pressure to comply with the administration's restrictive priorities scheme — particularly given the heavy-handed way in which they were repeatedly threatened with their jobs. The reasons, from their viewpoint, would be self-evident. Yet what Bier has done is impute motive and cause to these cancellations to suggest that many were filed against U.S. citizens even though he has no proof to that effect.
Using Flawed Extrapolation to Aggregate "Targeting" of Citizens. Perhaps most shocking of all is the way that Bier has taken what are clearly dubious conclusions about the number of U.S. citizens against whom detainers were filed in the Travis County jail after arrest for criminal offenses, and then through extrapolation and aggregation, applied them to assert that, if this many were caught up in ICE "targeting" of citizens in the county, then as a matter of simple multiplication one can derive how many U.S. citizens must have been "targeted" statewide: "Applying the rate of wrongful detainers in Travis County to all detainers in the state of Texas from 2006 to 2017 implies that ICE wrongfully placed detainers on at least 3,506 U.S. citizens statewide."
Parenthetically, I'm unable to figure out why Bier started with a date range of 2005 to 2017 for Travis County detainers, but ended up with a date range of 2006 to 2017 in his statewide aggregation. There isn't any explanation for the one-year discrepancy.
Note, also, that even as he arrives at his figure, Bier hedges by using the phrase "implies that ICE wrongfully placed" (emphasis added), allowing him to have it both ways: Making an overblown and damaging claim while at the same time buying himself an out in the event the assertion cannot be sustained when closely examined.
It is incredible to me that Bier would use simple mathematics to arrive at his statewide figure. There are so many variables that such an equation fails to consider. Let's just flip scenarios for a moment and see how it plays out in another context.
David Olen Cross is a resident of the state of Oregon who closely watches and documents the phenomenon of alien crime in the state. He recently published a report documenting that, as of July 2018:
172 of 943 foreign nationals (criminal aliens) in the state's prison system were incarcerated for the crime of rape — 18.24 percent of the criminal alien prison population.
It's worth observing, by the way, that, unlike Bier, Cross makes his statistical tabulations — which are based on hard data — available for examination, and thus they are readily verifiable. Nor in my experience does Cross use insupportable weasel words in his assessments to make them more shocking while at the same time giving himself an out if challenged.
However, imagine what would happen if I, using Cross's data, were to extrapolate from this Oregon-specific information and arrive at a figure as to the number of alien rapists that must be sitting in penitentiaries across the United States, without resorting to actually collecting data from each state's department of corrections.
My aggregated figure would be highly speculative, and undoubtedly wrong. Each county and each state is sufficiently unique in population and demographics that using any one of them to extrapolate to a whole is different entirely than using legitimate random sampling techniques — and in any case, the kind of data being examined here isn't about views and opinions, it's about hard facts, or at least it's supposed to be.
Were I to be so foolish as to attempt to do something such as I have described, I would promptly be called out for my shabby manipulation of data, as well as for my bias.
Conclusion. The Cato report operates on a variety of false assumptions and data open to many interpretations to arrive at its sensationalist results.
The author would have us believe that anyone claiming American citizenship and/or presenting a Social Security card whose detainer was canceled should be assumed to have been telling the truth, even though the claimants are criminals and despite the common knowledge that fake Social Security cards can be bought cheaply throughout the depth and breadth of the country.
He would have us believe that ICE agents actively "target" American citizens even though it is clear that they have no hand at all into what individuals are arrested by police and booked into Travis County (or any Texas) jail, and merely respond to the information passed to them as a consequence.
He draws insupportable conclusions about motives and purpose in the filing and cancelling of detainers that are subject to interpretation based on the data, and then extrapolates from this small and dubious number to project a figure for the entire state of Texas.
In sum, Bier's report is a hit piece masquerading as scholarship; a conclusion in search of enough malleable data to cobble together in its support. The bias is written, literally, in its pages through use of inflammatory language, while at the same time Bier tries to build in enough wiggle room through use of qualifiers to allow himself an escape route when the data is examined and the methodology questioned. The Cato Institute has done itself no credit by permitting this report to be published in its name.