Is Biden the Deporter-in-Chief of Aggravated Felons?

Cooking the books by reclassifying criminal aliens

By Jessica M. Vaughan on March 18, 2022

Last Friday, Acting ICE Director Tae Johnson released a report providing a highly curated set of statistics on enforcement activity that it says demonstrates that the restrictive Biden enforcement priorities are a success in addressing threats to national security, public safety, and border security. This claim is dubious in many ways, but here I would like to examine one particular assertion — record deportations of aggravated felons under Biden — which is one of the marquee metrics that they want people to notice. As it turns out, this accomplishment almost certainly was not the result of any policy changes or “smart targeted enforcement”, but appears to have been fabricated by retroactively re-classifying thousands of cases as aggravated felons that were not initially categorized that way. In other words, they cooked the books.

The Johnson report provides selected statistics on ICE arrests and removals in FY2021, with some broken down to show what was accomplished in the period beginning February 18, 2021, when the new enforcement guidelines were formally adopted. Comparisons with FY 2020, under Trump, are provided for some of the statistics, to show “improvement” under the new policies.

The selected metrics primarily have to do with arrests and removals of criminals. In particular, the report notes that ICE was able to double the number of arrests of aggravated felons, and states that the monthly rate of aggravated felon arrests under Biden was 51 percent higher than under Trump. Further, the report states that in FY 2021 ICE greatly increased the number of removals of aggravated felons, which took place at a rate of 937 per month, purportedly “the highest level ever recorded since ICE began collecting detailed criminality data” in 2015. We learn that 26 percent of ICE removals under Biden were aggravated felons, compared with 3 percent under Trump.

Having previously analyzed the ICE removals data for the first nine months of FY 2021, I was intrigued by these claims. I knew that removals generally and criminal removals in particular, had dropped like a rock following implementation of Biden policies. I had previously determined that the percentage of serious criminal removals (defined as felons) had doubled under Biden. But it sounded improbable that under Biden ICE had removed 937 aggravated felons per month, making up 26 percent of all removals when, historically, aggravated felons make up a very small share of criminal aliens. I wondered where they found all these aggravated felons and when they were removed.

According to the records ICE gave me, between February 18 and July 10, 2021, ICE removed a total of 15,432 aliens, of whom 1,806 had been coded as aggravated felons (about 12 percent). That is a rate of 13 per day, or 390 per month. It’s a lot lower than the 2020 rate (763 per month) and nowhere near the rate of 937 per month that the Johnson report is claiming. As shown in the table below, to get to the rate of 937 per month under Biden, for the remainder of the fiscal year (July 11 – September 30, 2021) ICE would have had to remove 5,650 more aggravated felons, at a rate of 69 per day, or 2,070 per month. That would be a feat.

Removals and Aggravated Felon Removals in 2021

  All FY 2021,

FOIA Period
Rest of 2021
Total Removals 59,011 28,677 15,432 13,245
Agg. Felon Removals 15,343 7,456 1,806 5,650
Daily Rate of Agg. Felon Removals N/A 31 13 69
Monthly Rate of Agg. Felon Removals N/A 937 390 2,070

Columns in black are from the ICE report.
Column in green is from the author's FOIA data.
Column in blue is the difference between the ICE report and the FOIA data.

That’s not how they did it, though. Immigration officials told the Washington Times that during the year, ICE officers were directed to be more attentive to classifying criminal aliens as aggravated felons. Aggravated felons are a sub-set of criminal aliens with the most serious criminal convictions, and Congress has made them subject to greater consequences. They are subject to detention while in removal proceedings (which are accelerated), are deemed ineligible for certain kinds of relief (such as asylum), are permanently barred from the United States, and may be imprisoned if they come back illegally. In the past, most criminal aliens were considered a priority for arrest, but the Biden guidelines went so far as to designate conviction of an aggravated felony as a near pre-requisite to arrest and removal, so making this designation became more important than in the past.

This gentle reminder to the field was not enough to pump the numbers to the satisfaction of ICE leadership, from what I am told, and in July 2021, more pointed instructions were handed down from headquarters. In addition, reportedly the data quality unit in ICE headquarters began combing the system to find more cases that could be categorized as aggravated felons, which previously had not been labeled as such. So it appears that relatively late in the last fiscal year, there must have been thousands of removal case records that were “upgraded” to aggravated felons, perhaps even after the alien had been removed from the United States. That’s the only explanation that makes sense in light of the records ICE released to me in July.

One could try to rationalize this reclassification of cases as “corrections” that more accurately reflect the criminal history of the aliens. I have found many cases in the ICE records coded as “Not an Aggravated Felon” that look to me like they probably should have been labeled aggravated felons, including murderers, rapists, sex traffickers, and more. I have also seen a case of an alien convicted of a brutal murder that was deemed “not an aggravated felony” by an ICE attorney, so it’s not just the deportation officers who are responsible for any under-classifying that might be happening.

However, these late-game revisions mean that the Biden record on deporting aggravated felons can’t fairly be compared with Trump’s record, or any other year, because it’s comparing apples to oranges. There is clearly a new standard for the designation of aggravated felons.

The un-curated statistics on criminal alien removals are much more informative. As is shown here, they reveal that under Biden policies, there are many, many fewer criminals being sent home, which means more are able to stay, and to reoffend. This is confirmed by my sources in local law enforcement, who tell me that ICE is taking at most half of the criminal aliens that they used to arrest, and often fewer. One sheriff told me that since the Biden policies went into effect, ICE has taken just one-tenth of the number of criminal aliens; which in practice has been only after the alien has killed someone.

If Biden’s enforcement policies are such a success for public safety, then why did ICE leadership have to go to such lengths to inflate the data on aggravated felons? Can we believe anything else they put out?