Catch and Release: Responding to Critics

By Jessica M. Vaughan on April 1, 2014

My new report on the state of interior enforcement, "Catch and Release", has been denounced by ICE and pro-amnesty groups. Both critiques were expected, and neither detracts from or changes the fundamental truth that ICE is taking a pass on huge numbers of illegal aliens located by ICE officers, including an alarming number of criminal aliens.

ICE has issued a number of statements to the media disputing the findings of my new report on the large number of illegal and criminal aliens who have been let off the hook for immigration violations and released back into American communities. These statements are consistent with past efforts by DHS and ICE spokespersons to obfuscate the issues and facts and distract attention from their efforts to undermine immigration enforcement.

Yesterday I was notified by a reporter who had contacted ICE for a statement on my study that ICE is asserting that I have incorrectly interpreted ICE records on the criminal threat level of aliens encountered by ICE officers. ICE is maintaining that many of the alien encounters classified as "criminal" are not actually convicted criminals, and that this explains why ICE officers did not file charges on 35 percent of the aliens encountered who are classified as criminals. Indeed, ICE officers are allowed to classify an encounter as criminal if the alien has been charged, but not convicted; this is explained in a footnote to the data. But at the time of charging, only convicted aliens can be classified as "criminal".

What ICE is not telling reporters is that regardless of what is initially entered for the encounter, ICE officials routinely go back and update the encounter data to reflect the outcome of the criminal case against the alien. I am told by sources that this is done so that the encounter threat level accurately reflects the alien's criminal conviction record, and also because ICE has been criticized relentlessly (but unfairly in my opinion) by advocacy groups for the number of so-called "non-criminals" it removes. These groups believe that only aliens convicted of "serious" crimes should be removed, and sometimes not even then. ICE is sensitive to this criticism, and thus goes to great lengths to make sure that its records do not understate the criminality of illegal aliens selected for deportation.

Today I went back and checked this out using a random sample of hundreds of ICE cases that I obtained to evaluate the Secure Communities program in 2012. This database includes the classification of criminal threat level of aliens at encounter, detainer, and arrest. I found that the threat level listed at encounter was nearly always exactly the same as at every other step in ICE's process. If the threat level changed, as it did in just a handful of cases, then it usually was adjusted to a more serious criminal conviction, not a lesser offense.

It is important to note that a significant number of aliens who have certain kinds of convictions will not be counted as criminals in ICE data. This means that the real number of convicted criminal aliens released by ICE in 2013 could be even higher than the 68,000 identified in my report. This is, of course, in addition to the many encounters with illegal and criminal aliens that never take place because of the aggressive restrictions that have been placed on ICE officers' ability to perform their duties, or because of the administration's tolerance of sanctuary cities. Taking all of this into account, the total number of criminal aliens who could have been removed, but were not, is certainly higher.

Several weeks ago, I submitted a Freedom of Information Act request to ICE seeking details on the criminal histories of aliens encountered and removed by ICE, but I do not expect an answer for many months, if ever.

ICE has previously admitted that it releases convicted criminal aliens, and some cases are referenced in my report. In another prominent example, last year on March 19, 2013, ICE Director John Morton testified before the House Judiciary committee that ICE had released thousands of convicted criminal aliens in anticipation of sequester-driven budget cuts:

Rep. Trey Gowdy: "Did you release any recidivist drunk drivers?"

ICE Director Morton: "Yes."

Gowdy: "How many?"

Morton: "I don't have the exact number, but we have released many individuals who had DUI offenses."

Gowdy: "Repeat offender DUI."

Morton: "Repeat offender DUIs." [Adding that most released were "single offenders" but some were repeat offenders.]

To this day, ICE has not told the public how many convicted criminals were released from ICE detention in this episode.

An ICE spokesperson actually had the audacity to tell Fox News Radio that my math was flawed, while offering ICE’s juiced statistics as faux evidence that they have been vigilant in deporting criminal aliens. The ICE spokesperson should have mentioned that only about half of those criminal removals (about 110,000) came from interior cases, which were the subject of my report. The rest were Border Patrol cases, as was explained in ICE's year-end deportations report. In other words, ICE is, right now, in the process of deliberately misleading the public about its failure to remove criminal aliens from the interior by deceptively padding the numbers for listeners and reporters with the apprehension of criminals trying to enter through the border, which has nothing to do with the subject of the report and is a separate issue entirely. Hopefully reporters will hold ICE accountable for this deception.

Ben Johnson, director of the American Immigration Council, which is a branch of the American Immigration Lawyers Association, also launched a broadside on my report yesterday, but it, too, missed the mark. Here's why:

First, he wrongly asserts that the encounters metric is inflated and includes many legal immigrants and even U.S. citizens who are not deportable. He says this explains why ICE charged only 27 percent of the aliens encountered. As I stated in the report, while it is possible that a small number of these encountered aliens would turn out not to be deportable, the encounters figure does not include a large number of LPRs and U.S. citizens. The encounters are not just Secure Communities automated database hits, as Johnson asserts, but vetted, actionable leads that are pursued and recorded by ICE officers. They are not instances of "any foreign-born individual that comes into contact with law enforcement". They are primarily illegal aliens who were arrested and booked into jails, with a smaller number of LPRs or legal temporary residents who have committed serious crimes that could cause their green card or visa to be revoked — also legitimate targets for deportation.

Johnson identifies three categories of cases of deported aliens that he illogically claims would not show up in the category that indicates an enforcement action taken by ICE, meaning that ICE is somehow removing aliens that have not been charged and are not accounted for in the statistics. In fact the kinds of cases he mentions do have paperwork and are counted in these statistics, as is apparent in the original ICE document, which I provided with my report for independent analysis.

Finally, Johnson misunderstands the use of the term "release" in the report, which clearly means "not charged". In many of these cases the alien described as released is set free from custody as a result of ICE not pressing immigration charges, but in other cases of aliens encountered, but not charged, the alien was never taken into custody to begin with. They are "released" in the crucial and most important sense of escaping immigration charges and let off the hook for immigration violations. They are not issued Notices to Appear, which is a form of charging document.

To end speculation and doubt about who ICE is charging and releasing, ICE should make public the actual criminal histories of the aliens identified and classified as criminals, but not charged, as well as the full criminal and immigration histories of aliens classified as "non-criminals". The only organization that owes an explanation is the Department of Homeland Security, which has done its best to hide from the public the truth about the number of dangerous aliens released and the number of criminal threats that never go investigated or pursued in the first place. That should be a national scandal.