Last week, DHS Secretary Jeh Johnson told the Senate Judiciary committee that, weeks after the revelation that ICE freed 36,000 convicted criminal aliens last year, he is still trying to understand what happened, and declined to provide the senators with further details on who, when, where, and why the criminal aliens were freed.
Meanwhile, the criminal alien releases continue. ICE records reveal that the total number of non-detained convicted criminal aliens has grown by nearly 17,000 since the end of last fiscal year.
At the end of 2013, ICE reported that there were a total of 318,967 convicted criminal aliens on its docket who were not in detention. Roughly half of these (158,992) had already received final removal orders, while the other half (159,975) were still awaiting the outcome of their proceedings. The 159,000 non-detained convicted criminals with final orders are in addition to another 699,670 non-detained "non-criminals" who were ordered removed, but who had not left by the end of FY2013. These numbers are shown on page 7 of this document.
According to a more recent edition of ICE's internal metrics that I have obtained, by the end of April 2014, seven months into the current fiscal year, the number of non-detained convicted criminal aliens had risen to 335,892, an increase of 16,925. This does not necessarily mean that ICE released 17,000 more criminal aliens, just that there has been a net increase of nearly 17,000 in the total number of convicted criminals who are not in detention. ICE could have freed some, re-apprehended some, or never detained some convicted criminal aliens who are counted in this report. Nevertheless, it is concerning that the total number of non-detained convicted criminal aliens grew by 5 percent in the first seven months of this fiscal year.
It is also concerning that neither ICE nor DHS has disclosed the location, conditions of supervision, or justification for the criminal alien releases, despite intense public interest and congressional inquiries.
Lawmakers and the public should also be concerned about the large number of convicted criminals — 336,000 — who are not being detained until removal. The government has provided no information on how many of these criminal aliens are ultimately removed and how many become fugitives.
A group of senators has introduced a bill to correct one serious problem that leads to some of the releases of the aliens with the most serious criminal convictions. The Keep Our Communities Safe Act would provide additional flexibility for ICE to keep certain criminal aliens in custody beyond the Supreme Court-imposed six-month limit on detaining individuals whose home countries will not take them back. In 2013, about 2,800 of the criminal releases were due to Supreme Court constrictions (the "Zadvydas" cases). ICE has stated that 72 percent of the freed criminals with homicide convictions were due to court orders, but has not disclosed why it decided to release the other convicted criminals.
When asked whether he would support legislation to address the problem of court-ordered releases that take away ICE's discretion to detain criminal aliens, Secretary Johnson testified that he had to think about whether it would be "appropriate" for Congress to do that, and seemed to indicate that he preferred to have discretion on criminal alien releases.