ICE Deportations Still Plummeting; Catch and Release Continues

By Jessica M. Vaughan on September 12, 2014

The Associated Press has published figures from ICE's weekly internal metrics showing that immigration enforcement has continued to decline in 2014. But the reasons offered sound more like spin from the DHS or ICE press office, which for years has peddled the tall tale that the Obama administration is tougher than any other on enforcement.

Writes AP immigration writer Alicia Caldwell:

[ICE] sent home 258,608 immigrants between the start of the budget year last October and July 28 this summer. During the same period a year earlier, it removed 320,167 people — meaning a decrease this year of nearly 20 percent.

Over the same period ending in July 2012, Immigration and Customs Enforcement deported 344,624 people, some 25 percent more than this year, according to the federal figures obtained by the AP.

I have earlier editions of the same report Caldwell examined that show the same trend. Indeed, it was first reported by Stephen Dinan of the Washington Times back in April, not long after incoming DHS Secretary Jeh Johnson admitted that the administration previously had been cooking the books to give the impression of record deportations.

Caldwell then seems to restate the administration talking points regarding the reasons for the decline, providing two explanations:

  1. "The Obama administration decided as early as summer 2011 to focus its deportation efforts on criminal immigrants or those who posed a threat to national security or public safety." She points out that many non-criminal deportation cases are "stuck" in the immigration court system, which has now a backlog of 400,000 cases.

  2. Border Patrol agents are detaining more Central Americans, and the deportation process is more work and takes longer for them, because they have to be flown home.

These "explanations" don't hold water. Let's take them one at a time.

1. Focus on Criminals. First of all, this is not a new emphasis for ICE. As a new report from the Migration Policy Institute (of all places) shows, ICE has always been focused on deporting criminal aliens as a top priority.

So if the Obama administration is so focused on deporting criminals, then why has the number of criminal removals been falling, too? The document Caldwell examined shows that deportations of criminal aliens peaked in 2012 at 225,390, dropped slightly to 216,810 in 2013, and are on pace to drop to 180,000 in 2014, for a two-year decline of 20 percent. (These figures include both border and interior cases handled by ICE).

In fact, the number of convicted criminal aliens removed by ICE in April 2014 (the most recent period that I have reviewed) was the lowest monthly total since September 2009.

It's not because there are fewer criminal aliens to arrest. Thanks to the Secure Communities and 287(g) programs, ICE is able to identify more criminal aliens than ever before. As of July 31 of this year, more than 455,000 aliens were identified after arrest by local authorities via Secure Communities. ICE agents took a look at more than 100,000 of those that were potentially deportable, but selected only about two-thirds of those encountered for deportation. (This phenomenon of catch and release of criminal aliens is explored in more detail here.)

If the administration was truly serious about removing criminal aliens, these numbers would be much higher, and could be. Instead, under administration policies that have exempted huge categories of illegal aliens and restricted investigations and other enforcement activities, ICE agents and officers must routinely release convicted criminals back to our communities. In 2013, ICE released 36,007 convicted criminal aliens from its custody, including 169 aliens with homicide convictions. ICE has yet to disclose how many of the releases were due to judicial orders, but about 25 percent of the homicide convicts were released by choice. On top of that, the administration has encouraged legal challenges to enforcement and aided the establishment of sanctuary and non-cooperation policies at the state and local level.

According to ICE's weekly report of May 5, 2014, at that time there were 166,301 convicted criminals on ICE's docket who had already been ordered removed and had exhausted appeals, but who were not held in custody for removal. In addition, there were 169,591 convicted criminals on the docket who had been released from custody pending the outcome of their deportation cases, for a total of nearly 336,000 released convicted criminal aliens on ICE's docket. In comparison, there were 17,853 convicted criminals in ICE custody at that time. Meanwhile, the president has asked Congress to cut funding for detention space.

2. Backlogged Immigration Courts. This is a problem, but it is not a major factor in the decline in deportations. Two-thirds of ICE deportation cases are not in the immigration court system at all because they are recidivists or border apprehensions subject to expedited removal. Moreover, cases on the court's detained docket move much more rapidly and can be completed in a matter of weeks. It is primarily the non-detained, usually non-criminal, cases that take years to complete and these do not make up a large share of deportations — so how would the court backlog of non-criminal cases slow down an administration that is supposedly focused like a laser on criminal deportations?

Backlog notwithstanding, the courts are still churning out orders of removal for older cases of people arrested long before the recent surge. Oh, wait, under the current "prioritization" scheme, ICE is told to refrain from enforcing those deportation orders. According to the ICE weekly metrics report, there are now about 875,000 aliens who have been ordered removed, but who are not in custody and therefore are unlikely to depart unless they are eventually arrested (again) for committing a new crime. One way to help alleviate the backlog would be for ICE to once again make use of the more efficient non-judicial means of removal, but the administration has shown no interest in that remedy.

3. The Surge of Central Americans. ICE tried this excuse last year when their numbers dropped. Yes, the proportion of Central Americans in the deportation total has increased from about 29 to 36 percent of the total, they do take a bit longer to process, and they have to be flown home rather than dropped off at a bridge. But because the number of Central American deportations is still so much smaller than the number of Mexican deportations, that seven percentage-point increase in their share still represents only a tiny fraction of ICE's overall deportation caseload — only about 5,000 more cases than last year. That increase in Central American deportations is a little more than 1 percent of the total number of deportations, and hardly enough to account for a 20 percent decline overall in ICE productivity.

Still, the surge has been a distraction for both ICE and the Border Patrol. Every ICE field office has had to pull agents off their usual duties of investigating and removing criminal aliens to instead assist in processing, transporting, and releasing the new family and juvenile arrivals.

One could argue, though, that if more of the family units and children had been detained and deported from the get-go, before the surge got out of hand, and as the official mass migration contingency plan called for, then much of the influx might well have been deterred. As it is, nearly all of the 180,000 families and children who arrived since October 2012 have been released into the United States. Caldwell reports that only 319 of the surge migrants have been deported so far.

But the main problem with the surge explanation is that the monthly pace of deportations has been in decline since May 2012 — long before the surge became a crisis. In that month, ICE deported 40,371 people. The monthly total has slipped gradually downward ever since, and it hasn't been higher than 30,000 since May 2013. In April 2014 the monthly total was just 25,270.

Any bets on how low they will go?