Report: ICE may not be taking custody of dangerous undocumented immigrants

New data shows ICE does not take custody of many undocumented immigrants for whom it requests detainers from local jails and prisons. (Lisa Kennedy / MGN )

Most undocumented immigrants who Immigration and Customs Enforcement (ICE) requested be detained by local law enforcement in 2015 were not transferred to ICE custody despite a new policy intended to narrow those requests to the most dangerous criminals, according to new research.

The Priority Enforcement Program (PEP) was implemented last year, replacing the long-running Secure Communities program that local law enforcement agencies in certain jurisdictions were growing increasingly unwilling to cooperate with.

Under the previous program, ICE could submit detainer requests for undocumented immigrants who had been arrested on various charges. So-called sanctuary cities often ignored those requests and released the immigrants, in some cases out of fear that they could be subject to lawsuits for violating civil rights.

PEP narrowed the focus of ICE enforcement in most circumstances to immigrants who were convicted of serious crimes. It also shifted emphasis away from detainer requests to “notification” requests.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University has been studying the impact of these policy changes on ICE activity and law enforcement cooperation. Studies released by TRAC last week showed mixed results.

Cooperation is improving, but ICE apprehensions from law enforcement custody are declining. The percentage of ICE requests denied by law enforcement dropped in the second half of 2015, falling from nearly 5 percent in June to 1.6 percent in November.

Law enforcement agencies appear more willing to comply with notification requests than detainers, but the data also showed that ICE agents were using notifications less often.

In each of the last six months of 2015, more than 60 percent of detainer requests did not result in ICE taking custody of the immigrants. According to TRAC, when President Obama took office in January 2008, 72 percent of requests did lead to immigrants being taken into ICE custody.

The new data raises doubts for some immigration experts about whether PEP is succeeding in keeping the most dangerous undocumented immigrants out of the community, but TRAC Director Sue Long warned against drawing dramatic conclusions from the reports.

“You can’t just immediately jump to the conclusion that everything isn’t working,” Long said.

The numbers do not tell the whole story, and they are not meant to. They reflect only one aspect of the immigration enforcement effort, and they provide an incomplete picture of even that aspect.

Many questions are unanswered, most significantly why these inmates were not taken into ICE custody. Researchers were surprised to learn that ICE so often requested detainers and notifications without later assuming custody of individuals, according to Long, but the data TRAC obtained did not explain it.

“There may be good reasons,” Long said.

The data on apprehensions is also separate from the question of how many individuals end up being removed from the country because of those apprehensions or other enforcement activities. TRAC is examining data on that subject now and plans to issue a report on it, but Long said it is too early in that work to know what they will find.

ICE would not comment directly on the analysis of an external organization, but a spokesperson said local law enforcement cooperation has improved since the implementation of PEP.

“The Department of Homeland Security continues to make significant strides in building partnerships with local law enforcement and community leaders through PEP to ensure a common-sense approach that focuses immigration enforcement resources on convicted criminals and individuals who threaten public safety and national security, while also taking into account important community policing needs,” the spokesperson said.

ICE data shows that 17 of the 25 jurisdictions that rejected the largest number of detainers prior to PEP are now participating in the program. In areas that remain uncooperative and in cases where a request for detention or notification is still denied, ICE will often still attempt to arrest them after their release.

As a result, figures that show whether a detainer was honored or whether custody was transferred directly to ICE are not evidence that those individuals were not ultimately booked by ICE.

Organizations that oppose the Obama administration’s immigration policies saw the TRAC numbers as validation of concerns they have expressed about PEP from the start.

“It is working as well as the administration intended it to work, which was not to work at all,” said Ira Mehlman, a spokesman for the Federation for American Immigration Reform.

He claimed the Obama administration had no interest in deporting undocumented immigrants and only used PEP as political cover for ending the Secure Communities program. This data proves “the administration is not serious about even removing the people that they indicate are priorities for removal.”

Even if PEP resulted in more apprehensions of dangerous convicted criminals by ICE, Mehlman argued the agency should be pursuing those who are arrested for lesser offenses as well.

“That’s low-hanging fruit and they don’t seem to be interested,” he said.

He pointed to cases in which immigrants who were previously convicted of less serious crimes or who were on bail awaiting trial went on to kill or harm others.

“We shouldn’t have to wait for somebody who is already deportable to go out and commit something really heinous before the federal government will take action,” Mehlman said.

Although ICE emphasizes improved cooperation from jurisdictions that previously declined detainers, Mehlman said the federal government has leverage to sue or withhold federal funding if it really wants a city to follow immigration laws.

“If the administration took it seriously, they would actually impose some consequences on the jurisdictions that would act this way,” he said.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, said PEP gives those sanctuary jurisdictions too much power to dictate the terms of their cooperation with ICE.

“The Priority Enforcement Program has been a disaster in public safety terms, and has not succeeded in reversing this wave of new sanctuary policies that was created a couple of years ago,” Vaughan said.

She also criticized PEP for setting up “logistical hurdles” for ICE agents because they have to wait for a conviction before taking an immigrant into custody.

“The fact is, the public expects these people to be removed and they should be removed,” she said.

If a suspect is released while awaiting trial, they may flee knowing they would be deported if they show up for court. In other cases, an immigrant can be convicted, sentenced to time served, and walk out of the courthouse before ICE can act.

“ICE has the authority and the mandate from Congress and the law to remove any illegal alien who is deportable,” Vaughan said. “ICE should have the ability to carry out its mission in the way it sees fit.”

She sees no justification for cities second-guessing those enforcement decisions.

“When ICE is not successful in this kind of immigration enforcement, there’s a human cost to that and a public safety cost… It’s unnecessary and it shouldn’t happen,” she said.

Those with a more positive perception of PEP also found something troubling in TRAC’s data.

While the intent of PEP was to focus enforcement efforts on those convicted of crimes, TRAC found that more than half of detainers in the first two months of fiscal year 2016 were issued for people who had no convictions and only 25 percent were for those with the most serious convictions.

“TRAC correctly questions whether or not PEP has resulted in serious changes in the way ICE operates,” the American Immigration Council said in a blog post. “More monitoring and data analysis is needed, and advocates need to continue to pressure ICE to stick to the rules it created.”

Faye Hipsman, an immigration policy analyst with the Migration Policy Institute, said it is too soon to tell whether PEP will accomplish its stated goal of bringing interior removals in line with broader enforcement priorities.

She acknowledged that incidents can occur like those Vaughan described where criminals evade detention due to the new policies, but she said the previous approach could ensnare those who were never convicted and violate due process.

“It does cut both ways and it’s a concern either way,” she said.

Hipsman said there is not enough information available to know why so many people without criminal records are still being subject to detainers, but that may be a significant factor in why some are not ultimately being taken into custody.

“You can’t assume that dangerous criminals are going free… You just don’t know what the circumstances are in each case,” she said.

She noted that ICE investigation and enforcement is conducted outside of PEP as well, and dangerous suspects may be getting apprehended that way too.

The latest data may not provide definitive evidence of the success or failure of the new policy, but Long said TRAC’s research illustrates the complexity of the issues involved in immigration enforcement, something that often gets lost in the political debate.

“It’s easy to sloganize,” she said, but devising programs that actually work is much harder.

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