ICE Targets Even Fewer Criminals

By William Fisher

Last year, a controversial immigration enforcement program designed to trigger deportation proceedings against serious criminals in the US illegally, was severely criticized for managing to apprehend criminals comprising only 16.5 of total cases. This year, from July to September, only 13.8 per cent of the total were charged with having engaged in criminal activities.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University said that its findings "appear to contrast sharply" with the White House's announcement that: "Under the President's direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States." TRAC said the findings also are "hard to reconcile with ICE's recent press statements that claimed that during the past year the agency had targeted a large and increasing number of convicted criminals for deportation."

TRAC conducted a case-by-case analysis of records covering all proceedings filed in the Immigration Courts. They were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

EOIR, a part of the Department of Justice, administers the nation's special administrative court system charged with deciding whether noncitizens should be deported or are legally entitled to remain in the country.

In previous analyses of Secure Communities data, such organizations as the American Civil Liberties Union (ACLU) have discovered that ICE's "serious criminals" include people driving with broken taillights, others wanted for minor shoplifting offenses, and drivers who have failed to pay traffic tickets.

"Not only has ICE targeted relatively few criminals as the basis for seeking deportation in these court proceedings, but this proportion has been declining steadily throughout the past year: 15.8 percent were charged with engaging in criminal activity during the first quarter period (October - December 2010), 15.1 percent during the second quarter (January - March 2011), 14.9 percent during the third quarter (April - June 2011), and finally 13.8 percent during the fourth quarter (July - September 2011). The average rate across the four quarters for FY 2011 was 14.9 percent," TRAC said.

These results are based upon TRAC's analyses of case-by-case records. These same case-by-case court records showed that during FY 2011 ICE initiated deportation proceedings against 188,770 individuals who were charged only with violating immigration rules. This amounted to 83.4 percent of the total cases. The proportion charged only with violating immigration rules was up slightly over levels in FY 2010 when 81.9 percent were so charged.

The number of individuals ICE sought to deport on national security or terrorism grounds - always few in number - also fell this past year. During FY 2010 a total of 42 deportation proceedings in the Immigration Courts included these grounds. This fell to only 30 during the past year, TRAC said.

The organization was sharply critical of ICE for failing to give TRAC access to documents it is permitted to have under the Freedom of Information Act. (FOIA)

TRAC says, "Unfortunately, while the agency could easily clear up these apparent discrepancies it has chosen not to do so. Indeed, for twenty months, in clear violation of public disclosure laws, ICE has persisted in withholding from TRAC the case-by-case data TRAC requested under FOIA that the agency maintains on these same court proceedings - information precisely parallel to what the Department of Justice already determined must be released to the public from its own files. DHS and other government offices have failed to rectify this matter despite TRAC's appeals to DHS's Director of Disclosure and FOIA Operations, as well as to the Office of Government Information Services (OGIS)."

TRAC added, "The records ICE is withholding would show just which ICE programs - such as Secure Communities or others - have contributed to fewer alleged criminals being targeted for deportation in court proceedings. The data would also allow the public to judge whether ICE's actual activities match ICE's announced policies to target serious criminals, and those who pose threats to public safety, as well as to better monitor how the agency exercises prosecutorial discretion in whom it seeks to deport."

In addition, TRAC says it contacted ICE's Public Relations office on November 7, 2011 asking for explanations of the figures given in the agency's October 18, 2011 press release that claimed the agency's FY 2011 accomplishments closely matched announced ICE priorities. At a meeting with ICE officials November 10, the agency promised to promptly provide answers to a series of TRAC questions that asked for details backing up the agency's claims. Again and again, however, the promised answers did not materialize. ICE's Public Affairs office continues to say the promised answers will be forthcoming.

On the basis of the extremely detailed and timely records that TRAC has obtained, "enforcement patterns can be determined for each state, Immigration Court and hearing location. What were the charges brought against each of the individuals in these various locations? What was their nationality? You can now access these detailed and highly localized portraits on TRAC's public website by accessing a new special web-based interactive tool," TRAC said.

Comprehensive data covering FY 1992 through FY 2011 are now included. TRAC's app lets you track - on a charge-by-charge basis - how well or poorly the deportation proceedings initiated by ICE actually match its announced priorities and policies. With the prosecutorial discretion ICE is asking its attorneys and enforcement personnel to exercise, are the agency's limited resources being focused on high priority targets for deportation? Those charged simply with entry without inspection are separately enumerated among these charge classes. Also included is information on whether the individual charged was a so-called "aggravated" felon, or charged with some other criminal violation.
Meanwhile, the American Civil Liberties Union (ACLU) continues to attack the program known as Secure Communities, or S-Comm, for failing to "immediately ensnare any immigrant in the deportation pipeline the moment they come into contact with the criminal justice system."

The ACLU says "Detain first, investigate later - that is Immigration and Customs Enforcement's (ICE) mantra when it comes to its Secure Communities ("S-Comm") program."

It explains: "Under S-Comm, the fingerprints of every person arrested by the police are shared with ICE at the moment they are booked into police custody. Without investigating the person's immigration status, ICE immediately sends an "immigration detainer" or a request back to the police if they want the person to continue to be detained for immigration purposes. Detain first, investigate later."

The ACLU asks, "See a problem with this? Not only does it violate the Fourth Amendment's basic prohibition against detaining a person without probable cause to do so, but it commonly ensnares the wrong people, including people who are not even immigrants, but United States citizens, causing them to be unlawfully detained."

As an example, the ACLU presents the case of Antonio Montejano, a U.S. citizen who was born in Los Angeles.

This is what the ACLU wrote: "A few weeks ago, Antonio was arrested by the Santa Monica Police Department for shoplifting. He accidentally left a Sears store without paying for the candy his young children had taken and eaten while in the store. One of his children also placed a $10 perfume bottle in a bag that had already been paid for.

"When security guards stopped Antonio, accusing him of stealing the perfume, Antonio explained that it was an honest mistake and that he would be happy to pay for it. After a long back and forth with the security guards, the police were called and Antonio was taken into custody.

"Antonio normally would have been released from Santa Monica Police custody within hours of being booked into their custody. But ICE interfered through S-Comm. When Antonio was booked, ICE immediately placed an "immigration detainer" on him, instructing the local authorities to detain him until they could pick him up.

"Antonio spent four haunting and unwarranted days in jail on the immigration detainer. For two of those days, Antonio was detained in a temporary holding cell in Los Angeles County Sheriff's custody that only had chairs, no beds. The authorities forced him to sleep on the hard floor, depriving him of any mattress or blankets, a practice the federal courts have long denounced as flagrantly unconstitutional. Antonio repeatedly protested to jail authorities that he was a U.S. citizen. But only after the ACLU of Southern California contacted a senior ICE official four days later, did they finally agree to lift the detainer.

"ICE, quite clearly, has no business arresting and detaining American citizens. But as described in a recent report by the Warren Institute at University of California - Berkeley, they do so over and over again through the fundamentally-flawed S-Comm program. (ICE's own data in the first year of S-Comm activation revealed that five percent of persons identified by S-Comm were in fact U.S. citizens.) And they do so by enlisting the unwitting participation of local jail authorities in these unconstitutional practices.

"The costs and consequences of S-Comm's detain first, investigate later are borne out every day in the jails and police stations across the country where non-deportable citizens and noncitizens suffer needless detention, while they beg for ICE to finally investigate their cases so that they may be released from jail."

President Obama has failed to keep the promise he made during his presidential campaign to introduce legislation to achieve comprehensive immigration reform. Instead, he has placed more personnel on the Southern US border, and deported more people during his term than any other president in US history.

The continued absence of a body of immigration law worthy of a superpower is no doubt due in part to the intransigence of the Republicans in Congress. And the President's relative silence on this issue must surely give the GOP the sense that immigration reform is nowhere near Obama's top priorities.

Sadly, they could well be right.