To begin to assess the impact of the order, I examined case records of all aliens removed by ICE in FY 2018, which I obtained through a FOIA request, and other sets of data that have been published in the ICE FOIA Library. Here’s what these records reveal:
In 2018, ICE removed 95,360 aliens from the interior of the country. If the new Biden deportation policies had been in force and applied to ICE’s 2018 interior caseload, a total of 91,993, or 96.5 percent, would not have been subject to removal. Only about 3,367, or 3.5 percent, would have been considered appropriate to remove from the country.
This is not because these aliens are harmless or sympathetic cases. After all, ICE’s interior caseload is already comprised primarily of convicted criminals. It is because under the new rules only a very narrow set of cases of aliens can be deported — only those classified as current “aggravated felons”, or the most serious criminals who are still in the custody of local authorities. Most prior convictions do not count, and are categorically excused if they occurred 10 years or more ago.
For example, said one ICE officer: “If a sex offender, or gang member, or other felon got prosecuted 11 years ago and got deported, comes back, gets removed again under 1326 [illegal re-entry after deportation, a felony], comes back again and gets arrested for simple theft or DUI, and one of our officers finds him in the jail, even though he is a prior deportee and aggravated felon, because it’s over 10 years old and not related to what he was just arrested for, we can’t touch him.”
As a result of these strict conditions, only a rare few of the criminal aliens arrested throughout the country will be removable, and even many aliens who do have convictions for crimes of violence would be protected if the convictions occurred more than 10 years ago.
Table 1 shows the top 50 of the most serious criminal charges of aliens removed in 2018 who would no longer be subject to deportation under the Biden policy (the charges are the most serious charge on the alien’s record). The list includes more than 10,000 aliens with drunk driving charges or convictions, 788 with homicide charges, more than 2,000 with weapons charges, more than 2,000 with drug trafficking charges, and more than 370 charged with rape. In addition, it includes many aliens removed because of repeated or serious immigration crimes, such as re-entry after deportation, immigration fraud, or human smuggling.
These examples illustrate one of the more alarming aspects of this directive. While it has been characterized in the media as allowing ICE to go after all of the “serious” criminals, in fact, according to the official guidance issued by acting ICE Director Tae Johnson to ICE officers, which I have obtained, still it excuses any and all serious crimes that were committed in the past, especially if they are unrelated to the latest criminal conviction that brought them to the attention of ICE. That is how so many murderers and rapists show up in the 2018 caseload as avoiding deportation under the Biden policy.
The relevant part of the guidance reads as follows:
Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety. [Emphasis added.]
This means ICE can arrest only those criminal aliens who are actually in the custody of authorities — in other words, inmates. If they are released due to sanctuary policies, the ICE officer must submit the request to arrest the released criminal alien all the way up the chain of command to be approved by Johnson, the acting ICE director. If the past is any guide, he should be getting at least a dozen of these to review every day, and I hope some reporter or member of Congress will ask for information on the ones that he refuses to sign off on. I hope we don’t have to find out when someone gets killed by one Johnson didn’t sign off on.
Said one ICE officer: “With locals not cooperating on telling us about releases of deportable criminals we identify, we now need specific written agency approval to make any arrest of an agg felon once they are released. Even courthouse arrests are considered at large arrests, so we are dead in the water.”
Another pointed out how the “aggravated felony” definition is especially problematic in California and other Ninth Circuit states:
[Judges in the Ninth Circuit] routinely rule that many crimes are not aggravated felonies. To make it worse in California, the DA’s and public defenders often know what charges get people deported, so they work out deals to have the alien plead to another charge, just to avoid deportation. Even when that’s not the case, California in general does not like to convict people of the crimes they commit, or they allow them to plead to a lesser charge and a lesser sentence. This allows the alien to stay under the aggravated felony bar.
In the memo, Johnson further spells out classes of convicted criminals that ICE officers may no longer arrest:
- Drug based crimes (less serious offenses), simple assault, DUI, money laundering, property crimes, fraud, tax crimes, solicitation, or charges without convictions.
- Where a crime is very old — over 10 years and not the reason for the individuals most recent apprehension.
- Prior removals or convictions under 1325 or 1326.
- Gang tattoos or only loose affiliation in records with gang activity.
If there is any question as to whether an individual falls into the category of posing a public safety threat, managers should err on the side of caution and postpone the individual’s removal until a full assessment, in coordination with local Office of Chief Counsel, is conducted.
In other words, ICE officers should err on the side of release and risk to the public.
A more detailed listing of the criminal histories of the 2018 removal cases can be found here. To compile this list, I identified all of the cases of aliens arrested and removed in the interior of the country who had been classified as non-aggravated felons or serious drug offenders with recent conviction dates and recent final removal orders, in order to capture the full extent of the new restrictions on ICE.
The effect of the order has been immediate. ICE had been planning a nationwide operation in partnership with the U.S. Marshals targeting at-large sex offenders, but it was scuttled by the new directive. According to one of my ICE sources, most of the targets do not clearly meet the new standards, especially in California, where sex offenders routinely get to plead down to far lesser charges, especially if it helps them avoid deportation, and where certain sex crimes, such as sex with a minor, are not classified as felonies as they are in other states. Another ICE officer told me that they had more than two dozen deportable sex offender targets at large in his area who now will be free to re-offend.
Besides the obvious public-safety problems that will result from permitting criminal aliens to remain, the Biden order eliminates consequences for those who have already been removed, often multiple times. According to the ICE records, more than 28,000, or 31 percent, of the nearly 92,000 cases that would no longer be removed are prior deportees.
Further analysis (see Table 2) shows that the parts of the country that will suffer the most from Biden’s decimation of immigration enforcement will be the parts of the country that have been the most fully cooperative with ICE, and which used immigration enforcement most effectively as a public safety tool. These places include the states covered by the Atlanta field office (Georgia, South Carolina, and North Carolina), the four Texas field offices, and the New Orleans field office, (Louisiana, Arkansas, Mississippi, Alabama, and Tennessee).
A different set of ICE records available in the FOIA Library reveals the impact of non-enforcement by county. Using a set of records enumerating each case of an alien removed after identification upon arrest by a local law enforcement agency from 2015 to 2017, it is possible to show which U.S. counties have had the most criminal alien deportations. Table 3 is a listing of the top 30 counties for criminal arrests during this period. These are the counties that can now be expected have the most protected criminal aliens under Biden’s order.
Biden’s order is a reckless experiment that is bound to have a human cost. But some state leaders don’t want to find out the hard way exactly what happens under a deportation moratorium. Texas already has filed a lawsuit, citing the significant costs to Texas taxpayers of dealing with illegal aliens that the federal government neglects to remove, not to mention a formal agreement Texas has with the feds to provide notice and consultation before any major policy changes.
Between this freeze on ICE and the resurgence of the caravans hoping to benefit from Biden policies, it’s hard to see how anyone will have an appetite to consider the mass amnesty and legal immigration expansion that Biden hopes to accomplish.
|Driving Under Influence Liquor||10,322|
|Illegal Entry (INA SEC.101(a)(43)(O), 8USC1325 only)||2,519|
|Illegal Re-Entry (INA SEC.101(a)(43)(O), 8USC1326 only)||2,390|
|Dangerous Drugs, Unspecified||1,295|
|Public Order Crimes||1,205|
|Hit and Run||825|
|Cruelty Toward Child, Disabled, Elderly or Wife||684|
|Flight To Avoid (prosecution, confinement, etc.)||588|
|Obstruction of Justice||517|
|Lewd or Lascivious Acts with Minor||505|
|Failure To Appear||310|
|Narcotics Equip – Possession||254|
|Possess Fraudulent Immigration Documents||241|
|Sexual Exploitation of Minor||231|
|Driving Under Influence Drugs||165|
|Total Enumerated Crimes||69,262|
|New York City||1,743|
|Salt Lake City||2,656|
Note: These are cases of removed aliens identified in ICE’s FY2018 enforcement
|El Paso, Texas||8,307|
|Los Angeles, Calif.||4,076|
|San Diego, Calif.||2,493|
|San Bernardino, Calif.||1,409|
|New York, N.Y.||1,306|
|Salt Lake, Utah||1,158|
|Santa Barbara, Calif.||862|
|Total, All Counties||149,601|