E.g., 06/24/2017
E.g., 06/24/2017

Unauthorized Immigrants with Criminal Convictions: Who Might Be a Priority for Removal?

Commentary
November 2016

Unauthorized Immigrants with Criminal Convictions: Who Might Be a Priority for Removal?

U.S. Immigration and Customs Enforcement

There has been much interest—and confusion—in recent days regarding the number of unauthorized immigrants who could be deported because of criminal records when the Trump administration takes charge.

During an interview Sunday on CBS’ 60 Minutes, President-elect Trump was asked about his pledge to deport unauthorized immigrants, and he responded: “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate. But we’re getting them out of our country, they’re here illegally.”

So, how many unauthorized immigrants would be priorities for removal and could be removed, as outlined by Mr. Trump? It’s a question we have been asked repeatedly since the Trump interview.

The most recent publicly available information provided by the Department of Homeland Security (DHS) on the criminal alien population (the government’s official terminology) dates back to a 2012 report to Congress. Based on it, we estimated in a 2015 report that 820,000 of the approximately 11 million people living in the country illegally had criminal convictions. Of these, we estimated 300,000 had a felony conviction and 390,000 were serious misdemeanants (meaning they had been convicted of a misdemeanor in which they were sentenced to actual custody of 90 days or more).

These 820,000 unauthorized immigrants are a subset of the 1.9 million noncitizens identified by DHS as removable criminal aliens, in other words noncitizens identified for deportation from the United States based on a criminal conviction. While this fact appears little known, a very substantial portion of these 1.9 million noncitizens are people lawfully present in the United States—either legal permanent residents (also known as green-card holders) or noncitizens on temporary visas—who have become deportable as the result of a disqualifying crime.

How did we get to this 820,000 number? The government’s estimate of 1.9 million did not break down the population by legal status. But examining the legal status of all noncitizens in the United States by category (legal permanent resident, nonimmigrant visa holder, and unauthorized immigrant), unauthorized immigrants accounted for 43 percent of the noncitizen population in 2012, the year of the DHS estimate. Assuming unauthorized immigrants commit crimes at similar rates as other noncitizens, the result would be 820,000 unauthorized immigrants with criminal convictions.

Drawing upon our analysis of the 3.7 million deportations that occurred between fiscal years (FY) 2003 and 2013, which looked at the most serious criminal conviction for deportees, we further estimated who among the 820,000 unauthorized immigrants convicted of a crime would be priorities for removal under current DHS policy. We determined that 300,000 of these likely have a felony conviction and another 390,000 are serious misdemeanants.

Mr. Trump has pledged a greater focus on removal of unauthorized immigrants with criminal records. The immigration enforcement system has already been recalibrated in recent years to focus on this population. Convicted criminals represented just 31 percent of all removals carried out by U.S. Immigration and Customs Enforcement in FY 2008. The share has steadily risen and accounted for 59 percent of removals in FY 2015, the most recent year for which ICE has released removals data (See Figure 1).

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What is responsible for this growing focus on criminals in the immigration system?

In a set of laws passed by Congress in the mid-1990s, convictions for many more types of crimes made noncitizens, including lawful permanent residents, deportable. In the post-9/11 period, the federal government employed a provision of a 1996 immigration law—known as 287(g)—to deputize willing state and local authorities to enforce aspects of federal immigration law. Subsequently, 287(g) was largely superseded when DHS in 2008 launched a federal-state information-sharing program known as Secure Communities. Eventually put in place in all jails and prisons across the United States, Secure Communities used fingerprint data to check the immigration status of all arrestees and issue detainers to local law enforcement agencies to hold individuals for ICE to take into custody.

In response to a significant backlash from communities across the United States, more than 360 of which had adopted ordinances or policies limiting cooperation by their law enforcement agencies with ICE, the Obama administration in July 2015 replaced Secure Communities with the Priority Enforcement Program (PEP), intended to be tailored to the priorities of local jurisdictions. PEP limits ICE issuance of detainers to local law enforcement agencies only for noncitizens who have been convicted of a crime or represent a public-safety risk, consistent with the priorities of the local jurisdiction.

Municipalities that resisted Secure Communities have become referred to as “sanctuary cities.” They have come under growing scrutiny in Congress, particularly after an unauthorized immigrant who was not referred to ICE for deportation after completing a jail sentence in San Francisco despite having been deported on five prior occasions shot and killed a young woman. Lawmakers in Congress have since introduced a flurry of bills that would sanction communities refusing to cooperate with ICE, in some cases by stripping them of federal funding.

The Trump campaign has said that it will restore Secure Communities, which allowed ICE to ask all local law enforcement agencies to hold for removal any noncitizens who were deportable, whether convicted or not.

Whether through PEP or a reinstated Secure Communities program, meeting Mr. Trump’s pledge to deport 2 million to 3 million unauthorized immigrants would require significant new appropriations from Congress. DHS is funded to identify, detain, and deport about 400,000 unauthorized immigrants annually. The current administration largely met that number in FY 2009-12 before tailoring its prosecutorial discretion guidelines to focus more fully on criminals and other public-safety threats, recent border crossers, and people with outstanding deportation orders.

In addition, most of those targeted for removal will be eligible for an immigration court hearing. However, the immigration court system, an administrative system within the U.S. Department of Justice, is already heavily overburdened. The immigration courts face a backlog of more than 520,000 cases, with an average wait nationally of 675 days for a removal hearing.

Even if Congress provides additional appropriations for deportations, DHS would still have to make enforcement choices in a world of limited resources. Given that reality, and the increasing delays in immigration proceedings, a larger-scale deportation initiative is unlikely to materialize quickly.