ICE report contradicts notion that Trump is using immigration law to ‘keep America white’

Is President Donald Trump a racist? I don’t know. But I see no merit in the widely held belief that the objective of his immigration policies is to keep America white. If that were true, it would be reflected in ICE’s FY 2018 Enforcement and Removal Operations Report, and it isn’t.

The only prejudice the data in that report show is against undocumented aliens who have been convicted of crimes or have criminal charges pending against them. But a new study from researchers at University College London indicates that facts may not matter to extremists on either side of the political spectrum.{mosads}

According to a Migration Policy Institute (MPI), study of 24 ICE Enforcement and Removal Operations (ERO) offices and 15 local jurisdictions, the main difference between Trump’s enforcement policies and the enforcement policies in the final years of Obama presidency is that Obama focused on criminals, recent border crossers, and aliens subject to removal orders.  Whereas, under Trump, every deportable alien is subject to being arrested and removed.

But Obama’s immigration policies were more extreme than MPI’s observation indicates.

Obama’s DHS Secretary, Jeh Johnson, issued a memorandum prohibiting ICE officers from arresting aliens who were not in a priority category unless “in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.”

ICE union president, Chris Crane, testified at a congressional hearing that ICE officers were “prohibited from arresting illegal aliens solely on charges of illegal entry or visa overstay — the two most frequently violated sections of U.S. immigration law. … Their instructions are that only if an alien is first arrested by local police on criminal charges may ICE agents and officers consider making an immigration arrest.”

ICE enforcement policies for the Trump administration come from Executive Order 13768, and an implementation memorandum. Although these documents establish priority categories that are similar to the ones used by the Obama administration, enforcement is not limited to aliens in a priority category. Trump stated in his Executive Order that, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”

Under the Trump administration, the removal grounds in the Immigration and Nationality Act apply to all removable aliens.

In addition to its enforcement activities in the interior of the country, ICE handles aliens CBP apprehends at or near the border who have established a credible fear of persecution and therefore are entitled to an asylum hearing.

ICE focusses most of its interior enforcement resources on removable aliens who pose the greatest risk to the safety and security of the United States. Sixty-six percent of the aliens it arrests are immigration violators with criminal convictions, and 21 percent are immigration violators who have pending criminal charges. 

The rest are classified as, “Other Immigration Violators.” They are immigration violators who do not have criminal convictions or pending criminal charges.

The following chart provides an arrest breakdown for fiscal years 2016 through 2018.

In fiscal 2018, ICE arrested 105,140 immigration violators who had criminal convictions and 32,977 immigration violators who had pending criminal charges.

Only 20,464 (12.9 percent) did not have convictions or pending criminal charges. A recent Yale study estimates that there are more than 22 million undocumented aliens in the United States, which indicates that the likelihood of deportation is quite low for undocumented aliens who do not become involved in criminal activity.

Moreover, according to MPI’s study, ICE relies heavily on help from state and local law enforcement agencies to identify and arrest removable aliens. In jurisdictions that cooperate with ICE, the police screen aliens when they are arrested and booked into custody and notify ICE if any of them appear to have unlawful status.{mossecondads}

Sanctuary cities do not provide this cooperation, which leaves ICE with little choice but to carry out its enforcement activities in neighborhoods and at other community locations, even though this is not an efficient use of its resources. This has resulted in an increase in the arrests of noncriminal aliens and numerous complaints.

For instance, former state and federal judges have petitioned ICE to classify courthouses as sensitive locations, which would prohibit ICE agents from making arrests in them. The judges claim that this practice is making aliens who might be arrested afraid to pursue justice in our nation’s courts.

ICE has made changes in its policy on courthouse arrests, but it has not eliminated them. ICE maintains that its courthouse enforcement activities are consistent with longstanding law enforcement practices nationwide, and courthouse arrests often are necessitated by the unwillingness of jurisdictions to cooperate with ICE.

The takeaways from this data are that ICE is targeting aliens who become involved in criminal activity and that sanctuary cities should find a better way to help undocumented aliens in their communities.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.