Under a revamped Obama administration program intended to encourage greater cooperation from local law enforcement agencies in helping deport illegal immigrants who the government considers “a danger” to public safety, fewer people are being taken into custody for eventual removal from the country.
In November 2014, the administration introduced the Priority Enforcement Program (PEP), a less demanding version of a previous system that had been accused of violating immigrants’ civil rights, and did not differentiate between low-level and serious offenders.
The old program, called Secure Communities, influenced a number of local jurisdictions—known as “sanctuary cities”—to not work with the federal government.
While more local agencies are indeed working with federal immigration authorities since the new program began, a new study shows that those closer ties have not resulted in greater apprehensions of illegal immigrants who the government seeks to deport.
The federal Immigration and Customs Enforcement Agency (ICE) reports that only 2 percent of its requests to local law enforcement were declined in the first two months of fiscal year 2016.
However, during that same time period, ICE did not take custody of more than 60 percent of individuals it had requested information on.
“Obviously it takes an enormous time to turn around something as big as a Department of Homeland Security program, and this is clearly something that needs continuing monitoring,” said Susan Long of the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, who acquired and compiled the data for her recent study. “But there is no indication at this point that the PEP directives have in fact been implemented successfully.”
New Program, Narrower Focus
In the old program, Secure Communities, ICE asked law enforcement agencies to hold somebody in custody for an extra 48 hours from when they would normally be released so that person could be picked up and deported. These requests were known as detainers.
With the new program, local authorities, in most cases, are asked to only notify Immigration and Customs Enforcement when they plan to release someone from jail whom the government seeks to deport.
ICE still can issue a detainer if it believes it has probable cause to deport an illegal immigrant who has been arrested, even if they haven’t been convicted.
In addition to switching from Secure Communities to the Priority Enforcement Program, the administration at the same time also announced it was narrowing the types of people it seeks to deport.
ICE officers are told to first target illegal immigrants considered to be threats to national security and public safety, who have likely been convicted of a felony. Other priorities for deportation include individuals who have been convicted of multiple misdemeanors, and recent arrivals who came here illegally after Jan. 1, 2014.
With about 11 million immigrants living in the country illegally, the administration argues that smart policy dictates focusing its deportation efforts more specifically, at people it considers to be dangerous.
The natural result of this more narrow focus is that ICE is seeking to deport fewer people, according to the statistics acquired by TRAC.
For example, in October of 2008, the first month and year from TRAC’s data, ICE issued more than 19,000 detainer requests to local law enforcement. None of those requests were rejected by local law enforcement.
In November of 2015, the last month and year of TRAC’s data, ICE submitted a little more than 6,000 detainer and notification requests to local agencies. Almost 100 of the requests were rejected. Still, that refusal rate—about 1.6 percent—is much less than what it was at the height of the controversy over Secure Communities, when there were more sanctuary cities.
In June and July of 2014, for instance, 10.4 percent of ICE requests to local law enforcement were refused.
Serious Criminals ‘Getting Through’?
Immigration experts who reviewed the TRAC study noted that it has limitations. It only captures a short amount of time since PEP was implemented, and it does not show how many of those taken into custody by ICE were actually deported.
But some observers are concerned that even with increased cooperation from local law enforcement, ICE is apprehending fewer people it seeks custody of.
Randy Capps, the director of research for U.S. programs at the Migration Policy Institute, says that because ICE is more narrowly tailoring its deportation focus to those it considers to be serious criminals—and recent border crossers—it stands to reason that some of those who are not taken into custody are dangerous.
“One can assume a fair number with serious convictions are not getting into ICE custody,” says Randy Capps of @MigrationPolicy.
“It’s clear that the overall number of people getting detainers and into ICE custody are both going down so we have evidence that ICE is narrowing whom they seek to deport,” Capps told The Daily Signal. “And it is also clear a lot more major jurisdictions are sending people into ICE custody, while there are still some that are not.”
“So one has to ask, are people who would be considered a top priority and may commit a serious crime getting through and not getting deported?” Capps added. “We don’t know for sure because ICE has other ways to pick these people up. But one can assume a fair number with serious convictions are not getting into ICE custody.”
An ICE official, who would not comment directly on the TRAC study, told The Daily Signal it’s not appropriate to conclude that just because the agency is receiving greater compliance from local jurisdictions, it should therefore be taking custody of more people who are referred to them for deportation.
That’s because, in instances where local agencies refuse to help facilitate the removal of illegal immigrants targeted by ICE, federal immigration officials often go off into communities on their own to find and take custody of those individuals.
These dispatched ICE officers, known as Fugitive Operations Teams, are usually tasked with finding and apprehending illegal immigrants who don’t show up for their deportation hearings, or those who have been ordered removed but escape before they’re deported.
But in other situations, the ICE official and Capps said, the Fugitive Operations Teams will be dispatched to find those who the government considers to be serious criminals—people who local agencies refuse to help deport.
“There is no direct correlation between a record showing an alien in ICE custody and a local jurisdiction honoring an ICE detainer,” the ICE official said. “In uncooperative jurisdictions, ICE officers often attempt to track down and arrest those individuals after they have been released from local custody. These are considered ‘at-large’ arrests because they take place outside the confines of a jail.”
These type of arrests that occur without the help of local law enforcement are not included in TRAC’s data.
“That wouldn’t show up in this [TRAC] data,” Capps said. “It does not count as someone taken into custody via a detainer. And as the number of issued detainers comes down, I think you will see fugitive operations picking up a higher share of people than in the past.”
Fugitive operations are also considered more expensive and time-intensive, Capps said.
“The limitation of fugitive operations is ICE has to go find people,” Capps said. “With that, there are all sorts of extra constraints, and it is much more expensive and difficult to do. When someone is in jail, they are captive, and you just go get them.”
Local Laws ‘Trumping’ ICE Policy
For ICE, the implementation of PEP was supposed to help avoid that extra effort, by promoting flexibility with how cities and counties devise their policies, and thus encouraging more cooperation.
That has happened in some cases.
ICE reports that of the 25 jurisdictions with the highest number of declined detainers, 17 of those jurisdictions are now PEP participants in some shape or form. These 17 jurisdictions represent 61 percent of previously declined detainers. So from ICE’s perspective, there is still progress left to be made.
Indeed, the TRAC data shows that since fiscal year 2014, a number of local jurisdictions in California have racked up the highest numbers of declined detainers and notification requests.
Before PEP was implemented, the Santa Clara County Main Jail had the highest refusal rate in the nation at 88.2 percent.
In the latest available data since PEP has been in place, from July through November 2015, ICE reports that Santa Clara County has only declined 4.8 percent of requests. Yet ICE has still been unable to take custody of the illegal immigrant in nearly every one of those cases.
“This raises the question: Did Santa Clara’s cooperation actually increase? Or did ICE simply stop recording refusals that occurred? Or is there some other explanation for these wildly dissimilar trends?” the TRAC report states.
To Capps, no matter what ICE considers to be cooperation, the data makes sense. In California, it’s harder to apprehend illegal immigrants through detainer requests because of a state law, known as the Trust Act, that strictly limits the situations in which local agencies will help ICE take custody of those it seeks to deport.
“The huge discrepancies in the refusal rate vs. not taking somebody into custody suggests to me that the refusal rate does not have that much meaning,” Capps said. “The share taken into custody has much more meaning in showing who is actually cooperating, and how well PEP is performing as it’s intended to. And some of that is outside ICE’s control if states and localities have laws that for the time being seem to be trumping ICE policies.”