U.S. Immigration Officials: Pot Smokers Get Out; Rapists You Can Stay

Immigration and Customs Enforcement, an arm of the federal Department of Homeland Security, states that it “prioritizes the removal of criminal aliens, those who post a threat to public safety, and repeat immigration violators.” President Obama’s then-director of intergovernmental affairs, Celia Muñoz, wrote in a 2011 blog post that DHS had “prioritized the removal of people who have been convicted of crimes in the United States,” consistent with “a strategy to make sure we use those resources in a way that puts public safety and national security first.”

But public safety and national security are in the eye of the beholder.

Authors of a new report from the Center for Juvenile and Criminal Justice, a San Francisco nonprofit that seeks to reduce incarceration, reviewed data on requests by ICE to law enforcement agencies to detain adult suspected undocumented immigrants. “According to these data,” wrote authors Mike Males and Selena Teji, “an undocumented foreign national with a traffic offense is more likely to be booked into ICE detention than one with a homicide, forcible rape, robbery, or aggravated assault offense.” The authors also found that “a suspected undocumented immigrant with a prior or contemporaneous conviction for possessing less than an ounce of marijuana – which is no longer even a crime in California – is more likely to face ICE detention (73.1 percent) than one with a rape conviction (69.7 percent).”

The data, for a period running from late 2009 to early 2013, were obtained through a lawsuit; CJCJ noted that it limited its statistical assessment to 77,923 cases in which officers had recorded how the request was resolved and filled out a non-mandatory “Most Serious Criminal Charge” field.

In a conversation with Salon, ICE suggested that, by focusing on those crimes of which an immigrant had already been convicted, CJCJ missed the point. Asked about the report, ICE told Salon that because the report “only focuses on detainers issued on convicted criminals,” it “fails to recognize the issuance of ICE detainers on other public safety threats such as transnational criminal street gang members, international fugitives, human rights violators, national security threats and those who repeatedly violate our immigration laws.” The agency argued that the report “does not take into account detainers placed on immigration law violators charged with serious crimes who have not yet been convicted of a crime in the United States,” and noted that some people detained are ultimately released.

ICE spokesperson Gillian Christensen emailed that the agency “places detainers on individuals arrested on criminal charges to ensure that dangerous criminal aliens and other priority individuals are not released from prisons and jails into our communities. ICE officers also consider other enforcement priorities when making decisions to place immigration detainers such as if the individual is a recent border crosser, immigration fugitive or has been previously removed from the United States, a federal felony.”

Local law enforcement cooperation with detention requests from ICE under the federal “Secure Communities” program has become an increasingly contentious issue in local politics, with several states or cities considering or passing policies to restrict or suspend participation. A 2011 report from a DHS task force convened to assess Secure Communitiesnoted that “roughly half” of task force members were “in favor of some degree of suspension or termination” of the program. The CJCJ report states that “immigration detainer programs” are “often enforced against people with minimal and non-violent criminal histories without the due process afforded them under the criminal justice system.”

Males and Teji note that their assessment is limited by the depth and breadth of data provided by the government. But they write that, assuming the groups that sued for the data were provided the best stats available, either “ICE record keeping is too deficient to reach any valid conclusion,” or “American immigration enforcement policy is irrationally applied in that it targets, holds, detains, and deports undocumented immigrants without regard for their dangerousness.” They argue such data suggest ICE “operates erratically,” though it “does not seem plausible that officials would detain lesser offenders more than more serious ones,” given the “stated priorities” of the program. They urge further study.

The latest report, “Are Immigration Detainer Practices Rational?,” follows previous CJCJ papers concluding that “many ICE holds were being requested for people with no documented criminal histories or who were arrested for low priority marijuana offenses,” and that the agency “continues to request holds for individuals detained in youth detention facilities despite the de-prioritization of immigration enforcement for youth.”