On August 19, the Los Angeles Times ran an article captioned “The Biden administration remade ICE after Trump: But will it last?” To read that piece, you would conclude — wrongly — that ICE officers under Trump randomly deported mothers with infants. Pick through the facts therein, however, and you will discover that Biden’s plan to expedite the processing of cases involving illegal migrant families isn’t very expedited at all — and that aliens illegally present for years still consider their old countries “home”.
The Canard of Harsh ICE Enforcement Under Trump. The Times asserts: “True to Trump’s harsh anti-immigrant rhetoric, ICE officers in his administration were directed to make nearly every immigrant without legal status a priority for arrest — even if the person had deep roots in the U.S. and no criminal record.”
That sweeping statement does not stand up to scrutiny, but notably the removal provisions in the Immigration and Nationality Act (INA) do not differentiate between removable aliens with “deep roots in the U.S. and no criminal record” and aliens with serious criminal records who arrived yesterday.
As an aside, though, I should note that non-criminal aliens with deep roots here may be granted relief providing them with legal status in the United States at the end of removal proceedings, but if ICE doesn’t place them into those proceedings, they won’t be able to apply. I’ll get back to that below.
Returning to the point, at the outset of the Biden administration in January 2021, I explained why a claim in BuzzFeed News alleging Trump had attempted to “ingrain a reckless hyper enforcement system” into U.S. immigration was a canard. The author of that piece was one of the two authors of the Times’ article, so at least he’s consistent.
Trump was president for three full fiscal years — FY 2018 (which began in October 2017), FY 2019, and FY 2020, so if the 45th president had turbocharged DHS into an agency that was sweeping aliens with “deep roots in the U.S. and no criminal record” into detention and out of the country, the results would have been felt in those three fiscal years.
Here are the facts. Of the 95,000-plus aliens removed by ICE from the interior of the United States (as opposed to at the border, where DHS takes aliens as they find them) in FY 2018, 76.1 percent of them had criminal convictions and 14.8 percent had pending criminal charges (a combined 90.9 percent). That was the “high-water mark” of ICE enforcement activities under Trump.
Interior removals fell in FY 2019, and of the 85,958 aliens ICE deported that fiscal year who were not initially apprehended at the border, 75.6 percent of them had criminal convictions, and 15.7 percent had pending criminal charges — a total of 91.3 percent.
Covid-19 took a huge toll on immigration enforcement, and the number of aliens removed in FY 2020 plummeted compared to the two years before. In that fiscal year, ICE only removed 62,739 aliens from the interior — 92 percent of whom had pending criminal charges or convictions, with convicted aliens making up the bulk (77 percent).
That was fewer interior removals than in the last full fiscal year of the Obama administration (65,332), 92 percent of whom had criminal convictions.
Speaking of Obama, few seriously view him as a “deporter-in-chief”, despite immigrant rights activists' attempts to portray him as such.
The problem with countering that perception is that even at their peak in FY 2018, ICE interior removals were less than 42 percent of what they had been under Obama in FY 2010. Similarly, in FY 2018, ICE interior arrests were between 44 percent and 50 percent lower (depending on which numbers you use) than they were in FY 2011, again, under Obama.
Obama did take his foot off the ICE gas in his last two full fiscal years (FY 2015 and FY 2016), but as I have explained in-depth elsewhere, the agency’s enforcement efforts were less “harsh” (by the Times’ implicit metrics, interior arrests and removals) in any given year under Trump than they had been in any fiscal year under Obama up to FY 2015.
That Times article references John Sandweg, who it describes as having “led the agency [ICE] during the Obama administration”. In reality, Sandweg was acting ICE director for five months, between August 2013 and February 2014.
As Homeland Security News Wire noted when Sandweg stepped down, “His appointment to head ICE, the country’s second-largest law enforcement agency, was received with some surprise because of his lack of law enforcement experience.” Five months is not much to go on, but how did ICE fare when Sandweg was there?
In FY 2014, ICE made more than 180,000 interior arrests, according to DHS's Immigration Enforcement Actions Annual Report. Those arrests are not broken down by criminality. That fiscal year, ICE removed 102,224 aliens from the interior — more than in any given year between FY 2018-2020 under Trump.
Those totals were even higher in FY 2013. According to DHS, ICE Enforcement and Removal Operations (ERO) made 229,698 administrative arrests and removed 133,551 aliens from the interior of the United States.
Despite all that, Sandweg told the Times, “Trump used ICE as the tip of the spear for his political agenda. ... You certainly have none of that [under Biden]. That has all gone away. The agency is adhering to common sense priorities” — raising the question of what sort of priorities ICE followed when Sandweg ran the place.
The “Dedicated Docket for More Efficient Immigration Hearings”. In May 2021, DHS and DOJ (which has jurisdiction over the immigration courts) announced that they would be implementing a “Dedicated Docket Process for More Efficient Immigration Hearings”. The departments promised, “While the goal of this process is to decide cases expeditiously, fairness will not be compromised.” That latter point is likely true; the former not so much.
Under that new initiative, illegal entrant families would be released on inaptly named “Alternatives to Detention” (ATD) and placed on a dedicated immigration court docket in one of 10 cities.
There, immigration judges would hear their cases within an aspirational goal of 300-days (“subject to the unique circumstances of each case including allowing time for families to seek representation where needed”), from initial “Master Calendar” hearing (which is like a criminal arraignment) to a final decision of removal or relief.
The Times’ article reveals that “more than 60,000 immigrants” have been subject to that “expedited process”, and “about 11,000” have been ordered removed. That’s the good part. The bad part? “Around 150 have been deported through July” — a removal rate of 1.36 percent.
That said, even the good part isn’t that great.
Between June 1, 2021 — four days after that dedicated docket was announced — through the end of July, Border Patrol agents at the Southwest border have apprehended more than 668,000 aliens in family units at the Southwest border. That means fewer than 10 percent of eligible aliens have been placed into that “expedited process” and just 1.165 percent have been ordered removed.
Put more precisely, a mere .02 percent of aliens who could have received due process under that dedicated docket and been ordered removed have been removed. That is the definition of a “process-oriented” approach, not a “results-oriented” one. I hope that you, the taxpayer, are enjoying this show because that’s all it is — kabuki theater in which all the performance boxes are checked, except for the last.
The Limbo of Terminated Proceedings. Speaking of immigration court, that Times article also touches on the Biden administration’s policy of terminating removal cases there involving facially removable aliens. It focuses on one “Anastasia Abarca”, a Mexican national illegally present in the United States, albeit with “no criminal record”.
Abarca was arrested in May 2019 by ICE officers looking for her brother (“It was his home, and she had just dropped off her 7-year-old son there.”). No idea whether he did have a criminal record, but in any event, she was taken into custody and ordered deported.
Except, she wasn’t deported. Rather, “After Joe Biden was elected president, people told her to have hope — he would be kinder to immigrants. Last December, her case was dismissed.” She still doesn’t have any status, however, because illegal aliens whose cases are dismissed — including Abarca — return to the status that they had before, in her case illegal status.
Still, the Times wants you to have sympathy for her:
Abarca hopes to one day get her U.S. citizenship, so she can live free from fear — and so she can visit her family in Mexico.
“I dream about having a house one day, to live peacefully and to be able to go back to my country and get to know my country,” said Abarca, 37.
Abarca, we are told, has been in the United States for about 14 years, and under this administration at least, any “fear” of removal from which she must be “freed” is strictly personal. Note, however, her “dream”—to visit and “get to know” what she describes as “my country” — Mexico, not the United States where she has lived since she was about 23.
Of course, she can leave whenever she wants, but she’s basically a permanent guestworker here (she’s “worked as a baker” in this country) without status.
The problem with Biden’s “no-enforcement” regime is that by throwing sand in the gears of justice, aliens like Abarca are in “legal limbo”, technically allowed to stay but practically unable to leave.
In March 2021, DHS Secretary Alejandro Mayorkas complained that Trump had “dismantled” the immigration system “in its entirety” (a wholly false claim PolitiFact somehow deemed “half true”). What’s clear now is that Biden and Mayorkas have gutted the system in its entirety in less than 20 months. At the pace they’re going on “expediting” aliens through what’s left, it will take decades to fix it.