Detention of Criminal Aliens:
What Has Congress Bought?

Over the last five years, Congress poured $24 billion dollars into the Department of Homeland Security's Immigration and Customs Enforcement (ICE), upping the overall funding for this agency by 67 percent. The largest as well as the fastest growing segment of these appropriated dollars went to ICE's Detention and Removal Operations (DRO) office whose budget more than doubled (increasing 104%). Under the law, the DRO is charged with finding, detaining and removing non-citizens who do not have a legal basis for continuing to reside in this country.

Figure 1. ICE Budget Increase,
FY 2005 to FY 2009

To determine what these greatly expanded funding levels accomplished the Transactional Records Access Clearinghouse (TRAC) has analyzed hundreds of thousands of ICE records about every detainee held by the government for the period from FY 2005 through the first quarter of FY 2010. The analysis had two goals. The first was to determine the actual policies that were followed from FY 2005 to 2009, mostly under President Bush. The second was to see what if any changes have occurred since last May when ICE's new head, John T. Morton, took over the reins of the agency.

This report is the second in a series on ICE enforcement policies. A previous report examined detention transfer practices. By contrast, this report focuses on the changing composition of detainees. A third TRAC report will examine the role of detention on the ICE goal of deporting and removing aliens from this country.

A key indicator of ICE's detention priorities is how the agency targets its efforts. The significant increases in funding provided by Congress were made with the promise that ICE would give priority to detaining and removing aliens who were widely believed to pose a real threat to the safety of the United States. Especially to be targeted were non-citizens in our midst who had committed crimes. Under the law the targeted aliens were those who had been convicted of a crime regardless of whether they had entered the country legally or illegally, whether they were long-time legal permanent residents ("green-card holders") or short-term temporary workers, visitors with proper authorization, or aliens who had been working or staying illegally in this country.

[An important note: the data examined by TRAC does not distinguish among the types and seriousness of crimes for which the detainees had been convicted. For ICE, the term "criminal alien" includes the relatively small number of individuals convicted of serious offenses like armed robbery, drug smuggling, and human trafficking. But the term also includes those found guilty of minor violations of the law such as traffic offenses and disorderly conduct. Immigration violations such as illegal entry into the United States, which the law defines as a petty offense, are included as well.]

How successful has ICE been in meeting its stated goal of focusing on criminal aliens? Two key findings emerged from TRAC's careful examination of nearly 2 million ICE detention records covering this period:

    Figure 2. Growth in Criminal
    vs. Non-criminal Detainees.
    (click for larger image)

  • FY 2005 FY 2009 ICE practices. Over the last five years while the total detainee population grew by 64 percent and Congress was steadily increasing the funding for more and more detention beds, the composition of those who were being detained underwent rapid change. Instead of giving priority to the detention and removal of aliens convicted of crimes, the agency seemingly focused on filling detention beds. Thus, the rapid rise in the number of individuals in detention occurred largely in the numbers of non-citizens who had no criminal record. As shown in Figure 2, detainees without any criminal conviction doubled between Fiscal 2005 and FY 2009, while the number of criminal detainees barely changed.

  • Figure 3. Criminal vs.
    Non-criminal Detainees.
    (click for larger image)

  • Preliminary data for FY 2010, however, indicate that practices are changing. During the first quarter of FY 2010 — October 2009 through December 2009 — ICE began reducing the overall number of individuals in detention as compared with comparable periods during FY 2008 and FY 2009. This decline was largely attributed to a drop in non-criminal detainees. As a result, as shown in Figure 3, while roughly only one out of four detainees (27%) had a criminal record in FY 2009, during the first three months of FY 2010 the figure has grown to more than four out of ten (43%) and was continuing to trend upward.

Here are the details.

Congressional Budget Appropriations and ICE Program Priorities

Funding provided ICE by Congress rose rapidly over the last five years. During FY 2005, ICE's budget expenditures were $3.6 billion; by FY 2009 the dollars had grown to $5.9 billion, an increase of 67 percent (see table for details). Figure 4 summarizes these trends for major components of ICE. As this figure shows, the largest and fastest growing ICE component was Detention and Removal Operations (DRO).

Figure 4. Growth in ICE
Budget Expenditures.
(click for larger image)

Year after year ICE justified its requests for increased funding as essential to protect public safety and national security, particularly by detaining and removing criminal aliens. During this period Congress each year approved additional funds to increase the number of detention beds available: $104 million in FY 2006, $241 million in FY 2007, $250.4 million in FY 2008, and $71.7 million in FY 2009 (see table for references). According to ICE, this increase in detention space to support its enforcement efforts "has a direct effect on public safety and national security."

In addition, Congress also provided more money each year to "substantially improve the identification of removable aliens who are serving criminal sentences" through the Criminal Alien Program (CAP) and for expansion of Fugitive Operations teams which ICE said had been assigned to "[a]pprehend and remove fugitive aliens, especially those with criminal convictions from the United States." ICE's website in 2005 stated: "The removal of criminal aliens from the United States has become a national priority. To address this priority, DRO designed the National Fugitive Operations Program..." CAP's budget received an additional $40 million in FY 2006, $44 million in FY 2007, and $41 million in FY 2008 while fugitive operations received an additional $43 million in 2006, $61 million in FY 2007, and $36 million additional in FY 2008. Indeed, between FY 2005 and FY 2009 the two fastest growing components of DRO were the Criminal Alien Program where funding increased 253 percent and Fugitive Operations whose dollars increased 204 percent (see supporting table).

During this period Congress also funded a series of new programs with a focus on detaining and removing criminal aliens. For example in FY 2008, it provided $20.4 million for gang enforcement since these "[c]riminal aliens pose a significant threat to public safety," $10.7 million to support Border Enforcement Security Task forces to "disrupt and dismantle cross-border criminal organizations," and $200 million to fund an "improvement and modernization effort of DRO to identify aliens convicted of a crime." FY 2009 saw $150 million appropriated "to identify and remove criminal aliens under the Secure Communities Program." See table for references.

ICE's Detention Record: FY 2005 through FY 2009

These increases in funding did in fact contribute to a sharp expansion (64%) in the number of individuals ICE detained from 233,417 during FY 2005 to 383,524 in FY 2009. As shown in Figure 5, the increase was most rapid in the first part of this period and leveled off during the last two years. For details, see supporting table.

Figure 5. Growth in Number Detained.
(click for larger image)

But as shown in Table 1 below and earlier in Figure 2, despite the justification that the increases in ICE's funding were to identify, locate and detain criminal aliens so that the expansion in detention beds would enhance public safety and national security, the number of criminal aliens located and detained barely increased. Instead, this vast increase in the detainee populations occurred as ICE picked up and detained non-citizens who had never been convicted of any crime.

Table 1. Growth in Criminal vs. Non-criminal Detainees, FY 2005 - FY 2009
Fiscal Year Change
2009 vs 2005
2005 2009
DRO Budget (in Millions) $ 1,218 $ 2,481 104%
Number Detained 233,417 383,524 64%
93,834 105,116 12%
139,583 278,408 99%

These results are particularly surprising since the law enforcement agencies and units accounting for the vast majority of those detained supposedly targeted criminal aliens (see Table 2 below).

Table 2. Aliens Apprended by Arresting Authority
Agency Arresting Office Percent of FY 2009
Detention Book-ins
and Customs
Criminal Alien Program 48%
Office of State and Local Coordination {287(g)} 12%
Office of Investigations 6%
Fugitive Operations 5%
Other (Secure Communities, etc.) 5%
ICE Total
and Border
Office of Border Patrol 19%
Office of Field Operations 3%
CBP Total
Other   2%
Total   100%
Source: FY 2009 admissions as of June 30, 2009; reported in the October 6, 2009 Homeland Security, Immigration and Customs Enforcement report entitled Immigration Detention Overview and Recommendations by Dr. Dora Schriro.

For example, the top program — the Criminal Alien Program — accounted for half (48%) of the detainees. ICE's 287(g) program, sold to Congress as needed to locate criminal aliens through ties with local and state law enforcement offices, was the next largest and accounted for 12 percent of detainees. The central focus of almost all of the remaining ICE arresting offices also was to locate criminal aliens: the Office of Investigations (6%), Fugitive Operations (5%), and ICE programs included in other, such as Secure Communities (other, 5%).

While apprehensions last year were made largely by ICE personnel in programs designed to locate and detain criminal non-citizens, 3 out of every 4 detainees (73%) actually had no criminal record (see Table 1 above).

Latest Detention Figures for FY 2010

Figure 6. Declining Proportion of
Criminal Aliens among Detainees.
(click for larger image)

Using the individual records on each ICE detainee TRAC examined how the composition — criminal versus non-criminal — changed month-to-month over the entire period. Extending through September 2009, the data showed a persistent downward trend toward lower and lower proportions of aliens with criminal records. This down slide, from 40 percent criminal aliens in FY 2005 to only 27 percent last year, is summarized in Figure 6.

However, starting in October of 2009, the first month in FY 2010, the ratio of criminal versus non-criminal detainees began to shift, and these trends accelerated in November and December. While roughly only one out of four detainees (27%) had a criminal record in FY 2009, during the first three months of FY 2010 the figure had grown to more than four out of ten (43%) and was continuing to trend upward (see Figure 7 and supporting table).

Figure 7. Shift in Criminal vs.
Non-criminal Detainee Numbers.
(click for larger image)

What lies behind this fairly dramatic shift? This decline was largely attributed to a drop in non-criminal detainees. As a result, during the first quarter of FY 2010 — October 2009 through December 2009 — the overall number of individuals in detention declined as compared with comparable periods during FY 2008 and FY 2009. In the data ICE released to TRAC we did not see any increase in the number of criminal detainees, only a sharp decline in the numbers of non-criminal detainees.

ICE told TRAC that it agrees that it was the drop in the non-criminal detainees that was largely driving this dramatic shift. It said, however, that while the number of detainees in total was down that in addition to this decline, more complete and recent data showed there was a increase in the numbers of criminal detainees. TRAC was not able to confirm this statement because we had not yet received augmented data that ICE had promised at the time this report was posted.

What Lies Ahead?

Caution is required when it comes to making predictions about future ICE detention practices based simply on three months of data. The patterns observed during the first three months of FY 2010 may represent only a temporary blip rather than foreshadow a long term trend.

Further, as noted earlier, the data used for this report did not distinguish among the types of offenses that criminal aliens committed. In implementing its latest program, Secure Communities, a challenge for ICE will be to expand the numbers of criminal aliens it locates and removes from the country while meeting the stated goals of this program: "[p]rioritize criminal aliens for enforcement action based on their threat to public safety" so that detention and removal dollars are spent on "high-risk criminal aliens" — those committing serious crimes.

Under the Secure Communities program, serious offenses (sometimes referred to as "Level 1 Crimes") include the following state or federal crimes: national security violations, homicide, kidnapping, sexual assault, robbery, aggravated assault, threats of bodily harm, extortion or threat to injure a person, sex offenses, cruelty toward child or spouse, resisting an officer, weapons violations, hit and run involving injury or death, and drug offenses involving a sentencing to a term of imprisonment greater than one year." (Reference: Secure Communities SOP.)

However, the Secure Communities program, which the agency is rapidly expanding, has the potential of locating large numbers of aliens who have been arrested by local authorities for petty offenses but have never been convicted of any crime let alone a serious crime. In the end, the question is will the Secure Communities program actually target "high risk criminal aliens" or sweep all non-citizens who are arrested or picked up into the detention system as long as beds remain to be filled?

In a recent interview with the National Law Journal, Morton, the new head of ICE, is quoted as saying that his primary focus is "how we detain people" to fix inadequacies in the conditions and treatment individuals receive in detention facilities now largely run by outside contractors with little supervision or oversight. "This isn't a question of whether or not we will detain people. We will detain people, and we will detain them on a grand scale" Morton said.