Email, Denise Gilman, clinical professor, director, Immigration Clinic, University of Texas School of Law, Aug. 27, 2015
11:14 p.m.
So, these detention issues are extremely complicated. I think ICE is likely correct in insisting that most of the 169 (or 196) homicide defendants who were released were required to be released. ICE generally errs on the side of detention and would be unlikely to release an individual convicted of homicide unless ordered by the immigration court or a federal court or because the Supreme Court decision in Zadvydas would obviously require release (more than six months have passed since removal ordered, no ability to get agreement from the home country to accept the individual back, no serious risk of danger to the community upon release).
However, in general, ICE has a great degree of control over who is detained and who is released and often exercises that control to detain individuals without justification. Because immigration detention is civil detention (not based on a criminal conviction), liberty is the constitutional rule and detention is intended to be the exception to be used only where there is a significant risk of flight or danger upon release. However, ICE regularly detains individuals who do not present any characteristics that make them a serious flight risk or danger. Among those detained are often individuals labeled by ICE as “criminal aliens” identified as priorities for ICE enforcement who actually have not been convicted of any crime that would be deemed serious by any standard (eg traffic violations are counted towards prioritization of criminal cases as are cases that involve only a conviction for an immigration-related crime such as unlawful entry). See http://trac.syr.edu/immigration/reports/330/ Once ICE detains, the agency does sometimes release later in the process on a bond, but ICE often imposes bonds that are so high that the migrant remains in detention throughout the proceedings because of an inability to pay.
In addition, as a general matter, where ICE is lacking control over detention decisions, it is also usually in the direction of mandatory detention rather than mandatory release. There are some categories of individuals required to remain in detention under the law. So I think the proper characterization is to say that ICE does have control over detention and release decisions and, where they are lacking in control, generally it is because they must detain mandatorily.
As for the larger number of individuals with some criminal issue who may have been released, it is possible that ICE lacked control over a number of those cases as well in the sense that many of the detained individuals would have been eligible for review of their detention by an Immigration Judge, and the Immigration Judge might have ordered release on payment of a bond or on recognizance. Others may have won their immigration cases in court meaning that they could no longer be detained in order to allow for execution of a deportation order, because they will not be deported. Immigration Judge decisions ordering release should be seen as offering review of ICE decisions to detain, which find that detention is not necessary. So the immigration judge decisions do require ICE to release migrants in detention and so control ICE’s custody decisionmaking in some cases, but those decisions also make clear that ICE is not erring by releasing too many people but rather by detaining too many people who could be released without creating a flight risk or danger. The factors that are supposed to be considered in determining detention or release, both by ICE and the immigration courts, include seriousness of criminal history, family ties, eligibility for relief from deportation, etc. ICE regularly detains individuals who pose few or no risk factors on this list and insists on their detention until an immigration court orders them to release.
As for the ICE analysis of the failings of the data analysis of the center, I think ICE is right on this point. The fact that ICE apprehended X number of individuals involved with the criminal justice system but detained and sought to deport only some percentage of those individuals is absolutely proper. As ICE notes, many individuals who interact with the criminal justice system would not be convicted and so would not be deportable or would not be treated as a priority enforcement category even if technically deportable; others might be convicted of minor crimes that do not make the migrant deportable if he/she otherwise has legal status in the country; and some initially designated by ICE would end up being US citizens or being granted the right to remain in the US, etc. Just because somebody involved in the criminal system is identified by ICE does not mean that they are deportable, but ICE can only detain in connection with deportation proceedings.
Overall, ICE is detaining and deporting far greater numbers of migrants of all categories than ever before, including both individuals with actual serious criminal histories and others who are treated as priority enforcement targets even though they do not appear to fit the priority categories in any meaningful way (eg very low-level convictions). See http://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_2013.pdf
It is quite difficult to suss out the various strands of this issue, but I hope this background helps a little bit. Feel free to follow up further if you like.
Denise Gilman
Clinical Professor
Director, Immigration Clinic
University of Texas School of Law