NEW YORK—The number of illegal immigrants handed over to authorities nationwide is less than 3 percent of what it was six years ago, thanks to a suite of sanctuary policies at the local level combined with a hands-off approach at the federal level in recent years.
The New York and Los Angeles metro areas are the most popular destinations for illegal immigrants in the country. New York City has an estimated 500,000 illegal immigrants, according to the mayor’s office.
New York City Mayor Bill de Blasio has vowed to oppose President Donald Trump’s executive order that promises to ramp up interior security and penalize jurisdictions that “willfully violate federal law in an attempt to shield aliens from removal.”
De Blasio said New York City already cooperates with federal agencies when necessary. The city says it shares information with the feds if an illegal immigrant commits any of 170 crimes listed, including assault, rape, arson, terrorism, and firearms and drug offenses.
“These are serious offenses, violent crimes. This is the law of New York City, has been for years. It’s been the basis for productive cooperation with the federal government,” de Blasio said at a live-streamed press conference on Jan. 25.
In fiscal 2016, Immigration and Customs Enforcement (ICE) submitted 80 inmate detainers to the NYPD, according to the mayor’s office. A detainer is a request to local law enforcement to hold an inmate for up to 48 hours longer, for investigation and possible transfer to ICE custody.
Of the 80 detainers lodged, only two criminals were transferred to ICE, according to the mayor’s office.
The two were handed over because the city was presented with either a judicial warrant or a subpoena for their transfer to ICE, the mayor’s office said.
During the same year, the Department of Correction (DOC) received $10.5 million in federal money for “criminal alien assistance,” which is meant to reimburse costs related to the detention of certain illegal immigrants, according to a city official.
De Blasio says the current system is working. “It’s helped to keep us safe without undermining the relationship between our police and our communities,” he said.
But, according to ICE, the cooperation from city law enforcement is limited.
The vast majority of ICE’s requests for the hold and transfer of inmates are ignored by the hundreds of local jurisdictions that have sanctuary policies.
Nationwide, for the 19-month period between Jan. 1, 2014, and Sept. 30, 2016, about 68 percent of denied detainers were for individuals with a criminal history, according to ICE.
“Declined detainers result in convicted criminals being released back into U.S. communities with the potential to re-offend,” the 2016 ICE report states. Moreover, now ICE must expend additional taxpayer resources to locate and arrest convicted criminals—who are at-large rather than having been transferred directly from jails into ICE custody.
A recent example in New York City involved a member of the violent MS-13 gang who was arrested in Queens by immigration agents on Feb. 16, after he was released from New York City’s Rikers Island Correctional facility.
Estivan Rafael Marques Velasquez, a Salvadoran national, has a criminal past in the United States, including reckless endangerment in the second degree, criminal possession of a weapon in the fourth degree, and disorderly conduct, according to ICE.
In 2015, an immigration judge had ordered that Marques Velasquez be removed from the country.
ICE issued a detainer to Rikers Island on May 3, 2016, requesting that Marques Velasquez be handed over to them once he had served his time for disorderly conduct.
DOC did not honor the detainer and, instead, released him.
Another example was a Mexican national who was arrested by ICE on Jan. 27, four weeks after he was released from local custody when New York authorities ignored a detainer.
Luis Alejandro Villegas had been arrested on Dec. 31, 2016, for driving while intoxicated—which is listed as a priority for enforcement under the former administration’s federal immigration policies.
Villegas also has a prior conviction for forcible theft while armed with a deadly weapon, according to ICE. He had previously served five years in prison and was then deported, in 2007. It’s not clear when or how he reentered the country before he was arrested for the DUI.
New York City authorities don’t honor ICE detainers for criminals who committed a felony more than five years prior.
According to the Center for Immigration Studies, the city’s sanctuary policies are clearly violating federal laws. CIS is a nonprofit research organization based in Washington.
“When we let illegal aliens who are committing crimes stay here and they commit more crimes—those are preventable crimes,” said Jessica Vaughan, the center’s director of policy studies.
To maintain the integrity of the immigration system, the rules must be enforced, she said.
Out of 41 people ICE apprehended in New York during the first week of February, eight had previously been deported and two were fugitives. Nine had convictions for sex-related crimes, including three for rape and six involving children. Ten had convictions for driving under the influence.
Under President Barack Obama’s immigration priorities, enforcement priorities remained mostly unchanged from previous years and were stated as “threats to national security, border security, and public safety,” in a November 2014 memo by then-Homeland Security Secretary Jeh Johnson.
Broken down, that meant the top priority was to apprehend illegal immigrants who were terror suspects, had recently entered illegally, were known gang members, had been convicted of a felony, or had reentered after deportation.
The second priority was to apprehend illegal aliens who had been convicted of at least three misdemeanor offenses; of a “significant misdemeanor,” which includes domestic violence, sexual abuse, burglary, firearms, and drug offenses; or of driving under the influence.
At the time, Department of Homeland Security (DHS) officials were reminded to broadly exercise “prosecutorial discretion,” which essentially meant they could give anyone a free pass, based on any of the following factors:
“Length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.”
As a result of the priorities, in fiscal 2016, 92 percent of all 65,332 deportations from inside the United States were people previously convicted of a crime—a sharp increase from the 67 percent of criminals deported in fiscal 2011.
But those figures hide that many more were released back into society and subsequently reoffended.
The Boston Globe reviewed 323 criminal aliens released in New England from 2008 to 2012. As many as 30 percent of them went on to commit new crimes, including rape, attempted murder, and child molestation, according to a Globe report on June 4, 2016.
“The review reveals the damage inflicted on victims by criminals who were ordered to be deported when their sentences were complete, and were not, and it raises questions about how the government handled their cases,” the report says. Immigration records are kept secret and the Globe spent three years getting the information through Freedom of Information Act requests, appeals, and a successful lawsuit.
Last year, ICE sent the Globe a list of criminals released nationwide from 2012 to 2016 that showed 83 percent of them were convicted felons.
In a testimony for a House committee last year, then-ICE Director Sarah Saldaña said 36,007 illegal alien criminals had been released back into communities in fiscal 2013, pending removal proceedings.
ICE does have the power to detain a removable alien indefinitely if they are “specially dangerous,” according to a 2001 directive from DHS. But many have to be released after six months, in accordance with a slightly earlier Supreme Court ruling in 2001.
Some countries refuse or delay the return of their own citizens, and several take close to a year to issue travel documents for the repatriation of the criminal, according to a 2011 ICE document. Some of the most difficult countries for repatriating criminals include Somalia, Iran, Iraq, Liberia, and China.
New York’s Sanctuary Policies
Former New York City Mayor Michael Bloomberg introduced sanctuary policies in 2011 and current Mayor de Blasio expanded them.
In October 2014, the city council passed two pieces of legislation to protect illegal immigrants, including criminals, from immigration law enforcement.
“These bills are about keeping New York families together and sending a clear message that New York is not afraid to lead on immigration,” said Council Speaker Melissa Mark-Viverito at the time.
“The NYPD and DOC [Department of Correction] may no longer honor detainer requests issued by ICE unless they are backed up by a warrant issued by a federal judge,” reads a council statement.
Under the 2014 legislation, ICE agents were ejected from Rikers Island and other DOC facilities in the city. And DOC personnel were restricted, with few caveats, from “communicating with ICE on such matters as release date, incarceration status, court dates, or any other information about the inmate,” the statement said.
The lion’s share of deportations had previously been criminals who were released from prison directly into federal immigration custody for removal.
“New York City has one of the most egregious sanctuary policies in the country. The [city is] actively obstructing ICE from doing its job,” said Vaughan of the Center for Immigration Studies. “And these are not grandmothers on their way to church—we’re talking about people who are getting arrested and ending up in the city’s jails.”
On ICE’s side, it has also been submitting far fewer detainers. Over the last three fiscal years in New York City, the number of detainers lodged by ICE to local law enforcement plummeted—from 5,839 in 2014, to 131 in 2016, according to numbers provided by the mayor’s office. The mayor’s office said there is up to a 40 percent duplication in numbers, as some are counted both by the NYPD and the DOC.
“The approach of the Obama administration was to try to accommodate sanctuaries, not to discourage them,” Vaughan said.
The number of inmates actually handed over to ICE in New York during the same period saw the same trend, decreasing from 2,019 in 2014 to just two in 2016.
“It’s a big problem that ICE was willing to essentially suspend enforcement in a lot of cases,” Vaughan said. “But it’s an even bigger problem that the city was willing to obstruct ICE even in its very limited enforcement activity.”
ICE declined to comment on the drop in numbers, saying they would not interpret the city’s statistics. Freedom of Information Act requests filed on Feb. 2 for ICE’s statistics have not been fulfilled.
The same trend is repeated in all seven other major metro areas, according to analysis using numbers obtained by Syracuse University’s Transactional Records Access Clearinghouse project. The number of detainers lodged by ICE, as well as those honored by local law enforcement, plummeted from fiscal 2014 to 2015 and then dropped again in fiscal 2016. Five of the seven areas have sanctuary policies.
The sanctuary city designation originated in Los Angeles in 1979. More cities created sanctuary policies after 9/11, when then-President George W. Bush introduced Section 287(g) to the Immigration and Nationality Act.
Section 287(g) is an opt-in program that gives all law enforcement officers the same powers as immigration agents to investigate, apprehend, or detain suspected illegal immigrants.
ICE currently has 287(g) agreements with 38 law enforcement agencies in 16 states and credits the program with identifying more than 402,000 potentially removable aliens (mostly at local jails), from January 2006 through Sept. 30, 2015.
Many jurisdictions refused to join the program and instead established or broadened their sanctuary policies. About 300 sanctuary jurisdictions have been created in the United States, according to a map and list on the Center for Immigration Studies website. Seven states have sanctuary policies—California, Oregon, Colorado, New Mexico, North Dakota, Connecticut, and Rhode Island—some of which simply state they will not honor any ICE detainer requests.
While Obama pulled back on Section 287(g), Trump has reinvigorated it. His Jan. 25 executive order instructs the DHS Secretary to immediately increase the number of agreements with state governors and local officials.
New York City will not sign a 287(g) agreement, a city official has confirmed, and the mayor has been outspoken in his opposition.
“What we will not do is turn our NYPD officers into immigration agents—or our jails into holding pens for deportation policy that will only undermine the inclusiveness that has helped make New York City the safest big city in the nation,” de Blasio said on Feb. 21.
But Trump has threatened to cut federal funding to jurisdictions for noncompliance.
At stake would be up to $7 billion in federal funding, according to a November report by New York City Comptroller Scott Stringer. Stringer suggests the agencies most at risk would be the Department of Homeless Services and the Administration for Children’s Services, among others. He said the NYPD budget for intelligence and counterterrorism would also be at risk.
The mayor has railed against Trump’s directives to enforce immigration law.
“This dramatic policy shift is hard evidence of the Trump administration’s interest in needlessly tearing apart families and spreading fear in immigrant communities,” de Blasio said on Feb. 21.
But former immigration agent Michael Cutler says the “splitting up families” argument is not a rational one, especially when talking about people who are here illegally.
“How many Americans right now are in prison because they didn’t pay their taxes, because of reckless driving?” Cutler said. “Does anyone say, ‘Oh my god, the guy has a child?'”
Enforcement Changes Under Trump
Trump is following through on his major campaign promise to enforce existing immigration law. And as a result, a much higher number of illegal immigrants are likely to be deported than in previous years.
A higher deportation rate will send a powerful message, said Vaughan, “both to people who are contemplating trying to get here and stay illegally and to other people who are living here illegally.”
Trump’s priority for enforcement focuses on convicted criminals, aliens who have been charged with a criminal offense, and those who “pose a risk to public safety or national security,” including individuals involved in espionage and terror-related activities.
But DHS personnel also have “full authority to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in violation of the immigration laws,” the agency states.
Trump is also reinstating the Secure Communities program, in which the fingerprints of every individual arrested and booked into custody—including U.S. citizens and legal permanent residents—are checked against immigration records via the FBI.
“If these checks reveal that an individual may be unlawfully present in the United States or otherwise removable due to a criminal conviction, ICE determines what, if any, enforcement action to take,” ICE states.
Trump’s criteria for removal are much broader than those of previous administrations.
Secure Communities was introduced by President George W. Bush in 2008 and replaced by Obama in 2014 with the Priority Enforcement Program (PEP). PEP dialed back on the number of criminals targeted for deportation to only the most violent ones.
The Secure Communities program is mandatory, but it doesn’t give local law enforcement any additional authority.
Trump also plans to hire 10,000 more immigration officers and 5,000 more Border Patrol agents.