How Immigration Prosecutions Helped ICE Pad Obama’s Criminal Deportee Statistics

Throughout Barack Obama’s presidency, he justified the record number of deportations carried out by Immigration and Customs Enforcement by pointing to the high number of criminals deported. 

“We’re going to keep focusing enforcement resources on actual threats to our security,” Obama said in a 2014 speech announcing executive action to shield parents of U.S. citizens from deportation. “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.” 

By Obama’s last year in office, publicly released data showed that 58% of deportees had a criminal conviction. More than 99% of deportees met one of the agency’s removal priorities.  

But data obtained this month by HuffPost through a Freedom of Information Act request reveals the most serious crime committed by more than half of the migrants arrested at the border and tagged as criminal deportees during Obama’s second term was entering the country without authorization.

In other words, the difference between those slapped with a criminal immigration offense and those with a clean record was that the Justice Department chose to prosecute them simply for crossing the border. Immigration violations were the most serious crimes committed by tens of thousands of others deported from within the United States and classified as priority removals over that period, despite the fact that their records differed little from non-criminals. Some 2020 Democratic candidates, including Julián Castro and Elizabeth Warren, are pledging to repeal the laws that make this possible. 

The data underscores the degree to which skyrocketing prosecutions for border-crossing violations over the last decade helped criminalize a vast swath of the deportee population, giving the impression that they posed a greater public security threat than their records indicate. 

“They’ve been turning mere immigration law violators into criminal aliens for years in order to inflate the amount of individuals that have been removed under criminal grounds,” immigration attorney Matthew Kolken told HuffPost. “These were freshly minted criminals. They weren’t committing crimes in the United States.” 

While convicts made up nearly half of those deported from the border region from 2013 to 2016, the data makes it clear that there weren’t hordes of violent criminals. Traffic violations accounted for the second-highest number of criminal convictions for border deportees, making up 11% to 14% for those years. 

The data provided by ICE included only broad categories of crime, but previous reporting indicates that driving while intoxicated and driving without a license make up the vast majority of traffic violations on deportees’ records. Only 15% of border deportees under Obama’s second term had a conviction more serious than an immigration or traffic offense. 

A much smaller percentage committed more serious crimes. Far less than 1% of criminal migrants from the border and interior combined were convicted of a crime involving homicide, for example. Agency statistics include some deaths resulting from negligence or car crashes under that heading. 

“I’m seeing padding of the number of the people they consider to be criminals with a lot of low-level traffic violations and immigration violations,” said Douglas Massey, a Princeton sociology professor and co-founder of the Mexico Migration Project, after reviewing the data. “The criminal categories are vastly inflated. The violent crimes are really small in number.”

Under Obama, ICE produced end-of-year reports that highlighted the number of criminals the agency deported, trumpeting the high percentage of convicted criminals. Those reports divided deportees removed from the interior from those expelled from the border region largely because the agency considered those arrested while trying to cross into the country a deportation priority regardless of whether they had criminal records. 

But the agency did not release detailed statistics over the Obama presidency detailing what convictions had marred individual migrants’ records. Instead, ICE used a system of priority categories for those deported from the interior and recorded only whether border deportees had a criminal conviction or not. 

The sharp rise in prosecutions for border violations that began under George W. Bush’s presidency explains the statistical sleight of hand. 

In the United States, deportation is handled under civil laws by immigration authorities such as the Border Patrol and ICE. But crossing the border without authorization is also a federal crime, punishable by up to six months in prison. Re-offenders can face felony charges. 

The law criminalizing illegal entry, authored in 1929 by segregationist Sen. Coleman Blease of South Carolina and now known as Section 1325, made up a tiny fraction of federal prosecutions by the 1990s. Instead, Border Patrol agents routinely walked unauthorized migrants back to the other side of the border or referred them for deportation proceedings in immigration court. 

But starting in 2005, the departments of Justice and Homeland Security teamed up to create Operation Streamline, a program to prosecute migrants en masse for jumping the border, in an effort to route Central American migrants into federal jails and create a new deterrent. By 2008, immigration prosecutions had swallowed up half the federal criminal docket ― a statistical trend that held true through Obama’s presidency.

President Donald Trump ramped up the system further by enacting a “zero tolerance” policy, mandating all five federal districts that touch the border to focus still more resources on immigration prosecutions. Last year, Trump used the laws criminalizing illegal entry and reentry to carry out his widely reviled experiment with systematic family separations at the border last year. By prosecuting migrant parents traveling with their children, Trump officials channeled them into federal jails, leaving their children in the custody of immigration agencies.

Immigrant rights groups and criminal justice reformers have long argued that the laws needlessly criminalize migrants, drive the expansion of privatized prisons and slap a redundant punishment on people who will have to face deportation proceedings regardless of whether they get prosecuted for illegal entry.

But advocates have also long suspected that the skyrocketing illegal entry prosecutions helped both the Obama and Trump administrations pad their stats to make the deportee population appear like more of a threat than it actually is. 

President Barack Obama speaks at the White House about a Supreme Court decision on immigration on June 23, 2016.

President Barack Obama speaks at the White House about a Supreme Court decision on immigration on June 23, 2016.

“They’re creating this illusion that so many people removed have criminal histories, but they’re manufacturing this criminal history by prosecuting them for illegal entry and illegal reentry,” said Zenén Jaimes Pérez, advocacy and communications director for the Texas Civil Rights Project. “We know that picture starts to fall apart once you start digging into it.” 

The broad criminal categories identified in the documents released by ICE make it difficult to know with any certainty what convictions had led the agency to classify deportees expelled from inside the country as criminals. It identifies only broad headings like “dangerous drugs,” “homicide” and “traffic tickets.” Those categories encompass crimes ranging from marijuana possession and driving without a license to drunk driving, drug trafficking and capital murder. 

But there’s no doubt about what the “immigration” heading means. Over those four years, illegal entry and reentry accounted for 95% of the most serious criminal convictions for deportees under the “immigration” heading from 2013 to 2016, according to data previously released to HuffPost. The stats did not distinguish between interior and border removals. 

The most serious criminal conviction for 21,000 of the migrants deported from within the United States during Obama’s second term was an immigration violation ― about 6.5% of all interior removals. Those convicted of illegal reentry, a felony, would have been classified as a level one priority throughout the period ― the same categorization applied to terrorists and murderers. 

Thousands of other deportees removed from inside the country during that period had no criminal convictions at all ― ranging from 17.5% in 2013 to 7.6% in Obama’s last year. 

The number of interior deportees whose most serious offense was an immigration crime dwindled over time. That trend mirrored a drop in deportations from within the country as a whole over Obama’s second term in office as his administration used both prosecutorial discretion and executive action to shield more migrants from deportation. The trend accelerated after the collapse of comprehensive immigration reform talks in the summer of 2014. 

Former ICE officials defended the agency’s statistical work, contending that they did not intend to mislead the public. They pointed to the series of memos beginning in 2011 that aimed at prioritizing serious criminals, which account for the steady decrease in deportations from inside the country overall. And they insisted that Obama’s policy of focusing on criminal convicts made more efficient use of limited deportation resources than Trump’s policy of casting priorities aside. 

They’ve been turning mere immigration law violators into criminal aliens for years in order to inflate the amount of individuals that have been removed under criminal grounds. Immigration attorney Matthew Kolken

But the former officials also noted that pushing those priorities down the chain of command took time. And the administration’s focus on deporting people who had been removed in the past meant that people with immigration crimes would show up in agency deportation stats. 

“We never felt that the number of criminal removals was padded,” said Peter Vincent, who headed ICE’s legal branch during the Obama administration. “We were particularly sensitive to any skewing of any statistics that would suggest or imply that the number of criminal removals were higher than in actuality.”

The agency struggled with certain crimes that fell into a gray area, like driving under the influence. That traffic offense often remained a priority offense because it could result in death, though prosecutors might use discretion in some cases. 

But though Vincent remains a vocal supporter of Obama’s prosecutorial discretion policies, he acknowledged that the word “criminal” implied something more serious than immigration violations ― often the same ones committed by deportees with clean criminal records.  

“We did target recent illegal entrants as a way to dissuade individuals from attempting to cross the border,” Vincent said. “That is different from simply categorizing everyone who crosses the border without authorization as a criminal. ‘Criminal’ has a different meaning and should be used to refer to someone who is a danger to our community or who has been convicted of a serious offense.”

John Sandweg, who headed ICE as an acting director under Obama, defended the use of criminal prosecutions at the border, saying that internal reports showed it worked as a more effective deterrent than civil deportation proceedings. But both in the interior of the country and along the border, the agency prioritized deporting people who had been expelled before, whether or not they had been convicted of a crime. The fact that so many people deported from the border had criminal convictions in the United States, whether they were serious or not, showed how many had spent time here in the past. 

“The fact that they had been previously convicted for Streamline is interesting ― it’s a fair data point to be thinking of,” Sandweg said. “But the fact is that they were not deported because they were convicted of a silly 1325. It’s because they were arrested at the border.” 

Others viewed a clear continuity between the way ICE categorized criminals in agency statistics under Obama and the way Trump vilifies unauthorized migrants by branding them as menacing lawbreakers. 

Kolken, the immigration lawyer, routinely defends migrants facing prosecution for illegal reentry and the prospect of deportation at his practice in Buffalo, New York, about 1,800 miles from the U.S.-Mexico border.

To secure a conviction, all the prosecutor needs to do is present evidence that the defendant was deported in the past. In those cases, immigration authorities often reinstate an old order of removal while the criminal immigration charge plays out, Kolken said. Were it not for the illegal reentry charge, he would have an opportunity to try to cancel the old order and win his client a hearing. But when the old removal order gets reinstated, his client loses the opportunity to go before an immigration judge. The vast majority of his clients have no convictions on their records aside from the illegal reentry. The scenario has played out repeatedly over the years, regardless of administration. 

“There is very little difference between Trump calling these people ‘bad hombres’ and Obama calling these people ‘felons, not families,’” Kolken said. “Both were attempting to dehumanize this population. Obama was allowed to get away with it. Thankfully, Trump can’t.”