Criminal behavior has been a criterion for excluding or removing immigrants since the days of the Continental Congress. But until recently, the criminal justice system and the immigration enforcement system operated separately, with distinctly different missions, prerogatives and institutions. These two realms of public policy have merged, first gradually and then with great velocity starting in 2008. That process of overlap has become known as “crimmigration.” Its evolution can be traced across four distinct phases:
1986 to 2007: Laying the foundation
In the mid-1980s, concerns mounted in Washington and across the country over the number of noncitizens who committed significant felonies, often associated with drug trafficking, and who were returned to their communities at the end of a prison sentence rather than facing the immigration consequences of committing a deportable offense. The response was the Criminal Alien Program, initiated in 1986, which created a system to identify these offenders and to notify immigration authorities of a pending release so agents could be waiting at the prison gate.
Legislation enacted in 1996 amid a backlash against illegal immigration created new statutory mechanisms, such as the 287(g) agreements and Secure Communities, to enhance cooperation between local law enforcement agencies and immigration authorities. Washington took further action in the wake of 9/11 to use immigration enforcement as a tool of anti-terrorism strategies. New policies envisioned police on patrol and sheriffs in their jails as instruments of surveillance and control. But for the most part, these measures were rarely put into practice until the politics of immigration reform provided an unexpected motivation to kick them into high gear.
Until recently, the criminal justice system and the immigration enforcement system operated separately, with distinctly different missions, prerogatives and institutions. These two realms of public policy have merged, first gradually and then with great velocity starting in 2008.
2008 to 2013: Enforcement in the name of reform
In June 2007, more than a year of political infighting and negotiation on Capitol Hill came to naught when ambitious legislation to overhaul the entire immigration system, including a broad legalization program for unauthorized immigrants, failed in the Senate. Among the causes of failure was an insistence by many Republicans that effective controls needed to be in place before generous policies could be initiated. “Enforcement first!” was the rallying cry.
President George W. Bush had invested considerable political capital in the reform effort and had demonstrated a personal commitment to open and effective immigration policies. Despite his lame-duck status, Bush tried to win over his own party with a variety of enforcement efforts. These included physical barriers and personnel at the border, dramatic worksite raids and widespread enlistment of local law enforcement in the effort. Mechanisms of cooperation that had been dormant for years, 287(g) agreements and Secure Communities, roared into action. The stated goal was to prove that serious enforcement efforts were in place to win over opponents of legalization and other reform policies.
When Barack Obama became president in 2009, he continued and then accelerated the Bush enforcement efforts with the same logic of trying to win over restrictionist opponents of immigration reform. The enforcement for reform policy was encapsulated in a slogan often used by Obama during the period: “Even as we are a nation of immigrants, we’re also a nation of laws.”
The one major change in the strategy instituted by the Obama administration was a shift away from dramatic raids on meatpacking plants, factories and other worksites which were opposed by advocates for immigrant communities. Instead the enforcement strategy focused on using jails and prisons as targets of opportunity for the apprehension of deportable noncitizens.
During his first term, Obama presided over the removal of more than a million noncitizens. Arrests reached a peak of 322,093 in 2011, earning Obama the moniker of “deporter in chief” from Janet Murguía, president of the National Council of La Raza. Statistics from Immigration and Customs Enforcement (ICE) show that 85 percent of the arrests were made at jails. An analysis of government records in 2014 by The New York Times showed that among the more than 2 million removal cases, including at the border, recorded since the start of the administration, two-thirds involved individuals who had committed minor infractions, including traffic violations, or had not been convicted of any crime at all. Only 20 percent of the cases, representing about 394,000 people, had involved serious crimes, including drug-related offenses, the analysis showed.
2014 to 2016: “Felons, not families”
In June 2013, a bipartisan majority in the Senate passed a compromise immigration reform bill that included both an extensive legalization program and $30 billions more investment in immigration controls.
Tea party Republicans and other restrictionists in the House blocked further consideration of the bill, and it was clearly dead by March 2014 when Rep. Eric Cantor of Virginia, the No. 2 Republican in the House, lost a primary to an opponent of reform.
With no prospects for legislating generous immigration policies, Obama ratcheted back the enforcement effort. Waiting until after the 2014 midterm elections, the president announced a package of executive actions on immigration in late November. These included orders to ICE agents to strictly prioritize jail arrests by the severity of the noncitizen’s criminal offense. Under the policy he called “felons, not families,” noncitizens held for minor crimes were not arrested even when ICE encountered them under custody. The Secure Communities program was scrapped. Detainers, requests issued by immigration authorities to local law enforcement agencies to hold noncitizens suspected of being removable, were declared to be entirely voluntary. Many 287(g) agreements were allowed to lapse, and no new ones were established.
By 2016 the number of ICE arrests had dropped to 110,104, a little more than a third of the 2011 peak. Some 75 percent of the arrests between 2014 and 2016 happened in jails. The strict prioritization of felons had greatly reduced the overall number of arrests even as jails remained the predominant venues of immigration enforcement away from the border.
2017 to present: “You need to be worried”
Since the day in 2015 that he launched his presidential campaign by describing Mexican immigrants as “rapists,” Donald Trump has broadcast a stark view of criminality among immigrants. In venues as august as the State of the Union address, he has held up the victims of violent crimes committed by immigrants as emblematic of overall criminality among immigrants that is not supported by crime data
Facts and fake news
Less than a week after his inauguration, Trump signed an executive order declaring an all-out offensive on immigration enforcement. Since then a variety of policy statements and administrative orders have prioritized detention and removal as weapons in a fight against criminality by noncitizens in all forms. Thomas Homan, acting director of ICE during the first 18 months of the Trump administration, repeatedly proclaimed that this dragnet should strike fear into the hearts of noncitizens, especially unauthorized immigrants, who might have run afoul of the law. “You should be uncomfortable, you should look over your shoulder, you need to be worried. No population is off the table,” Homan said in congressional testimony in June 2017.
As of summer 2018, it remains unclear whether the Trump administration’s efforts will yield a significant, long-term increase in removals. In the first eight months after the inauguration, arrests were up 42 percent over the same period in 2016, which was at the low point in the volume of enforcement activities under Obama’s post-2014 policies, according to the Pew Research Center. The 110,568, arrests were less than half the mark reached when Obama’s earlier “enforcement for reform” push peaked in 2011. According to the Migration Policy Institute (MPI), 69 percent of the arrests early in the Trump administration were conducted in jails, compared with the peak of 85 percent in 2011. The decreased share could be partly attributed to decisions by jails in many jurisdictions with large immigrant populations not to honor ICE detainers, MPI said.