Inside the government’s most powerful weapon for deporting unauthorized immigrants

During President Obama's first term, deportations of immigrants happened at a scale that had never been seen before (and that Obama himself hasn't matched during his second term). About 400,000 immigrants were deported every year. Furthermore, many of them were deported from the interior of the country — from the communities in which they'd settled down — rather than getting caught entering the US.

What wasn't clear at the time was how, exactly, the federal government found or selected immigrants to deport.

A new report from the American Immigration Council provides one large part of the answer: the Criminal Alien Program (CAP). The Criminal Alien Program is an old-school model of collaboration between local jails and the federal government on immigration enforcement — one that relies heavily on local law enforcement officials to figure out who might be an unauthorized immigrant. It's also massive, identifying 600,000 or more immigrants every year.

That means the Criminal Alien Program wasn't just the biggest driver of deportations from within the United States during the peak deportation era under Obama. It's also one of the most powerful tools that a president could inherit who was less interested in targeting deportations than in maximizing them.

How the deportation machine worked

The Obama administration made a big deal out of an enforcement program called Secure Communities, in which any immigrant checked into a local jail had his fingerprints sent to DHS in case he matched records in a federal database. The administration emphasized that since the Secure Communities process was automatic, it would minimize racial profiling — an immigrant would only be detained by the government for deportation if his fingerprints were a match.

But Secure Communities, especially at the beginning of the Obama administration, only accounted for some of the deportations. Furthermore, it wasn't clear how an unauthorized immigrant who'd never been caught — who wouldn't have fingerprints in the DHS database for the simple reason that he was unauthorized — would be caught by Secure Communities to begin with, if the program were really just about the technology.

The answer, as the new report lays out, is that the federal government really was getting most of the immigrants it deported from state and local law enforcement. But it was relying on the old-school Criminal Alien Program — which relied on state and local law enforcement agents themselves, not on supposedly objective technology, to identify possible targets for deportation — to do it.

Some immigrants were flagged by the Secure Communities database. But many others were brought to ICE's attention because state and local law enforcement officials simply sent over lists of names of people in their custody born outside the US — or lists of "suspected noncitizens." Or they were identified because ICE agents had access to jail records (or even to the inmates directly) and figured out on their own which inmates were deportable immigrants. In either case, under CAP, federal agents would check their records — or travel to the jail themselves to interview the inmate — to determine for sure whether the inmate was an immigrant and what his legal status was, before asking local jail officials to keep him in custody until the feds could pick him up.

In all, the Council report says, the Criminal Alien Program accounted for between two-thirds and three-quarters of all deportations from the interior of the country during the early 2010s. It was the heart of the deportation machine.

Local police had a lot of power to shovel immigrants toward deportation

When most of the immigrants ICE deported had initially been picked up by state and local law enforcement, it was easy for the federal government to claim it was deporting "criminal aliens" — only the people who were dangerous enough to get brought into law enforcement custody to begin with. But even though an unauthorized immigrant can't get arrested by a local police officer simply for being unauthorized, it's incredibly easy for a local police officer to find an excuse to stop, question, or arrest someone who "looks illegal."

For an unauthorized immigrant, driving to work is usually illegal — driving without a license is illegal, and most unauthorized immigrants can't get licenses. Since police officers can't tell whether someone has a license just by looking at the car, though, they've been known to pull over cars for infractions like broken taillights and then ask the driver for ID — allowing them to see if the driver has a license or not. Waiting for a ride to work is loitering. Hanging out in the parking lot of a Home Depot, hoping to get hired on a day job, is soliciting.

Under the Criminal Alien Program (and Secure Communities), the federal government can take an unauthorized immigrant into custody after he's checked into jail. He doesn't even need to be charged with a crime, much less convicted of one. In a worst-case scenario, local police essentially have the power to shovel as many unauthorized immigrants as they choose at the federal government and hope the feds are interested in deporting them.

(data via American Immigration Council)

If local police weren't targeting unauthorized immigrants for deportation at all, you'd probably expect to see pretty constant deportation rates from state to state; after all, it's unlikely that only a few immigrants in California are criminals but that a large share of immigrants from North Carolina are. Instead, there's a lot of variation from state to state — some states that didn't have many immigrants to begin with somehow had a lot of immigrants in jail custody to get deported through CAP. Similarly, and consistent with previous research, Mexicans and Central Americans were deported after jail checks at a much higher rate than their actual share of the unauthorized population.

To understand what, exactly, was different about the Criminal Alien Program in Mississippi versus in Rhode Island, more information is needed. But the unevenness in the program certainly implies that the preferences of state and local law enforcement officers (as well as the preferences of ICE agents in one region or another) played a role.

The Criminal Alien Program was used to deport tens of thousands of immigrants without criminal records

The new report shows that, especially during Obama's first years in office, the federal government had no problem using the Criminal Alien Program to deport people who didn't have criminal records. Through the time period studied in the report (October 1, 2009, to August 17, 2013), more than a quarter of immigrants deported via jail checks had no criminal records. In fiscal year 2010, nearly 65,000 deportees — over a third of all immigrants deported through CAP — had no convictions whatsoever.

Immigration Policy Center

In the later years of Obama's first term and the early years of his second, top DHS officials started making an effort to rein in ICE agents in the field and "target" deportations at people who (they claimed) were serious threats to public safety. The administration stopped using jail checks to deport quite as many people without any criminal record; partly as a result, CAP was used to deport fewer people, period.

But the share of people deported for serious or violent crimes didn't actually grow: It never exceeded 20 percent through 2013. Instead, CAP was used to deport more immigrants who'd been convicted of minor crimes.

Eighteen percent of immigrants deported through CAP were convicted only of "dangerous drugs" — and possessing drugs was a far more common charge than selling them. Twenty percent of immigrants deported through CAP had been convicted of nothing more serious than a traffic offense. Many of those were convicted of DUIs, but many others weren't. In fact, while the number of immigrants deported through CAP dropped for nearly every type of crime from 2010 to 2012 — as the Obama administration tried to implement deportation priorities — the number of immigrants who were convicted of non-DUI traffic offenses and then deported via jail checks actually rose.

As the Obama administration tightened the reins on enforcement, fewer immigrants got deported under CAP

From 2010 to 2013, more than 500,000 immigrants were deported under the Criminal Alien Program. But that 500,000 is only a fraction of the 2.5 million people the federal government "encountered" under CAP in some form: names that were sent from local police to federal agents as "potential noncitizens," records that federal agents looked over, or people they interviewed in jail.

Many of the 2 million people who were "encountered" but not deported probably weren't deportable at all: They were legal immigrants (who can lose their legal status after convictions for certain crimes, but not simply by being arrested) or US citizens, and there was simply a misunderstanding with local police that led to their names getting submitted to the federal government. But in at least some of those cases, they were people whom the federal government noticed, and might have even taken into custody, but eventually chose not to deport. That appears to be especially true in 2012 and 2013, as higher-ups at DHS began to exert more control in "prioritizing" some deportations over others — and as a smaller proportion of the people who got "encountered" by the CAP program ended up getting deported.

Imagine President Trump controlling a program that "encounters" 600,000 immigrants a year

That's consistent with the way deportations, as a whole, have evolved over the past two decades. From the mid-1990s to the end of the George W. Bush administration, the federal government built an immensely powerful deportation machine capable of deporting 400,000 or more people a year. When the government doesn't deport that many people — as in the past couple of years — it's not because it can't find them. It's because it's changed its definitions of who should be deported.

Under the Criminal Alien Program, an immigrant comes onto the radar of federal officials once he's arrested and booked — not once he's convicted of a crime. (In fact, according to the report, a DHS handbook emphasizes that "any removable alien" identified in a prison or jail, "regardless of the status of conviction," is a Criminal Alien Program case.) That definition determined who was available to get deported, and for the first couple of years of the Obama administration, many of them were.

As the Obama administration decided to redefine "criminal alien" as "convicted criminal," officials got choosier about which immigrants got deported after they were identified in jail checks (though they weren't terribly interested in limiting deportations to violent criminals). But they didn't do that by conducting fewer jail checks — instead, they gathered the same amount of information on immigrants through the Criminal Alien Program as they always had, and then chose how to use it.

If you don't understand why this is important, think about what would happen if President Donald J. Trump were elected president tomorrow. President Trump would inherit a program that is capable of identifying 600,000 or more immigrants every year, a large portion of whom are legally deportable. Furthermore, most of the effort in rounding up immigrants under CAP is left to state and local law enforcement officials.

Of course, it would still cost more money than the government (or Trump) has to actually deport 600,000 or more people a year. And there's a big difference between 600,000 and 11 million — the number of unauthorized immigrants Trump has actually promised to deport. But the Criminal Alien Program is an illustration of just how much capacity the federal government has to deport unauthorized immigrants. And while the Obama administration has spent its time in the White House trying to refine, target, and limit deportations, it's very easy to imagine a future president broadening the funnel again.

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