A new report by the Transactional Records Access Clearinghouse (TRAC) released last week reveals that Immigration and Customs Enforcement (ICE) is beginning to detain more criminal immigrants as opposed to non-criminal immigrants, which is in line with ICE Assistant Secretary John Morton’s stated goal. The numbers, however, aren’t so black and white when you examine how ICE defines criminality. ICE currently classifies “criminals” as persons found guilty of minor violations of law such as traffic offenses, disorderly conduct, as well as immigrations violations such as illegal entry. While the report, which covers the first three months of FY 2010, hints that the growing proportion of criminal detainees is the result of revised detention policies under the Obama Administration, the report begs the questions of who we’re locking up, why and at what expense.

During the first quarter of FY 2010, 43% of detainees had a criminal record, compared to only 27% in FY 2009, according to the TRAC report. From 2005 to 2009, the percentage of detainees with a criminal record declined from 40% to 27% before the recent uptick.

The stated goal of ICE programs—such as Secure Communities and the Criminal Alien Program—is to detain “high risk criminal aliens” who have committed “serious” offenses. But what about immigrants who have never been convicted of a serious crime?

According to the TRAC report:

…The Secure Communities program, which the agency is rapidly expanding, has the potential of locating large numbers of aliens who have been arrested by local authorities for petty offenses but have never been convicted of any crime let alone a serious crime. In the end, the question is will the Secure Communities program actually target “high risk criminal aliens” or sweep all non-citizens who are arrested or picked up into the detention system as long as beds remain to be filled?

The general increase in detentions and prosecutions for petty offenses has caused a ripple effect throughout our legal system. For example, Operation Streamline, an ICE program that removes prosecutorial discretion from immigration matters, has resulted in an overload in immigration cases for federal courts in border areas at the expense of taxpayers. In places like Phoenix, it will take years to clear the backlogs and determine the cases for immigrants. Cases have increased to such an extent that, last week, a federal judge in Texas ordered a U.S. attorney who brought petty offense cases to him to outline the substantive reasons that the immigrants were being prosecuted as opposed to deported.

Every judge in the Western District of Texas is sentencing a substantial number of illegal aliens every month. It appears the United States Attorney is not screening these cases to eliminate those persons who need no federal prosecution and should simply be returned to their own country. The United States Attorney has been specifically requested for at least a two-year period to be more careful to screen the illegal entry or re-entry cases for prosecution and only prosecute those with meaningful criminal records. The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling. The U.S. Attorney’s policy of prosecuting all aliens presents a cost to the American taxpayer at this time that is neither meritorious nor reasonable.

The reality, according to Morton, is that “this isn’t a question of whether or not we will detain people. We will detain people, and we will detain them on a grand scale.” Assuming this is true, it is important for ICE to focus on detaining dangerous criminals, rather than petty offenders. While real solutions to our immigration detention system are complicated yet worthwhile, focusing on the prosecution and detention of serious criminal immigrants, as well as redefining what constitutes a criminal, is a good starting point.

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