On April 8, a federal judge in Dallas heard arguments in Crane v Napolitano, the lawsuit brought by 10 ICE officers challenging the Obama administration's Deferred Action program (DACA) and "prosecutorial discretion" policies. The hearing, at which two ICE agents and I testified, produced new information on some little-publicized side effects of the amnesty policy, including how criminal aliens have been shielded from removal. My testimony focused on internal DHS statistics showing a significant decline in the number of deportations, interior enforcement, and even criminal alien removals following the implementation of these policies. I also described how the administration has cooked its removal statistics in a way that gives lawmakers and the public the false impression that enforcement has improved.



The hearing took place on the 11th floor of a federal office building in Dallas (just a stone's throw from the glittering office building that visa overstayer and terrorist-wannabe Hosam Smadi tried to blow up in 2009). In attendance were: Judge Reed O'Connor; Kris Kobach and Michael Jung, counsel for the ICE officers; their three witnesses; four Department of Justice lawyers representing the defendant, DHS Secretary Janet Napolitano; two local ICE lawyers assisting them; two unidentified members of the DOJ defense team; and a handful of local reporters and courtroom staff.

The first witness called was Chris Crane, president of the ICE Officers' union. He articulated the union's view that the DACA program and the administration's "prosecutorial discretion" policies are illegal and put officers in the untenable position of releasing illegal aliens from custody who have been identified as a result of criminal behavior, simply because they claim to qualify for DACA. He said that asking for deferred action is the latest fad in jailhouses with large numbers of illegal alien inmates because word has gotten around that ICE agents are required to take these claims at face value, without verification, and will release them instead of putting them on the path to removal. Crane testified that agents hear and observe inmates advising each other on what to say. He also stated that in many cases of claimed DACA eligibility, ICE officers do not create a record of the encounter and instead delete the file so that these cases do not remain in the system for future reference.

Crane described how just last week, an alien who, within 48 hours of getting approved for deferred action by USCIS (following a prior arrest), was again arrested by local police for cocaine distribution.

The second witness was ICE officer Sam Martin, who is assigned to the Criminal Alien Program in El Paso, Texas. Martin's job is to review records that are transmitted electronically to ICE from the El Paso County jail, and determine if any of the alien inmates are removable. He testified that since the implementation of DACA, he and other ICE agents are releasing a significant number of illegal alien criminals — about 25 percent of his caseload — back to the streets.

Martin said that, typically, as soon as officers inform illegal alien inmates that they will be placed in removal proceedings and read them their rights, inmates will promptly chirp up that they are eligible for what they all call "Obama's Dream Act". He confirmed that the officers are obligated to accept the claim and release the alien.

The defense team claimed that the DACA policy gives field officers leeway to screen out dangerous aliens, but apparently at least one ICE supervisor hasn't gotten the memo. Martin testified that on July 17, 2012, he went to the El Paso jail with a partner to interview an alien who had been arrested for aggravated assault on a family member and obstructing a call to 911. The alien admitted he was here illegally, and when the officers escorted him to the car for transfer to ICE detention, he attempted to escape and then, as they pursued him, he assaulted the officers, committing a series of felonies. When they arrived at the ICE processing center and started to prepare the removal paperwork, their supervisor intervened and ordered them to release the alien because he qualified for DACA. Martin is still recovering from his injuries. No further charges were filed on the alien, and I guess we'll never know if he applied for or received deferred action.

For my testimony, I was asked to analyze a set of mostly unpublished statistics and documents on DHS enforcement activity over the last five years. This material shows that, contrary to the administration's claims that they have achieved record levels of enforcement, the number of removals is now 40 percent lower than when the Morton memo was issued in June 2011.

Removals of convicted criminals are also running 40 percent lower now than in June 2011. Removals generated by ICE's Enforcement and Removals division, which carries out most of what little interior immigration enforcement is done, are 50 percent lower now than in June 2011. This decline has occurred despite the expansion of ICE's Secure Communities program, in which ICE is notified of alien arrests in every city and county in the nation.

It's reasonable to ask: If ICE is removing so few people now than before, then how can DHS claim that they set a record for deportations last year? The answer: Because over the last several years, DHS has begun counting large numbers of Border Patrol cases in its annual removal statistics. There have always been some Border Patrol cases tallied as part of the total. But in recent years the number of Border Patrol cases has grown from about 33 percent of the total in 2008 to 56 percent so far this fiscal year. In other words, ICE's top priority now — at least as expressed in its own statistics — seems to be processing Border patrol cases, not pursuing criminal aliens in the interior, as it claims.

Even more concerning, the documents DHS provided indicate that the numbers are more than likely artificially inflated due to double-counting. Under DHS's transactional record-keeping system, each time an alien is processed by an agency, even if within a 24-hour time period, a new case file is created, and the removal counted for each part of DHS that handled the alien. Aliens who are processed under the Alien Transfer Exit Program (ATEP), which accounted for about 85,000 of the removals reported last year, were handled by Border Patrol and ICE, and potentially at least two ICE field offices could claim credit for the removal. This would mean that multiple removals were recorded for the same person.

The federal government called no witnesses to its defense.

For more data on deteriorating enforcement, see our Enforcement Fact Sheet.