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Sunday, December 3, 2023

PERSPECTIVE: Evidence Lacking to Prove Higher Rate of Immigrant Criminality

A large part of the current debate surrounding immigration revolves around the question of to what extent immigrants, and particularly undocumented immigrants, might be a public safety risk. Various administration officials have spoken in strong terms about the need to improve immigration enforcement and crack down on sanctuary cities, in part to address immigrant criminality.

Late last year the Department of Homeland Security and the Department of Justice issued a report on the number of immigrants, and undocumented immigrants, in federal prisons. In the press release accompanying the report, DHS Secretary Kirstjen Nielsen stated, “While the administration is working diligently to remove dangerous criminal aliens from our streets, this report highlights the fact that more must be done.” The statement strongly infers that the fact of being in federal prison means that these immigrants are “dangerous criminals.”

However, a recent review of federal data by the Bipartisan Policy Center shows that the majority of immigrants in federal prisons have immigration violations as their most serious criminal charge. Further, since those convicted of immigration violations are only housed in federal prisons, the number of immigrants held on immigration charges does not necessarily show that more undocumented immigrants are “dangerous criminals” than other immigrants or U.S. citizens. Finally, the vast majority of incarcerations in the country are in state prisons and local jails, where data on the foreign-born population is very rare.

The DHS/DOJ report showed that 21 percent of all federal inmates were known or suspected aliens, and of the known aliens, Immigration and Customs Enforcement (ICE) confirmed that 94 percent were unlawfully present. Additional data from the Bureau of Justice Statistics (BJS) showed that non-U.S. citizens (the BJS data does not further break down their immigration status) represented an average of 24 percent of the federal prison population between 2002 and 2014.

However, the BJS data also showed that the number of persons jailed for immigration violations as the most serious charge was greater than the number imprisoned for violent and property crimes from 2003 to 2010, including the years from 2005-2012 when the Bush and Obama administrations ramped up prosecutions for illegal entry and reentry (offenses that may be prosecuted criminally under the Immigration and Nationality Act) as part of Operation Streamline. While these individuals may also have had other criminal charges, it is unlikely that the BJS would classify these immigration crimes as more serious than violent or felony property crimes, for example. This data makes it difficult to conclude that the mere fact of more immigrants, or even undocumented immigrants, in federal custody means that they are “dangerous criminals” as opposed to simply immigration violators.

BPC also reviewed what data is available about state prison and local jail populations. However, there is insufficient data from state and local justice agencies to form a picture of the number of immigrants in their facilities much less their criminal profile. This reality was acknowledged in the DHS/DOJ report, which stated that these agencies “do not routinely provide DHS and DOJ with comprehensive information about their inmates and detainees.”

Other government sources reinforce this observation. A 2016 Congressional Research Service report attempted to estimate the foreign population in state and local jails from available data, and found a relatively small percentage of the state prison population were non-citizens, averaging less than 5 percent between 2002 and 2013, while non-citizens in local jails averaged just more than 7 percent during the same period. These percentages are much lower than those reported for the federal prison population since the high number of non-citizens that commit immigration violations – a federal offense – would almost ensure that more immigrants would enter the federal prison system. In the case of state and local facilities, the convictions are for state and local criminal statutes and ordinances, which would not provide clues about an individual’s citizenship status. Without any additional information about these violations or the rest of the inmates of these facilities, there is little that can be said about whether there are more immigrant criminals in the country.

The lack of data on the state and local jail population in part may be explained by policies that many jurisdictions have created to limit the amount of immigration or citizenship data they collect, so that they are not required to share that information with ICE, a requirement under immigration law (8 U.S.C. Section 1373). But without better data at the federal, state, and local levels, it is hard to make any conclusion about whether immigrants are more likely to be “dangerous criminals” or have higher rates of criminality than other populations. This should be kept in mind when interpreting the statements of the administration or anyone else in the immigration debate on this issue.

Theresa Cardinal Brown
Theresa Cardinal Brown
Theresa Cardinal Brown is Bipartisan Policy Center’s director of immigration and cross-border policy. She came to BPC from her own consulting firm, Cardinal North Strategies, LLC. Brown was director of immigration and border policy at the U.S. Chamber of Commerce; associate director of business immigration advocacy at the American Immigration Lawyers Association; and worked in the immigration practices of large Washington, D.C.-based law firms. She also served as a director and of counsel at The Sentinel HS Group, LLC. She was a policy advisor in the office of the commissioner of U.S. Customs and Border Protection, and was on Homeland Security Secretary Michael Chertoff’s Second Stage Review of USCIS. In 2005 and 2006, she became a member and later director of the Immigration Legislation Task Force in the Department of Homeland Security (DHS) Office of Policy. She then served as the first DHS director of Canadian affairs, and subsequently as the first DHS attaché at the U.S. Embassy in Ottawa. Brown is a Phi Beta Kappa graduate of the University of Delaware, with a degree in international relations and economics.

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