The Criminal Alien Problem of Secure Communities

Central to the mission of Secure Communities is the removal of criminal aliens. It is not commonly understood in the immigration debate that ICE’s definition of criminal aliens includes both legal and illegal immigrants who have on at least one occasion become object of the criminal justice system. Since 2005 ICE has been increasingly charging illegal border crossers with criminal violations that result in sentencing and imprisonment in federal prisons.

Legal residents who are not citizens can also be classified as criminal aliens if they are judged by ICE or immigration courts to have committed an aggravated felony, crimes of moral turpitude, or narcotics charges. Since the late 1980s the definition and interpretation of these three categories of crimes has become increasingly broad – so detached from their common meaning that a shoplifting charge can be regarded as an aggravated felony or that drug possession can be used as grounds for deportation.

As the resources of ICE have expanded since Sept. 11, the agency has increasingly included legal immigrants who have a criminal violation in their record in its detention and deportation system. A legal immigrant who has served a prison sentence or has been convicted of a crime but never sentenced is a criminal alien, according to ICE, and may be subject to detention and removal – depending both on the nature of the conviction and on ICE’s available resources.

Secure Communities follows ICE’s broad definition of criminal alien to include any noncitizen convicted of an offense. Falling within Secure Communities’ priorities are “individuals who have been convicted of other offenses,” so broad to presumably include all misdemeanor violations or immigration violations. While this broad sweep approach to securing communities will certainly capture immigrants who do represent a threat to public safety, it extends the immigrant crackdown deeper far deeper into the immigrant community, legal and illegal, and will likely result in widespread personal, family, and community insecurity.

Policy Recommendations:

The Secure Communities program represents furthering linking of the criminal justice and immigration systems. This merger of criminal and immigration law has been in process since the mid-1990s but has speeded up in the past several years with the deepening focus on criminal aliens by DHS and its immigration and border control agencies. Criminal justice scholars refer to this merger as “crimmigration.”

Rather than further institutionalize crimmigration with the Secure Communities program, Congress should take steps to rollback the criminalization of immigration law and the new administration at DHS should rein in the agency’s campaign to remove criminal aliens.

Contrary to public perception, only a small number of those labeled criminal aliens by DHS as represent a serious threat to public safety. Because of new DHS practices that criminalize immigration violations, most of the newly classified criminal aliens are not criminals at all but only violators of immigration law (illegal border crossers, visa overstays, etc.). And contrary to public perception, DHS is also increasingly targeting legal immigrants in its crackdown on criminal aliens – many of whom are now being detained and deported for past crimes, including what for citizens would be considered misdemeanor violations.

As part of any new immigration reform, Congress should review previous legislation – including the Anti-Terrorism and Effective Death Penalty Act of 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and the US Patriot Act of 2002 – that have enabled the executive branch to steadily expand its criteria for designating immigrants, both legal and illegal, as criminal aliens. Without a major overhaul of immigration laws and DHS practices that cast an increasingly wide band of immigrants as criminal aliens subject to mandatory detention and removal, the Secure Communities program will dramatically increase the number of immigrants, legal and illegal (the overwhelming majority of which have no history of violent crime), who are fast-tracked for removal – and in the process disrupting tens of thousands of families and communities. Now is the time for Congress and DHS to reevaluate the criminalization of immigration law and the merger of the criminal and immigration systems.

Next: Secure Communities: New Gateway for Immigrant Removal

Photo/Tom Barry: Border wall/gate at Sasabe, Arizona/Sonora.