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Trump’s fuzzy math on undocumented immigrants convicted of crimes

(AP Photo/Evan Vucci)

“According to federal data, there are at least 2 million, 2 million, think of it, criminal aliens now inside of our country, 2 million people, criminal aliens. … Since 2013 alone, the Obama administration has allowed 300,000 criminal aliens to return back into United States communities. These are individuals encountered or identified by ICE [Immigration and Customs Enforcement], but who were not detained or processed for deportation because it wouldn’t have been politically correct.”
— Donald Trump, immigration speech in Phoenix, Aug. 31, 2016

We fact-checked many claims from Trump’s 75-minute speech introducing his 10-point immigration plan in a roundup, but his claims about the number of “criminal aliens” released by ICE called for a deeper dive.

Trump used these figures to argue his proposal for “zero tolerance for criminal aliens,” vowing to remove them from the country. Trump has proposed the mandatory return of all criminal aliens since he released an immigration plan on Aug. 20, 2015. “Criminal aliens” refers to noncitizens convicted of a crime.

We were curious: Are his figures correct?

The Facts

This proposal is framed around deporting undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Trump cites federal data, saying there are at least 2 million criminal aliens in the country. This number comes from a Department of Homeland Security fiscal 2013 report saying there were 1.9 million “removable criminal aliens.”

But this figure refers to a broader population of non-U.S. citizens with criminal convictions. It includes undocumented immigrants and people who are lawful permanent residents, or those who have temporary visas. Lawfully present people in the United States who are convicted of serious crimes are subject to removal from the country.

The exact number of illegally present non-citizens within that 1.9 million figure is not clear. Calculations by the Migration Policy Institute, a think tank that doesn’t take positions on immigration legislation, show about 820,000 (43 percent) of the 1.9 million are unauthorized immigrants with criminal convictions.

But Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which favors lower immigration, said most of that 1.9 million figure are undocumented, but she did not provide any specific data. She said it was based on information she received from a DHS source she could not reveal, which we can’t independently verify. The Trump campaign consulted Vaughan on the speech and used her calculations for statistics on criminal aliens.

Trump says 300,000 criminal aliens were released by ICE since 2013, and they were not detained or processed for deportation. This figure lacks a lot of context.

ICE has provided its estimates for released criminal convictions to the House Judiciary Committee. Between fiscal 2013 and fiscal 2015, there were 82,288 criminal aliens that ICE released into non-custodial settings.

Vaughan added an additional 200,000 based on her calculation of the number of people ICE released per prosecutorial discretion guidelines. Most of these encounters were in jails, of people who were arrested and were identified by ICE  as a “criminal threat.” Once ICE decides not to pursue deportation, the local law enforcement would release them from jail. They are not technically classified as the same “criminal alien” definition by ICE at that point.

Then she added an additional 18,646 “deportable aliens that ICE was seeking” but were ignored by state and local law enforcement. That adds up to just over 300,000.

We ran Vaughan’s calculations by ICE, which declined to confirm “a number calculated by an external group.”

Immigrants can pay bond out of ICE custody. They may be lawful residents who are granted some type of relief under the law, or people granted asylum for fleeing persecution, said Kevin Johnson, dean of the University of California at Davis School of Law. He added: “U.S. authorities may decide not to seek removal of low-level criminal offenders. It is known as prosecutorial discretion. Some minor crimes, for example, might not warrant destroying families.”

Trump says ICE didn’t deport the 300,000 people out of “political correctness.” This is an attack against discretion guidelines and the 2014 ICE deportation reprioritization, which Vaughan said “excuses too many offenders from deportation.” ICE says the new priorities focus on removing undocumented immigrants who pose the most serious public safety and national security threats.

The idea behind the 300,000 number is to reflect the number of criminal aliens who were avoiding deportation, or were not held in custody despite the fact that they are considered criminals [or a criminal threat],” Vaughan said. 

There are people ICE must release, based on orders from an immigration judge. Federal courts and the Supreme Court have requirements dating to 2001 that limit how long ICE can detain people who are ordered to be removed.

Of the 82,288 released criminal aliens reported by ICE, 56 percent (46,422) were released based on discretion. An additional 38 percent (31,314) paid bond. The rest were released under legal requirements or because they couldn’t get travel documents to leave the country. So not all are because of Obama administration decisions.

Trump also proposed to “issue detainers for illegal immigrants who are arrested for any crime whatsoever, and they will be placed into immediate removal proceedings if we even have to do that.”

A “detainer” is a term for a request by ICE to a local or state agency to hold a person (usually in jail) until ICE can take over custody. It doesn’t necessarily mean the person is present illegally, and detainers don’t begin deportation proceedings, according to the American Immigration Council.

Under Trump’s proposal, a person arrested by police — regardless of how serious the crime is, without knowing whether they are present illegally — would be held in jail, and their removal proceeding would begin without due process. Such an approach to enforcement is consistent with Trump’s call to bring back two DHS enforcement programs that rely on local governments, which are being phased out because they didn’t effectively target violent criminals, and opened up the potential of racial profiling.

“This is going to be a real problem,” said Marie Provine, an Arizona State University professor who co-authored a book on local police and immigration enforcement, “Policing Immigrants.” She said Trump’s proposal would overwhelm local law enforcement and federal immigration courts, without effectively targeting people who committed serious crimes.

The Pinocchio Test

Trump used fuzzy math to back up his proposal to remove criminals who are in the country illegally. The 2 million figure refers to the total number of “removable criminal aliens” as determined by DHS, and refers to convicted non-citizens in the country legally and illegally. While he states it as fact, an independent think tank analyzing immigration policy estimated that more than half of the 2 million are convicted criminals who are not U.S. citizens, but lawfully in the country.

Trump’s other figure is a complex calculation by the Center for Immigration Studies, which advocates for lower immigration. In general, figures provided by organizations with a goal to change policy should be viewed with skepticism. The number that directly fits the ICE definition of “criminal aliens” released into the community is 82,228 – about 27 percent of Trump’s figure — that the agency reported to Congress. Of that figure, 56 percent were released based on ICE’s discretion, or “being politically correct,” as Trump would say. The rest adding up to 300,000 includes a variety of calculations, including those considered a “criminal threat,” not necessarily “criminal aliens.”

Federal immigration enforcement data, especially relating to illegal immigration, are not always transparent or reliable. That leads to outside groups recalculating federal data to make their point — which then gets elevated when a prominent person is willing to cite it in a major speech, such as Trump’s immigration address in Phoenix. Trump states both figures as simple fact, when both calculations are much more complex than that.

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