Originally Published in The Washington Post
Salvador Rizzo - April 22, 2021
“Under normal administrations, whether it was the Obama administration, the Trump administration, the Bush administration, the Clinton administration, if a criminal alien was arrested by a local sheriff’s department, a police department, state troopers, state police, highway patrol, they were then flagged by ICE. Something called a detainer was issued. And when that person was released, whether they were bonded out by a judge, whether they were put on their own recognizance pending trial, or whether they completed the prison sentence, they were placed into ICE custody. ... The Biden administration has stopped doing that in the vast majority of cases. So, all of those criminal offenders are now being released back into the U.S. population, back into your communities, back into your schools, back near the places where you live. The result of that is going to be massive amounts of recidivism. Innocent people are going to get hurt. Innocent people are going to get killed. Innocent people are going to suffer irreparable damage as a result of that decision.”
— Stephen Miller, adviser to former president Donald Trump, in an interview on “Sunday Morning Futures” on Fox News, April 18, 2021
After four years in the White House as Trump’s immigration adviser, Miller is now on the outside looking in as President Biden winds down many of his policies.
Biden pledged to reverse Trump’s signature immigration controls such as the travel ban covering several majority-Muslim countries and the “Remain in Mexico” policy that turned away asylum-seekers from Central America, and to stop construction of Trump’s southern border barrier.
Biden also planned a 100-day moratorium on deportations, and although a federal judge ruled to stop the freeze, federal data as of mid-April show U.S. immigration officials have been taking into custody far fewer unauthorized migrants from the interior United States.
“Innocent people are going to get killed,” Miller said on Fox News, claiming that the Biden administration has stopped issuing detainer requests to local authorities “in the vast majority of cases.”
These dire warnings were the typical rhetoric of the Trump administration, even though research studies consistently disprove a link between immigration and higher crime. Keep that in mind when Miller talks about undocumented migrants going “back into your communities, back into your schools.”
Arrests of migrants and deportations have declined sharply under Biden as the new administration’s policy is to focus resources on violent criminals, gang members and national security threats. Miller didn’t mention that on Fox News.
He failed to mention that these arrests first fell sharply under Trump beginning in April 2020, after the federal government adopted coronavirus safety protocols.
Miller implied U.S. immigration officials had the same tracking system in place from the Clinton through Trump administrations, when in fact the government’s technological capabilities and enforcement policies have changed drastically from each presidency to the next.
However, his claim that detainer requests are no longer issued “in the vast majority of cases” is much harder to verify. Miller no longer has access to the federal data he’s talking about; he said he was estimating based on his conversations with immigration agents on the ground.
We asked immigration officials in Washington how many detainers have been issued under Biden. They challenged Miller’s claims but did not show us the data to prove him wrong.
Another set of data that is public shows thousands of migrants being taken into custody from the interior United States in the Biden administration’s first few months, although, as Miller indicates, these arrests have plummeted since the new sheriff came to town.
The Facts
A detainer from U.S. Immigration and Customs Enforcement (ICE) is a request to a state or local law enforcement agency asking it to temporarily hold a migrant suspected of being in the country illegally until immigration agents can take them into custody.
The Biden administration has not stopped issuing detainer requests for unauthorized migrants in the United States, but it has adopted temporary guidelines prioritizing the deportation of gang members, national security threats, migrants who have been convicted of an “aggravated felony” and pose a public safety risk, and recent arrivals since November 2020.
This priority system was first implemented during the Obama administration, scrapped entirely by Trump and reinstituted by Biden, although Biden’s policy imposes more restrictions on immigration officials than President Barack Obama’s.
The temporary Biden guidelines do not prohibit ICE from arresting people who are unlawfully in the country, but immigration agents now must receive approval by a field office director before taking enforcement actions involving migrants who fall outside Biden’s list.
Let’s split up Miller’s claim and take a look at each part.
“Under normal administrations, whether it was the Obama administration, the Trump administration, the Bush administration, the Clinton administration, if a criminal alien was arrested by a local sheriff’s department, a police department, state troopers, state police, highway patrol, they were then flagged by ICE. Something called a detainer was issued. And when that person was released, whether they were bonded out by a judge, whether they were put on their own recognizance pending trial, or whether they completed the prison sentence, they were placed into ICE custody.”
What Miller is describing was not in place under President Bill Clinton. Neither was mass migration as prominent and complex a policy issue as it is today.
ICE was not established until 2003, under Republican President George W. Bush, and its predecessor agencies did not have the technological capability to link up with local and state correctional facilities and issue detainer requests en masse.
In fact, the process Miller is describing was really in place only during the early years of Obama’s tenure. The Bush administration issued detainers infrequently, and the technology linking federal immigration authorities with local law enforcement agencies — a program called Secure Communities — began to operate in Obama’s first term after a pilot program in 14 jurisdictions under Bush.
“The numbers really didn’t become so big until the Obama administration when Secure Communities was linked to basically every jail in the country, and that’s when you had the numbers shoot up,” said Randy Capps, director of research for U.S. programs at the Migration Policy Institute. Obama deported nearly 1.2 million people in his first three years compared with more than 800,000 in Trump’s first three years. Obama then cranked down the speed on this new, highly efficient deportation apparatus.
“Revisions from 2011 through 2014 narrowed the scope of ICE arrests and deportations, and in particular after 2014 they stopped issuing detainers in a lot of cases,” Capps said. “They would issue requests for notification for less serious cases … but not requesting to hold them for an additional few days, which is what a detainer does.”
When Trump took office, he promptly removed many restrictions and allowed ICE the sort of free rein it had during most of Obama’s first term.
Jorge Loweree, policy director at the American Immigration Council, said the outlier was the Trump administration.
“The Trump-era approach to interior enforcement was to cast as wide a net as possible, to enforce immigration law by dragnet, with the goal of terrorizing communities, instilling fear and, ultimately, the sort of overarching goal was to create deterrents to immigrating to the United States,” he said. “What the Biden administration did was to try to create priorities and new levels of oversight mechanisms to redirect immigration enforcement so that we’re not going after people who have been in the United States for many years, people who have strong ties to our communities.”
“The Biden administration has stopped doing that [issuing detainers] in the vast majority of cases. So, all of those criminal offenders are now being released back into the U.S. population, back into your communities, back into your schools, back near the places where you live.”
First, we should explain the different statistics at issue here.
1. The total number of migrants who are flagged in the federal database as potentially being in the country illegally.
2. The total number of detainers ICE issued.
3. The total number of people initially booked into custody by ICE agents.
Each number is smaller than the last. ICE does not issue detainers for all the possible matches in the federal database. Detainers are not always successfully executed, or they might be ignored by sanctuary jurisdictions.
So, the first number is the total universe of migrants inside the country ICE could be apprehending, the second number is the subset of those people ICE is actually seeking, and the third number reflects completed ICE arrests inside the country.
On Fox News, Miller spoke about ICE detainers. We asked ICE to see the data. A spokesperson for the agency challenged Miller’s claim but sent us figures that do not prove him wrong.
“ICE has issued 48,662 immigration detainers for fiscal year 2021, as of Apr. 17,” the spokesperson said. “For that same period of time, ICE issued slightly more than 66,000 immigration detainers, in fiscal year 2020.”
For the federal government, the fiscal year starts in October, so this is not an apt comparison. The earlier period ICE mentioned, with 66,000 detainers, is all Trump. The more recent period, with 48,662 detainers, combines the last three-and-a-half months of Trump’s term with the first three months of Biden’s.
We asked to see a breakdown of detainers issued by month or by administration. ICE claimed it didn’t have those details and eventually stopped answering our questions.
“ICE continues to issue immigration detainers on individuals in accordance to our interim enforcement priorities, which focus on threats to national security, border security, and public safety,” agency spokeswoman Paige Hughes said. “ICE will continue to carry out its duty to enforce the laws of the United States in accordance with the Department’s national security and public safety mission.”
Miller doesn’t have the data, either, so how does he know the “vast majority” of possible detainers are no longer being issued? Over phone calls and in text messages, he said that his claim is based on intel he gathered from officials inside the Department of Homeland Security and that the numbers obviously would plummet with Biden’s restrictions.
“I was understating the impact of these memos, because I’ve talked to a lot of firsthand sources inside of ICE and inside of DHS, without revealing any confidences, who have said that in some weeks they’ve seen a drop-off in arrests from comparable time periods under Trump as high as 90 percent,” Miller said, calling Biden’s guidelines a “labyrinthine, byzantine web.”
“ICE officers have clearly gotten the message of, ‘Don’t stray outside these incredibly tight constraints that we’ve put on you,’” he added.
Miller put us in touch with Thomas Homan, a former acting ICE director under Trump, who echoed his claim: “Approximately 80 to 90 percent of the criminals ICE arrested and deported last year cannot be arrested this year because they have been removed as priorities. I talk to ICE field leadership all the time and they confirm that.”
Miller, who now runs a group advising Republican officials filing lawsuits against the Biden administration, also noted reports in The Washington Post and Washington Examiner documenting a sharp drop in ICE immigration arrests and deportations of more than 60 percent under Biden.
“The fact that ICE is refusing to share the underlying data publicly underscores that they believe it would create a political crisis for them,” Miller concluded.
ICE does release its “initial book-ins,” or arrests, every two weeks. The data provides a window into how many people the agency is taking into custody from the interior of the country, experts said.
The monthly total fell from around 12,000 to 6,000 during the tail end of the Trump administration, as the government implemented coronavirus safety measures and scaled back arrests and deportations. Under Biden, the figure has fallen further, to about 2,300 in March. For the first two weeks of April, ICE arrests totaled 914.
Capps said that because of this steep drop, Miller had a point. We obviously can’t vouch for Miller’s anonymous sources or Homan’s, or their math. But the number of ICE interior arrests clearly has tumbled since Biden took office, a sign that detainers have been cut back substantially, though ICE noted that some initial book-ins do not stem from detainer requests.
Capps said Miller nonetheless was wrong to associate migrants with higher violent crime, a generalization not supported by research studies despite occasional reports of crimes committed by undocumented residents.
“Who’s not being taken into ICE custody? People who haven’t been convicted of any crime, and people who have been convicted of minor crimes,” he said. “Its enforcement removal reports during the Trump administration, they have a list at the end of the people who were deported, what crimes did they commit. And the most common crimes they committed were drunk driving, other traffic violations, immigration violations, drug offenses, even shoplifting is pretty high on the list. Not that many serious crimes like assault — there are some, but they are dwarfed by convictions for far less serious crimes.”
Loweree said Miller’s comments were “a thinly veiled attempt to create fear among the general population.”
“The implication that immigration enforcement has somehow ceased since the Biden administration has come into office is blatantly false,” he said. “Federal immigration authorities, because of preexisting information-sharing agreements that remain in place, are made aware any time that a [potentially deportable] person is booked into a state, local or county jail anywhere in the U.S.
The difference is that the new administration is … channeling their enforcement more effectively.”
Update (April 22): After this fact-check was published, Miller sent a text message restating his position that Biden’s guidelines were “egregious and deadly.” “The vast majority of deportable aliens arrested for crimes in the interior are NOT being detained or removed by ICE,” he said. Regarding ICE’s responses to us, Miller said “DHS’s stunning refusal to provide the requested data to The Washington Post makes the situation the more scandalous — it’s a classic Washington coverup.”
The Pinocchio Test
Miller earns Three Pinocchios overall for associating undocumented migrants with violent crime, for claiming that Clinton, Bush, Obama and Trump all had the same detainer dragnet in place, and for failing to mention Biden’s priority list for ICE arrests and deportations, which specifically focuses on individuals who pose a risk to public safety.
We will withhold a rating for Miller’s claim that the Biden administration is not issuing “the vast majority” of possible detainers. We don’t have the data with which to judge it, as ICE did not provide it. The official statistics we were able to analyze thus far appear to back Miller up, though it’s slightly apples-and-oranges. We will keep an eye on this and welcome additional information.
Biden pledged to curb deportations, and ICE interior arrests have shot down in the first months of his presidency. However, ICE continues to arrest thousands of people inside the country and prioritizes gang members, people convicted of aggravated felonies who pose a public threat, and national security risks.
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