Fox claims draft ICE policy gives “a free pass” to some unauthorized immigrants

Kelly: Draft policy “orders police departments to give some illegal immigrants a free pass.” Fox News anchor Megyn Kelly claimed that the draft policy “orders police departments to give some illegal immigrants a free pass” if they are not “already a convicted felon.” Kelly later suggested that the draft policy means the government is approaching the point of “completely giving a free pass to all illegals who haven't committed a crime.” From the September 9 edition of Fox News' America Live:

KELLY. We are learning about a new possible federal policy change -- yet another one on illegal immigration -- one that looks like it orders police departments to give some illegal immigrants a free pass. That's where we begin this edition of America Live. Hi, everybody, I'm Megyn Kelly.

According to reports, the Department of Homeland Security and the Immigration and Customs Enforcement Agency are considering a new policy on handling illegals. This has been an evolving thing that we have been watching closely here at America Live. Here's how the latest policy change would work: If police pulled someone over for a traffic stop and discover that they are in this country illegally, the police would be forced to let that person go without calling federal agents, unless that individual is already a convicted felon.

[...]

KELLY: Well, that's the thing. I mean, because, they've made no secret about the priority of going after the existing criminals who are -- you know, the illegals who have committed crimes. But this is something very different. Is priority -- is making that a priority the same as completely giving a free pass to all illegals who haven't committed a crime? More and more we're inching toward that place.

Gallagher forwards claim that policy would mean illegal immigrants “can drive the streets without fear of being deported.” Appearing on America Live, Fox News correspondent Trace Gallagher claimed that under the draft policy, “If you're a cop, if you pull somebody over and you find out they are in fact in this country illegally, you just let 'em go.” Gallagher added that “critics say this means that illegals would soon know that they can drive the streets without any fear of being deported.” From the September 9 edition of Fox News' America Live:

TRACE GALLAGHER: The reason the critics are blasting this proposal is because if it, in fact, is adopted, it would amount to a catch-and-release program. Now, just so we all know what we're talking about here, I want to put this draft proposal up on the screen so we can read along. This is the proposal and I'm quoting here -- it says: “As a general matter, immigration officers should not issue detainers against an alien charged only with a traffic-related misdemeanor unless or until that alien is convicted.”

So, you kind of pointed it out earlier. If you're a cop, if you pull somebody over and you find out they are in fact in this country illegally, you just let 'em go. You can't even call the feds about them. Now, critics say this means that illegals would soon know that they can drive the streets without any fear of being deported. So what we did is we called ICE, because, clearly, we have them on speed dial. They sent us this response. It says -- and I'm quoting -- “This administration is committed to smart, effective immigration reform, prioritizing the arrest and removal of criminal aliens and those who pose a danger to national security.”

Fox Nation: “Napolitano Proposes Letting Illegal Aliens Go Free.” On September 7, Fox Nation linked to a KGUN9 article and posted the following headline:

The draft policy deals with who will be detained, not who will be deported

Half of those who go through deportation hearings are not detained. The Justice Department's FY 2009 Statistical Year Book, states: “Under the Immigration and Nationality Act, DHS has authority to detain an alien pending a decision on whether or not the alien is removable,” and that of those who have completed their immigration court proceedings in 2009, half were detained.

Draft policy outlines cases in which immigrants charged with traffic violations should be ordered detained by ICE. The draft policy, which is posted on the Immigration and Customs Enforcement website for public comment, states:

As a general matter, immigration officers should not issue detainers against an alien charged only with a traffic-related misdemeanor unless or until the alien is convicted, unless

• the alien has a prior criminal conviction;
• the alien previously has been excluded, deported, or removed from the United States or allowed to voluntarily return to his or her country of nationality;
• the alien is the subject of an outstanding immigration warrant or is the subject of a final order;
• the alien is part of an existing criminal investigation;
• an articulable reason exists to believe that the alien presents a danger to national security or a genuine risk to public safety; or
• the traffic-related misdemeanor involves driving under the influence of alcohol or drugs, physical injury to a person or property, or flight from the scene of an accident.

The document states that a “detainer” is a notice that ICE issues to law enforcement agencies stating “that ICE intends to assume custody of an individual.” During the America Live segment, neither Kelly nor Gallagher noted that the policy against issuing detainers would not apply to those who had previously been removed from the country, those with outstanding immigration warrants, those involved in criminal investigations, those who may be a risk to public safety, or those who fled the scene of an accident, injured people or property, or were arrested for driving under the influence.

Immigration attorney David Leopold: “Just because a detainer is not issued by ICE doesn't mean the alien is free from deportation worries.” David Leopold, president of the American Immigration Lawyers Association and adjunct professor of immigration law at Case Western Reserve and Cleveland State Universities, told Media Matters that under the draft policy "[a]n unauthorized alien who is charged with a traffic offense may not be placed under an ICE detainer. But he or she is certainly not out of the woods. Certainly, that person may be charged with deportation and detained or released pending review by an immigration judge." Leopold further stated:

The draft detainer policy is hardly a “free pass” or “catch and release for unauthorized aliens who have not committed a crime. A detainer is, in effect, notice by ICE to a state or federal law enforcement agency that it intends to take an alien in their custody into ICE custody once the person is released. Just because a detainer is issued doesn't mean a person will be placed in removal proceedings. ICE may, upon investigation, later determine the person is not subject to deportation. Conversely, just because a detainer is not issued by ICE doesn't mean the alien is free from deportation worries. If a person is in the US in violation of the law ICE can issue a deportation charging document without issuing a detainer. A detainer lodged against a person only signifies ICE's intent to take a person into custody at a future time. But not all aliens in deportation proceedings are detained.

ICE spokesman: ”We posted the drafted detainer policy to solicit views from all sides." The Washington Independent reported on August 19 that Richard Rocha, deputy press secretary for ICE commented on the draft policy, saying that, “ICE has not made any decisions. We posted the drafted detainer policy to solicit views from all sides -- sheriffs, community leaders and think tanks.” Rocha further stated, “ICE is committed to smart and effective immigration enforcement, and we want to make sure our policies match our priority, which is to target criminal aliens.”

DHS: Policy designed to ensure resources are focused on high-priority removals

ICE seeks to prioritize deportations that promote “national security, public safety, and border security.” In a June 30 memo, ICE director John Morton explained that in allocating limited resources, ICE would prioritize the detention and removal of those who pose a danger to national security, those who have recently entered illegally, and fugitives or those who have committed fraud to gain legal status or admission in to the country. The memo states:

ICE, however, only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States. In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security.

The memo also states:

Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of other aliens unlawfully in the United States. ICE special agents, officers, and attorneys may pursue the removal of any alien unlawfully in the United States, although attention to these aliens should not displace or disrupt the resources needed to remove aliens who are a higher priority. Resources should be committed primarily to advancing the priorities set forth above in order to best protect national security and public safety and to secure the border.

Migration Policy Institute: “Both the immigration court system and the detention system have reached capacity.” Donald Kerwin of the nonpartisan Migration Policy Institute told Media Matters that “there's nothing in the policy that indicates” that those charged with traffic-related misdemeanors “wouldn't be placed in removal proceedings.” Kerwin further stated:

Both the immigration court system and the detention system have reached capacity. Thus, taking custody of and placing into removal proceedings non-citizens (not all of them unauthorized) who are arrested for very minor offenses -- some of whom will not ultimately be convicted or found removable -- will invariably diminish ICE's ability to effectively enforce the law.

ICE has never said that it would not enforce the law against status violators. Thus, it is not giving a “free pass” to all non-criminal unauthorized immigrants. However, if it did not prioritize its enforcement work, it would in fact be giving a “free pass” to dangerous convicts and its other ICE enforcement targets.

DHS spokesman: Draft policy is “designed to lessen the burden on local detention facilities.” DHS deputy press secretary Matthew Chandler told Media Matters, “It is a ridiculous jump to say that this draft policy orders police departments to give illegal immigrants a 'free pass.' It says nothing of the sort.” Chandler said the policy “is designed to lessen the burden on local detention facilities, and continues ICE's policy of responding to local requests for assistance in identifying and detaining aliens.”

Funding for Detention and Removal Operations higher now than ever before. The Detention and Removal Operations (DRO, also know as ERO) division of ICE is “the primary enforcement arm within ICE for the identification, apprehension, and removal of illegal aliens from the United States. The resources and expertise of ERO are used to identify and apprehend fugitive aliens and convicted criminal aliens, to manage them while in custody, to facilitate their processing through immigration courts, and to enforce orders of removal from the United States.”

Data from ICE show that the budget for the Detention and Removal Operations division has increased significantly since 2007:

For fiscal year 2011, DHS requested an increase of $20 million above 2010 to maintain detention bed space.

Wash. Post: “Obama administration is deporting record numbers of illegal immigrants.” The Washington Post reported on July 26 that “removals reached a record high in 2009” and “the Immigration and Customs Enforcement agency expects to deport about 400,000 people this fiscal year, nearly 10 percent above the Bush administration's 2008 total and 25 percent more than were deported in 2007.”

Data provided to Media Matters by ICE show that the agency has already removed more immigrants who have committed crimes from the U.S. in 2010 than any previous year, while continuing to remove large numbers of non-criminal immigrants as well: