It’s a testament to President Donald Trump’s capacity for malice that his deportation policy has terrified more while deporting less. Arrests by his administration’s Immigration and Customs Enforcement in 2017 were about half what they were during President Barack Obama’s peak years, 2010 and 2011, according to a new report by the Migration Policy Institute.
During Obama’s first term, when he was laying the groundwork for what he hoped would be a comprehensive bargain on immigration, his administration aggressively enforced immigration law. ICE arrests peaked at more than 300,000 annually in 2010 and 2011. Deportations from the American interior - in other words, not of people apprehended near the border - surpassed 200,000 in both those years, also about twice the number reached in 2017. Pro-immigrant groups took to calling Obama the “deporter in chief.”
The effort severely strained Obama’s relations with immigration activists while getting him nowhere with Republican legislators, most of whom stayed true to a policy of bad faith. In 2011, at the height of the deportations, Representative Lamar Smith, a rigid immigration opponent from Texas, lamented what he called Obama’s policy of “backdoor amnesty.”
After the House GOP killed the immigration deal that had passed the Senate in 2013 with a super-majority, Obama gave up. His final years were marked by a more lenient disposition toward immigrants and minimal appetite for enforcement against non-criminals.
Trump, scourge of Mexico, lambaster of Muslims, avenger of white pride, promised a harsh new day in which every undocumented immigrant would be a target. ICE acting director Thomas Homan said in 2017: “If you’re in this country illegally, and you committed a crime by entering this country, you should be uncomfortable. You should look over your shoulder.”
The fear spread. “I’ve never seen anything like it in my 30-plus years of practice,” said David Leopold, former president of the American Immigration Lawyers Association, via email. “Trump has created a police state for immigrants - legal and unauthorized.” ICE, Leopold said, is pursuing “any undocumented immigrant they can get their hands on - common sense and common decency be damned.”
I asked Leopold why Obama’s peak years of enforcement hadn’t spread as much fear or more - given the higher rates of arrest and deportation.
“Even during the worst days of the Obama crackdown,” he said, “ICE used its discretion and applied common sense.” Today, he said, the agency refuses to use either, while seeming to revel in “tearing apart families.”
Why are Trump’s deportation numbers so far below Obama’s peak? Credit resistance at the state and local level. California saw its share of total ICE arrests drop from 23 percent in 2013 to 14 percent in 2017. Local jurisdictions were more inclined to reject ICE requests for detainers, which seek to hold a particular subject for up to 48 hours, enabling ICE to take custody. Nationwide, detainer requests in 2017 were rejected at four times the rate of 2016.
The Migration Policy Institute report stated:
Across the study sites, state and local governments, attorneys, advocates, community leaders and Mexican and other consulates have been engaged in increased activism and mobilization to monitor ICE activities, develop response plans to protect immigrants during ICE operations and provide legal defense to those in deportation hearings. California, New York, Chicago and the Mexican consulates provided significant new funding to support immigration legal services and representation.
Close to 300 states and localities have sanctuary policies of varying force. About 200 of them do not honor ICE detainers. “ICE has responded by doing what it can - making more arrests in the community, which it can do on its own without local cooperation,” said Michelle Mittelstadt, director of communications and public affairs at the institute, a leading immigration think tank and research organization.
While sanctuaries resist, red states are stepping up. Texas’s share of total ICE arrests increased from 25 percent to 28 percent as California’s share declined. Given a free hand by Washington, ICE has grown much less discriminating in its targets. While arrests of noncitizens with convictions rose 7 percent from 2016 to 2017, arrests of noncitizens without criminal convictions increased 147 percent.
Employers are being targeted as well. ICE said this week that it had opened nearly 2,300 employer audits between Oct. 1 and May 4. There were 1,360 such audits between October 2016 and September 2017.
The Migration Policy Institute report, the product of a yearlong study informed by numerous interviews, stated:
Amid growing pushback in some locations, ICE has adjusted some of its enforcement activities, conducting more operations in limited-cooperation jurisdictions, arresting people in courthouses and near sensitive locations such as schools, carrying out more arrests in the community and bringing in immigrants who were not targets, and taking in a growing share of non-criminals.
In effect, Trump’s policies are achieving his goals, frightening undocumented immigrants and heightening risks of deportation - even if he can’t match Obama’s peak. Fear of arrest and deportation also appears to be discouraging some immigrants from reporting crime.
Meanwhile, local and state officials who resist federal immigration policy are having success blunting Trump’s attack on undocumented residents. Immigration policy in the U.S. is heading in two diametrically opposed directions, with different outcomes in different geographies.
Still, Trump has both time and a vast federal police force on his side; he can win a war of attrition if he remains in power. The federal government may have lost interest in carefully selecting its targets. But it still has the biggest guns.