Sanctuary Jurisdictions and Criminal Aliens:
In Brief
William A. Kandel
Analyst in Immigration Policy
Lisa Seghetti
Section Research Manager
July 24, 2015
Congressional Research Service
7-5700
www.crs.gov
R44118
Sanctuary Jurisdictions and Criminal Aliens: In Brief
Summary
The July 2, 2015, slaying of a woman on a San Francisco pier by a reported unauthorized alien
with a criminal and deportation history has reignited the debate over immigration enforcement in
the interior of the country. This case is particularly noteworthy because the law enforcement
agency in question reportedly did not honor an immigration detainer issued by the Department of
Homeland Security’s (DHS’s) Immigration and Customs Enforcement (ICE).
At the end of 2013, noncitizens accounted for 25.2% of the 214,575 individuals incarcerated in
federal prisons, 3.8% of the 1,270,807 individuals incarcerated in state prisons, and 6.9% of the
entire incarcerated population. In that year, noncitizens represented 7.0% of the U.S. population.
Sentencing data indicate that drug offenders accounted for almost 51% of all federal offenders in
federal prison at the end of the year in 2012. Forty-five percent of noncitizen federal prisoners
were incarcerated for drug offenses at the end of 2012. Although immigration offenders
represented almost 12% of all federal offenders incarcerated at the end of 2012, they represented
44% of all federal noncitizen offenders. Published sentencing data on the state and local prisoners
by offense type and citizenship status are not available.
While immigration enforcement is a federal responsibility, efforts have continually been made to
use the potential “force multipliers” offered by local law enforcement. However, in recent years,
some jurisdictions have expressly defined or limited their roles and the activities of their
employees regarding immigration enforcement. Critics argue that these policies can create
“sanctuary” jurisdictions that ultimately encourage illegal immigration. Supporters maintain that
they are necessary because of resource and legal constraints, the need to avoid the disruption of
critical municipal services, and human rights considerations.
In 1996 legislation was enacted allowing the federal government to enter into agreements with
state and local law enforcement jurisdictions that would permit it to delegate certain immigration
enforcement functions to state and local law enforcement agents. After the September 11, 2001,
terrorist attacks, this program, commonly referred to as the §287(g) program, and others took on
new urgency.
ICE operates four key programs to identify and remove criminal and other removable aliens. Of
these four, the Criminal Alien Program, Secure Communities/interoperability program and
§287(g) program work directly with state and local law enforcement agencies to identify, detain,
and remove criminal and other removable aliens. While funding for these programs has increased
over the years since their inception, it has declined in recent years.
Several proposals have been introduced in the 114th Congress that would prohibit jurisdictions
from receiving certain grant monies that prohibit or restrict its LEAs from notifying ICE on the
immigration status of aliens. These proposals include H.R. 3002, S. 80, and S. 1764. The House
passed H.R. 3009 on July 23, 2015. Similarly, amendments adopted during the House Committee
on Appropriations mark-up of the FY2016 Department of Homeland Security appropriations bill
and the House consideration of Commerce, Justice, Science and Related Agencies Appropriations
Act, 2016 (H.R. 2578) would prohibit federal funds from going to jurisdictions that restrict their
law enforcement agents from notifying ICE on the immigration status of aliens. The former
would prohibit Federal Emergency Management Agency funds, while the latter would do so for
State and Local Law Enforcement Assistance grant funds.
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Sanctuary Jurisdictions and Criminal Aliens: In Brief
Congress may choose to consider several issues, including whether the potentially positive
impacts on public safety of state and local involvement in immigration enforcement outweigh the
potentially negative impacts on both law enforcement resource utilization and community
relations within such jurisdictions; and whether increasing law enforcement funding or tying the
provision of certain federal grants to greater cooperation with federal immigration enforcement
agencies—or a mix of both approaches—would yield the greater cooperation desired.
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Sanctuary Jurisdictions and Criminal Aliens: In Brief
Contents
Introduction ...................................................................................................................................... 1
Background ...................................................................................................................................... 2
Criminal Alien Programs ................................................................................................................. 2
Criminal Alien Program ............................................................................................................ 3
Secure Communities/Interoperability ........................................................................................ 3
§287(g) Program ........................................................................................................................ 5
Resources Dedicated to Select Immigration Interior Enforcement Programs ................................. 5
Criminal Alien Numbers and Crimes ............................................................................................... 6
Select Issues ..................................................................................................................................... 8
Impact on Communities ............................................................................................................ 8
Resources ................................................................................................................................... 9
Funding for State and Local Cooperation ......................................................................... 10
Congressional Action ..................................................................................................................... 10
Tables
Table 1. Appropriations for Three Criminal Alien Programs, FY2004-FY2015 ............................. 6
Table 2. Prison Population by Citizenship Status and Jurisdiction, CY2013 .................................. 7
Table 3. Federal Prison Population by Citizenship Status and Offense Type, FY2012 ................... 8
Contacts
Author Contact Information........................................................................................................... 11
Congressional Research Service
Sanctuary Jurisdictions and Criminal Aliens: In Brief
Introduction
The Department of Homeland Security’s (DHS’s) U.S. Immigration and Customs Enforcement
(ICE) Enforcement and Removal Operations (ERO) is chiefly responsible for locating removable
aliens1 and ensuring that aliens directed to depart from the United States do so, among other
things. In carrying out its mission, ICE relies, in part, on state and local law enforcement agencies
throughout the country to assist it with identifying removable aliens.
The July 2, 2015, slaying of a woman on a San Francisco pier by a reported unauthorized alien
with a criminal and deportation history2 has reignited debate among lawmakers and critics over
immigration enforcement in the interior of the country. More specifically, concerns have
intensified over the level of cooperation shown by some state and local law enforcement agencies
in notifying ICE when they have an alien in their custody. This case is particularly noteworthy
because the law enforcement agency in question reportedly did not honor an immigration detainer
issued by ICE.3
Some jurisdictions, through resolutions, executive orders, or local ordinances, have expressly
defined or limited their roles and the activities of their employees regarding immigration
enforcement.4 Such policies range from limiting law enforcement agents (LEAs) from
cooperating with ICE in enforcing immigration law to restricting what types of information can
be shared about an alien to federal law enforcement. Critics argue that these policies can create
“sanctuary” jurisdictions that ultimately encourage illegal immigration. Supporters, however,
maintain that they are needed because of resource and legal constraints, the need to avoid the
disruption of critical municipal services by diverting local law enforcement personnel to handle
immigration enforcement, and human rights considerations. Although there is no generally
accepted definition of what policies constitute “sanctuary,” the issue has become increasingly
contentious.
This report examines the interplay between the federal government (i.e., ICE) and state and local
jurisdictions in enforcing immigration law, with a specific focus on noncitizens who have been
convicted of a crime. It explores major programs and federal resources available to state and local
law enforcement agencies that cooperate with ICE to enforce immigration law. The report begins
by briefly discussing the evolution of the cooperation between the federal government and local
law enforcement in carrying out federal immigration policy. It then discusses current
administrative efforts to involve state and local law enforcement in enforcing immigration law. A
1 An alien is anyone who is not a citizen or national of the United States—this term is synonymous with the terms
noncitizen and foreign national. A noncitizen may be in the United States temporarily or permanently and may be
either lawfully present or present without authorization.
2 See http://www.cnn.com/2015/07/03/us/san-francisco-killing-suspect-immigrant-deported/.
3 ICE must now submit a request for notification to jurisdictions when it wants to take custody of an alien (see “Secure
Communities/Interoperability”). It is not clear if ICE submitted a request for notification or issued a detainer in this
case. See U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S.
Immigration and Customs Enforcement, Megan Mack, Officer, Officer of Civil Rights and Civil Liberties, and Philip
A. McNamara, Assistant Secretary, Intergovernmental Affairs, from Jeh Charles Johnson, Secretary of Homeland
Security, Secure Communities, November 20, 2014. For a legal discussion on immigration detainers, see CRS Report
R43457, State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement. For a policy
discussion of immigrant detention, see CRS Report RL32369, Immigration-Related Detention.
4 Ibid.
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brief discussion of resources dedicated to these programs follows. The report concludes with a
discussion of select issues and an analysis of possible policy approaches for Congress.
Background
The enforcement of immigration laws in the interior of the United States has long been a
controversial topic. Traditionally, the debate emphasized economic and labor market issues, with
those concerned about whether unauthorized aliens were depressing wages and taking jobs from
native workers pitted against those who argued that foreign labor was critical for certain
industries and benefitted the broader economy. Nevertheless, after the attacks of September 11,
2001 (9/11), attention refocused on the adequacy of interior immigration enforcement, especially
the perceived lack of federal resources.5 Although ICE has seen an increase in resources to carry
out its immigration enforcement responsibilities, the number of ICE agents pales in comparison to
the number of LEAs throughout the country.6 While immigration enforcement is a federal
responsibility, some view state and local LEAs as potential “force multipliers” that can assist ICE
agents.
Criminal Alien Programs7
Interior enforcement programs that involve cooperation between ICE and state and local law
enforcement agencies allow a relatively small number of ICE agents to leverage a much larger
number of state and local law enforcement agents. Thus, even though most state and local arrests
are of U.S. citizens, policies that forge connections between ICE and state and local law
enforcement agents may be force multipliers for ICE.
ICE operates four key programs to identify and remove criminal and other removable aliens. The
Criminal Alien Program (CAP) is an umbrella program that includes several different systems for
identifying, detaining, and initiating removal proceedings against criminal aliens,8 including
within federal, state, and local prisons and jails. Secure Communities/Interoperability, is an
information-sharing program between DHS, the Department of Justice, and state and local law
enforcement agencies that screens for removable aliens as people are being booked into jails. The
287(g) program allows DHS to enter into agreements with state and local jurisdictions pursuant
to the Immigration and Nationality Act (INA) §287(g). These agreements allow DHS to delegate
certain immigration enforcement functions to specially trained state and local law enforcement
officers, under federal supervision. The National Fugitive Operations Program (NFOP) pursues
known at-large criminal aliens and fugitive aliens, typically with multiperson outfitted teams. Of
5 Prior to the September 11, 2001 terrorist attacks, the former Immigration and Naturalization Service (INS) had fewer
than 2,000 immigration agents to enforce immigration laws within the United States. Since the merger of the interior
enforcement function of the former INS with the investigative arm of the U.S. Customs Service into ICE, the number of
interior agents has increased to over 7,000.
6 There were 605,000 LEAs in 2013, see U.S. Department of Justice Office of Justice Programs, Local Police
Department, 2013: Personnel, Policies, and Practices, May 2015.
7 For a detailed discussion of criminal aliens and related programs, see CRS Report R42057, Interior Immigration
Enforcement: Programs Targeting Criminal Aliens.
8 The term criminal alien is not specifically defined in immigration law or regulation. At the broadest level, a “criminal
alien” is any noncitizen who has ever been convicted of a crime in the United States.
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these four programs, the Criminal Alien Program, Secure Communities/Interoperability program,
and 287(g) program work with state and local law enforcement agencies to enforce immigration
law.
Criminal Alien Program
The Criminal Alien Program (CAP) is an umbrella program that includes several systems for
identifying, detaining, and initiating removal proceedings against incarcerated criminal aliens.
According to ICE, “CAP provides ICE-wide direction and support in the biometric and
biographic identification, arrest, and removal of priority aliens who are incarcerated within
federal, state, and local prisons and jails, as well as at-large criminal aliens that have
circumvented identification.”9 CAP is intended to prevent the release of criminal aliens from jails
and prisons by securing final orders of removal prior to the termination of aliens’ criminal
sentences and by taking custody of and removing aliens who complete their criminal sentences.
CAP jail enforcement officers screen people to identify and prioritize potentially removable aliens
as they are being booked into jails and prisons and while they are serving their sentences. CAP
officers conduct biometric and biographic database searches to identify matches in DHS
databases, and they interview arrestees and prisoners to identify potentially removable aliens
without previous DHS records.10
In addition to onsite deployment of ICE officers, CAP uses video teleconference equipment that
connects jails and prisons to ICE’s Detention Enforcement and Processing Offenders by Remote
Technology (DEPORT) Center in Chicago, IL. CAP also works with state and local correctional
departments that provide inmate roster data that ICE then compares to its immigration databases.
CAP also manages the Law Enforcement Support Center (LESC), a 24/7 call-center that conducts
database checks on the identity and immigration status of arrestees for ICE officers and law
enforcement agencies.
Secure Communities/Interoperability11
Secure Communities was the original name given to an information-sharing program between the
Departments of Justice and Homeland Security and state and local law enforcement that uses
biometric data to screen for removable aliens as arrestees are booked into jails. The program
began in late 2008 in about a dozen jurisdictions. Since FY2013, it has been operational in all
3,181 state and local law enforcement jurisdictions within the 50 states, the District of Columbia,
and five U.S. Territories. As early as 2011, DHS began referring to this program as
interoperability.12
9 ICE, Criminal Alien Program, http://www.ice.gov/criminal-alien-program, accessed by CRS on May 26, 2015.
10 Aliens who overstay a nonimmigrant visa or who have been previously removed typically have records in one or
more DHS database, and may be identified through a biographic or biometric search. A person who enters without
inspection and has had no previous contact with DHS often can only be identified as an unauthorized alien based on an
interview with an experienced immigration officer.
11 Portions of this section were excerpted from CRS Report R43852, The President’s Immigration Accountability
Executive Action of November 20, 2014: Overview and Issues .
12 Chuck Wexler et al., Taskforce on Secure Communities Findings and Recommendations, Homeland Security
Advisory Council, September 2011, p. 11; and DHS, Congressional Budget Justification FY2014, p. 57.
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Sanctuary Jurisdictions and Criminal Aliens: In Brief
Under Secure Communities/Interoperability, when law enforcement agencies book (i.e., take
custody of) an arrestee and submit his fingerprints to the Federal Bureau of Investigation (FBI)
for criminal background checks,13 the fingerprints are automatically checked against DHS’s
Automated Biometric Identification System (IDENT) database.14 Potential matches are forwarded
to ICE’s Law Enforcement Support Center (LESC), where agents confirm the identity of matched
prints, screen the arrestee’s records for immigration violations and criminal history, and if the
arrestee may be removable, evaluate the alien’s criminal history and notify the appropriate local
ICE field office about the match. The local ICE field office may then seek to effectuate removal
on the alien by issuing a detainer to the jurisdiction where the alien is incarcerated. By issuing the
detainer, ICE is requesting that the jail or prison hold the alien for up to 48 hours to give ICE
agents an opportunity to obtain custody.
As part of the President’s Immigration Accountability Executive Action of November 20, 2014,
DHS Secretary Jeh Johnson directed ICE to discontinue Secure Communities.15 However, the
data interoperability component is not being discontinued. Consistent with the new Priority
Enforcement Program (PEP), ICE can only seek a transfer from state and local custody of aliens
that fall under the Priority 116 scheme or who are convicted of multiple or significant
misdemeanors. In seeking custody of aliens in state and local jails and prisons, ICE must issue a
request for notification so that it is notified when the alien will be released. Under the revised
priorities,17 unless aliens pose a demonstrable risk to national security, enforcement actions will
only be taken against those convicted of specifically enumerated crimes.
13 The Integrated Automated Fingerprint Identification System (IAFIS) conducts criminal and terrorist background
checks in response to requests from federal, state, and local law enforcement agencies by checking fingerprints against
the IAFIS database of fingerprints, criminal histories, photographs, and biographic information. The IAFIS database
includes the records of more than 66 million subjects in its criminal master file along with more than 25 million civil
fingerprints. See Federal Bureau of Investigation, “Integrated Automated Fingerprint Identification System,”
http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis.
14 The Automated Biometric Identification System (IDENT) database is DHS’s primary department-wide biometric
database, and includes photographs, fingerprints, biographic name and personal identifier data, citizenship and
nationality information, and derogatory information, if applicable. See DHS, Privacy Impact Assessment Update for the
Biometric Interoperability between the U.S. Department of Homeland Security and the U.S. Department of Justice,
DHS/NPPD/USVISIT/PIA-007(b), October 13, 2011. According to US-VISIT Office of Congressional Affairs, IDENT
included over 186 million unique records as of June 10, 2015.
15 U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration
and Customs Enforcement, Megan Mack, Officer, Office of Civil Rights and Civil Liberties, and Philip A. McNamara,
Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary of Homeland Security, Secure
Communities, November 20, 2014.
16 Priority 1 are threats to national security, border security, and public safety, and include
• aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a threat to national security;
• aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
• aliens convicted of an offense that involves participating in a criminal street gang, or aliens who are 16 years or older
who intentionally participated in an organized criminal gang to further illegal activity of the gang; and
• aliens convicted of felonies. (Felonies include any offense classified as a felony in the convicting jurisdiction, and
any aggravated felony as defined in INA §101(a)(43).)
17 The President’s executive action issued on November 20, 2014, revised enforcement priorities and rescinded and
superseded related policies issued in 2011 and 2012 by then-ICE Director John Morton. The previous priority levels
were (1) aliens who pose a danger to national security or a risk to public safety; (2) recent entrants; and (3) aliens with
final orders of removal (i.e., fugitives or absconders) or who otherwise obstruct immigration controls.
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The change in the enforcement priorities seems to align with some policies adopted by
jurisdictions that are limiting their cooperation with ICE. It remains unknown, however, whether
the change will facilitate greater cooperation between ICE and these jurisdictions.
§287(g) Program
Section 287(g) of the Immigration and Nationality Act (INA) permits the Secretary of Homeland
Security18 to delegate certain immigration enforcement functions to state and local law
enforcement agencies. This authority was enacted into law in 199619 but was given new urgency
following the terrorist attacks in September 2001. In 2002, the Attorney General proposed an
initiative to enter into §287(g) agreements with a number of jurisdictions in an effort to carry out
the country’s anti-terrorism mission. Under these agreements, commonly referred to as §287(g)
programs, state and local law enforcement officers could be trained to assist ICE with enforcing
certain aspects of immigration law.
Prior to 2013, the §287(g) program encompassed both task force programs and jail enforcement
agreements. However, ICE currently only has jail enforcement agreements with state and local
jurisdictions. Under these agreements, specially trained officers within state and local corrections
facilities are authorized to identify criminal aliens by interviewing them and screening their
biographic information against the same DHS databases used by CAP agents and officers. The
LEAs also use ICE’s database and the Enforcement Case Tracking System (known as
ENFORCE) to enter information about aliens in their custody. LEAs are supervised by CAP
officers.
As of June 2015, ICE had §287(g) agreements with 34 law enforcement agencies in 17 states.20
At least 1,500 state and local law enforcement officers had completed ICE’s four-week §287(g)
training program and been certified to conduct certain immigration enforcement duties.21
Resources Dedicated to Select Immigration Interior
Enforcement Programs
Table 1 presents funding for CAP, Secure Communities/interoperability program, and the 287(g)
program since they were first funded. Funding dedicated specifically to identifying and removing
criminal aliens (i.e., CAP and Secure Communities/Interoperability) rose from just $6 million in
FY2004 to $392.5 million in FY2010, a 58-fold increase, before dropping to $319.5 million in
FY2014. DHS folded Secure Communities funding into CAP, and for FY2015 CAP received
$327.2 million. At its peak, the §287(g) program received an appropriation of $68 million
(FY2010-FY2013). The §287(g) program’s funding decreased to $24 million over the past two
years.
18 Prior to the creation of DHS, this authority was given to the Attorney General.
19 See §439 of the Antiterrorism and Effective Death Penalty Act (AEDPA; P.L. 104-132) and §133 and §372 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA; P.L. 104-208).
20 ICE, “Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,”
http://www.ice.gov/factsheets/287g, accessed June 12, 2015.
21 Ibid.
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Table 1. Appropriations for Three Criminal Alien Programs, FY2004-FY2015
(millions of dollars)
Secure
Fiscal Year
CAPa
Communitiesb §287(g)c Total:
2004
$6.0 NAd NAe
$6.0
2005
$33.7 NA NA
$33.7
2006
$93.0 NA $5.0
$98.0
2007
$137.5 NA
$15.0
$152.5
2008
$180.0 $200.0 $42.1 $422.1
2009
$189.1 $150.0 $54.0 $393.1
2010
$192.5 $200.0 $68.0 $460.5
2011
$192.5 $200.0 $68.0 $460.5
2012
$196.7 $189.1 $68.0 $453.8
2013
$216.5 $138.1 $68.0 $422.6
2014
$294.2 $25.3 $24.3 $343.8
2015
$327.2 $0.0f $24.0 $351.2
Sources: U.S. Immigration and Customs Enforcement “Fact Sheet: Updated Facts on ICE’s 287(g) Program,”
S.Rept. 108-280, S.Rept. 109-83, S.Rept. 109-273, H.Rept. 109-699, S.Rept. 110-396, S.Rept. 111-31, S.Rept. 111-
222, S.Rept. 112-169, P.L. 113-6, and Senate Explanatory Statement accompanying P.L. 113-6; Congressional
Record, House of Representatives, January 15, 2014; House Explanatory Statement accompanying P.L. 114-4;
FY2015 DHS Budget in Brief; FY2015 DHS Budget Justification; FY2016 DHS Budget Justification.
Notes: FY2013 data reflect across-the-board rescissions included in P.L. 113-6 to comply with discretionary
budget caps, but do not include the effects of sequestration as required by P.L. 112-25 because post-sequester
data were not available for all programs. CAP refers to the Criminal Alien Program; §287(g) refers to
agreements entered pursuant to INA §287(g).
a. The Criminal Alien Program was known as the Institutional Review Program prior to FY2007.
b. Secure Communities/Interoperability is also known as the Comprehensive Identification and Removal of
Criminal Aliens (CIRCA) program. This program was incorporated into the Criminal Alien Program in
FY2015.
c. Includes §287(g) jail enforcement and §287(g) task force programs. §287(g) task force programs were
discontinued during FY2012.
d. The Secure Communities/CIRCA program received its first appropriation in FY2008.
e. The §287(g) program received its first appropriation in FY2006.
f.
The Secure Communities funding was folded into the Criminal Alien Program in FY2015.
Criminal Alien Numbers and Crimes
As mentioned, ICE made the removal of certain criminal aliens its top priority. This section
examines sentencing data at federal, state and local levels. Data are available for the total number
of prisoners at these levels and are broken out by citizenship status.22 Federal data are compiled
22 Note that citizenship status refers to citizens and noncitizens. Data are not available on immigration status. Hence,
noncitizens include both persons lawfully present in the United States (either permanently or temporarily) and
(continued...)
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by the U.S. Marshals Service (USMS) Prisoner Tracking System and published by DOJ’s Bureau
of Justice Statistics (BJS) through its online Federal Justice Statistics Resource Center (FJSRC).23
State and local facilities report their data to DOJ.24
Table 2. Prison Population by Citizenship Status and Jurisdiction, CY2013
Total Prisoners
U.S. Citizen Prisoners
Noncitizen Prisoners
Jurisdiction
Number
Percentage
Number
Percentage
Number
Percentage
Federal 214,575
100.0% 160,564
74.8%
54,011
25.2%
State 1,270,807
100.0%
1,222,946
96.2%
47,861
3.8%
Total
1,485,382 100.0%
1,383,510 93.1%
101,872 6.9%
Source: Total Prisoners: Noncitizen Federal Prisoners: data received by CRS from DOJ, Bureau of
Prisons, Legislative Affairs, on July 22, 2015; Noncitizen State Prisoners: DOJ-BJS, Prisoners in 2013, Bulletin
NCJ 247282, September 2014; U.S. Citizen Prisoners: computed by CRS as the difference between total
prisoners and noncitizen prisoners.
Notes: Figures are for the calendar year-end prison population that includes prisoners in the federal Bureau of
Prisons (BOP) prisons and private prisons that hold federal prisoners, and state and local correctional facilities.
Figures also include pre-sentenced/pre-trial prisoners. California had not reported its 2013 noncitizen prisoner
population to BJS. However, between 2008 and 2012 an average of 16,871 noncitizen prisoners were
incarcerated in California state prisons. If this average figure were added to the state total of 47,861 shown in
the table, the noncitizen percentage of state prisoners for 2013 would increase from 3.8% to 5.0% and the
noncitizen percentage of all state and federal prisoners would increase from 6.9% to 7.9%. BJS warns that
because federal and state departments of corrections and county jails have varying definitions of noncitizens, one
should exercise caution when interpreting these results.
The federal noncitizen prisoner figure from BOP reported in Table 2 differs substantial y from the federal
noncitizen prisoner figure published by BJS in its Prisoners in 2013 report and reported on its website. The latter
includes only the prison population housed in BOP prisons, not in private prisons.
Federal statistics on incarcerations are broken out by citizenship and further delineated by federal
versus state and local jurisdiction. Table 2 indicates that at the end of CY2013, the most recent
year for which these data are available, 54,011 noncitizens accounted for 25% of the 214,575
individuals incarcerated in federal prisons. In state prisons, 47,861 noncitizens accounted for
almost 4% of the 1,270,807 individuals incarcerated at the end of CY2013. In total, noncitizens
represented 6.9% of the year-end incarcerated population in CY2013. As a basis for comparison,
noncitizens represented 7.0% of the total U.S. population in 2013,25 which suggests that the
noncitizen proportion of federal and state prisoners, as reported in the figures above, was roughly
the same as that of the U.S. population as a whole in 2013.
(...continued)
unauthorized aliens.
23 PTS contains data on suspects arrested for violations of federal law, by federal enforcement agencies and data about
warrants initiated or cleared. The data include information on characteristics of federal arrestees. See page 107 of
http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs0407.pdf.
24 Other data on arrests and convictions are available at the state and local levels, but those data do not delineate crime
type and citizenship status.
25 Figure computed by CRS using data from the American Community Survey, 2013 one-year estimates, accessed on
the Census Bureau’s American Factfinder website, July 11, 2015.
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Table 3, which presents the federal prison population by offense category for 2012,26 shows that
drug offenders accounted for almost 51% of all federal offenders in federal prison at the end of
the year in 2012. Forty-five percent of noncitizen federal prisoners were incarcerated for drug
offenses at the end of FY2012. Although immigration offenders represented almost 12% of all
federal offenders incarcerated at the end of FY2012, they represented 44% of all federal
noncitizen offenders. Combined, drug and immigration offenses represented almost 90% of all
noncitizen federal offenses at the end of FY2012.
Table 3. Federal Prison Population by Citizenship Status and Offense Type, FY2012
Number of Offenses
Percentage of Citizenship Status Total
Non-
Un-
Non-
Un-
Offense Type
Total
Citizen
citizen
known
Total Citizen citizen
known
Violent
11,645
10,995
637
13
5.9%
7.5%
1.2%
13.5%
Property
11,878
10,434
1,439
5
6.0%
7.1%
2.8%
5.2%
Drug
100,307
77,023
23,247
37
50.7%
52.7%
45.3%
38.5%
Public-order
18,829
17,135
1,677
17
9.5%
11.7%
3.3%
17.7%
Weapon
30,133
28,434
1,682
17
15.2%
19.4%
3.3%
17.7%
Immigration
23,499
1,014
22,480
5
11.9%
0.7%
43.8%
5.2%
Unknown 1,381 1,236 143
2 0.7% 0.8% 0.3% 2.1%
Total
197,672 146,271 51,305
96 100.0% 100.0% 100.0% 100.0%
Source: U.S. Department of Justice, Bureau of Justice Statistics (BJS), Federal Criminal Case Processing
Statistics, http://www.bjs.gov/fjsrc/index.cfm.
Notes: The prison population is measured as of September 30, 2012. According to BJS, the universe of cases
reported above excludes both pre-sentenced/pre-trial prisoners and suspects who were charged in the District of
Columbia’s Superior Court. BJS warns that because federal and state departments of corrections and county jails have
varying definitions of noncitizens, one should exercise caution when interpreting these results. For a more detailed
list of offenses, see BJS, Federal Criminal Case Processing Statistics, http://www.bjs.gov/fjsrc/index.cfm.
Select Issues
A number of jurisdictions throughout the country have policies, laws, or ordinances that limit
their cooperation with ICE in enforcing immigration law. This lack of cooperation has been a
long-standing issue for DHS. The recent San Francisco case cited earlier in this report has again
brought the issue to the forefront. The following sections discuss issues in this debate and
possible policy options that Congress may consider should it decide to legislate in this area.
Impact on Communities
As mentioned previously, since the 9/11 terrorist attacks, greater emphasis has been placed on
enforcing the nation’s immigration laws. The role of state and local law enforcement in enforcing
these laws continues to be debated, including the issue of whether LEAs should be required to
notify ICE when an alien is in their custody.
26 Note that FY2012 is the most recent year for which these data were publically available from BJS.
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Critics argue that imposing such a requirement undermines the relationship between local law
enforcement agencies and the communities they serve.27 For example, victims and potential
witnesses may be reluctant to come forward to report crimes in fear of actions that might be taken
against them by immigration officials. Critics assert that the trust between noncitizens and local
authorities is tenuous in many jurisdictions and that such a policy could threaten the fragile
cooperation that exists between immigrant communities and local law enforcement.
Proponents contend that state and local law enforcement agents may have strong connections to
local communities, further enhancing their ability to contribute to ICE’s enforcement efforts.
Such partnership, they contend, could help ICE facilitate the removal of potential criminals who
are illegally present in the country, thus providing an elevated level of security for the nation.
Resources
The issue of resources is a perennial concern for federal, state, and local LEAs. At the federal
level, ICE has approximately 7,300 personnel in its Enforcement and Removal Operations
program to identify; apprehend; detain, if appropriate; and remove aliens that fall under their
priority scheme.28
Under the new Priority Enforcement Program (PEP), ICE must now issue requests for notification
to state and local jails and prisons to be notified of specific release dates so that ICE can take
custody of criminal aliens at the time of release. However, the growing number of jurisdictions
that are restricting or preventing their LEAs from notifying ICE may hamper ICE’s ability to
carry out its duties. For example, if an alien is released from state or local custody without ICE
being notified, ICE must then deploy enforcement agents to re-apprehend the individual. This not
only increases the need for personnel for each released criminal alien but it also increases the
level of personal risk for ICE agents who must apprehend the criminal alien in the community
rather than at a jail or prison.29
State and local law enforcement agencies throughout the country collectively employ over
605,000 LEAs.30 Proponents of having state and local LEAs assist ICE in carrying out
immigration enforcement view the vast number of LEAs as a “force multiplier” for ICE. Critics
contend that state and local law enforcement resources should not be used to fund a federal
responsibility.31 They argue that such action could result in the reduction of local law enforcement
resources available for other purposes. At a time when local jurisdictions are witnessing a
depletion of traditional funding to fight crime, they argue such action could be detrimental to
many communities.
27 See for example the testimony Richard David Wiles, El Paso, TX, County Sheriff’s office. House Homeland Security
Committee Subcommittee on Border and Maritime Security, Border Security and Enforcement: Department of
Homeland Security’s Cooperation with State and Local Law Enforcement Stakeholders, May 3, 2011. Hereafter
referred to as Wiles testimony.
28 Testimony of Sarah Saldana, Director of U.S. Immigration and Customs Enforcement, House Committee on
Oversight and Government Reform, A Review of the Department of Homeland Security Policies and Procedures for the
Apprehension, Detention, and Release of Non-Citizens Unlawfully Present in the United States, March 19, 2015.
29 Ibid.
30 This figure is as of January 1, 2013. U.S. Department of Justice Office of Justice Programs, Local Police
Department, 2013: Personnel, Policies, and Practices, May 2015.
31 See Wiles testimony.
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Funding for State and Local Cooperation
Congress could appropriate additional funding to state and local law enforcement agencies for
their cooperation with enforcing immigration law. A common argument made by local law
enforcement officials against enforcing immigration law is the lack of resources.32 Many states
are facing budget crises and police departments have seen decreases in federal funding for some
law enforcement programs. On the other hand, Congress could limit such funding from going to
states and localities that refuse to cooperate with ICE or limit such cooperation.33
There are several potential grant programs Congress could target to both facilitate and serve as a
trigger for state and local law enforcement cooperation. Both DOJ and DHS have several grant
programs that provide funding to state and local law enforcement for related activities.34
Congressional Action
Several proposals have been introduced in the 114th Congress that would prohibit jurisdictions
from receiving federal grant monies that prohibit or restrict its LEAs from notifying ICE on the
immigration status of aliens.35 The House passed the Mobilizing Against Sanctuary Cities Act
(H.R. 3002) on July 23, 2015.36 Likewise, amendments adopted during the House Committee on
Appropriations mark-up of the FY2016 Department of Homeland Security appropriations bill and
the House consideration of the Commerce, Justice, Science and Related Agencies Appropriations
Act, 2016 (H.R. 2578)37 would prohibit federal funds from going to jurisdictions that restrict
their law enforcement agents from notifying ICE on the immigration status of aliens. The former
would prohibit Federal Emergency Management Agency funds, while the latter would do so for
State and Local Law Enforcement Assistance grant funds.38
32 See for example the testimony of Todd Entrekin, Etowah County, AL, Sherriff’s office. House Homeland Security
Committee Subcommittee on Border and Maritime Security, Border Security and Enforcement: Department of
Homeland Security’s Cooperation with State and Local Law Enforcement Stakeholders, May 3, 2011.
33 See for example, the Mobilizing Against Sanctuary Cities Act (H.R. 3002) and H.Amdt. 352 to H.R. 2578, S. 80 and
S. 1764.
34 Examples of such programs that could potentially be seen as leverage include the Department of Justice’s State
Criminal Alien Program (SCAAP), Justice Assistance Grant (JAG) and Community Oriented Policing Services (COPS)
programs, and various DHS’ grant programs. See CRS Report RS22416, Edward Byrne Memorial Justice Assistance
Grant (JAG) Program, and CRS Report RL33308, Community Oriented Policing Services (COPS): In Brief.
35 See for example, H.R. 3002, S. 80, and S. 1764.
36 H.R. 3002 would prohibit states or local governments that prohibit their employees from providing information on a
person’s immigration status from receiving “federal financial assistance” as defined in 31 U.S.C. 7501(a)(5), among
other things.
37 See H.Amdt. 352 to H.R. 2578.
38 As of this writing, the House Committee on Appropriations does not have the marked-up version of the bill online.
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Author Contact Information
William A. Kandel
Lisa Seghetti
Analyst in Immigration Policy
Section Research Manager
wkandel@crs.loc.gov, 7-4703
lseghetti@crs.loc.gov, 7-4669
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