How the U.S. Tracks Immigrants Convicted of Crimes, Explained

Starting in late September, several public figures made explosive new claims about the number of immigrants with criminal convictions currently free in the United States. 

Former President Donald Trump tweeted that 13,000 migrants have “crossed the border with murder convictions.” At the vice presidential debate, Sen. J.D. Vance began his statement on immigration by saying that “about a million” migrants have committed a crime in addition to crossing the border illegally. These figures have also been widely echoed by conservative media outlets. 

While these numbers sound jarring, a closer look at data from the Department of Homeland Security’s Immigrant and Customs Enforcement (ICE) and U.S. immigration law provides a clearer picture of what they actually mean.

Where did these numbers come from? 

In March 2024, Republican Rep. Tony Gonzales of Texas wrote a letter to the director of ICE requesting the number of noncitizens on the ICE docket who were “convicted or charged with a crime.” The relevant data set here is the non-detained docket, comprising every noncitizen physically present in the U.S. who is subject to removal but not currently in ICE custody. These are individuals released by immigration officials while their cases are pending or for other reasons.

ICE’s letter in response to Gonzales’ request revealed that as of July 21, 2024, there were 425,431 convicted criminals and 222,141 noncitizens facing pending criminal charges on the non-detained docket. This includes 13,099 noncitizens convicted of homicide and 1,845 noncitizens with homicide charges. A copy of the letter and its full findings can be found here.

Does this mean 425,000 convicted criminal immigrants are currently free in the U.S.?

In short, no. 

First, contrary to Trump’s statement that suggests these migrants were allowed to enter despite having serious criminal convictions, the immigrants in this data set were charged with criminal offenses after entering the United States. While U.S. immigration officials can exercise some discretion in choosing which migrants to detain, according to U.S. law, immigrants with serious existing criminal convictions must be detained without the possibility of release outside of limited circumstances while they await deportation. 

This also does not mean that the offenses were necessarily committed in the United States. As Alex Nowrasteh of the Cato Institute points out, it is possible that some of these individuals were convicted in absentia in another country and then apprehended in the United States. 

Second, the fact that the immigrants in this docket are not in ICE custody should not be misconstrued to mean that they are not in custody at all or that the U.S. government has lost track of their whereabouts. Noncitizens who are currently in “state or federal law enforcement custody” are counted as non-detained by ICE, and the Department of Homeland Security has confirmed that many of the immigrants in the non-detained data released by ICE are currently serving their sentences in prison. 

Some migrants may also be in an Alternative to Detention (ATD) supervision program, though those with homicide charges or convictions are barred from participation. In 2019, about 8,700 individuals in one type of ATD program, the Intensive Appearance Supervision Program, had criminal convictions, making up 10 percent of the total population in that program. The program typically supervises migrants by ordering them to wear ankle monitors or tracking them via a smartphone app.

There are four main reasons why unauthorized immigrants would be convicted of a crime and subsequently not be in ICE custody but still be in the United States: because they are in prison, because they have escaped or evaded custody altogether, because they are in a supervision program, or because they have served their sentence and been released.

Calculating the number of noncitizens in prison is methodologically challenging. While the Federal Bureau of Prisons provides statistics on the citizenship of its inmates, inmates under federal jurisdiction are only about 13% of all inmates in the U.S. as of 2022. The rest are under state jurisdiction, where data on citizenship varies by state and is often inaccessible or outdated. While it is possible to make an estimate using census data, the latest estimate has not been updated in six years.

Mass absconding by criminal immigrants seems very unlikely to be a significant contributor to the non-detained docket numbers. At present, the FBI fugitive list of the most serious at-large offenders consists of 401 entries. Even if every entry were for an immigrant (and while the FBI does not always provide immigration status on these notices, many are for cybercrime or espionage offenses committed outside of the U.S. and are therefore unlikely to have been committed by an illegal immigrant), such individuals would still amount to less than 0.1 percent of the number of individuals with criminal convictions on the ICE non-detained docket.

This makes it exceedingly probable that the most serious noncitizen criminals in this database are either currently imprisoned or have been released upon completing their criminal sentences and remain subject to removal but have not yet been deported. And while deporting noncitizen criminal offenders after serving their sentences may seem straightforward, the law and America’s relationship with certain foreign nations can significantly complicate matters.

Why does the U.S. let immigrants with criminal convictions go free instead of deporting them or keeping them incarcerated?

The U.S. needs a criminal noncitizen’s country of origin to accept their return in order to deport them. Whether the U.S. uses charter or commercial flights for deportation, immigration officials have no realistic way of relocating large numbers of foreign nationals without cooperation from their home nations. 

Dozens of countries do not cooperate with U.S. removal proceedings. While the U.S. has been able to pressure some smaller countries to accept deportations, the prospects of getting major adversaries such as China, Russia, and Iran to do so are slim.

This creates a dilemma when a noncitizen from a recalcitrant country is convicted of a crime and completes their sentence. In Zadvydas v. Davis, the Supreme Court ruled in 2001 that, barring exceptional circumstances, the U.S. cannot indefinitely detain immigrants from countries where repatriation is impossible. A ruling in Clark v. Martinez four years later further clarified that regardless of their admissibility upon entering the United States, immigrants cannot be held in custody for longer than necessary to arrange their deportation. If their deportation is not foreseeable, they cannot be held in custody indefinitely. 

As these cases demonstrate, grappling with the issue of how to detain and deport immigrants with criminal convictions is not unique to the current administration.

Have more immigrants with criminal convictions been set free under the Biden-Harris administration compared to other administrations? 

The data contained in the ICE letter goes back decades, which means it is not limited to individuals who entered during President Joe Biden’s administration. There is also no evidence that more criminals have been added to the docket under Biden than under Trump. While yearly data on the number of individuals with criminal convictions on the ICE non-detained docket is not readily available, the number of convicted criminals on the non-detained docket grew by roughly 37,000 from August 2016 to June 2021 and 20,000 from June 2021 to July 2024, according to federal reports cited by CNN. 

Removal numbers for noncitizens with criminal convictions are published yearly and do not show that either political party has been more lax about removals. According to DHS statistics by fiscal year (FY), in his second term, President Barack Obama removed an average of 168,201 immigrants with criminal convictions per year (FY 2013-FY 2016). In contrast, President Trump removed an average of 131,716 immigrants with criminal convictions per year (FY 2017-FY 2020). So far, the Biden administration has deported a much lower average of 38,798 across FY 2021 and FY 2022. However, this low figure could be due to the travel restrictions of the COVID pandemic. The FY 2023 and FY 2024 numbers, which haven’t been released yet, should shed greater light on this discrepancy. 

While recent figures show that over 425,000 immigrants with criminal convictions are not in ICE custody, this number is not historically atypical, and many of those immigrants are either currently in prison, have been released after serving their sentences, or are in a supervision program. Those who are free are still subject to removal if it becomes possible to deport them in the future.