Are all undocumented immigrants criminals? No. But some are. How many has been a subject of recent public debate, speculation and exaggeration.
There are many undocumented immigrants being treated as criminals by people who see all undocumented immigrants as criminals. Conversely, many immigration advocates do not want to admit that there is a criminal element within the immigrant community. What is missing in this war of rhetoric is a substantive discussion about how to get at the real criminality within the immigrant community, while fairly dealing with the majority of unauthorized immigrants who are not truly criminals. That is the conversation that should be happening and isn’t.
First, it’s important to clear up a key point: living in the U.S. without authorization is a civil offense, but only entering the country illegally can be prosecuted as a crime. In fact, according to many estimates, between 40 and 60 percent of the current unauthorized immigrant population—about 11 million people—entered legally but either overstayed or violated the terms of their visa, perhaps by dropping out of school, working without authorization, or changing jobs when their visa was tied to a specific employer. For these individuals, living in the U.S. is not considered a crime, but can still render them deportable.
Putting that clarification aside, the focus of the current debate is less about whether being in the country without authorization is a crime in itself and more about whether unauthorized immigrants commit traditional crimes at a higher rate than other immigrants or the native population. It should be said that more and better data is needed to definitively answer the question, but the truth is this: most research indicates that foreign-born residents commit fewer crimes per capita, not more, than natives. This statistic s often challenged by those who point to the increase in immigrant presence in federal prisons or to immigration’s relatively large share of the federal criminal court docket, but both cases can be attributed to an increase in prosecutions for immigration violations.
So how do policy-makers reconcile this data with the efforts of the Obama administration to “deport felons, not families” and the recent horrible incident in San Francisco when a five-time deported felon shot and killed a woman?
As a whole, immigrants may not commit more violent crimes than natives, but there certainly are those who do, and these stories make headlines. But remember: the plural of anecdote is not data.
The fact that the perpetrators are living in the United States without authorization leads many to say that their crimes are “preventable.” This is a bit of a misdirection; in fact, many crimes committed in the United States could be deemed “preventable” by this definition. Criminal justice data on recidivism show that many violent crimes are committed by persons with previous criminal histories. And yet, in spite of the best efforts of law enforcement agencies across the country, not all “preventable” crimes are prevented, and no law enforcement agency could possibly be held to a “100 percent prevention” standard. Why should immigration enforcement agencies be treated any differently?
If the federal enforcement priority is on removing immigrants with criminal records, yet fewer immigrants commit crimes, where should federal law enforcement resources go? Advocates say that Immigration and Customs Enforcement is removing immigrants who have not committed serious crimes, in spite of its stated priorities. Recent data do show that fewer removals in the last year have had criminal convictions, while overall removals are down from previous years. On the other hand, ICE authorities blame uncooperative cities and counties that fail to identify immigrants in their jails or honor ICE requests to detain or hand over criminals for deportation as major hindrances to their efforts.
Which brings us to the real issue at play: what should be the priority for immigration enforcement inside the United States, then? And what role should state and local authorities have? While much of the immigration debate in the recent past has been focused on border security, the issue of interior enforcement remains controversial and without much consensus. Some advocates actively call for ending all deportations without regard to criminality. Conversely, many advocate for stricter immigration enforcement and condemn the Obama administration for lax enforcement.
Those are the extremes of the debate, but there appears to be little to no dialogue between these extremes about what a fair but sensible immigration enforcement regime inside the United States should look like. Almost all would agree that some illegal immigrants, like the San Francisco shooter, should not be allowed to remain in the U.S. Many agree that most of the non-criminal unauthorized population should be provided an opportunity to earn some kind of legal status. But that’s just a starting point, not a solution. So, where is the discussion of how to deal with enforcement along with the status of the majority of non-criminal undocumented? That is where the real debate lies.
Brown is director of immigration policy at the Bipartisan policy Center.