The fourth congressional question asked us to determine how many of the criminal aliens who were released from custody without a referral to ICE were released for lack of sufficient detention space or funding to hold them. While we believe this happens regularly, our review could not identify specific instances of such releases because ICE does not track the number of aliens released from local custody due to lack of the necessary resources to detain them. While our review did not identify any instances of such releases, it is important to note that the Inspector General of the Department of Homeland Security has reported: (1) a shortage of space available for housing aliens in ICE custody; and (2) the possible release in FY 2007 of a substantial number of removable criminal aliens from state or local custody because ICE does not have the resources to identify, detain, and remove them.

Results of OIG Survey

To examine this question we relied on responses to the questionnaire that we sent to 164 SCAAP recipients. Our questionnaire included a request that the respondents provide the number of criminal aliens who were released from custody between October 1, 2004, and June 30, 2006, because the respondent lacked the space or funds to detain those aliens. None of the respondents reported having released criminal aliens from custody due to lack of resources. Specifically, 9 replied “none,” 78 replied “not applicable,” 7 replied “unknown,” and 5 did not answer the question. Some jurisdictions added comments such as the following.

• “No, ICE was always contacted.” [SENSITIVE INFORMATION REDACTED]

• “Any arrestees without local charges or holds are released by law.” [SENSITIVE INFORMATION REDACTED]

• “None; again, referral was made but ICE did not place detainer on subjects.” [SENSITIVE INFORMATION REDACTED]

• “None – primarily due to ICE [being] unable or unwilling to transport.” [SENSITIVE INFORMATION REDACTED]

DHS Inspector General Report

Even though the state, county, and local respondents to our questionnaire did not report releasing undocumented criminal aliens because of insufficient local resources, we noted an issue regarding the lack of space available to ICE to detain aliens in custody. In an April 2006 report, the Inspector General of the Department of Homeland Security stated, “[the Detention and Removal Operations (DRO)] estimates that in FY 2007 there will be 605,000 foreign-born individuals admitted to state correctional facilities and local jails during the year for committing crimes in the U.S.⁶¹ Of this number, DRO estimates half (302,500) will be removable aliens. Most of these incarcerated aliens are being released into the U.S. at the conclusion of their respective sentences because DRO does not have the resources to identify, detain, and remove these aliens under its Criminal Alien Program (CAP). It is estimated that DRO would need an additional 34,653 detention beds, at an estimated cost of $1.1 billion, to detain and remove [them].”⁶²

The DHS Inspector General went on to state, “additionally, DRO’s ability to detain and remove illegal aliens with final orders of removal is impacted by: (1) the propensity of illegal aliens to disobey orders to appear in immigration court; (2) the penchant of released illegal aliens with final orders to abscond; (3) the practice of some countries to block or inhibit the repatriation of its citizens; and (4) two recent U.S. Supreme Court decisions which mandate the release of criminal and other high-risk aliens 180 days after the issuance of the final removal order except in ‘Special Circumstances.’ Collectively, the bed space, personnel and funding shortages coupled with the other factors, has created an unofficial ‘mini-amnesty’ program for criminal and other high-risk aliens.”

The DHS Inspector General reported that 345,006 criminal aliens were apprehended between FYs 2001 and 2004, of which 27,947 (8 percent) were released. However, the DHS Inspector General could not determine whether they were released for lack of detention space or for other reasons because ICE does not track that information.

61. At our exit conference, representatives of DRO stated that references to “DRO” in the DHS OIG report would in this context be more appropriately read as “ICE.”

62. Department of Homeland Security, Office of the Inspector General. Detention and Removal of Illegal Aliens: U.S. Immigration and Customs Enforcement (ICE), OIG-06-033, April 2006, p. 2.