Every week there's a new headline: ICE arrested a "non-criminal." The reporter almost never tells you what that word is covering for.
In most of these cases, it's an illegal alien with a final order of removal who stood in front of an immigration judge, or never bothered to show up at all, and then ignored what the judge decided.
I spent 24 years in federal immigration enforcement and served as acting chief of ICE's National Fugitive Operations Program. The "non-criminal" label is the most misleading phrase in the immigration debate, and the people who use it know it.
Start with the law itself. The Immigration and Nationality Act is one of the thickest statutes Congress has ever passed. Look at the grounds that make someone removable from this country, and you'll find the criminal ones are a small slice: section 212(a)(2) on the inadmissibility side and section 237(a)(2) on the deportability side. Nearly everything else is non-criminal. Entering without inspection. Overstaying a visa. Visa fraud. Falsely claiming to be a citizen. Violating the terms of the visa you came in on.
That's by design. Removal is a civil process. Congress never wrote an immigration law that only applies to criminals, and no president of either party has ever enforced one. The Obama administration removed 438,421 people in fiscal 2013. In 2014, Janet Murguía, head of the pro-amnesty National Council of La Raza, branded Obama the "deporter-in-chief" and complained that people with no criminal record were being sent home. She called the label a fact. She was right, and she made my point for me. Under the same law ICE enforces today, a Democratic president removed people who had never been convicted of anything, and Democrats in Washington kept writing the checks.
So when a critic complains that ICE is arresting "non-criminals," he's describing the immigration law working exactly the way Congress wrote it. The word is doing all the work because the facts can't.
Here's what the word leaves out. A final order of removal is the end of the line, not the beginning. The alien was served a Notice to Appear with the charges and a hearing date. An immigration judge heard the case. He could bring a lawyer, present evidence, and apply for asylum, withholding of removal, protection under the Convention Against Torture, or cancellation of removal. If he lost, he could appeal to the Board of Immigration Appeals and then to a federal circuit court. He could file motions to reopen and ask for a stay. Many were free on release the whole time, on the promise they'd show up and comply.
Plenty never showed up at all. Immigration judges issued 485,456 removal orders in fiscal 2025, and according to the Congressional Research Service, 306,557 of them were in absentia. The alien didn't come to court. Not for the hearing, and not for the asylum claim; many of them filed themselves.
That's how you end up with roughly 1.6 million aliens on ICE's non-detained docket with final orders, up from 1.29 million in October 2023. These aren't people waiting on a decision. The decision was made. They decided it didn't apply to them.
And a lot of these "non-criminals" aren't even that. Entering the country illegally is a federal misdemeanor under 8 U.S.C. 1325. Willfully failing to depart after a final order is a federal crime under 8 U.S.C. 1253. In the headlines, "non-criminal" usually means never charged, not never broke the law. A man who has spent ten years defying an immigration judge's order is a fugitive. If an American walked away from a court judgment for a decade, nobody would call his record clean.
The usual excuses don't hold up either. Bad notice? The law has allowed a case to be reopened for lack of notice for decades. Afraid of being arrested at court? ICE has picked up people with final orders for as long as there's been an ICE, and skipping court only guarantees the order. No free lawyer? There's never been one, under Obama or anyone else. Twenty years here with American kids? Congress set the hardship standard, the judge applied it, and twenty years of ignoring an order earns nothing. I heard every one of these arguments under Bush, Obama, and Biden. The only thing that has changed is who is doing the enforcing.
Democrats won both houses of Congress on Tuesday, and they'll spend the next two years holding hearings about "non-criminals." Fine. Hold them. But section 241 of the INA directs the government to detain and remove aliens under final orders, and gives it 90 days to do it. ICE is funded through 2029. If Congress wants a criminals-only immigration law, it can try to pass one. Until then, ICE enforces the one on the books.
A removal order isn't a suggestion, and "non-criminal" isn't an excuse. Stop letting the people who use that word hide the rest of the story.
Scott Mechkowski is a Visiting Fellow for Deportation Studies at the Oversight Project and a Visiting Fellow and Senior Advisor at the National Immigration Center for Enforcement. He served 24 years in federal immigration enforcement, retiring in 2018 as Deputy Field Office Director for ICE Enforcement and Removal Operations in New York City.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.
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