Trump and his allies mischaracterize data on immigrants with criminal convictions. Here’s the context of what the numbers show.

In recent times, former President Donald Trump and his allies have cited recently released data on immigrants with criminal convictions to claim that the Biden administration has allowed tens of thousands of criminals into the US, including thousands of murderers and sex offenders.

“Kamala should immediately cancel the News Conference because it was just revealed that 13,000 convicted murderers entered our Country during her three and a half years as Border Czar,” Trump wrote in a social media post on Friday. “Now also in our country because they have 15,811 migrants convicted of rape and sexual assault.”

Trump may be referring to the U.S. Immigration and Customs Enforcement letter he recently shared with Texas Republican Representative Tony Gonzales. The letter, which Gonzalez released on Friday, contained figures on immigrants with criminal records who were tracked by ICE but not detained by the agency. Trump and right-wing figures have misrepresented the data by claiming that everyone on the list entered the Biden administration and remains free in the US.

The bottom line is that many of the convicted felons described in the letter have been in the US for a long time, before the Biden administration took office, according to data and government officials. Some are still in federal or state custody serving criminal sentences and are likely to be arrested by ICE. And others cannot be deported because their country of origin will not return them or obtain legal relief from deportation in immigration court.

What does the data actually show?

The letter ICE sent to Gonzales breaks down the number of immigrants with criminal convictions or charges in the agency’s “non-detained docket.”

ICE detains immigrants who are deportable because they are in the U.S. illegally, after crossing the border illegally or overstaying their visas, or because they have lost their legal right to live in the country after being convicted of certain crimes. Under US law, this can happen to green card holders and other legal immigrants who have committed certain crimes.

While the agency opens detention facilities to hold immigrants awaiting deportation, ICE also oversees a “non-detainer docket” to monitor cases of immigrants facing deportation proceedings before immigration judges, without being detained by the agency.

The number of non-detention dockets has increased under the Biden administration, thanks to the release of millions of migrants from the US-Mexico border in recent years. ICE is currently tracking about 7.7 million non-detainer cases, up from 3.3 million in fiscal year 2020, according to agency data provided by US officials. The agency has 41,000 detention beds funded by Congress — barely enough to hold all the people facing removal proceedings.

The letter to Gonzales showed that out of millions of cases, ICE’s non-detainer docket includes 425,000 immigrants with criminal convictions and 222,000 with pending criminal charges. The list includes 13,099 immigrants convicted of murder and 15,811 convicted of sexual assault.

Not everyone came to Biden

Not every immigrant with a criminal record on an ICE warrant who was not detained came to the U.S. during President Biden’s term. In fact, official figures show many have been here for years – if not decades.

In June 2021, just a few months into the Biden administration, there were 405,786 convicted felons on ICE’s docket who were not in custody, according to agency data. As of August 2016, during the Obama administration, there were 368,574 convicted felons on ICE’s docket who were not in custody, according to data published by the Department of Homeland Security’s Office of Inspector General.

“The data goes back decades; including individuals who entered the country in the last 40 years or more, the majority of custody determinations were made long before this Administration,” DHS spokesman Luis Miranda said in a statement to CBS News.

Some remain incarcerated in federal or local facilities

While not in ICE custody, many convicted felons or criminal suspects on the agency’s non-detainee docket are still incarcerated in federal, state or local jails serving criminal sentences or awaiting trial, U.S. officials told CBS News. But because ICE is tracking the case, it’s technically part of the non-detainer docket.

The docket “includes many who are under the jurisdiction of or currently incarcerated by federal, state or local law enforcement partners,” said Miranda, the DHS spokeswoman.

ICE expects to arrest, detain and deport people convicted of serious crimes after completing their criminal sentences, US officials said. Those immigrants have long been considered a priority for ICE detention, including in the Biden administration’s policy, which has instructed the agency to focus its efforts on detaining public safety threats, national security risks and new border crossings.

That said, ICE’s efforts to arrest immigrants accused or convicted of crimes are often frustrated by jurisdictions with “sanctuary” policies that limit local law enforcement cooperation with federal immigration authorities. Some communities, for example, do not honor requests from ICE to hold individuals longer so the agency can pick them up and detain them.

Others cannot be deported

Some immigrants with criminal records can stay in the US for diplomatic or legal reasons.

Certain countries, such as China, Cuba and Venezuela, limit or outright refuse the return of their citizens from the US and the Supreme Court generally banned indefinite detention in such cases through a 2001 decision. This means that ICE sometimes has to release immigrants who have been ordered deported by a judge, often because of his criminal conviction, simply because his country will not accept him.

In addition, some immigrants, even those convicted of serious crimes, can have their deportation delayed if an immigration judge determines that they would face torture or ill-treatment in their home country. This is because the US has a legal obligation to provide protection to certain foreigners under the United Nations Convention Against Torture and the United Nations Refugee Protocol, which is enforced through an undisclosed benefit known as withholding of removal.