Fact check: What is the definition of a criminal for ICE detention purposes?

1. How the law frames who is a “criminal” — statutory categories that matter

Federal immigration statutes do the definitional heavy lifting: 8 U.S.C. § 1227 lists classes of deportable aliens based on criminal convictions (including aggravated felonies, crimes involving moral turpitude, drug offenses, and offenses relating to firearms), and § 1226 authorizes detention of aliens during removal proceedings. For purposes of detention after a removal order, 8 U.S.C. § 1231(i)^[4] defines an “undocumented criminal alien” as someone convicted of a felony or two or more misdemeanors who meets specified entry/status criteria. These statutes create different thresholds and consequences: some convictions trigger mandatory detention while others allow discretion. The practical effect is that the legal label “criminal” in immigration law depends on the statutory classification of the offense, not a generic criminality concept ^{[2] [5] [1]}.

2. What ICE actually detains on the ground — programs, priorities and practices

ICE enforces the statutory framework through programs that screen, identify, and prioritize noncitizens with criminal histories. The Criminal Alien Program (CAP) focuses on incarcerated and at‑large aliens with criminal convictions and generates referrals to ICE for custody and removal. ICE Enforcement and Removal Operations statistics show arrests and detentions often involve individuals with DUI, drug possession, assault, and criminal traffic offenses; ICE also issues detainers to local law enforcement to hold individuals for up to 48 hours pending transfer. Operational priorities, resource constraints, and prosecutorial discretion shape who is arrested and detained in practice, so the population detained reflects both statutory triggers and administrative choices ^{[6] [3] [7]}.

3. Categories that routinely trigger detention and removability — what to watch for

Certain statutory buckets are especially consequential. Aggravated felonies, a broad immigration category that includes many offenses that are not intuitively “aggravated” or even felonies under state law, often lead to mandatory detention and expedited removal consequences. Crimes involving moral turpitude (CIMTs) and controlled substance offenses also routinely render lawful permanent residents and other noncitizens deportable and subject to detention. Multiple misdemeanors or felony convictions meet statutory thresholds under § 1231 for being labeled an “undocumented criminal alien,” affecting post-order custody. ICE practice treats both final convictions and, in some contexts, pending criminal charges as sufficient to justify detention, particularly when local jails cooperate with ICE detainers ^{[8] [9] [1]}.

4. The role of convictions versus charges, and where ambiguity arises

Immigration detention decisions hinge on whether an offense is a final conviction, a pending charge, or an administrative immigration violation. Statutes emphasize convictions for many removability categories, but ICE routinely acts on pending charges and informational cues from criminal records, creating legal and practical ambiguity. State convictions can be recharacterized under federal immigration terms—an offense labeled a misdemeanor in state court can fit an aggravated-felony definition for immigration purposes because of categorical or modified-categorical analyses. This mismatch between criminal law labels and immigration classifications is a major source of dispute, and it is common for defense counsel to challenge whether a particular conviction actually fits an immigration-removability category ^{[2] [9]}.

5. Detainers, mandatory detention, and disparate outcomes in practice

ICE detainers request that local jails hold individuals for up to 48 hours to facilitate transfer, but their legal force is contested and varies by jurisdiction; some courts and localities limit compliance, affecting who ends up in ICE custody. Mandatory detention regimes apply in some statutory scenarios—particularly for certain aggravated felonies and post‑removal custody—while other detentions are discretionary under § 1226(a). Consequently, similarly situated noncitizens may experience different outcomes depending on local law enforcement cooperation, ICE prioritization, and counsel’s ability to litigate immigration consequences. These operational factors mean the statutory label of “criminal” does not uniformly predict detention ^{[7] [5] [3]}.

6. Where disputes and defenses concentrate — practical implications for counsel and policymakers

Contested issues center on statutory interpretation (whether an offense fits an aggravated felony or CIMT), the effect of plea agreements and record-of-conviction evidence, and the legality of detainers and prolonged detention. Defense strategies include vacatur of convictions, withdrawal of pleas, postconviction relief, and litigation over detainer constitutional and statutory limits. Policymakers and courts also debate priorities for enforcement versus community cooperation with local jails, weighing public safety claims against constitutional and humanitarian concerns. The interplay of statutory classifications, ICE administrative practice, and local adherence to detainers determines who is treated as a “criminal” for detention purposes in any given case ^{[8] [7]}.