McALLEN, Texas (Border Report) — Recent reports that over 435,000 convicted criminals are on U.S. Immigration and Customs Enforcement’s non-detained docket (NDD) — meaning they are not detained by the agency while they await immigration proceedings — has spurred much criticism and confusion.

ICE Deputy Director Patrick Lechleitner sent a letter on Sept. 25 to U.S. Rep. Tony Gonzales, R-Texas, saying as of July 21, there were 662,566 noncitizens with criminal histories on the agency’s NDD, that includes 435,719 convicted criminals, and 226,847 with pending criminal charges,” Lechleitner wrote.

“The data in this letter is being misinterpreted,” a Department of Homeland Security spokesperson told Border Report on Tuesday.

Border Report spoke with Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, as well as DHS officials to try to clear up misconceptions about the NDD, and to explain which individuals get put on the list and how, and where they might be currently:

What is the NDD?

“ICE’s non-detained docket is a list of every person the United States believes is a removable non-citizen who is physically present in the United States and who is not currently held in ICE detention. So non-detained does not mean not in detention. It means specifically not in ICE detention. So there are people who are on ICE’s non-detained list, who are in federal prison, for example,” Reichlin-Melnick said.

How is someone put on the list?

A foreign-born non-citizen who comes into the United States seeking asylum and has pending U.S. immigration proceedings who is not detained by the agency is put on the NDD.

In 2022, there were 4.5 million individuals overseen by ICE’s non-detained docket, according to the agency.

Those on the docket can also be part of the agency’s Alternatives to Detention programs, and could be under case management supervision, have ankle or wrist-worn GPS monitoring devices, or SmartLINK phone app devices, or be under house arrest pending their U.S. immigration court proceedings.

Additionally, Reichlin-Melnick says any foreign-born individual with permanent U.S. residency, or a green card, can be put on the NDD if they are convicted of a crime, or have a pending crime. This can range from traffic violations to sexual assault and homicides.

“Many are legal permanent residents who, for various reasons, have become removable due to a conviction. In fact, being arrested and convicted of a crime is the most common way in which people with green cards can lose their status, and in those circumstances, that’s why I think you will see a lot of people on this list who did enter the country legally and who may have been living here for decades with green cards or with some other form of visa,” he said.

How long have some been on the list?

“The data goes back decades; it includes individuals who entered the country over the past 40 years or more, the vast majority of whose custody determination was made long before this administration. It also includes many who are under the jurisdiction or currently incarcerated by federal, state or local law enforcement partners,” a DHS spokesperson told Border Report.

Reichlin-Melnick said that in 2016, during the start of the Trump administration, the DHS Office of Inspector General reported there were 368,000 individuals on the non-detained docket with prior criminal convictions.

“So what that means is that in the last eight years, the number of people on that docket with convictions has only gone up 15% and that gives you some sense of how many people have been on this docket for a long time. There are going to be people who entered in the 1960s, 1970s, 1980s who have been here for their whole life, who are nevertheless on this docket because they have some form of conviction, whether that be a minor misdemeanor or a serious felony,” Reichlin-Melnick said.

Are convicted murderers on the docket?

Yes. As of July 21, there were 13,099 individuals convicted of homicide that are on ICE’s non-detained docket, and 1,845 are on the docket pending homicide charges, according to Lechleitner’s letter.

Criticisms erupted after former President Donald Trump posted on social media that “13,000 convicted murderers entered our Country” during the Biden administration. He wrote in another post that Vice President Kamala Harris “allowed almost 14,000 MURDERERS to freely and openly roam our Country.”

After completing their sentences for murder convictions, however, most are not eligible for the NDD, Lechleitner wrote, saying: “Most noncitizens who are convicted of homicide are typically not eligible for release from ICE custody under Section 236(c) of the Immigration and Nationality Act.”

Reichlin-Melnick said there are “rare” exceptions, however, for individuals from countries that will not allow repatriations from the United States. And in those cases, the person will be put on the NDD after serving their time. This is because in 2001, the U.S. Supreme Court ruled the U.S. government is not allowed to indefinitely hold someone in immigration detention after they have been ordered removed from the country.

“Generally speaking, someone who’s been convicted of homicide is put in a category known as mandatory detention, which means ICE cannot release them,” Reichlin-Melnick said.

“There are some circumstances, such as when a person cannot be deported because they come from a country that doesn’t allow deportations, the government would have to prove that person was a danger to the community to keep them in detention more than six months after they’ve been ordered deported thanks to a 2001 Supreme Court case. So these are very rare circumstances,” he said.

Is everyone on the NDD in the US?

Not likely. Reichlin-Melnick said the list includes individuals who are sought as fugitives who might have fled or left the United States.

“This non-detained docket also includes people who are fugitives, people the United States believes are still in the United States, but who may not be. It is likely that some of the people on this list were added there years ago and may have returned to their home country in the interim, but if the United States doesn’t have any records of that, they’re just going to stay on that list indefinitely as a target for potential arrest in the future,” he said.

A DHS official told Border Report that once someone is repatriated or deported from the United States they are removed from the non-detained docket.

Sandra Sanchez can be reached at SSanchez@BorderReport.com.