How Often Is The Aggravated Felony Statute Used?

Despite the interest in aggravated felonies, very little is currently known about how often aggravated felony provisions are in fact used. The government publishes no statistics on the number of individuals it has sought to deport, or actually deported, on aggravated felony grounds. A literature search has not turned up any other sources with relevant statistics. Accordingly, TRAC has been seeking data using the Freedom of Information Act (FOIA) to systematically piece together data to fill this void.

Presented here are data TRAC has obtained which detail part of the picture: use of aggravated felony charges in removal proceedings against 156,713 persons in immigration court. Information about the other part of the picture the administrative use of these grounds for deportation orders that bypass the immigration court has not yet been received. Thus, while the details that follow cover all recorded cases in the immigration court from mid-1997 until May 2006 in which individuals were charged under the aggravated felony provisions, it still reveals only a partial picture.

Characteristics of Persons Charged

Table 1: Length of Residence in U.S.
Number of Years Frequency Percent
less than 5 11,371 8.6
5<10 30,304 22.9
10<15 31,290 23.7
15<20 24,985 18.9
20<25 16,182 12.2
25<30 8,710 6.6
35<35 5,276 4.0
35<40 2,683 2.0
40<45 1,003 0.8
45<50 330 0.2
50 or more 54 0.0

Note: Entry or deportation charge date was missing on 24,525 individuals.

Length of Residence in U.S. By and large individuals who have been charged are long time residents of the United States on average they have been in the country 15 years. The median time half had more time, half less, was 14 years. For 25 percent, the average time between their original date of entry to this country and when deportation proceedings were started in immigration court is 20 years or longer, and for 10 percent it was more than 27 years. The longest length of stay before being charged was 54 years. See Table 1.

Legal status. We also know that all individuals entered the U.S. legally (i.e. when entering the US, they were "inspected and admitted" as required by US law.) As discussed elsewhere, aggravated felony statutes do not apply to individuals who entered the country illegally.

Nationality. Persons charged with aggravated felonies come from over 200 different countries. Twenty countries have more than a thousand individuals each. Leading the list is Mexico accounting for 43 percent. Over half of the top twenty countries are from North America. Besides Mexico, these countries include Canada, Dominican Republic, Haiti, Jamaica, Cuba, Trinidad and Tobago, El Salvador, Honduras, Nicaragua, and Guatemala. From South America are Colombia and Guyana (Peru and Ecuador just miss being in the top 20). From Europe are the United Kingdom and Portugal in the top 20. From Africa is Nigeria. Countires from Southeast Asia comprise the remaining countires: Vietnam, Laos, Cambodia, and Philippines which all make the top list. See Table 2.

Nationality
Over 200 nations . . .

Language. Data was also available on the language spoken. One would think that this would closely track nationality. However, English was surprisingly the language listed for significant numbers of individuals coming from non-English speaking countries. For example, among those from Mexico or from the Dominican Republic, nearly one in four listed English rather than Spanish. Further, English speakers outnumbered Vietnamese speakers for those from Vietnam. Overall, 45 percent recorded English as the language they spoke. While the reasons may be varied, this may in part reflect the extent of their integration into the United States given the relatively long period of time many had been in the United States. Indeed, the data generally showed length of stay in general averaging longer for those from non-English speaking countries who had listed English as the language spoken.

While there are many other characteristics one might like to know such as family status and employment, data are not available at this point to paint any more detailed picture of individuals charged.

Characteristics of Criminal Offenses

Table 3: Grounds for Deportation
Additional Charges Number Percent
none 71,902 45.9
controlled substance 41,263 26.3
controlled substance plus other 9,994 6.4
other charge 25,222 16.1
other charges 8,332 5.3

Unfortunately the data currently available shed only limited light on the criminal offenses that gave rise to the aggravated felon charge. As shown in Table 3, 46 percent of the individuals were charged ONLY with being an aggravated felon. An additional 33 percent of those charged as an aggravated felon were also charged as having a criminal conviction for a controlled substance. This ground in the law is very broad, encompassing convictions for violating "any law or regulation of a state, united states, or a foreign country relating to a controlled substance." This provision, then, would include both drug traffickers and those with possession of small amounts of illegal drugs and we are not able to differentiate based on the data available. The remaining 21 percent showed some other type of additional charge, but not one related to a controlled substance conviction.

Trends over Time

Note: The figures reported here are confined to charges brought under the 1996 aggravated felony provisions of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). They do not include charges brought under the aggravated felony provisions that predate this IIRIRA. More compreshensive data received subsequent to the publication of this report includes activity under both the 1996 and prior provisions. See TRAC's more recent report, New Data on the Processing of Aggravated Felons.

As shown in Table 5, the number of individuals charged as aggravated felons in deportation proceedings in immigration court has been declining over time. In the earliest year with full data, 1998, a total of 25,842 individuals reported these grounds. By 2005, the number had dropped to only 11,133 less than half its former volume.

Table 4: Persons Charged by
Calendar Year
Calendar Year Number of Persons
1997 (partial year)
19,179
1998 25,842
1999 23,523
2000 18,361
2001 15,235
2002 13,564
2003 14,369
2004 13,080
2005 11,133
2006 2,367
(partial year)

Note: The date of the deportation charging document was not given for 60 individuals.

It is unclear what these trends represent. While the figures could reflect an overall decline in the usage of aggravated felony provisions, they could equally reflect simply a shift by Immigration and Customs Enforcement (ICE) away from the immigration court to a reliance on administrative deportation orders. Until data become available on the number and trends in administrative deportation orders based upon aggravated felony provisions, the issue of overall trends cannot be resolved.

The Statistical Year Books of the immigration court, however, do suggest that the court at least believes that a general decline in cases in its "Institutional Hearing Program" for aliens incarcerated in federal, state, and municipal prisons or jails between 1997 and 2004 was due to greater reliance upon administrative orders. For example, the 2003, 2004, and 2005 reports each note: [This decline] "... may have been the result of the 1997 implementation of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. IIRIRA authorized DHS to decide some cases that were previously handled by the immigration courts ... [including] provisions authorizing DHS to order the administrative removal of convicted aggravated felons who are not Lawful Permanent Residents..."