The government's regulation of immigration involves many different kinds of activities; among them patrolling the borders, inspecting the people and goods flowing through official ports of entry and ensuring that those who live within the borders are legal aliens.
This report, however, focuses on a fourth broad effort: the official actions of the government seeking to deport those individuals it has determined are not legally entitled to live in the United States.
To document this very large and complex effort TRAC has analyzed millions of individual records it obtained under the Freedom of Information Act (FOIA) from each of two federal agencies. It has further obtained limited internal aggregate data from the Department of Homeland Security, and examined other data drawn from additional published government reports.
The first data source is the Executive Office of Immigration Review (EOIR). This small agency within the Justice Department is responsible for tracking all of administrative matters dealt with by the nation's immigration courts.
Through a detailed examination of the EOIR data TRAC was able to document over a long period of time the annual number of occasions when the Department of Homeland Security (DHS) and its predecessor agency — the Immigration and Naturalization Service (INS) — have sought deportation orders.
Note: Legal terminology has changed over time when referring to deportation, and we use "deportation" in a generic sense — whether legally labeled as removal, deportation, or expulsion based upon inadmissability grounds. Deportation, unlike "voluntary departure," carries with it penalties barring the alien from re-entering the United States for a term of years, sometimes for life.
Using the charge-by-charge details on each of the individual EOIR records, TRAC for the first time ever was able to document the underlying reasons why the government — DHS, INS, etc. — was seeking the individual deportation orders. How many times was deportation sought on the basis of charges relating to the violation of various immigration regulations such as entering the United States without inspection? How many times, on the other hand, did the government seek to deport an individual on the basis of administrative charges relating to criminal, national security or terrorism matters?
The over 4 million EOIR records that TRAC obtained stretch back for many decades. The work of classifying the charges into comparable immigration, criminal, national security and terrorism categories, however, has been completed for the fifteen year period from FY 1992 to date and is the primary focus of the accompanying report.
Because approximately four out of five of all deportation matters now flow through the immigration courts, the EOIR data provide valuable insights into immigration enforcement. Over the past decade, however, Congress has moved to give the DHS (and its predecessor the INS) new powers that in certain circumstances allow it to deport someone without bringing a charge before the immigration courts. One such procedure, authorized in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, affects some individuals who have been classified as "aggravated felons" (for definition, see earlier TRAC Report, Aggravated Felonies and Deportation). In FY 2006, a total of 10,448 aggravated felons were handled in immigration court versus 12,617 removed by DHS without prior court action. For more details see earlier TRAC Report, New Data on the Processing of Aggravated Felons.
A second procedure outside the immigration courts involves what is known as the "expedited removal process" (for discussion, see earlier TRAC report, Controlling the Borders). In FY 2005, the latest year for which data are available, there were just under 73,000 expedited removals reported. Most take place at ports of entry along the southwest border (although since 2005 the procedure can be used between ports of entry along the border) and principally involve aliens from Mexico with immigration-type entry violations. The Immigration Yearbook for 2005 states that DHS mostly "uses these procedures with aliens arriving at ports of entry who illegally attempted to gain admission by fraud or misrepresentation, or with no entry documents, or by using counterfeit, altered, or otherwise fraudulent or improper documentation."
While the EOIR records have some limitations, in other ways they provide more complete coverage of deportation matters than information on actual deportations published by the DHS. This is because seeking a deportation order does not automatically translate into an actual removal. Not all removal orders sought by the government are granted by an immigration judge. During fiscal year 2006, for example, of the 321,636 deportation matters disposed of by immigration judges, EOIR reported that only 197,843 resulted in an actual removal order being entered. Further, the presence of a removal order does not automatically mean that the alien is then removed. The historical record in fact shows that because of the government's inability to locate many aliens, due to a lack of enforcement staff or for other reasons, aliens frequently have not been removed even after a removal order has been entered.
While EOIR data currently do not cover every removal, the findings and trends that emerge from TRAC's analysis of deportation orders sought in the immigration courts parallel information collected and published by the Department of Homeland Security about this second step in the process: the actual removal of aliens from the United States and reasons that were listed for each action.
For example, like the data from the EOIR about numbers of deportation orders sought, the DHS information regarding removals show that an extremely small fraction of them — only 10 out of 208,521 of them in FY 2005 — were on "national security and related grounds." And similar to EOIR data, the DHS deportation numbers numbers were higher in times past than they have been either since the agency was created or since 9/11/2001 (see table).
A second example of the parallels in outcomes can be seen in DHS's published time series on actual removals where "criminal violations" was the administrative reason given for the removals. This time series shows that, similar to EOIR data and despite rising removals, the actual number of criminal removals does not show any consistent upward trend since either the establishment of DHS or since 9/11. While numbers where highest for FY 2004 (42,835), the next highest number is for FY 1999 (42,028) followed by FY 2000 (41,155) (see table, Series A).
DHS has yet another series (Series B in accompanying table) that reports removals based upon its use of the label "criminal" as a category that is not restricted to the reason the agency actually cited as the basis for removal. The result: a real difference between the counts in the series based on the primary charge cited by the immigration judge and the counts in DHS "criminal" series. Here is how the agency attempts to explain this result:
"A criminal alien...may not have a criminal charge as the reason for removal if, for example, the immigration judge did not have appropriate documents from the relevant criminal justice system."
Elsewhere, in a footnote in the Immigration Yearbook, DHS also noted: "Some aliens who are criminals may be removed under a different administrative reason (or charge) for the convenience of the government."
TRAC was able to compare the separate criminal series year-by-year going back to FY 1996. Trends are entirely different in this third series as compared with either the EOIR data or DHS's first series. Just comparing the two DHS series, the additional removals labeled criminal were about 37% higher back in FY 1996 than those with a criminal administrative basis. However, each year, the proportion of cases labeled criminal has risen. For FY 2001 the "criminal" on any grounds numbers were 81% higher, and by FY 2005 (the most recent published yearbook figures) it was 123% higher, or two and a quarter times the number of actual criminal removals based on the official reason (see table).
TRAC found the absence of any explanation for why the two DHS series should be rapidly departing from each other troubling. Furthermore, the agency has not responded to TRAC's long pending FOIA requests for supporting data. As a result of these unresolved reliability questions, TRAC did not use these figures.
Criminal Prosecutions and Convictions
The deportation of aliens as a result of administrative procedures is not the only enforcement avenue available to DHS. It also can bring criminal charges in federal district courts. While U.S. federal district courts do not have the authority to order an alien deported, they can determine that an individual has committed a crime and impose a prison sentence. The fact of a criminal conviction in federal court, or the estabished facts underlying this conviction, can later also be used by DHS as a reason for seeking a deportation order.
TRAC examined several sources of data to track criminal charges in federal district courts resulting from immigration enforcement by the DHS and its predecessor agency, INS. Again, there are major limitations in the figures publlshed by the DHS about its criminal indictments and convictions. The latest Immigration Yearbook gives one reason: "Changes in data systems, definitions, and reporting requirements related to the establishment of DHS had a significant impact on the reporting of data on ICE investigations beginning in 2004." Thus, a consistent time series tracking activity before and after DHS's formation is not possible from DHS sources.
A further limitation of DHS Immigration Yearbook figures on criminal prosecutions and convictions is that it only covers activity by ICE, and excludes criminal prosecutions and convictions resulting from referrals from other DHS units such as the Border Patrol which is part of Customs and Border Protection (CBP).
Accordingly, the accompanying report relies upon the more comprehensive case-by-case data TRAC has obtained under the Freedom of Information Act from the Executive Office for United States Attorneys in the Justice Department. These data allow defendant-by-defendant tracking at the time of referral and include the lead investigative agency as well as any supporting agencies, and follow the case through to its eventual disposition. Detailed information is recorded on each charge and its ultimate outcome, including any sentence imposed.