The Rhetoric, The Reality
An examination of millions of previously unavailable government records indicates that repeated official statements about the immigration enforcement efforts of the United States are misleading and may have contributed to a widespread public misunderstanding about the essential nature of this program.
The new and well-documented view of the nation's massive immigration enforcement program has been made possible as a result of a Transactional Records Access Clearinghouse (TRAC) analysis of millions of detailed records obtained from the Immigration Courts (EOIR) under the Freedom of Information Act. These administrative courts, part of the Justice Department, are a key part of the government's program to deport or remove undocumented aliens as well as noncitizens who have been granted legal status to be in this country.
The massive study of the administrative actions in the immigration courts has been supplemented by a separate examination of other records collected by the Executive Office for U.S. Attorneys (EOUSA) that document criminal prosecutions in U.S. federal district courts.
To TRAC's knowledge, such a broad inquiry of a core part of the nation's immigration regulation program through these two lenses has never previously been undertaken. Among the key findings of the study are the following:
The questions raised by the minuscule number of terrorism and national security charges brought in immigration court — the combined total only came to 126 — were reinforced by other findings. Focusing solely on the terrorism charges brought in the period, for example — 14 charges against 12 individuals — six were withdrawn by the DHS, one was not sustained, two are still pending, one was otherwise dealt with and only four were sustained.
The apparent gap between DHS rhetoric about its role in fighting terrorism and what it actually has been doing also can be seen in different data that TRAC has obtained from the Executive Office for U.S. Attorneys in the Justice Department. Here is the background. Depending on many factors such as the strength of the available evidence, DHS investigators can choose to recommend the criminal prosecution of individuals in federal district court rather than bringing administrative charges in the immigration courts. While the worst possible sanction in immigration court is deportation, an individual found guilty in federal district court can be sentenced to prison, sometimes for many years. As a result of investigations by all federal agencies — primarily the FBI — the Justice Department data show that during the FY 2004-2006 period a total of 620 prosecutions were filed against individuals categorized by the prosecutors as international terrorists, domestic terrorists or terrorism financiers.
Of these 620 prosecutions, however, the data further show that the immigration enforcement components of DHS — Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), Citizen and Immigration Services (CIS) or the former Immigration and Naturalization Service (INS) — were described as the lead investigative agencies in just a tiny fraction of the total. The numbers: only 28 individuals charged as international or domestic terrorists or for terrorism financing from FY 2004 to 2006 were referred by DHS investigators. The Justice Department data credited DHS assisting the FBI in three additional individual prosecutions bringing the total to 31.
As is true of the terrorism convictions resulting from investigations by all federal agencies, the sentences credited to the DHS were not impressive. Of the 18 who so far have been found guilty, 8 of the convicted received no prison time, and only two were sentenced to as long as five years. See also the recent TRAC report on criminal terrorism prosecutions since 9/11/2001.
Conflict Between Government Claims and Government Data
For the last few years, the speeches and congressional testimony of senior DHS officials and the reports and mission statements of the department's agencies have repeatedly declared that the core purpose of their immigration control efforts is to intercept terrorists, terrorist weapons, drug dealers, smugglers and a range of other criminals. As a result of this emphasis, the public understanding of the actual challenge facing the agencies in regulating immigration and Congress' consideration of the funds and special legal powers the agencies require to do their jobs may be somewhat skewed.
With no reference to the decades-old Immigration and Naturalization Service that ICE replaced, the report said that ICE was created in March 2003 as a part of the Department of Homeland Security (DHS) "from the crucible of the terrorist attacks of September 11, 2001."
"The mission of ICE," the report continued, "is to protect America and uphold public safety by targeting the people, money and materials that support terrorist and criminal activities. ICE fulfills this mission by identifying criminal activities and eliminating vulnerabilities that pose a threat to our nation's borders, as well as enforcing economic, transportation and infrastructure security. By doing so, ICE seeks to eliminate the potential threat of terrorist acts against the United States."
Agency executives repeatedly echo the thrust of the mission statements and annual reports. Julie L. Myers, for example, is the assistant secretary of DHS who heads ICE. On April 20, 2007 Myers addressed a conference of immigration lawyers, many of whom regularly represent clients charged by the government with administrative non-criminal violations that have little apparent connection to terrorism or traditional kinds of crime.
"I'm proud," she told the conference, "that we are entering our fourth year of service to the American people and our mission remains clear — to protect the United States and uphold public safety by targeting the people, money materials that support terrorists and criminal activities."
Myers had made almost exactly the same claim in numerous statements to House and Senate Committees. So have her associates. Marcy M. Forman is the director of investigations at ICE. In testimony to a Senate subcommittee in March of 2006, she said "our mission is to protect the American people by combating terrorists and other criminals who cross the Nation's borders and threaten us here at home." (The court data indicate that all but one of the handful of individuals so charged appeared to have entered the country legally.)
The court data, in fact, document that a significant proportion of ICE's enforcement activities involve straightforward immigration charges — and not those involving terrorism, national security and criminal violations. While the events of 9/11 mean that fighting terrorism must of course be an important consideration for DHS, the very extensive work-product data obtained and analyzed by TRAC indicates that the traditional regulation of immigration to this day remains central to the activities of both ICE and CBP — the two leading immigration enforcement agencies within DHS.
A highly experienced former government official and a number of immigration lawyers have told TRAC that DHS investigators sometimes file charges against individuals that are less serious than the agents felt were warranted by the facts. The explanation they gave for this undercharging: while more serious charges often are harder to process in the immigration courts than lesser ones, the ultimate possible sanction — deportation — usually is the same regardless of alleged violation. Therefore, they said, in some instances lodging more serious charges was of little advantage to the government. (Court records do show, however, that half of the tiny number of persons charged with terrorism also were charged with immigration violations.)
Considered together, therefore, it seems plausible that the very small number of terrorism charges recorded in the Immigration Court data and the handful of criminal cases in this area attributed to DHS in the Justice Department data may somewhat understate the department's total terrorism efforts in the immigration arena.
But it is impossible to precisely measure how often lesser charges are filed instead of more serious ones for the administrative convenience of the government, or to determine the exact impact this practice may be having on the composition of the cases considered by the immigration courts. A study by the Government Accountability Office (GAO) in March of 2006, however, found that only 10 to 15% of the investigative resources of ICE's Office of Investigation were being used for national security purposes. (This study was based on DHS data rather than information from the Immigration Courts.) Thus, the GAO's independent report suggests that the broad finding that emerged from TRAC's analysis of the immigration court data is on the mark.
Why We Should Care
Although many, perhaps even a majority, of officials — including a substantial number of Senate and House members — have applauded the government's repeated statements about terrorism, a few have argued that they are damaging. One such skeptic is Zbigniew Brzezinski, a national security adviser to President Jimmy Carter who now is associated with the Johns Hopkins University School of Advanced International Studies.
In a March 25, 2007 essay in the Washington Post, Brzezinski said that the Bush Administration's elevation of the words "war on terror" to what he called a "national mantra" has "undermined our ability to effectively confront the real challenges we face from fanatics who may use terrorism against us."
While arguing that the constant repetition of the phrase has subverted its value for analytic purposes, Brzezinski also contended that its heavy use has "stimulated the emergence of a culture of fear" that "obscures reason, intensifies emotions and makes it easier for demagogic politicians to mobilize the public on behalf of the policies they want to pursue."
Michael Chertoff, the secretary of the DHS, took exception to Brzezinski's views. Every day, the secretary said in his response, he sees threat assessments and other evidence of a militarized and networked foe who, in the absence of "relentless vigilance and effort from the civilized world," eventually could "gain control of a state or establish a network of radical 'statelets' in the Middle East, Africa and Asia." He added that while "the rhetoric of war" may make Brzezinski and others uncomfortable, "complacency is a dangerous indulgence in the face of a determined enemy."
Without weighing in on the fear versus complacency debate, a clear and straight forward public understanding of what the government actually is doing is much more important to the working of representative democracy than undocumented rhetorical statements.
The control of the nation's borders has been a contentious issue ever since 1798 when Congress adopted four laws that collectively became known as the Alien and Sedition Acts. But it wasn't until 1882 that the first comprehensive immigration law was passed and authority to administer it was delegated to the Secretary of Treasury. With the bombing of the federal building in Oklahoma in 1995 and the approval by Congress in 1996 of the Anti-terrorism and Effective Death Penalty Act, the nature of what was then known as the Immigration and Naturalization Service and the Customs Bureau began to change. But it was in March of 2003 that the various agencies directly involved in the control of the borders and immigration regulation were transferred into the brand new Department of Homeland Security and the stated goals of this part of the government to fight terrorism were set in stone.
The data show that four out of five of all immigration enforcement actions by the DHS seeking the removal of an individual from the U.S. — whether initiated by ICE or CBP — involve administrative charges that ultimately are considered by the 200-plus immigration judges employed by the Executive Office of Immigration Review (EOIR), an agency within the Justice Department. Thus the Immigration Courts in most situations are the central mechanism through which ICE and CBP deport unwanted aliens from the United States (see About the Data). While little known to the public at large, the workings of the Immigration Courts are in fact central to the intense debate in Congress and among the immigration groups about the handling of hundreds of thousand of individuals apprehended by government agents.
ICE and CBP, and their predecessor agencies in the world before September 11, have long published annual reports with considerable, but still limited, statistical information. But neither have ever provided detailed case-by-case data. Under the Freedom of information Act, however, TRAC has obtained details about many millions of immigration matters — mostly initiated by DHS — which have been collected by the courts.
Profile of DHS Activity
As noted above, despite the repeated statement by the DHS that stopping terrorism and preventing serious crime are its core missions, the record shows that since the DHS was established in the wake of 9/11/2001, most of the agency's actual work recorded in the Immigration Courts has focused on traditional immigration matters. This is true even though under the law the DHS is free to file other kinds of administrative charges involving traditional criminal matters like drug trafficking or more serious situations involving terrorism or national security. What follows is a more detailed look at the agency's priorities, as reflected in the charges brought against individuals in Immigration Court.
Next to EWI charges, the most common immigration charge is a very generic one: "Any alien present in violation of the Immigration and Naturalization Act." In descending order, other non-EWI immigration charges in the top five are: no valid immigration visa, non-immigrants who are legally admitted but fail to maintain their status, aliens who are inadmissible, and fraud or willful misrepresentation to procure a visa or other document for admission (see this list of the most frequently charged statutes in each category). When persons charged only with these administrative immigration violations (including EWI) are combined, they make up over 6 out of every 7 individuals charged by DHS in Immigration Courts during the past three years (see Figure 2).
What makes up the remainder? Most of the balance fall under the label of "criminal" matters. Strictly speaking, this does not mean that the individual was ever convicted of a crime. Under certain sections of immigration law, for example, it is only required that the officer "know... or have reason to believe" that the individual has engaged in an illegal activity for that individual to be subject to a criminal charge. However, certain other immigration law provisions grouped under the "criminal" category do require a prior criminal conviction. Here the single largest category is the charge of being "convicted of an aggravated felony." (See prior TRAC Immigration Project reports, New Data on the Processing of Aggravated Felons and Aggravated Felonies and Deportation.)
The next two most frequent criminal charges are those involving "moral turpitude" and "controlled substance violations." For both of these, no actual prior criminal conviction is required. In fact, of the top five charges categorized by immigration law as criminal charges, only two of the five — the charge for conviction for an aggravated felony (ranked first) and the charge of being convicted of a controlled substance offense (ranked 4th) — require prior criminal convictions of any kind. (See this list for specific statutes.)
Immigration law also includes "Miscellaneous" charges. In the last three years, relatively few individuals — 2,794 individuals out of 814,073, or 0.3% — were charged under these miscellaneous provisions. The most frequently used miscellaneous provision was for an alien "likely to become a public charge." Although relatively rarely invoked, there are a host of possible miscellaneous charges from "failure to meet labor certification requirements," those with "communicable disease of public health significance," to "practicing polygamists."
There are also a number of separate charges in immigration statutes that fall under the category of "national security" or of "terrorism." Potential "national security" immigration charges include: "export of goods, technology, or sensitive information," "any criminal activity which endangers public safety or national security," "any alien who poses serious adverse foreign policy consequences for the U.S.," "any activity to violate any law relating to espionage or sabotage," "commission of acts of torture or extrajudicial killings." National security charges also include more generic charges where the connection to national security seems more tenuous, such as "aliens... fallen into distress" or:
"Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in... any other unlawful activity."
Indeed, while national security charges were rarely brought in the last three years — only 114 individuals out of 814,073 were so charged — the most common charge during this period was the broad one last mentioned requiring only belief of intent to engage in other unlawful activity.
Immigration law also sets rather broad grounds for deportation or removal under the charge of "terrorist activities." The grounds include providing "material support" to "any individual or organization or government" conducting a terrorist activity, or "membership in a foreign terrorist organization designated by the Secretary of State." It is sufficient if "a consular officer or the Attorney General knows, or has reasonable ground to believe... [an individual] is likely to engage after entry in any terrorist activity."
As noted earlier, DHS has only brought charges during the past three years against 12 individuals (out of 814,073) under any of these grounds. For all but one individual charged under the terrorist label, the section under which they were charged suggested that these individuals had all initially entered the United States legally — they were not individuals who had attempted to slip across our borders. They also were from diverse nationalities: three from Jordan, two from Pakistan, one each from Cambodia, Cameroon, Dominica, Dominican Republic, Germany, Haiti and Liberia.
Impact of 9/11 and Transfer of Enforcement of Immigration Laws to DHS
TRAC's examination of close to 4 million immigration court records — going back more than 35 years — indicates that the government's focus on immigration-type violations rather than criminal or national security charges is nothing new.
To see whether the transfer of immigration enforcement into a new Department of Homeland Security and the events of 9/11 had any observable impact on the focus of immigration enforcement, TRAC examined the immigration court records from FY 1992 through 2006, focusing on the nature of the charges brought for deportation (now usually called "removal") proceedings (see About the Data). Given the detailed nature of the charge records maintained by the Immigration Courts, it was possible to classify these charges under each of the major headings used in immigration law applicable during each year for this period. Given our interest in tracking the national security-type charges, FY 1992 was chosen as our starting point because it was the first full year after passage of provisions of the 1990 Immigration Act (Public Law 101-649 passed November 29, 1990) which clearly segregated offenses under labels such as "criminal and related grounds," "security and related grounds," etc. and included a specific grounds for exclusion/deportation for "terrorist activities."
Indeed, simply in terms of numbers of individuals charged, more individuals were charged each year in Immigration Courts during the nineties for national security and terrorism than has occurred annually since 9/11/2001. For the period FY 1994 to 1996, 185 individuals were charged in immigration court with national security offenses, and 52 with terrorism offenses. But a decade later, national security charges were brought against 114 individuals, down about a third. Meanwhile for the same period, terrorism charges are down more than three-fourths, to just 12. (See Figure 4 and associated table.)
Because the volume of cases has increased over this period, declines are even more marked when caseload percentages rather than case numbers are compared. For example, for the period FY 1994 to 1996, national security charges made up 0.031% percent of all immigration charges against individuals; for the FY 2004 to 2006 period, this proportion is down to 0.014%. For the FY 1994 to 1996 period, terrorism represented 0.009% of immigration charges; ten years later, this is reduced to 0.0015%.
In addition, despite a rising volume of government filings seeking deportation orders, the absolute numbers involving criminal charges have not increased in either criminal category since FY 1997 when criminal charge volumes peaked (see table, and About the Data).
The Bottom Line
Despite the constant official talk by ICE officials about its war on terrorism campaign, the data on national security and terrorism charges clearly show declining long term trends back to 1992. The incidents of 9/11/2001 and the creation of the Department of Homeland Security appear to have had little discernable impact on these trends.