Findings are based upon a detailed analysis of the millions of records covering each deportation proceeding initiated by the Department of Homeland Security and its predecessor agency, the Immigration and Naturalization Service, in the Immigration Courts. These individual case records were obtained through requests made by the Transactional Records Access Clearinghouse (TRAC) under the Freedom of Information Act to the Executive Office for Immigration Review (EOIR), a unit within the Department of Justice in which these administrative courts are housed.
These courts were established by Congress to conduct deportation proceedings and decide "whether foreign-born individuals, who are charged by the Department of Homeland Security (DHS) with violating immigration law, should be ordered removed from the United States." Legal terminology has changed over time when referring to deportation, and the terms "deportation" and "removal" are used in a generic sense — whether legally labeled as removal, deportation, or expulsion based upon inadmissibility grounds.
To initiate a removal proceeding, the Immigration and Customs Enforcement (ICE) files a charging document, called a "Notice to Appear," in any one of these Immigration Courts. This charging document orders the individual to appear before an Immigration Judge and provides notice of the specific immigration violations ICE alleges support its request for the deportation order. An individual can be charged with more than one immigration violation.
This table lists each of the actual statutory provisions the government used as the basis for seeking a deportation order during the post-9/11 period (FY 2002 - FY 2011), along with the frequency with which each was relied upon. Because the government may file multiple charges to support a single deportation request, the table reflects the frequency with which each charge was used, not the number of individuals charged. To read the full text of these provisions, see 8 USC 1182 and 8 USC 1227.
What is Counted
Counts are based upon each new government filing that begins a deportation proceeding, and dates are based upon the initial filing date. To eliminate double counting, subsequent court proceedings based upon the same charging document are excluded. Thus, these counts differ from those for "new proceedings received" since the Immigration Courts frequently open a new numbered proceeding when a case is transferred or venue is changed, or a case is remanded back to the court following an appeal, or a proceeding is reopened at the request of either party. Also, only deportation proceedings are included, i.e., those in which DHS files a "Notice to Appear."
Under a range of provisions of the law, rather broad grounds are given for deportation or removal on either national security or terrorism grounds. To be deported for terrorism, for example, it is sufficient if "a consular officer or the Attorney General knows, or has reasonable ground to believe" that the individual "is likely to engage after entry [in the United States] in any terrorist activity."
In addition, a noncitizen is deportable if they have committed criminal acts listed in the immigration laws. But conviction is not always necessary. 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 criminal activity."
Noncitizens also are deportable if they have violated the immigration rules; for example, entered the country illegally, entered legally but overstayed their visas, or violated other procedural requirements.
Finally, although relatively rarely invoked, there are a number of so-called miscellaneous provisions in the law. These include "failure to meet labor certification requirements," having a "communicable disease of public health significance" and being "likely to become a public charge" or a "practicing polygamist." While these are included in the totals, they are not separately shown.
Based upon the records of the Immigration Courts, TRAC classified each of these removal proceedings, starting with those in FY 1992 and continuing to the present, on the basis of the particular charges that the government brought. Since each individual could face multiple charges, individuals were classified into categories according to their most serious deportable charge. Classification is based upon charges filed, and does not require that the charges ultimately be sustained.
In accordance with the DHS's announced priorities, in descending order of seriousness, these categories were: highest (terrorism), next highest (national security), middle high (criminal-aggravated felon), middle (other criminal), low (miscellaneous) lowest (immigration). Entry without inspection is a subclass within the immigration category if no other charge was present.
What Do Deportation Charges Reflect?
The government has frequently claimed that the charges asserted in the removal proceedings do not always cite the criminal activity that the individual had engaged in. Instead, the government says, an immigration violation by itself, such as illegal entry, alone may be used. The reason officials cite is that documentary evidence for the criminal activity may not be readily available. And, of course, the ultimate sanction — deportation — usually is the same regardless of the alleged violation.
On the other hand, critics raise the question of the reliability of the government's belief that criminal activity has taken place in the absence of some sort of documentary evidence. They also point out that confusion over names can result in misidentification unless there is documentation evidence to confirm that a specific individual was indeed the same individual to whom the crimes relate.
In any event, failing to charge criminal activity in the absence of documentation would not account for the downward trends generally seen in the assertion of criminal, national security and terrorism charges over time. The post-9/11 world has seen the increasing availability of rapid electronic communication for the transfer of documents, and the growing sophistication and inter-connectivity among government database systems, including the tie now between FBI's storehouse of criminal history and fingerprint records and DHS's own database systems. Accordingly, this justification for not citing criminal activity when filing deportation charges appears less relevant in the modern era than in past periods.
There has been a decline in the use of the "aggravated felon" charge in Immigration Court proceedings (see TRAC reports of June 2006 and January 2007) that occurred during the nineties as a result of a 1996 legislative change. As a result, after 1996, the government was given authority to administratively deport so-called "aggravated felons" and only had to obtain an Immigration Court deportation order for permanent legal residents ("green card" holders). TRAC's Deportation Proceedings app divides criminal charges into two subtypes: charges under the "aggravated felon" provisions versus other criminal provisions so that these trends can be separately examined.
Examining the Data Using TRAC's Deportation Proceedings App
The following is information about TRAC's specially designed interactive app and how you can use it to examine more detailed data by charge on all deportation proceedings initiated in the Immigration Courts over the last two decades:
Fiscal Year.The federal government's fiscal year goes from October 1 through September 30 of the following year. For example, fiscal year 2010 covers the period October 1, 2009 through September 30, 2010.
Immigration Court. There are over fifty Immigration Courts located in different parts of the country that under the law are responsible for handling deportation proceedings in their geographic district. Courts are usually referred to by the city or place where they are located — what EOIR refers to as their "base city."
Hearing Location. Each Immigration Court usually has more than one geographic location in which judges hold hearings. Some hearing locations are in state, local or federal prisons for aliens serving time, or in detention facilities for individuals who have been detained pending the outcome of their Immigration Court case. Sometimes videoconferencing is used so that the alien and judge are not physically present at the same location. Normally a hearing location is administered by a single Immigration Court. However, occasionally a case at a hearing location normally assigned to one Immigration Court ends up being handled by a different Immigration Court.
State. The state or territory where the Immigration Court assigned administrative responsibility for the case is located. Note that the actual hearing location may be in a different state. See this detailed list of hearing locations in states that differ from the state in which the Immigration Court itself is based.
Nationality. The recorded nationality of the alien in the proceeding.
Additional TRAC Immigration Enforcement Data and Tools
To access additional data using other TRAC immigration enforcement tools, go to this directory of data tools.