In the decade since the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) were created in the wake of 9/11/01, senior officials in these agencies have repeatedly asserted that their primary enforcement mission was to deport terrorists, persons who threatened the national security and serious criminals from the United States.
An examination of millions of case-by-case government records about the day-to-day actions of the DHS and ICE, however, has determined that these frequent claims — made by senior executives under both President Bush and President Obama — are misleading.
The contrast between the official pronouncements and actual achievements of the government during the last twenty years has been documented in an analysis by the Transactional Records Access Clearinghouse (TRAC) of case-by-case records of all deportation proceedings initiated by ICE, and its predecessor agency (the Immigration and Naturalization Service, or INS), in the Immigration Courts.
The data — current through July 26, 2011 — were obtained by TRAC under the Freedom of Information Act from the Executive Office for Immigration Review (EOIR) which maintains these official immigration court records.
What The Government Has Done
Key findings from these government records are:
A decade-by-decade comparison of all removal proceedings initiated in the Immigration Courts seeking to deport individuals from the United States shows substantial growth — from 1.6 million in the decade before 9/11 to 2.3 million in the ten years after.
But a comparison of the kinds of deportation proceedings in both the pre-and-post 9/11 periods documents that the actual numbers of those aimed at criminals, national security threats and terrorists have all declined rather than increased (see Figure 1). On the other hand, the total number of those charged with purely immigration violations has sharply increased — 1.2 million before the attacks, 1.9 million after.
Deportation proceedings on terrorist or national security grounds, always an extremely rare event, have become even rarer (see Figure 1). In the decade before the 9/11 attacks, for example, there were a grand total of 88 matters involving terrorism charges. For the ten years after 9/ll there were 37 such cases.
When examined in terms of the activities of the two administrations, the annual average number of deportation proceedings since 9/11 increased from 219,941 a year under President Bush to 246,572 a year under President Obama. There appears to have been some improvement in targeting, with those charged with criminal immigration violations rising (see Figure 2). But these targeting changes have been modest.
In addition, the new deportation proceedings initiated in the last 12 months indicate that the initial small gains achieved by the Obama Administration are now disappearing. The recent downward trend in filings charging criminal violations are shown in Figure 3. In the last six months (January — June 2011) the proportion of deportation proceedings charging criminal violations has actually fallen below the average level in the Bush years.
The above findings are based upon the deportation actions initiated by ICE in the Immigration Courts. Other parts of the government's overall deportation efforts were accomplished by unilateral DHS administrative actions or channeled through the federal district courts. The actual effectiveness of criminal prosecutions — which did indeed substantially increase during the Obama years — will be the second of TRAC's planned series of reports on this important subject.
New User App Provides Up-To-Date Information on Deportation Proceedings
To obtain annual state-by-state, court-by-court, hearing office-by-hearing office and nationality-by-nationality information about these deportation filings in the decade before and after 9/11 click here.
The actual initiation of deportation proceedings by DHS (and its predecessor agency the INS) — displayed in the app and described in summary form just above — are core to an intense political debate that has engulfed the United States since the 9/11 attacks. This debate has been highlighted by numerous broad claims made by officials serving under both President Bush and President Obama.
A central aspect of this long-running dispute has been the extent to which ICE and other agencies have in fact sought to deport serious criminals rather than the many millions of noncitizens who now live in the United States and who entered illegally, or entered legally but overstayed their visas or have fallen afoul of the complex welter of other immigration rules.
The aim of TRAC's new user app is to allow the public to directly examine the detailed records of government deportation activities in the Immigration Courts.
What Government Officials Claim Has Been Done
Among the first in the post-9/11 period to assert that ICE's central enforcement goal was to target terrorists and criminals and not immigration violators was Julie L. Myers, the first director of ICE. At a conference of immigration lawyers in 2007, for example, Myers reported she was "proud that we are entering our fifth 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 and materials that support terrorists and criminal activities." In her testimony to Congress and in various speeches, Myers continually emphasized her commitment to targeting criminals and terrorists.
In that same period, Marcy M. Forman, was the director of investigations for ICE. In testimony to a Senate subcommittee in the spring 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."
In June of 2009, John Morton — the Obama Administration's Director of ICE — testified before the House Homeland Security Committee. Morton heavily emphasized his agency's role "in locating and removing criminal aliens within the United States."
One year later, on June 30 2010, Morton issued a memorandum to his staff stating that because ICE had limited resources it had to make sure its removal efforts were directed at the agency's "highest enforcement priorities, namely national security, public safety and border security."
In a Homeland Security blog on August 26 2010, the ICE director repeated this claim. "Under this Administration, ICE has focused its efforts on removing criminal aliens, recent border entrants, and immigration fugitives. The results have been unprecedented. Last fiscal year, ICE removed a record 389,000 illegal aliens from the United States, 136,000 of whom were criminals. So far this fiscal year, we have removed a record 170,000 criminals and have placed more people—criminal and non-criminal—in immigration proceedings than ever before."
In a significant announcement just two months ago, Morton ordered a case-by-case review of the more than 300,000 pending removal proceedings. His memorandum in effect acknowledged that the stated goals frequently announced by him and his predecessor had not been achieved. Almost a decade after the agency had been established, Morton said that "ICE must prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as is reasonably possible, the agency's enforcement priorities." These priorities, he continued, include the "promotion of national security, border security, public safety and the integrity of the immigration system."
Late last month, Janet Napolitano, the secretary of DHS, joined the debate. "The numbers are going to be very robust in terms of numbers of removals," she said during a breakfast hosted by the Christian Science Monitor. Napolitano added that as a Obama Administration program called "Secure Communities" kicked in, she expected "the ratio [of criminal to non-criminal] will increase."
Different Channels in the Deportation Process
TRAC's report is the first in a three-part series examining each of the channels through which the government acts to deport noncitizens from this country. The most frequently used, and perhaps the oldest official channel, is the government's initiation of deportation proceedings in the Immigration Courts. These courts — actually administrative bodies within the U.S. Department of Justice — 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."
This report focuses on these deportation actions.
Congress, however, under specific and more limited circumstances, has authorized the DHS to issue administrative removal orders which bypass the Immigration Courts. And finally, while the U.S. federal criminal court system was never designed to decide deportation matters per se, in the decade since 9/11 there has been a de facto "criminalization" of immigration violators. With a sharp ramp up of criminal prosecutions for illegal entry and reentry, the federal criminal courts have in a sense become an important byway in the deportation process (see, for example, TRAC's recent report tracing this activity). As noted above, forthcoming reports will examine these additional channels (see Deportation Overview: Who is Doing What?).
Because the regulation of immigration has become highly politicized and involves multiple federal agencies and a wide range of different programs, making a complete overall judgment is a challenge. Adding to TRAC's difficulties in this research has been the unlawful withholding by ICE of case-by-case information similar to that which TRAC now regularly receives from the Justice Department even on these very same immigration court proceedings.
Before and After 9/11/01: What the Record Shows
The government initiates a deportation proceeding by setting forth the legal basis that entitles it to deport an individual. Under a range of provisions of the law, for example, rather broad grounds are given for deportation or removal on either national security or terrorism grounds. To be deported, 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."
Finally, noncitizens are deportable if they violated the immigration rules, e.g., entered the country illegally, entered legally but overstayed their visas, or violated other procedural requirements.
Based upon the records of the Immigration Courts, TRAC classified each of the 1,577,171 individuals charged before 9/11 and each of the 2,279,305 individuals charged after 9/11 on the basis of the particular violations that were brought and then grouped individuals into the above four categories (plus a small number who violated miscellaneous provisions) according to their most serious deportable charge. Details on each and every violation charged during the ten years since 9/11, along with the frequency the provision was used, is found in an appendix table to this report.
In accordance with the DHS's announced priorities, in descending order of seriousness, these categories were: highest (terrorism), next highest (national security), middle (criminal), lowest (immigration).
Here are the results:
Terrorism. A total of only 88 individuals out of the more than one and a half million in the decade before 9/11 were charged under a terrorism removal provision. Clearly their numbers were extremely rare. In the decade after 9/11, however, their numbers became even rarer, dropping to only 37. This surprising decline occurred even while there was a huge ramp up in the overall number of removals.
National Security. Instances where a removal was sought on some other "national security" grounds were also rare in the decade before 9/11 — 384 or in less than 2 out of every ten thousand removal proceedings. As was the case under terrorism, they too became even rarer after 9/11, dropping to only 360.
Criminal. Individuals charged with having committed some sort of criminal offense were more common. But even so they still represented fewer than one out of four (22.8 percent) of the 1.6 million charged during the decade before 9/11. By comparison, even though there was a vast increase in all deportations in the post-attack period, the actual count of criminal filings dropped. Furthermore, when examined in percentage terms, those charged with committing a crime fell from 22.8 percent in the decade before to 15.2 percent after 9/11.
Immigration. In the decade before 9/11, the charges against three out of ever four (75.7 percent) were limited to immigration violations. Since 9/11 this component had grown, increasing to nearly six out of every seven of all individuals (83.2 percent). And, in sharp contrast to the announced priorities, this category was the only one that saw real growth in numbers — shooting up from 1,193,564 before the attacks to 1,896,717 in the decade after.
The stark contrast between what was said and what was done, as shown earlier in Figure 1, is summarized below in Table 1.
Post 9/11: Presidents Bush and Obama
The decade since 9/11 spans two presidential administrations. To determine how each administration measured up to its rhetoric, TRAC separately examined the activity of both.
Volume Up. During the Bush years, on average, the government initiated removal proceedings on 219,941 individuals a year. During the Obama administration, the annual average volume of removal proceedings rose to 246,571 — up 12 percent.
Changing Criminal Focus. Those charged with criminal violations of the immigration law rose faster — up 18 percent. Thus, in the Obama years as a whole, there were measurable increases in the level of deportation proceedings, measured by both their actual counts and by the proportion of the total charged with criminal violations. These results are shown in Table 2, and earlier Figure 2.
However, as shown in Table 2, the rise during the Obama years has been quite modest. Thus far, only 15.7 percent of all individuals on which removal proceedings were begun were charged with a criminal violation of the immigration statutes.
But Noncriminal Violators Still Dominate. More than four out of every five (82.8 percent) were not charged with any criminal violation, nor was any claim advanced that they were a terrorist or posed a security risk.
Thus, the performance during the Obama years — except for the increase in the overall number of deportation actions — falls far short of its rhetoric.
These findings also are consistent with TRAC's earlier studies which found the buildup in immigration enforcement under Bush — contrary to that administration's rhetoric — was solely concentrated among garden variety immigration violators — not those posing any particular risk to public safety. And also that under Obama there had been an upturn in the actual focus on deporting criminals (see TRAC's February 2010 and August 2010 reports).
Very Recent Trends: Last 12 Months Under President Obama
As noted above, in both speeches and policy memorandums, the director of ICE under President Obama has emphasized and reemphasized the importance of the agency focusing its resources on high priority suspects. During the post-9/11 years Congress had provided more and more dollars for beefed-up immigration enforcement. However, this open checkbook era now appears to be coming to an end. Indeed, fiscal austerity and cutbacks are under active discussion.
At the same time, a controversial program known as Secure Communities started under President Bush continues to expand. Under this program, fingerprints obtained by local and state police and sheriff offices that are routinely submitted to the FBI are now passed onto ICE by the bureau. As the head of DHS has noted, this new procedure has greatly expanded the potential flow of individuals into the deportation pipeline.
To see current trends, Table 3, examines deportation proceedings during the last six months, January — June 2011, and compares these with previous six months periods during the two and a half years of the Obama Administration.
Focus Again Shifting.While in the first months of the Obama Administration there was an increase in deportation proceedings for criminal immigration violations, levels soon flattened out. Then during the last twelve months both the volume of removal proceedings and the relative proportion of those charged for criminal immigration violations have been declining.
Criminal Deportation Proceedings Drop. In sheer numbers, the actual count of those charged with criminal violations has fallen by 22 percent from the comparable period one year ago.
The data thus document that while the Obama administration initially managed to increase the number of individuals placed in deportation proceedings for criminal activities, the trend now is in the reverse. While the volume of all deportation proceedings during the last 12 months still exceeds the average annual level under the previous administration, the proportion of deportation proceedings charging criminal violations has fallen below the average level during the Bush years.
Deportation Proceedings and Charge:
As mentioned above, TRAC also compiled similar statistics for trends by charge for each nationality, and according to where in the country — by state, Immigration Court, and hearing location — deportation proceedings were initiated.
These can be examined in the new user app that has been created to follow deportation proceedings for each immigration violation charge category during the last twenty years. Details are provided on whether the individual was charged as a so-called "aggravated" felon, or charged under some other criminal immigration violation. Those charged for entry without inspection are also separately enumerated among the wider class of immigration violators.
Users can view annual trends from FY 1992 though FY 2011 (current as of July 26), or examine the detailed figures for any year for any combination of nationality and location.
As the presidential election comes closer, the government's handling of immigration enforcement is certain to become a major political issue. What do the heads of agencies claim they are doing? What in fact is being done? The aim of this report on deportation proceedings in the Immigration Courts, as well as the forthcoming reports on criminal prosecutions and administrative deportation actions, is to provide the public with a more complete picture of what has occurred and what has not occurred over the last two decades. We hope these reports, along with the accompanying data app, will help inform the ongoing public debate over national immigration practices.
 Legal terminology has changed over time when referring to deportation, and we use "deportation" and "removal" in a generic sense — whether legally labeled as removal, deportation, or expulsion based upon inadmissibility grounds.